The Scope of Congressional Power - Sept. 14 Flashcards
May Congress exercise powers other than those specifically enumerated in Article I of the Constitution? (Q)
Yes. In addition to Congress’s enumerated powers, Congress also has implied powers. Moreover, several amendments to the Constitution provide Congress with enforcement powers for the amendments’ substantive provisions.
What express limits does the Constitution place on Congress’s powers? (Q)
The Constitution specifically prohibits Congress from:
suspending the writ of habeas corpus, except in cases of rebellion, invasion, or when public safety requires it;
passing laws that take effect retroactively, otherwise known as ex post facto laws;
drawing money from the treasury unless an appropriation is made by law;
preferring commerce or revenue from one state’s ports over another’s; and
issuing titles of nobility.
The Tenth Amendment is also a type of limitation on Congress’s power; it reserves for the states and the people those powers not specifically granted to the federal government or expressly denied to the states.
What implied power does the Necessary and Proper Clause in the U.S. Constitution give to Congress? (Q)
The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the implied power to take any actions that are necessary and proper to carry out any express constitutional powers. The Necessary and Proper Clause cannot authorize congressional action on its own and must always be combined with another power. If Congress legislates at the outer limits of its express powers, the U.S. Supreme Court will often rely on the Necessary and Proper Clause as a basis for sustaining the constitutionality of the statute.
The Court has interpreted the Necessary and Proper Clause broadly to allow Congress to exercise a variety of non-enumerated powers, such as setting a federal minimum wage (implied by the enumerated power to regulate interstate commerce) and criminalizing mail fraud (implied by the enumerated power to establish post offices).
How have courts interpreted Congress’s implied powers under the Necessary and Proper Clause? (Q)
The U.S. Supreme Court has held that the Necessary and Proper Clause authorizes Congress to exercise any incidental or implied powers that are useful or essential to the exercise of its enumerated powers or any other power granted to the federal government, as long as the ends and means of exercising those powers are constitutional.
May the Necessary and Proper Clause serve as the sole basis for an exercise of congressional power? (Q)
No. The Necessary and Proper Clause does not authorize congressional action on its own. The clause must be combined with another power to serve as a source of authority for any congressional act.
What enumerated powers does Congress possess with respect to war, defense, and foreign affairs? (Q)
The Constitution enumerates a variety congressional powers related to war, defense, and foreign affairs. Congress has the authority to:
declare war under the War Powers Clause (sometimes called the Declare War Clause);
raise and support the army and the navy;
create a code to govern the conduct of the members of the federal military under the Make Rules Clause; and
organize, arm, and call forth the militia to execute laws and repel invasions under the Militia Clauses.
The Constitution divides powers related to war, defense, and foreign affairs between Congress and the president.
Has the U.S. Supreme Court interpreted Congress’s war powers broadly? (Q)
Yes. The U.S. Supreme Court has interpreted the War Powers Clause broadly. The Court has concluded that the war powers vested in congress allow Congress to enact any legislation that is relevant to the war power, such as supporting ongoing war efforts or remedying the direct or indirect consequences of a war that has already ended.
May Congress establish military courts and tribunals? (Q)
Yes. Congress may establish military courts and tribunals. Congress may also authorize military trials under its war powers. The military courts and tribunals Congress establishes may have jurisdiction over members of the United States military or enemy militaries and combatants. However, military courts and tribunals cannot have jurisdiction over civilians.
A war effort was winding down. Troops were being demobilized and sent home. The demobilization caused a spike in the demand for residential apartments.
Can Congress use its war power to impose national rent controls on apartments? (Q)
Yes. Congress can use its war power to impose national rent controls on apartments. Congress can invoke the War Power to address any direct or indirect effect of a war. This power includes the ability to address economic effects associated with the end of hostilities.
Here, the demobilization of troops involved in a war effort caused a spike in the demand for residential apartments as the troops came back to the United States. This spike in demand for apartments was an economic effect associated with the end of a war. Thus, Congress can use its war power to impose national rent-control rules on apartments to address this effect of a war.
Can treaties address subjects outside of Congress’s regulatory powers? (Q)
Yes. The treaty power can be used to reach subjects outside of Congress’s regulatory powers. Treaties can address any subject matter.
The conduct of foreign relations, including entering treaties, belongs exclusively to the federal government. Because conducting foreign relations can involve any subject matter, a treaty can also address any subject matter, even subjects normally reserved for state regulation. Thus, the treaty power also can be used to address issues normally reserved to the states under the Tenth Amendment if conducting foreign relations requires resolving conflicts involving those issues.
If a state’s activity does not conflict with federal law, can a state engage in foreign relations? (Q)
No. Even if a state’s activity does not conflict with federal law, the state cannot engage in foreign relations. The Compact Clause of the U.S. Constitution prohibits the states from engaging in any foreign relations regardless of whether the activity conflicts with an existing federal law. The power to conduct the nation’s foreign affairs belongs exclusively to the federal government.
Do federal treaties and executive agreements preempt state and local laws? (Q)
Yes. Federal treaties preempt state and local laws, as do executive agreements made between the president of the United States and foreign governments. This is because treaties and executive agreements execute foreign-policy objectives, and state and local governments may not engage in foreign relations.
Upset about a recent incident overseas, a state government adopted a law that prohibited a particular foreign country from owning any land within the state. However, the federal government previously entered into a treaty involving that country in which all the countries had agreed to allow open ownership of land in each other’s countries. A foreign national sued to maintain his property rights in the state. The foreign national claimed that the state law was preempted by the treaty.
Assuming the foreign national has standing to raise this argument, is the foreign national correct? (Q)
Yes. The foreign national is correct. A state or city cannot adopt or enforce a law, ordinance, or policy if doing so would impair federal foreign-policy objectives. The power to conduct the nation’s foreign affairs belongs exclusively to the federal government. Federal treaties execute foreign-policy objectives and preempt state and local laws. Thus, any state or local law that would conflict with a federal treaty automatically impairs foreign-policy objectives and is preempted. Further, state and local governments cannot conduct foreign relations.
Here, the state law banning foreign ownership of land within the state conflicts with the federal treaty allowing open ownership of land within the state. The conflicting law impairs federal foreign-policy objectives because the state sought to conduct foreign relations. Thus, the state law is preempted and the foreign national is correct.
