VII. National Legislative Power Flashcards
Commerce Clause
Authorizes Congress to regulate commerce with foreign nations and Indian tribes and among the states and within states
Supremacy Clause
the federal government is made supreme over the states when exercising its delegated powers.
War Power
Federal Govt has the sole right to raise keep and army and to declare war.
Treaty Power
federal govt is the only one who can negotiate and implement agreements with foreign nations. President makes the treaties and Congress advises and consents and sometimes implements
Necessary and proper clause
Congress can enact provisions incidental to their enumerated powers, and conducive to its beneficial exercise.
Test for Necessary + Proper clause
Doctrine of Implied Power
Congress may enact legislation so long as its ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends.
○ 1) End is within enumerated powers
○ 2) Close fit - legislation must be incidental or within the scope of enumerated
power (commerce, spending, taxing, etc)
○ 3) Not prohibited by the Constitution
3 limitations on taxes
- Uniformity Requirement for INDIRECT TAXES
○ Indirect taxes must have geographic uniformity i.e. it must be identically taxed in every state where applied - All direct taxes must be apportioned among the several states so that each state’s share of the total tax burden is proportional to that state’s share of the
national population. - Export Tax Limitation for INTERSTATE GOODS
○ Congress cannot enact a tax on exports from the state
Spending Power
to pay debts and provide for the common defence and general welfare o f the United States
regulating through taxes
Congress can use spending power to regulate areas it would otherwise have no
power to regulate by requiring states to comply with conditions to receive federal funds
affectation doctrine
Congress has the power to regulate any activity,
whether carried on in one state or many, which has any appreciable effect (whether directly or indirectly) on interstate commerce
3 Types of Commerce Clause can Control (Under Affectation Doctrine)
(1) The “channels of interstate commerce”
- e.g., interstate travel: ship channels and navigation, highways, hotels
(2) The “instrumentalities” or people that are involved in interstate commerce;
- e.g. cars, trucks, planes, ships, passengers, pilots
(3) The activities that have a substantial economic impact interstate commerce
Test For Commerce Clause
Step 1) Economic or Not?
- Can aggregate commercial activity and non-economic activity that is connected to a larger economic scheme
Step 2) Apply Test
-Test for Economic Activity: rational basis
- Test for Non-Economic Activity: Use Factors
1. Is there a jurisdictional element in the statute tying it to interstate commerce? (Lopez)
2.Are there legislative findings indicating a connection to interstate commerce? (Lopez)
3.How close/attenuated is the connection? How many steps does it take to get from the regulated activity to the effect on interstate commerce?
4. Is there a collective action problem the government is trying to solve?
Step 3) Limitations
- Would accepting regulation of this non-economic activity give Congress unlimited power?
-Does the federal law regulate in areas where states have been historically sovereign? (i.e. areas are usually criminal law, education or family law)
- Tenth Amendment
Limits to treaty Power
- Appropriate subject - matter of national interest, external affairs
- Not proper if violation of express Constitutional provision
- Not proper if violation of fundamental rights
2 types of Treaty Power
Self-executing treaty becomes immediately binding and enforceable federal law without
any act of Congress
Non-self executing treaties require a congressional act to become federal law
Executive Agreements
agreement made between the Pres and a foreign head
of state implied power of the executive
