Legislative Power Flashcards
ENUMERATED AND IMPLIED POWERS
Congress can exercise the powers enumerated in the Constitution
(under Article I, Section 8) plus any powers necessary and proper to
carry out any of its enumerated powers.
No Federal Police Power
Congress has no general police power (that is, it has no general power to legislate for the health, safety, and welfare of the nation). However, Congress has police power type powers over the District of Columbia, federal lands, military bases, and Indian reservations
The Necessary and Proper Clause
Congress has the power to make all laws necessary and proper (appropriate or rational) to carry out any of the legislative powers enumerated in Article I, as long as that law doesn’t violate another provision of the Constitution.
The Necessary and Proper Clause standing
The Necessary and Proper Clause standing alone can’t support federal law. It must work in conjunction with another federal power
Taxing and Spending Power
Congress has the power to tax and spend to provide for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution.
Spending Power Conditions
Under the spending power, Congress can impose conditions on the grant of money to state or local governments (so-called “strings”). These conditions are valid if they (1) are clearly stated, (2) relate to
the purpose of the program, (3) are not unduly coercive, and (4) do not otherwise violate the Constitution.
Commerce Power
Congress has the power to regulate all foreign and interstate commerce, as well as commerce with Indian tribes. To be within Congress’s Commerce Clause power, a federal law regulating interstate
commerce must either:
* Regulate the channels of interstate commerce (for example, highways,
waterways, telephone lines, the internet)
* Regulate the instrumentalities of interstate commerce (for example, planes, trains, automobiles) and persons and things in interstate commerce or
* Regulate activities that have a substantial effect on interstate commerce
Intrastate Activity
When Congress attempts to regulate intrastate (in other words, local) commercial activity under the third prong, above, the Court will uphold the regulation if it can think of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.
Tenth Amendment Limitation
The Court has interpreted the Tenth Amendment to preclude Congress from regulating noneconomic intrastate activity in areas traditionally regulated by state or local governments.
Activity vs. Inactivity
The Commerce Clause gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity.
War and Related Powers
The Constitution gives Congress power to declare war, raise and support armies, and provide for and maintain a navy.
Investigatory Power
Congress has a broad implied power to investigate to secure information
for potential legislation or other official action
Property Power
Congress can dispose of and make rules for territories and other properties of the United States.
Eminent domain
takings of private property must be pursuant to an enumerated power under some other provision of the Constitution.
Postal Power
Congress has an exclusive postal power. Under the postal power, Congress can classify and place reasonable restrictions on use of the mails but may not deprive any citizen or group of citizens of the
general mail “privilege.”
