2) Sep of Powers - Congress Flashcards
(48 cards)
Congress’ powers are limited to:
powers const gives it (only!)
reqs for fed law to be const
1) C had power to pass it
2) no rights violation
reqs for state law to be const
no rights violation only
police power
does not exist UNLESS re DC/fed territories
power to promote the general welfare
does not exist UNLESS re DC/fed territories
sources of power for C
1) enumerated powers
2) enabling clause (13/14/15)
3) necessary + proper clause
enumerated powers: def
Art 1 Sec 8 commerce taxing spending war/defense (minors too)
enabling clause: def
enforcement power – C has power to legislate to prohibit what the 13,1 4, 15 ams prohibit
nec + proper clause: def
choice of means – C has power to pass laws N+P to its OTHER ALREADY EXISTING powers
usu needs to be w another power to be correct
commerce power: rule
C can regulate
1) interstate OR
2) commerce
commerce power: interstate: rule
C can regulate FOR ANY PURPOSE (inc if not commerce related)
1) channels of IC
2) instrumentalities of IC
channels of IC: def
water, roads, air travel, communication, etc
instrumentalities of IC: def
goods + ppl that cross state lines, conveyances (cars/planes)
commerce power: commerce: rule
substantial effect – C can regulate intRA state economic activity if it affects ISC
cc: substantial effect :def
cumulative effect doctrine (basically it’s always a substantial effect)
cc: cumulative effect doctrine def
C can regulate an individual who has only a tiny effect on ISC bc if everyone cumulatively does the same thing, it would have a substantial effect
commerce clause: NOT covered
intRA state, nonecomomic activity
exs: lots of crimes
commerce clause: intrastate noneconomic activity: exception
1) economic crimes (loan sharking)
2) comprehensive scheme of regulation
commerce clause vs state sovereign immunity
can’t overcome! (so C can’t use commerce power to create private cause of action for $ damages against state)
commerce clause / race discrim
yes! and regulating private actors, it USUALLY comes from CC
but, see state sovereign immunity – can’t bar racial discrim by a state so that private parties could sue the state for $ (under THIS power …)
taxing power: def
C has power to impose + collect taxes
taxing power: def of tax
it’s a tax if ANY of these:
1) objectively raises revenue, or
2) subjectively raises revenue (that was C’s purpose, even if it didn’t work), or
3) regulatory
taxing power: regualtory: def
if C has power to regulate area under ICC or other powers, can use tax as a tool to do so (even if no revenue)
spending power: def
A1 S8 C1 –> C has power to spend for the general welfare (v. broad – campaign finance ok )
