Fed Legislative Pwr

Question 1

CONGRESSIONAL AUTHORITY TO ACT

What are the 6 main categories of congressional pwr?

Answer 1

Congress’s AUTHORITY to Act and its limitations are covered by 5 main points

1) Congress’s LIMITED police power –
Congress DOES NOT have a GENERAL Police power…only a M-I-L-D one:
(M) Military
(I) Indian Reservations
(L) Federal Lands
(D) District of Columbia
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2) Congress’s TAXING and SPENDING Power: Congress may implement any tax and any spending program for the “general welfare” BUT this is NOT the pwr to promote the general welfare, without taxing it
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3) Congress’s COMMERCE Power:
(i) Congress may regulate the channels of interstate commerce
→ e.g., highways, waterways, the Internet

(ii) Congress may regulate the instrumentalities of interstate commerce
→ i.e. persons or things in interstate commerce, like trucks, planes, phones, boats, internet

(iii) Congress may regulate economicINTRAstateactivities that have a substantial (cumulative) affect on interstate commerce (NOTE: cumulative impact cannot be based on NON-economic activity)
→ e.g. Wheat grown for home use but ruled to still have a substantial effect on overall wheat market

(iv) Congress may regulate non-economic INTRAstate activities where Congress can FACTUALLY SHOW a subtstantial economic effect on interstate commerce – BUT VERY HARD TO SHOW
→ e.g. Congress was NOT able to regulate domestic violence despite claims of economic effect b/c unable to Factually show the economic effect
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4) Congress’ Powers under §5 of 14Am

Congress MAY NOT create new rights or expand the scope of rights under under §5 of 14Am.

Congress may act to prevent or remedy violations of rights recognized by the courts and such laws must be “proportionate” and “congruent” to remedying constitutional violations.

5) Necessary and Proper Cl: Congress can adopt all laws that are “necessary and proper” to exercise its EXPRESS/IMPLIED authority (as per above)

Question 2

LIMIT on CONGRESSIONAL POWER

Can Congress compel state regulatory or legislative action?

Answer 2

Congress CANNOT compel state regulatory or legislative power!

Under the 10th Am (reserving to states pwrs that are not granted to the US), Congress CANNOT compel state regulatory or legislative action, BUT…

Congress CAN induce state gov’t action by putting strings on grants(p/t Spending pwr), SO LONG AS the conditions are EXPRESSLY stated and RELATE to the purpose of the spending program
→ Example: Highway spending grants for states were tied to the states instituting a legal drinking age of 21

HOWEVER, Congress may prohibit HARMFUL commercial activity by state gov’ts (e.g. state’s can’t release personal information of patients)

Question 3

DELEGATION OF CONGRESSIONAL POWER

What can Congress delegate legislative pwr (to an ind. agency for e.g.)?

**Exam Tip

Answer 3

Congress can delegate ALMOST ANYTHING!(as long there is an intelligible principle)

**EXAM TIP: the non-delegation answer is almost ALWAYS wrong → DO NOT chose the answer choice that states that a delegation was unconstitutional!

BUT (BIG DEAL) CONGRESS MAY NOT DELEGATE EXECUTIVE POWERS TO ITSELF OR ITS OFFICERS

Question 4

LEGISLATIVE VETOS AND LINE ITEM VETOS

When are legislative vetos and line item vetos allowed?

Answer 4

Legislative and line-item VETOS are NEVER allowed!

They are unconstitutional!

Legislative veto: For Congress to act, there MUST be bicameralism (passage by both houses) AND presentment (veto/non-veto by POTUS) → Congress CANNOT try to overturn a legislation without this!

Line-item veto: POTUS must sign or veto the bill in ITS ENTIRETY; NOT allowed to strike certain provisions

Question 5

CONGRESSIONAL SELF DELEGATION OF EXECUTIVE POWERS - NOT ALLOWED

Is Congress allowed to delegate Executive pwr to itself?

Answer 5

Congress can GIVE pwr (delegation to agencies), BUT CAN NEVER take away pwr from another branch