Power of Congress Flashcards
Commerce Clause,
Article I, Section 8, Clause 3 of the Constitution, known as the Commerce Clause, empowers Congress “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The term “commerce” has been defined to include essentially all activity—including transportation, traffic, or transmission of gas, electricity, radio, TV, mail, and telegraph—involving or affecting two or more states.
Congress power to regulate
Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right
“Substantial Economic Effect”
Congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with other activities has a “substantial economic effect upon” or “effect on movement in” interstate commerce.
Aggregation
With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis for concluding that the “total incidence” of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. (prohibition on personal cultivation and use of medical marijuana upheld due to effect on overall interstate trade).
The practical effect of this rule is that with regard to economic activity, a substantial economic effect is presumed.
Taxing Powers
Article I, Section 8 provides: “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
When will a tax by congress be upheld?
A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.
Does congress have to prove the tax imposed is necessary?
Of the three branches of the federal government, Article I, Section 8 of the Constitution gives Congress the plenary (i.e., exclusive) power to raise revenue through the imposition of taxes. The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose.
The General Welfare Clause
While the General Welfare Clause gives Congress broad power in exercising its spending and taxing powers, it does not give Congress the specific power to legislate for the public welfare in general. Such “police power” is reserved for the states.
Tax Uniformity
The requirement that indirect federal taxes (i.e., duties, sales taxes, and import & excise taxes) must be uniform throughout the United States has been interpreted to mean geographical uniformity only; the product or activity at issue must be identically taxed in every state in which it is found. Differences in state law do not destroy this uniformity. Fernandez v. Wiener, 326 U.S. 340 (1945) (federal estate tax on “community property” valid despite variation in state laws regarding marital property).
Direct Taxation
Article I, Section 2 provides that “[r]epresentatives and direct taxes shall be apportioned among the several states,” and Article I, Section 9 provides that “no…direct tax shall be laid, unless in proportion to the Census….” A direct tax (one imposed directly on property or persons, such as an ad valorem property tax) would therefore have to be apportioned evenly among the states. The difficulty of ensuring this outcome explains Congress’s reluctance to enact such taxes—or perhaps the Supreme Court’s reluctance to find that federal taxes are “direct.” The Sixteenth Amendment gave Congress the power to lay and collect income tax without apportionment among the states.
Export Taxation Clause
Goods exported to foreign countries may not be taxed by Congress. Article I, Section 9. Under this Export Taxation Clause, a tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited.
The Spending Power
The spending power has been interpreted very broadly. Congress has the power to spend for the “general welfare”—i.e., any public purpose—not just to pursue its other enumerated powers.
For example, Congress can provide for the public funding of presidential nominating conventions as well as election campaigns.
Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding. (statute upheld withholding federal highway funds from states unless they barred the sale of alcoholic beverages to individuals under the age of 21).
War Power Clause
Article I, Section 8 gives Congress the power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia.
What poets does Congress have under the War Power Clause?
The authority granted to Congress under the war power is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime.
Investigatory Powers
Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate.
