Powers of Congress (Legislative Power)

Question 1

What is required for a federal law to be constitutional ?

Answer 1

1. Legislating the area is within the rights of congress AND
2. The law violates no Constitutional rights

Question 2

What is required for a state law to be constitutional?

Answer 2

It can’t violate a const. right

Question 3

What are congress’ three sources of power to legislate?

Answer 3

1. Enumerated Powers
2. Enabling Clause
3. Necessary and Proper Clause

Question 4

What are the enumerated powers of Congress?

Answer 4

1. Commerce
2. Taxing
3. Spending

Question 5

What is the scope of the enabling clause of Congress?

Answer 5

Gives Congress the power to enforce 13th, 14th, 15th Amendments

• Can enforce equal protection and due process rights
• Enforcement must have congruence and proportionality b/w injury to be prevented and means adopted to achieve that end

Question 6

What does the commerce clause allow congress to regulate?

Answer 6

Grants Congress exclusive power to:

• regulate the channels & instrumentalities of commerce AND
• activities that have a substantial effect on interstate commerce

Question 7

What functions does the commerce clause serve?

Answer 7

1. A source of congressional authority, and
2. A limit on states power (The Dormant Commerce Clause)

Question 8

Commerce Clause - Instrumentalities of Interstate Commerce

Answer 8

Instrumentalities of - Anything that facilitates commerce (trucks, planes, internet, etc.)

Any item that can be bought, sold, or transported across state lines is an article of Int. Com. OR

Persons & Things - Persons or things that cross state lines

Question 9

Commerce Clause - Substantial Economic Effect on Interstate Commerce

Answer 9

Congress has the power to regulate any activity (inter- or intrastate) that by itself or in combination with other activities has a subst. eonomic effect on interstate commerce

Question 10

Commerce & Aggregation of Intrastate Activity

Answer 10

Even if an intrastate activity has no direct economic impact, congress can regulate as long as there is

1. A rational basis for concluding
2. That the total incidence of activity in the aggregate
   
   • Subst. effect can be found if the sum of a specific action across a market effects commerce
   • Look at the cumulative effect of all actions of those sim. sit. to see if there is subst. effect
3. Substantially affects interstate commerce

Question 11

Can congress force individuals to engage in commerce?

Answer 11

Forced Entry into Market prohibited

• Congress can’t force individuals not engaged in commercial activities to engage in commerce by requiring them to buy a product

Question 12

Can congress regulate inrastate commerce?

Answer 12

Intrastate Economic or Commercial Activity

• Congress can regulate intrastate activity only if it’s economic or commercial activity AND
• there’s a rational basis for concluding that the activity in aggregate substantially affects interstate commerce

Question 13

Commerce - Non-economic Activity of Traditional state concern

Answer 13

Congress must est. connection b/w the activity & subst. econ. effect in order to regulate it

Question 14

If congress is regulating a private business, What is the source of their power?

Answer 14

Commerce Clause

Question 15

Congress’s Taxing Power

Answer 15

A tax by congress is upheld if it has a reas. relationship to revenue production

• Congress has plenary power to impose taxes to raise revenue (or for any public purpose) through General Welfare Clause

Question 16

Indirect Taxes

Answer 16

• Indirect Taxes must be uniform across states
  
  • Uniform taxation of the taxed item in every state where the item is found
  • Indirect Taxes - Taxes on an activity (not imposed directly on property or a person)
  • Only applies to the states
    
    • no req. that specific individuals are taxed uniformly)

Question 17

Direct Taxes

Answer 17

Direct Taxes Must be in Proportion to National Census - Taxes imposed directly on property or a person

Question 18

Taxation of exports

Answer 18

No power to tax exports

• Goods exported to foreign countries can’t be taxed by congress

Question 19

On what does Congress have the power to spend?

Answer 19

Anything remotely related to the general welfare of the people

• Although there are areas congress can’t directly regulate, it can use its spending power to accomplish regulation indirectly by conditioning federal funding

Question 20

What are the war & defense powers of congress in a time of peace?

Answer 20

1. Power to declare war
2. Power to raise and maintain an army (air force)/Navy
3. Power to raise a mailtia
4. Power to est. military courts for US service members and enemies

Question 21

What are Congress’ war and defense powers in a time of war?

Answer 21

1. Declare a draft
2. Impose price controls
3. Confine/Eclude civilians from an area

Question 22

Congress’ War and Defense Power

Answer 22

Congress can take whatever action nec. to provide for the national defense in both wartime and peacetime

Question 23

What rights does a citizen or non-citizen suspected of terrorism detained inside the US/Territories maintain?

Answer 23

Entitled to Due Process Rights

Question 24

What is congress’ immigration and naturalization power?

Answer 24

Congress can control the laws regarding immigration and naturalization procedures

• Plenary Power over aliens - Subject to Due Process clause
• Exclusive auth. over naturalization

Question 25

What does Congress’ investigatory power allow it to do?

Answer 25

Congress doesn’t have an express power to investigate, but the Nec. and Proper Clause allows Congress broad auth. to onduct investigations incident to its power to legislate

• Investigate anything related to any of its law making functions

Question 26

What does Congress’ Property Power allow it to do?

Answer 26

It allows it to regulate, buy and sell federal property

• No express limit on power to dispose of US property
• Congress can only take private prop. for pub. use with just compensation and to effectuate an enumerated power

Question 27

What does the Speech and Debate Clause Prohibit?

Answer 27

Punishing any member of Congress for words spoken on the floor of the House or Senate

Question 28

Power to Enforce the 13th, 14th, and 15th Amendments

Answer 28

Each amendment contains a provision that authorizes congress to pass appropriate legislation to enforce the civil rights guaranteed by those amendments

Question 29

What does the 13th Amendment Ban?

Answer 29

Slavery

Question 30

What does the 14th Amendment ban?

Answer 30

States from violating the following clauses

1. Due Process
2. Equal Protection
3. Privileges and immunities

Question 31

What does the 15th Amendment ban?

Answer 31

Discrimination in voting based solely upon race

Question 32

What are the limitations on Congress’ ability to enforce the 13-15th Amendments ?

Answer 32

1. Congress can only enforce the 14th and 15th amendments against the states
2. Congress has the burden of proving violation
3. The remedy Congress seeks has to be congruent & proportional to preventing a violation of 13-15th amendments

Question 33

What does the Necessary and Proper Clause allow Congress to do?

Answer 33

If congress is pursuing some end, it can choose whatever means nec. and proper to pursue that end

• Congress is given power to enact any legislation nec. & prop. to execute any auth. granted to any branch of the fed. gov’t

Question 34

What is the power of the Nec. and Prop. Clause by itself?

Answer 34

It is not an independent source of power

• It needs to be combined with another source of pwer in order to justify legislation
• On MBE it is not a correct answer choice by itself

Question 35

Who can congress impeach?

Answer 35

Any federal official

Question 36

What can get a federal official impeached?

Answer 36

1. Treason
2. Bribery
3. Other high crimes and misdemeanors (anything congress says)

Question 37

How can Congress alter the U.S. Supreme Court’s Jurisdiction?

Answer 37

Congress can expand or restrict the number and types of lower court decisions which the court may hear

Question 38

When should a court allow a state tax in violation of the commerce clause to stand?

Answer 38

1. The tax i applied to an activity with a subst. nexus to the taxing state
2. The tax is fairly apportioned
3. The tax doesn’t discriminate against interstate commerce AND
4. The tax is fairly related to the services provided by the state

Question 39

What power does congress have over federal court jurisdiction?

Answer 39

Congress can modify the jurisdiction of the lower federal courts only

• District and circuit courts

Question 40

Define the limits on congress’ establishment of federal jurisdiction

Answer 40

Congress can’t give a party w/ appellate juris. orig. juris in the US supreme court

Question 41

What does the speech and debate clause prohibit ?

Answer 41

Punishing any member of congress for words spoken on the floor of the house or senate

Question 42

Does congress have federal police power or power to promote the general welfare?

Answer 42

NO

Question 43

Congress may place a condition on the receipt of federal funds by a state if what conditions are met?

Answer 43

1. Spending serves the gen. welfare
2. cond. is unambiguous
3. Condition relates to federal program spending
4. State is not required to break the const.
5. Can’t be coercion (no bright line rule)