Commerce Clause, Enumerated Powers, Branches

Question 1

3 sources of Congressional Power

Answer 1

Mnemonic: PEN
1) Enumerated Powers–generally all re: power and money)
2) Enabling Clauses of Recon. Amendments
3) Necessary and Proper Clause

Question 2

Enumerated powers

Answer 2

-Taxing Power
- Spending Power/Borrowing Power
-Commerce Clause
-War + Defense Powers
-Immigration + Naturalization
-Investigation
-Eminent Domain (arguably implicit)
-Admiralty + Martime
-Copyright/Patent
-Postal
-Bankruptcy

Question 3

Commerce Clause Areas

Answer 3

Channels of interstate commerce (highways, waterways, air traffic)

Instrumentalities of interstate commerce–what travels in i. comm. (cars, trucks, boats, etc)

Activities that substantially affect interstate commerce (substantial effect, cumulative effect, comprehensive scheme)

CANNOT reg intrastate noneconomic activity (unless part of comp scheme)
CAN often reg intrastate economic activity (ex. loansharking–affects flow of commerce)

Question 4

Substantial Effect Commerce Clause Doctrine

Answer 4

Can regulate economic activity, carried on in one state or many, that has substantial effect on interstate commerce

Does it affect the flow of goods and people across state lines? (ex. union rights–labor disputes affect flow)

Question 5

Cumulative Effect Commerce Clause Doctrine

Answer 5

Can regulate activities with small effect on individually but which have substantial cumulative effect on i. commerce when put together
Ex. wheat grown on own land, for own consumption

Question 6

Comprehensive Scheme Commerce Clause Doctrine/Exception

Answer 6

Can regulate intrastate non-econ. activity IF part of larger comprehensive scheme/series of laws

Ex. laws protecting endangered species regulating transfer of endangered animals–can also regulate intrastate sale, because tied to overall scheme)

Question 7

Commerce Cause and Purpose

Answer 7

Meet criteria = OK–purpose of leg. irrelevant

Passes test, but real goal to prevent intrastate discrimination = still valid

Question 8

Taxing Power

Answer 8

Can impose + collect taxes to pay debts + spend for gen welfare
Met if:
Raises revenue (objective test) OR
Designed to raise rev (subjective test) OR
Congress has power to regulate what being taxed (regulatory test)

Purpose irrelevant
Don’t care about revenue, goal punishment –if meet test = irrelevant

Question 9

Spending Power + Conditions on Funds

Answer 9

CAN place conditions on receipt of fed funds IF
1) Spending serves gen. welfare AND
2) Condition unambiguous AND
3) Condition related to goal of fed program (relatedness) AND
4) Amount in question not so much that state “coerced” into acceptance

Can’t force states to do uncon. action

Way to get around inability to directly reg (ex. public schools)–carrot + stick

Question 10

Spending Power

Answer 10

Power to spend for general welfare

General welfare= v. broad (ex. single local bridge, $$ to pol. candidates to reduce corp. reliance)

NOT gen welfare if self-dealing/corruption

Question 11

War + Defense Powers

Answer 11

-Declare war (maj. vote)
-Raise + support armies
-Provide + maintain navy
-Org, arm, disciple, call forth militia
-Wartime powers
-Military courts for armed forces, court-martials, enemy combatants

Question 12

Wartime Powers

Answer 12

IF war declared, Congress can:
-Activate draft + selective service
-Wage, price, + rent controls on civilian econ.
-Exclude civilians from restricted areas

Question 13

Investigatory Power

Answer 13

Broad power–anything w/in legit lawmaking functions

Can do what needed to facilitate investigations (ex. subpoena, contempt), if not violating person’s rights

Question 14

Eminent Domain

Answer 14

Implied power, not explicit–private prop for public use
-Takings Clause (5th A)–if do so, must give just comp

Question 15

Admiralty and Maritime Power

Answer 15

+ necessary and proper clause = complete + plenary power re: maritime laws

Question 16

Bankruptcy Clause

Answer 16

“Establish uniform laws on the subject of Bankruptcies throughout the United States”

Question 17

Postal Power

Answer 17

Post offices, post roads

Question 18

Speech and Debate Clause

Answer 18

CANNOT prosecute members of Congress for anything they say during debate on the floor

Question 18

Copyright and Patent Power

Answer 18

“Promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”

Question 19

Civil War Amendments

Answer 19

Have power to enforce through appropriate leg–but 14th + 15th ONLY apply to state action

14th + 15th–must have
1) Widespread violations by state AND
2) “Congruent and proportional” to violations

Question 20

Executive Powers

Answer 20

“VAPER”
-Enforcement
-Removal
-Veto
-Appointment
-Pardon

Question 21

Removal Power

Answer 21

Purely executive appointee: pres. can remove w/out cause
Executive appointee + fixed terms/quasi judicial: need for-cause

Congress cannot give itself the power to approve/remove a fed. official

Question 22

Pocket Veto

Answer 22

President gets bill less than 10 days before the end of leg. session, + refuses to sign it

Otherwise–doesn’t sign w/in 10 days = becomes law

Question 23

Presidential Military Powers

Answer 23

-Commander in Chief
-Use of military force to respond to surprise attack on US (but not declare war)
-Make battlefield tactical decisions
(otherwise–if Congress + pres disagree, Congress wins)

Question 24

Treaties v. Executive Agreements v. Statutes v. State Law

Answer 24

**Treaties v. Federal law**: **last-in time** prevails **Treaty = *same* status as fed law**--no more, no less **Executive Agreement v. State Law**: executive agreement wins **Executive Agreement v. Statute/Treaty**: **statute/treaty wins** (even in wartime)

Question 25

Congress vs. President

Answer 25

General rule: Congress can prevent president from acting, so long as statute Congress passes itself constitutional (ex. fed law saying can't seize steel mills = pres. can't say wartime emergency, seize)

Question 26

Impeachment

Answer 26

House: power to impeach (like indictment) Senate: power to try Pres. can't pardon impeachment, because not a criminal process

Question 27

Appropriations Power

Answer 27

If Congress directs president to spend funds x way, pres. has **no power to impound (refuse/delay spending** funds) Vs. if give discretion re: how to spend funds--can chose how to allocate

Question 28

Dormant Commerce Clause

Answer 28

States CANNOT discriminate v. **out of state *economic actors*** (v. Priv. + Imm. Clause—out of state *persons*) Commerce Clause + **D.P. Clause of 14th** Two types: 1) Discriminatory on face--burden on state--> show compelling + necessary 2) Applies in and out of state--generally OK, unless clearly excessive CAN have higher reqs on *intrastate* goods--no dormant comm clause if burden *own* goods/actors Includes **corporations**—v. Priv + Imm Clause

Question 29

State Regulation of *only* Out-of-State Goods (discrimination on face)

Answer 29

Dormant Comm. Clause = **State** must show: 1) Serves **compelling interest** AND 2) **Necessary to achieve** interest Exceptions: Congress allows, market participant, not fundamental rt (ex. recreational)

Question 30

State Regulation of In *and* Out-of State Goods (even-handed)

Answer 30

**Even handed + legit local interest = allowed** UNLESS **burden on interstate commerce clearly excessive** vs. "benefits" Does this reg impose major burden on i. commerce, with little evidence of significant benefit?

Question 31

Dormant Commerce Clause exceptions

Answer 31

1) Explicit Congressional authorization to legislate (even though would violate otherwise) 2) **Market participant exception**-**can discriminate** if state **acting as market participant** (ex. buying supplies for state agency use--"we're buying, we must only buy-in state")