Congressional Authority Flashcards
(19 cards)
What are the types of commerce regulated by the commerce clause?
1) foreign nations
2) among the several states
3) Indian tribes
What was the rule from South Dakota v. Dole in regards to conditional spending?
Federal Gov. can regulate spending to the states on a small scale as long as they allow for the state to accept or decline. The state cannot be forced to say yes through coercion.
What is the test to determine the legitimacy of conditional spending?
1) Spending program is in pursuit of the general welfare.
2) If a condition is attached, then it must be clear and unambiguous and there must be a real choice so the state can say no.
3) The condition must be related to the spending program.
4) The condition itself cannot independently be in violation of the constitution.
What is the overall rule of the spending power?
Congress can use the spending power as a mild encouragement, but not as a threat or coercion to join.
What is required for a president to make a treaty?
two-thirds of present senators must be present and vote to ratify.
How far does the war powers act extend?
Congress can expand their power not only during the war, but after the war as well. As long as Congress is attempting to help with the war effort or to ensure that the country is maintaining recovery from the war, it will likely be allowed.
What does the 10th amendment do?
It allows that any powers not specifically vested with the federal government are left for the states to control. A form of residuary clause.
What can congress not do pursuant to the 10th Amendment?
Congress cannot compel state regulatory or legislative action. They can induce states to act by putting strings on money, so long as the conditions are expressly stated and relate to the purpose of the spending program. The conditions also cannot be unduly coercive.
What are the three theories about when private citizens can be sued as a state actor?
1) a private entity that is exercising a public function.
2) A private entity is excessively entangled with the government.
3) A private citizen is seeking state involvement.
What is the rule from Marsh v. Alabama about suing a private town as if it was a real town?
Although the town is not a state actor, it looks like it would be a real town. So the court held that they could be sued as a state entity in their first amendment violations.
What is the Necessary and Proper Clause?
All laws necessary and proper to fulfill the express powers of congress are authorized.
Does the Federal Government have a police power?
Generally no, with a few exceptions: 1. Military 2. Indians; 3. Land/Territories; 4. District of Columbia. Remember: M.I.L.D.
What can Congress tax and spend for?
The general welfare of the United States. Any tax to raise revenue and any spending program that is necessary to protect the country.
What can Congress regulate via the Commerce Clause?
Congress may regulate the channels of interstate commerce - highways, interstates, internet, etc.
Congress can also regulate the instrumentalities of interstate commerce - train, planes, internet.
What is the flow chart regarding Congresses ability to regulate economic activity vs non-economic activity?
Congress can regulate economic activity that has a substantial effect on interstate commerce, it can also be cumulative.
However, for a non-economic activity, the substantial effect cannot be cumulative.
Congress cannot regulate inactivity.
What are the elements for determining whether the federal governments strings attached to grants are constitutional or not?
- Conditions expressly stated;
- Relate to the spending program;
- Not unduly coercive
Then considered inducement rather than compelling.
What is Congresses power pursuant to Section 5 of the 14th Amendment?
Congress may not create new rights or expand the scope of rights. However, they may act only to prevent or remedy violations of rights recognized by the courts and such laws must be proportionate and congruent to remedying constitutional violations.
Can Congress delegate power?
Although it has not alwasy been the case, No limits exist on Congress’ ability to delegate legislative power.
Are Legislative Vetos and Line-item Vetos constitutional?
No. They are unconstitutional. Congress to act, there must always be bicameralism and presentment. the president then must either veto or sign the bill in its entirety.
Legislative Veto - Congress tries to overturn a veto withou bicameralism or presentment.
