Federal Legislative Power

Question 1

Congress’s Authority to Act

Answer 1

Express or implied authority to act

Necessary and Proper clause: Congress may choose any means not prohibited by the Constitution to carry out its authority

No general federal police power except (MILD):
* Military
* Indian tribes and indian land
* Federal Lands or territories
* D.C.

The taxing/spending power and the commerce power
* Congress may tax and spend for the general welfare

Question 2

Commerce Clause

Answer 2

• Congress may regulate the channels of interstate commerce
• Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce
• Congress may regulate economic activities that have a substantial effect on interstate commerce. (In the area of non-economic activity, a substantial effect cannot be based on cumulative impact.) Also, five justices have said that Congress cannot regulate inactivity.
• Not noneconomic activity

Question 3

10th Amendment Limit on Congressional Powers

Answer 3

The Tenth Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people.
* Anti-Commandeering Principle: Congress cannot compel state regulatory or legislative action. Note: Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Also, the conditions cannot be unduly coercive.
* Congress may prohibit harmful commercial activity by state governments.

Question 4

Section 5 of the 14th Amendment

Answer 4

Congress may legislate to enforce 14th Amendment
* Can’t create new rights or expand the scope of rights
* Laws must be narrowly taylored: Proportional and congruent to wrongs

Question 5

Delegation of Congressional Powers

Answer 5

• No Constitutional limit on delegation (very broad)
• Major questions need clear direction from Congress
• Violation invalidates agency action (doesn’t invalidate statute)

Legislative Veto = Unconstitutitonal
Line-item Veto = Unconstitutional
Congressional delegation of executive power to itself or officers = Unconstitutional
* Legislative vetoes and line-item vetoes are unconstitutional. For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President to sign or veto). The President must sign or veto the bill in its entirety.