Federal Legislative Power

Question 1

What are the five broad grants of authority for Congress’s authority to act?

Answer 1

1. There must be express or implied Congressional power (no general federal police power)
2. The necessary and proper clause (any non-prohibited means)
3. The taxing/spending power and the commerce power
4. The 10A
5. Section 5 of 14A

Question 2

When does Congress have a police power?

Hint: MILD

Answer 2

Legislation for

1. The military
2. Indian reservations
3. Federal lands or territories
4. D.C.

Question 3

What are the contours of the taxing power?

Answer 3

Congress may raise any tax and spend it in any way it thinks will benefit the general welfare

Question 4

What is Congress’s authority under the Commerce Power?

Foreign nations, Indian tribes, between states

Answer 4

1. Channels of commerce (highways, internet, etc)
2. Instrumentalities and persons/things in interstate commerce (planes, trucks, phones)
3. Economic activities with substantial effect on interstate commerce (no cumulative impact for non-economic activity; may not be able to regulate inactivity)

Question 5

What is the 10A limitation on Congressional legislative power?
(non-granted powers reserved to the people)

Answer 5

1. Congress cannot compel state regulatory or legislative action (inducement is okay, but coercion is not)
2. Congress may prohibit harmful commercial activity by state governments

Question 6

What is the limitation on Congressional power under Section 5 of 14A?

Answer 6

May not create new rights or expand scope of existing rights

may only prevent or remedy violations already recognized by the courts; such laws must be proportionate and congruent

Question 7

What are the contours of Congressional delegation of powers?

Answer 7

1. Generally, no limitation on delegation
2. Legislative and line-item vetoes unconstitutional (must have bicameralism and presentment)
3. Congress may not delegate executive power to itself or its officers