Final Concepts

Question 1

Federalism

Answer 1

Shared power between the national and state governments.

Question 2

Federal Power v. State Power (police power) under the Constitution:

Answer 2

Federal powers include the government’s enumerated powers, “neccessary and proper clause”, inherent power, and supremacy clause. The state power involves the 10th amendment, which gives states the power over anything that is not listed in the constitution or that is not reserved to the federal government.

Question 3

Dual Federalism v. Cooperative Federalism

Answer 3

dual federalism- favors the states; the constitution is in an agreement between the states and federal government
cooperative federalism- favors national government; is the people, not the states, who empower the federal government

Question 4

Principle of Equal Sovereignty

Answer 4

Limits Congress’s ability to enact legislation that subjects different states to unequal burdens, at least without a sufficient justification

Question 5

Anti Commandeering Principle/Doctrine

Answer 5

Principle- Federal government cannot command the states to take affirmative action
Doctrine- Prohibits only federal laws that compel states to enact or administer federal policy.

Question 6

Pre-Emption

Answer 6

Given to congressionally enacted laws; the idea that federal law trumps lower/ state laws when the two laws conflict each other

Question 7

Intra v. Interstate Commerce

Answer 7

intra- cannot be federally regulated; any trade, traffic, or transportation within a state.
Inter- commerce across state lines.

Question 8

Direct v. Indirect Effects Test

Answer 8

A test used by the court to weaken Congress’ authority over commerce.
Intrastate activities found to have an INDIRECT effect on interstate commerce (state regulation)
Intrastate activities found to have a DIRECT effect on interstate commerce (federal regulation)

Question 9

Federal Police Power

Answer 9

They have no police powers the closest thing to it is the Commerce Clause

Question 10

Substantial Effects Test

Answer 10

Deferential- Under the commerce clause, if congress has a rational basis for finding that some economic activity in the aggregate substantially affects interstate commerce.

Question 11

Aggregation Principle

Answer 11

examines an activity’s aggregate effect- even if an individual’s effect on interstate commerce is trivial, the activity as a group has a substantial effect on interstate commerce.

Question 12

3 categories of problems under the Commerce Clause (think Perez v. United States (1971)

Answer 12

1. The use of channels of interstate or foreign commerce which Congress deems are being misused, e.g., shipment of stolen goods, kidnapped persons
2. Protection of the instrumentalities of interstate commerce (destruction of aircraft, destruction of persons or things in commerce- thefts from interstate shipments.
3. Those activities affecting commerce

Question 13

Limits on Congress’s commerce regulation in the Republican Era

Answer 13

Regulation of commerce must be of economic activity.

Question 14

Regulation under Commerce v. Regulation under Taxes:

Answer 14

under commerce- the federal government can use its full authority to enforce regulations -command individuals -subject them to criminal sanctions.
Under tax power- the federal government only requires individuals to pay money into the federal treasury -no more

Question 15

Tax v. Penalty

Answer 15

taxes- look to generate revenue
penalty- looks to regulate activity

Question 16

Saving Construction

Answer 16

IF a law has two possible meanings, courts should adopt the legal justification that does not violate the Constitution- to save the constitutionality of a piece of legislation.

Question 17

Madisonian View of Spending v. Hamiltonian View of Spending

Answer 17

Madisonian view: the grant of power to tax and spend for the general welfare must be confined to the enumerated legislative fields committed to congress

Hamiltonian view: clause confers a power separate and distinct from those enumerated, as long as it provides for the general welfare - Approach court has always accepted