Legislative Power Flashcards
(25 cards)
What are Congress’s Enumerated Powers under Article I Section 8?
Congress’s Enumerated Powers include Commerce, Taxing, Spending, War, Defense, and Foreign Affairs.
What powers does the taxing and spending clause grant Congress
Grants Congress the power to lay and collect taxes, pay debts and provide for the general welfare of the U.S. (A1 S8)
What is the taxing power and what are its limitations
Interpreted broadly, the Taxing and Spending clause allow Congress to tax if:
1. the tax produces some revenue and
2. the tax does not function as a penalty.
What is the anti-commandeering Doctrine?
- Congress cannot require states to enact specific legislation
- Cannot require states officials to enforce federal laws
- Can use the taxing power to incentivize or discourage behavior.
- Can regulate actors directly (not through states)
What are regulatory taxes
These taxes are designed to shape taxpayers’ behavior. Congress may tax activity that it may not directly regulate under its other powers.
How do courts distinguish between regulatory and punitive taxes?
Taxes on illegal activities are more likely to be viewed as punitive and impermissible compared to taxes on lawful activity (NFIB v Sebelius)
What power does Congress get from the spending clause?
Spending Clause gives congress broad discretion to spend federal revenue IF the spending is related to promoting the general welfare of the nation.
- USSC tends to defer to C on the question of whether the spending promotes the general welfare.
What is conditional spending
Congress uses spending power to influence the states by conditioning the state’s receiving of federal funds. Incentivizes the states to behave in certain ways or pass certain legislation. (South Dakota v. Dole).
When is conditional spending valid
It is valid if conditions are:
- clearly stated,
- related to federal interests,
- constitutional,
- not unduly coercive
(South Dakota v. Dole).
Under the Commerce Clause, what three categories can Congress regulate?
Congress can regulate
(1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and
(3) activities that substantially affect interstate commerce.
how can congress regulate channels of interstate commerce
Congress can prohibit the movement of specified goods through interstate commerce regardless of their motivation for doing so.
this applies to highways, waterways, and airways.
how can congress regulate Instrumentalities of Interstate Commerce
Congress can regulate or protect:
- the instrumentalities or infrastructure of interstate commerce.
- persons or things as they move in interstate commerce
- purely intrastate activities if it threatens to harm interstate commerce
How can congress regulate intrastate activities
Congress can regulate commerce even if the threat to interstate commerce comes from activity that occurs only within the borders of a single state
how can congress regulate Activities that Substantially Affect Interstate Commerce which are economic in nature
(most litigated category)
- Activities must be inherently economic or commercial in nature.
- Requires demonstrable “substantial” effect on interstate commerce.
- Purely intrastate activities can substantially impact Interstate Commerce if aggregated.
Substantial is interpreted contextually—no single universa
USSC has interpreted economic activity very broadly to onclude commercial activity and noncommercial production, consumption or distribution of commodities.
How is Dormant Commerce Clause analysis structured?
to evaluate the constitutionality of state regulations
Step 1a: If the state law discriminates explicitly or facially against interstate commerce, strict scrutiny applies;
Step 1b: If not, balance the burden on interstate commerce against local/state benefits.
Step 2: Is the burden on interstate commerce clearly excessive in relation to a local benefit?
How does the court apply strict scrutiny applies when the law discrimintates explicitly or facially against interstate commerce?
Under the strict scrutiny test, the law is almost always unconstitutional.
Consider:
- Is there an express geographic distinction
- Are we prohibiting 100% of out of state competition. 90% would not count.
How can states counteract strict scrutiny test
ii. State must demonstrate compelling justification and least restrictive means.
What does the court consider when reviewing Step 2?
Is the burden on I.C. clearly excessive in relation to a local benefit?
- Is there a rational argument for local benefit?
- Are there obviously nondiscriminatory alternatives?
- Does the law still allow out of state competition?
when can a state government impose a tax on I.C. without violating the D.C.C.?
If the tax
- Is applied to a person or activity that has a substantial nexus within the state
- Is fairly apportioned (based on the amount of business connected to the state
- Does not discriminate against interstate commerce and
- Is fairly related to the services being provided by the state
all 4 are necessary
What are the exceptions to the Dormant Commerce Clause?
- congressional approval and
- when a state acts as a market participant rather than regulator.
What does the declare war clause allow congress to do
- authorizes congress to declare war against other nations
- allows Congress to enact any legislation that is relevant to the war power, such as supporting ongoing war efforts or remedying consequences of a war that has ended.
Has been interpreted broadly by USSC.
What is the Necessary and Proper Clause’s role in Congressional Power?
It authorizes Congress to use incidental powers essential to carrying out enumerated powers, but cannot be used as an independent source of congressional power.
(McCulloch v. Maryland).
What is the Treaty Power
- If the U.S. properly ratifies a treaty under Article II, Congress can pass implementing legislation, Even if the topic would otherwise be outside its enumerated powers.
- Congress may implement treaties that exceed the scope of the constitution but there could be limits:
- Case-by-case basis
What is the nondelegation doctrine
- C may authorize the executive or judicial branch to act in a certain area if C articulates an intelligible principle to guide the branch’s activity.
- Comes up a lot with Agency actions.
