Legislative Power

Question 1

3 big powers on Bar

Answer 1

taxing, spending, commerce

Question 2

necessary & proper

Answer 2

not a free- standing power of Congress. It works only as an add-on to some other legislative power.

Question 3

Promoting General Welfare

Answer 3

not a power of Congress. (its in the preamble), but can spend to do it.

Question 4

Commerce

Answer 4

i. The channels of interstate commerce (highways, seaways, airways, etc.);
ii. The instrumentalities of interstate commerce (cars, trucks, ships, railroads, etc.); and
iii. Intrastate [and interstate] activity (economic or commercial) that has a substantial effect on interstate commerce. (measured in aggregate)

Question 5

Taxing

Answer 5

1. The Taxing Clause is right answer whenever Congress imposes a tax even when the tax is actually used to prohibit the good or activity in question.
2. The tax must be rationally related to raising revenue.

Question 6

Spending

Answer 6

1. The Spending Power includes spending for the general welfare
2. Congress can use the Spending Power to accomplish things it could not do by direct regulation under the Commerce Clause.

Question 7

Anti-Commandeering

Answer 7

i. Congress cannot force states to adopt or enforce regulatory programs.
ii. It cannot commandeer state and local officers to carry out Fed. programs.
iii. What can Congress do to enforce regulatory programs?
1. It can bribe states through use of the spending power.
2. It can adopt its own regulatory program and enforce it with Fed. officers.

Question 8

War & Defense Powers

Answer 8

i. has the power to declare war & the power to maintain the Army & Navy.
ii. Congress has the power to provide for military discipline of United States armed forces members.
iii. Congress can provide for military trial of enemy combatants and enemy civilians.
iv. Congress cannot provide for military trial of U.S. civilians.

Question 9

13 Amend power

Answer 9

i. has broad power to legislate against racial discrimination, whether private or public
1. Includes purely private racial discrimination

Question 10

14th amend power

Answer 10

i. Congress has the power to remedy violations of individual rights by the gov., but only as those rights have been defined by the courts.
1. Does not enable Congress to redefine constitutional rights by legislation
ii. To be properly remedial, the legislation must have “congruence” and “proportionality.” That is, there must be a reasonable fit between the remedial law enacted by Congress and the constitutional right as declared by Supremes
iii. No power to overrule the Court’s decisions and define new rights.

Question 11

15th amend power

Answer 11

power to ensure no racial discrimination in voting.