Separation of Powers

Question 1

What are the sources of Congressional power in the Constitution?

Answer 1

1. Enumerated powers (Article I, Section 8)
2. Implied Powers
   
   • Necessary and Proper Clause (Article I, Section 8)
   • Taxing and Spending Power (Article I, Section 8, Clause 1)
   • Commerce Clause (Article I, Section 8, Clause 3)

Question 2

Does Congress have federal police power to promote the general welfare of the states?

Answer 2

No, will almost always be the wrong answer on the MBE.

Question 3

Define

Necessary and Proper Clause

Answer 3

Allows Congress to enact any legislation necessary to carry out its enumerated powers

⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.

Question 4

What does the Commerce Clause give Congress the authority to regulate?

Answer 4

Two broad categories:

1. Interstate commerce:
   
   • Channels (highways, waterways);
   • Instrumentalities (cars, ships, trucks, airplanes);
   • Articles moving in interstate commerce; and
   • Activities that substantially affect interstate commerce
2. Intrastate commerce:
   
   • Economic activities: must substantially affect commercial activity in the aggregate
   • Non-economic activities: must substantially and directly affect commercial activity (higher burden)

More info: Commerce Clause

Question 5

What does commerce mean?

Answer 5

The word is not explicitly defined in the Constitution, but has generally come to mean the majority of activities between two states (e.g. TV, radio, traffic, crops, marijuana, etc).

15 U.S.C. §1127 defines commerce as the “the exchanging, buying, or selling of things having economic value between two or more entities, for example goods, services, and money.”

Question 6

What is Congress’s tax power?

Answer 6

General Welfare Clause gives Congress the power to lay and collect taxes (on income from any source), as well as duties, imposts, and excises, for any public purpose. (Article I, Section 8).

Government has no burden to show compelling purpose for the tax.

Question 7

What is the only requirement for a general tax to be valid?

Answer 7

Must raise revenue

Question 8

Can Congress regulate via its taxing power?

Answer 8

Yes, a tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden).

More info: Regulation by Taxation

Question 9

Define

indirect tax

Answer 9

Tax that is paid by a consumer to a business or intermediary, who then pays the tax to the government (e.g. import duties, sales tax, cigarette tax)

Question 10

What is required for an indirect tax to be valid?

Answer 10

must be geographically uniform in every state in which it exists

⚠️ Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist

Question 11

What is required for direct tax to be valid?

Answer 11

Must be evenly apportioned among the states according to population

Question 12

Define

Export Taxation Clause

Answer 12

Prohibits Congress from taxing goods exported to foreign countries

Question 13

What is Congress’s spending power under Article I, Section 8?

Answer 13

Power to “pay the debts and provide for the common defense and general welfare of the United States”

Question 14

Can Congress regulate via its spending power (i.e. place conditions on funding)?

Answer 14

Yes, but the conditions:

1. Must be related to the general welfare;
2. Expressly stated; and
3. Not going to coerce the states into unconstitutional behavior

Question 15

Can Congress pass laws under the General Welfare Clause that are not related to taxing or spending?

Answer 15

No; Congress only has the power to promote the general welfare via its taxing and spending power

Question 16

Can Congress increase tarrifs on imports?

Answer 16

Yes, via its power to regulate international commerce in Article I, Section 8

Question 17

What are Congress’s war and defense powers?

Answer 17

1. Declare war;
2. Raise and maintain armies, navy, and a militia; and
3. Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

Question 18

Can Congress enact rent control measures on civilians during wartime or the post-war period?

Answer 18

Yes, pursuant to war powers under Article I, Section 8

Question 19

When does Congress have the power to authorize the President to call National Guard?

Answer 19

To execute federal laws; suppress insurrections; or repel invasions

Question 20

Can Congress authorize the President to call the National Guard in domestic and non-emergency situations?

Answer 20

Yes

Question 21

Does Congressional authorization of the National Guard require approval of the state governor?

Answer 21

No, and the governor cannot veto Congressional authorization

Question 22

What is Congress’s plenary power over aliens?

Answer 22

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

Question 23

What are Congress’s naturalization powers?

Answer 23

Can establish “uniform rule of naturalization” under Article 1, Section 8, Clause 4

Question 24

Can Congress take away a citizen’s citizenship without their consent?

Answer 24

No, unless citizen either:

• Obtained citizenship through fraud;
• Refused to testify before Congress; or
• Was a member of a subversive organization within five years of becoming a citizen

Question 25

Define

Enclave Clause

Answer 25

Gives Congress police and regulatory powers over the District of Columbia (Article I, Section 8, Clause 17)

Question 26

What is Congress’s investigatory power?

Answer 26

Power to investigate anything in a “legitimate legislative sphere” via the Necessary and Proper Clause

Question 27

What is Congress’s property power?

Answer 27

Power to regulate, buy, and sell federal property

Question 28

What is the Speech or Debate Clause?

Answer 28

Provides immunity to members of Congress and their Congressional aides for actions related to their legislative duties

Question 29

What are the Enabling Clauses in the 13^th, 14^th, and 15^th Amendments?

Answer 29

Gives Congress the power to enforce the 13^th, 14^th, and 15^th Amendments via “appropriate legislation”

Question 30

What does the 13^th Amendment ban and how can Congress enforce it?

Answer 30

Slavery.

Congress can enact legislation to prohibit discrimination by either the government or private actors that has “badges or incidents of slavery”

⭐️ This is one of only two amendments that apply to behavior by private individuals (the other is that private indivudals also may not restrict freedom of movement among the states)

Question 31

What is the 14^th Amendment?

Answer 31

Prohibits the states from violating the Due Process Clause and Equal Protection Clause

Question 32

How can Congress enforce the 14^th Amendment?

Answer 32

Congress has the power to override 11^th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

1. Congress shows historical and widespread discrimination by the state; and
2. Law is “congruent and proportional” to remedying discrimination

Question 33

What is the 15^th Amendment?

Answer 33

Prohibits states and the federal government from denying voting rights based on “race, color, or previous condition of servitude”

Question 34

Define

legislative veto

Answer 34

Allows Congress to nullify an Executive Branch action. Ruled unconstitutional by INS v. Chadha (1983).

Ex. In INS, Congress used a legislative veto to invalidate a deportation authorized by the Attorney General.

Question 35

What is the 10^th Amendment?

Answer 35

Holds that powers not delegated to the federal government, nor prohibited to the states, are reserved to the states.

Prohibits Congress from forcing states to enact federal regulatory programs (Anti-Comandeering Doctrine)

Question 36

Define

Anti-commandeering doctrine

Answer 36

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

Question 37

Can Congress delegate its powers to other branches?

Answer 37

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

Question 38

Can Congress pass employment anti-discrimination laws pursuant to its powers under the Commerce Clause?

Answer 38

Yes