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9 Cards in this Set
- Front
- Back
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II. THE FEDERAL LEGISLATIVE POWER |
A. Congress's authority to act B. Delegation of powers |
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A. Congress's Authority to Act (under Federal Legislative Power) |
1. There must be express or implied Congressional power 2. The necessary and proper clause 3. The taxing/spending power and the commerce power 4. 10th Amendment as a limit on Congressional powers 5. Congress' power under section 5 of the 14th Amendment |
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A1. There must be express or implied Congressional power |
There is no general federal police power. Exceptions: - Congress can use Police Power if: (MILD) - Military - Indian reservations - Federal Lands and territories - District of Columbia (DC) |
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A2. The Necessary and Proper Clause |
Article 1, Section 8 Congress can use any means not prohibited by the Constitution to carry out is authority |
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A3a. The Taxing/Spending Power |
Congress may tax and spend for the General Welfare - any tax to raise revenue; and any to spend it ex. Health care act (Obamacare) |
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A3b. The Commerce Power * |
Article 1 Section 8 i. Congress may regulate the channels of interstate commerce (highways, waterways, Internet) ii. Congress may regulate the instrumentalities of interstate commerce and persons or things in interstate commerce iii. Congress may regulate economic activities that have a substantial effect of interstate commerce. (In the area of non-economic activity, a substantial effect cannot be base on cumulative impact.) Also, five justices have said that Congress cannot regulate inactivity. (Marijuana in Cali.) |
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A4. The 10th Amendment as a Limit on Congressional Powers |
The 10th Amendment states that all powers not granted to the United States, nor prohibited to the states, are reserved to the states or the people. a. Congress cannot compel state regulatory or legislative action. - Note: Congress can induce state government action by putting strings on grants, so long as the conditions are expressly stated and relate to the purpose of the spending program. Also, the condition cannot be unduly coercive b. Congress may prohibit harmful commercial activity by state governments (ex. DMV cannot release personal activity) |
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A5. Congress' Power under Section 5 of the 14th Amendment |
Congress may not create new rights or expand the scope of rights. Congress may act only to prevent or remedy violations of rights recognized by the courts and such laws must be "proportionate" and "congruent" to remedying constitutional violations. - must be narrowly tailored |
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B. Delegation of Powers (under Federal Legislative Power) |
1. No limit exists on Congress' ability to delegate legislative power 2. Legislative vetos are line-item vetos are unconstitutional. - For Congress to act, there always must be bicameralism (passage by both the House and the Senate) and presentment (giving the bill to the President and sign or veto). The President must sign or veto the bill in its entirety 3. Congress may not delegate executive power to itself or its officers |
