Constitutional Law: Separation of Powers: Federal Legislative Powers

  • Federal Legislative Power
    • Doctrine of Enumerated Powers: Federal government has only that authority which the constitution confers upon it (includes both express and implied powers).
      • Powers not delegated to the federal government are reserved to the states by the 10th Amendment (home of the police power).
      • There is no general federal police power. For Congress to act, it must point to express or implied police power. Congress generally doesn’t have police power, but exceptions: Military, Indian Reservations, Federal Lands, D.C. {MILD}.
      • 10th A. is home of the state police power: The police power protects any health, safety, welfare, morals, or aesthetic interest. (STATE).
        • MBE: When state is passing a law, look to see whether there is a health, safety, or welfare interest being furthered. Look for Rational Basis Answer (i.e. “Constitutional because it is a “reasonable regulation” or Constitutional because it furthers a legitimate interest.
      • Art. I, Sec. 8 = list of enumerated powers of Congress.
        • Commerce
        • Taxing and Spending
        • War power
      • Necessary and Proper Cl. If Necessary and Proper Cl. Is an answer choice, it is not, by itself a source of power. (So, it’s usually a wrong answer on the MBE). It carries into execution other enumerated powers of Art. I, Sec. 8.
    • Commerce Power: Plenary and absolute power. Applies to foreign and domestic commerce; and person or thing traveling from state to state. (Two main doctrines: affectation doctrine and cumulative impact doctrine).
      • Affectation Doctrine
        • Congress may regulate channels of interstate commerce (highways, waterways)
        • Congress may regulate instrumentalities of interstate commerce (trucks, planes)
        • Congress may regulate activities that have a substantial effect on interstate commerce.
      • Congress can also regulate for non-commercial reasons, too. Social welfare, health, civil rights (enabling clause = civil rights) hotels and restaurants.
      • A jurisdictional nexus must be in place. (i.e. Congress can’t use commerce power to make it a crime when an individual knowingly posses a gun in a school zone).
      • Cumulative Impact Doctrine: Even an entire intrastate activity has a cumulative impact on interstate commerce.
    • 10th Amendment: Powers not granted to the federal government, nor prohibited to the States are reserved to the States. It is not a strong limit on the federal commerce power.
      • RULE: 10th A. prevents Congress from interfering with the state lawmaking process. Congress may not commandeer states to enact or enforce a federal regulatory program.
      • EX: NY v. US (1992) Congress passed a law saying NYS must pass legislation to arrange for disposal of toxic waste generated within its borders – or else take title to waste and be liable for damages. Congress was passing a law telling the state to pass a law; it CANNOT do this. Congress cannot commandeer a state in this way.
    • Taxing and Spending Power: Congress may tax and spend for the general welfare.
      • General Welfare Clause: Not an independent source of power. Wrong answer on MBE if standing alone. If correct answer: it limits taxing and spending power.
      • Spending Power: Under the spending power, Congress can attach strings to grants of $. (No $ for federal highway funds unless your highway commissioner resigns).
      • [Congress can regulate indirectly where it cannot legislate directly]
      • “Appropriation” most federal appropriation derives from the spending power.
      • Taxing Power: valid if revenue raising.
    • Congress’ power under Sec. 5 of 14th Amendment – Congress may not create new rights or expand the scope of rights under Sec. 5 of 14th Amendment. 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.
    • Delegation of Federal Legislative Power: There is no limit on Congress’ ability to delegate legislative power. It can delegate powers to executive agencies, cabinet members, executive officers, the judiciary.
      • Legislative Vetoes and Line Item Vetoes are unconstitutional.
        • Legislative Veto: where Congress attempts to over turn an executive action without bicameralism and presentment
        • Line Item Veto: Where POTUS attempts to veto part of the bill while signing the rest into law.
      • Congress may not delegate executive power to itself or its officers. It may give its powers, but it may not take the powers of another branch.

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