POWERS OF CONGRESS

General Tips

• Keep in mind that Congress has no general power to legislate for the general welfare. And because only states have general police power to enact laws to protect citizens, the validity of a federal statute on the bar exam cannot be based on “federal police power.”

COMMERCE

• Congress has the power to regulate the channels and instrumentalities of interstate commerce, as well as intrastate activities that substantially affect interstate commerce.

• This includes intrastate activities that have no direct economic impact on interstate commerce, as long as there is a rational basis for concluding that the “total incidence” of the activity—in the aggregate— substantially affects interstate commerce. The practical effect of this aggregation principle is that economic activities are presumed to have a substantial economic effect.

• However, Congress has limited power to regulate noneconomic intrastate activity. And though Congress’s commerce power is construed broadly, Congress cannot mandate that individuals not engaged in commercial activities engage in such activities.

Taxing Power

A tax by Congress will be upheld if it has a reasonable relationship to revenue production. The General Welfare Clause gives Congress plenary power to impose taxes to raise revenue for any public purpose.

Spending Power

Congress has the power to spend for the general welfare (i.e., for any public purpose)—not just to pursue its enumerated powers—and may place conditions on disbursed funds. But Congress cannot (1) impose unconstitutional conditions, (2) enforce conditions that are ambiguous or unrelated to the program, or (3) coerce state behavior with its spending conditions.

OTHER CONGRESSIONAL POWERS - Property Power

There is no express limit on Congress’s power to dispose of federal property. However, Congress may only take private property for public use with just compensation and to effectuate an enumerated power

Power Over Noncitizens and Citizenship

Congress has plenary power over noncitizens in the United States, subject to the Fifth Amendment Due Process Clause. And Congress has exclusive authority over the naturalization (i.e., citizenship) process

Necessary and Proper Clause

Congress has the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government.

***The Necessary and Proper Clause is not an independent source of power, so it is not a correct answer choice on its own. It must always carry into effect another enumerated power.

Power to Enforce the Thirteenth, Fourteenth, and Fifteenth Amendments (Civil War Amendments)

Power to Enforce the Thirteenth, Fourteenth, and Fifteenth Amendments (Civil War Amendments)

Thirteenth Amendment (ban on slavery)

– gives Congress the power to adopt legislation rationally related to eliminating racial discrimination (this is the only amendment that authorizes Congress to regulate purely private conduct)

Fourteenth Amendment (equal protection and due process)

– permits Congress to pass legislation to enforce—not to expand or create—equal protection and due process rights

Fifteenth Amendment (voting)

– prohibits state and federal governments from denying any citizen the right to vote based on race, color, or previous condition of servitude