Congressional Power

Necessary and Proper Clauase

                                                  i.      Laws are constitutional that:

1.      Are within the scope of the Constitution;

2.      describes means which are appropriate and plainly adapted to the power/area at hand;

3.      are not expressly prohibited; AND

4.      are consistent with the letter and spirit of the document.

  Test: A federal act is a valid exercise of federal authority so long as it bears a reasonable relationship to an enumerated power. (McCulloch)

                                                  i.      Necessary: req’d to discharge an asserted power.

                                                ii.      Proper: consistent with the Constitution

                                             iii.      Cannot use the NAP to create new commerce that is then regulated under the commerce power. (NFIB v Sebelius)

Cumulative Effects Doctrine

• Congress may regulate local and even individual activity IF

  • that local and individual activity exerts

  • a substantial economic effect on interstate commerce

• Substantial can be evaluated by taking into account cumulative effects of local activity

• Wickard (wheat growers taking individual actions collectively engage in larger commerce implicating the commerce power)

• Gonzalez (same for pot growers)

Modern Commerce Power

• Hodel: rational basis

  • Did Congress have a rational basis for concluding the regulated activity affect interstate commerce?

  • IF yes, is there a rational connection between the regulatory means and the asserted goals?

  • Can apply to private businesses where the activity affects interstate commerce Katzenbach

• Lopez Categories

  • Cat I: Channel of Commerce (Hodel)

  • Cat II: Instrumentalities(persons, goods, produce, materials - things that move in interstate commerce) (Hodel)

  • Cat III: Activities substantially related to commerce

    • Is the activity commercial/economic in nature? Go to Hodel

    • If NO - go to factors:

      • Jurisdictional definition on the commerce that will constrain the scope?

      • Factual findings by Congress in support of law?

      • causal link to intersate commerce proximate or remote?

      • Is the activity one of traditional state concern (education, family, general criminal, contracts, etc)?

Taxation Power

a.     Tax or penalty?

                                                  i.      Tax is valid if it raises revenue and is plausibly labled as a tax.

                                                ii.      Broad test in effect by 1950s: is it a penalty or a tax?

1.      Cannot disguise penalty as a tax - BUT CAN call a tax a penalty (NFIB v Sebelius)

• Penalty:

  • heavy burden (amount of tax relative to activity?)

  • mens rea (if the law requires the payer to know of some offense - that is indicative of penalty)

  • who collects or enforces? If the IRS or similar part of the govt that does taxation, inidcative of tax. If other agency, may be indicative of penalty.

Spending Power

Dole Test

• For the general welfare

• Conditions applied are express

• Conditions are related to the federal interest/purpose

• Not directing state to do something forbidden by the Constitution

• Not coercive (scale of penalty, other compulsory evidence, etc)

War Powers

• Executive gets broad deference for foreign affairs actions bc NAP arises from domestic sources, aka the states.

• Congress can maintain wartime actions past end of hostilities as long as need exists (Woods)

Treaty Power

• Supreme law of the land once properly enacted. Congress can make all laws NAP to enforce and fulfill the obligations.

• Congress can pass laws to effect treaties even where it did not previously have that power - as long as not CONTRAVENTION of the Constitution.

• Self-executing: once signed, become the law of the land. (no other action was needed to make them effective)

• Non-self executing: Congress must act first. (ex: treaty requires signatories to criminalize behavior or raise monies etc.

• Treaties are supreme over state laws - no treaty power is given to the states in the Constitution.

• Only treaties that are pursuant to the Constitution are valid as law of the land. (Reid)