B: Separation of Powers

COMMERCE POWER

1. Which branch of gov’t has this power?

2. What is it?

1. Congress

2. the power to regulate…

   (i) channels of interstate commerce
   (ii) people and instrumentalities of interstate commerce
   (iii) anything that has a substantial effect on interstate commerce

AGGREGATION PRINCIPLE

IF an intrastate commercial/economic activity, when considered in the aggregate (as part of a broader regulation of interstate actions), would have a substantial effect on interstate commerce, THEN Congress can regulate it via the Commerce Clause.

TAXING POWER

1. Which branch of gov’t has this power?

2. What is it?

1. Congress

2. the power to impose and collect taxes for the general welfare

SPENDING POWER

1. Which branch of gov’t has this power?

2. What is it?

1. Congress

2. the power to spend for the common defense and general welfare

Can Congress place conditions for states to receive federal funding?

yes, if…
(i) clear and unambiguous
(ii) reasonably related to the purpose for which the funds are spent
(iii) do not require recipients to engage in unconstitutional activity
(iv) not unduly coercive

10A ANTI-COMMANDEERING PRINCIPLE

1. The Rule

2. The Workaround

1. Congress cannot “commandeer” states…
   (i) to pass laws, OR
   (ii) to enforce federal laws

2. Congress can regulate directly (using commerce power) or indirectly (using taxing and spending powers).

TREATY & FOREIGN AFFAIRS POWER

1. Which branch of gov’t has this power?

2. What is it?

3. The Workaround

1. POTUS and Congress (shared)

2. POTUS can negotiate treaties. Senate must ratify.

3. POTUS can enter into executive agreements w/o Senate approval.

NONDELEGATION DOCTRINE

Congress cannot delegate its powers UNLESS…
(i) the powers are delegable under the Constitution
(ii) Congress provides reasonably intelligible standards to guide the delegation