Module 6 - Congressional Power

What powers does Congress have pursuant to the Constitution?

only the legislative powers “herein granted”

What are Congress’s enumerated powers?

1. Levy taxes and spending

1. Regulate commerce (interstate, foreign, and with Indian tribes)

2. naturalization

3. Create federal courts

4. Declare war

5. Create armies

6. Create and protect intellectual property

And create laws necessary for carrying out its enumerated powers.

Who does police power belong to?

States. Federal police officers exist (e.g. Capitol Police) but that is not police power

What permission does Congress need to create laws?

Implied: Not explicitly stated in the Constitution but useful for carrying out an enumerated power (through the Necessary and Proper Clause).

Explicit: Explicitly listed in the Constitution.

Suppose Congress acts within its enumerated powers. Federal law and state law conflict. Which overrides?

Federal law. This is the Supremacy Clause.

Suppose Congress has the power to create a law. What are the limits?

1. Federalism (10th Amendment): Powers not given to the federal government are given to the states. (e.g. NFIB Case: Congress has the spending power, but it could not use it to coerce states into expanding Medicaid.)

2. Nondelegation Doctrine: Congress has legislative power. But agencies issue binding regulations. (e.g. Congress: Workplaces must be safe. Agencies: Construction workers above six feet must wear a harness.)

What is Commerce Power?

The power of Congress to regulate interstate commerce (criminal activity, e.g. domestic violence offenders possessing guns), including trade and economic activities that cross state lines.

What laws may Congress make?

Congress may “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers

What are the elements of the Necessary and Proper Clause?

1. The end is legitimate, meaning within the scope of the Constitution.

2. The means are appropriate and plainly adapted to that end (“necessary” means useful or convenient, not indispensable).

3. The means are not prohibited and fit the letter and spirit of the Constitution.

4. The clause never works alone. It must be tied to an enumerated power (the “buddy” rule).

After the First Bank’s charter expired and the War of 1812 showed that a central bank was a practical necessity, Congress chartered the Second Bank of the United States in 1816. Maryland taxed all banks not chartered by the state, and McCulloch, cashier of the Baltimore branch, refused to pay the $15,000 tax. Holding(s)?

1. Congress could create the bank. “Bank” appears nowhere in the Constitution, but a bank is a useful means of carrying out the taxing, borrowing, commerce, and war powers.

2. Maryland could not tax the bank. The federal government draws its power from the people, not the states.

What is the Constitution?

a flexible framework of great outlines, not a detailed legal code

When may a state tax federal employees’ salaries?

1. if the tax is non-discriminatory, and

2. not imposed directly on the federal government

What are the Necessary and Proper Clause factors?

1. the broadness/breadth of the clause

2. a long history of federal involvement in the area

3. the federal government’s interest as the custodian (holder of the prisoners) in protecting the public from its prisoners

4. Federal government must accommodate state interests (meaning if the state wants to take authority over one of their criminal offenders, they can)

5. the statute’s narrow scope

US v. Comstock: The U.S. Constitution only gives the federal government a specific, limited list of powers (like printing money, regulating trade, and running the military). General "police powers"—like running regular mental health hospitals or handling everyday civil commitments—belong to the individual states (under the 10th Amendment).

In this case, several federal prisoners convicted of sex crimes were about to finish their sentences. The federal government wanted to transfer them to a mental health facility instead of setting them free, using a specific federal law (18 U.S.C. § 4248).

The prisoners sued, arguing: "Our sentences are over. The Constitution doesn't give the federal government the power to run a general mental health system. You have to let us go."

Holding?

Because we already have the power to run prisons, we have a duty to safely manage the people inside them.

Therefore, it is necessary and proper for us to keep severely mentally ill, sexually dangerous prisoners locked up in a mental health facility even after their official prison sentence is officially over.

Federal Taxing Power: Rule

Congress may “lay and collect taxes, duties, imposts and excises” to pay debts and provide for the common defense and general welfare.

Taxes may shape behavior, not only raise revenue. (e.g. raising taxes on cigarettes)

Do you pay more federal income tax depending on which state you live in? For example, if you live in CA comprising 20% of the US population, CA residents must pay 20% of the federal tax revenue.

No. Abolished by Sixteenth Amendment.

What are Direct taxes? (head taxes and property taxes)

On what you own: e.g. property taxes

Or who you are: adults must pay $1K tax per year

Are regulatory penalties that are disguised as taxes allowed? For example, if a company uses child labor, they must pay 10% of their net profits in tax.

This is a penalty, not a tax.

How do we determine whether it’s a tax or a penalty?

Signs its tax:

1. it raises revenue

2. the IRS collects it through ordinary tax mechanisms

3. the amount is modest

4. The actor preserves a genuine, lawful financial choice.

5. it has no scienter (guilty knowledge) requirement or criminal sanction.

NFIB v. Sebelius:

The Patient Protection and Affordable Care Act (ACA) of 2010 introduced two major provisions challenged under Article I powers:

1. The Individual Mandate: Beginning in 2014, the Act required applicable individuals to maintain minimum essential health coverage or make a "shared responsibility payment" (termed a "penalty" in the statute) to the IRS, calculated as a percentage of household income and enforced through the tax code.

2. The Medicaid Expansion: The Act required participating states to expand their Medicaid programs to cover all individuals under age 65 with incomes below 133% of the federal poverty line. States that declined to comply faced the loss of all of their federal Medicaid funding, which accounts for over 10% of most states' total budgets.

What’s the rule and the holding?

Rule:

Commerce Clause: Congress cannot compel individuals to enter commerce or purchase a commercial product.

Spending Clause: Congress can attach conditions to federal funds to serve the general welfare, but financial inducements become unconstitutionally coercive when they cross the line from "relatively mild encouragement" to compulsion, violating the principles of federalism.

Holding:

1. The individual mandate is unconstitutional under the Commerce Clause because Congress cannot compel individuals to purchase insurance, but it is constitutional as a tax under Congress's taxing power.

2. The Medicaid expansion is unconstitutional under the Spending Clause to the extent that it penalizes states that choose not to participate by stripping them of all their existing Medicaid grants.

Who has the power to impose tariffs?

Congress, because tariffs are a tax. Congress delegates it to the President only with explicit language.

Learning Resources v. Trump (2026):

• Context: Domestic U.S. toy importer challenged tariffs imposed by the President.

• Rule: Tariffs are a form of tax/duty. The taxing power belongs strictly to Congress.

Apply the rule.

The Court ruled that regulating imports is not the same as imposing duties/taxes.

Congressional Spending Power: Rule

Congress may spend for the general welfare and attach conditions to federal funds to encourage states to adopt policies it could not mandate directly.

Congressional Spending Power: Rule Requirements

1. The spending serves the general welfare (courts defer heavily to Congress). (e.g. increasing drinking age to reduce drunk driving)

2. The condition is stated unambiguously, so states choose knowingly. (If your state allows the purchase of alcohol by anyone under 21, the Secretary of Transportation will withhold 5% of your highway apportionment.)

3. The condition relates to the federal interest in the program (e.g. withholding funding for libraries to incentivize increasing the drinking age won’t work)

4. No other constitutional provision independently bars it. (e.g. you can’t encourage violating the 1st amendment)

5. The inducement is not so coercive that “pressure turns into compulsion.” (e.g. 0.5% of entire state’s total budget is not compulsion, but 10% is a “gun to the head”)

Based on the Congressional Spending Powers elements, consider the facts of NFIB v. Sebelius (2012):

The Act required states to expand Medicaid to everyone under 65 with income below 133% of the poverty line or lose all existing Medicaid funds (over 10% of most states’ budgets and up to 20% for some states).

Holding?

Unconstitutionally coercive: “a gun to the head” and “economic dragooning.”

Power of the Purse/Appropriations Power: Rule

It acts as a hard limit on the Executive Branch: the President and federal agencies cannot spend a single cent of government/treasury money unless Congress explicitly passes a law allowing it.

Power of the Purse/Appropriations Power: Elements

1. A Specified Source: Where the money is coming from (e.g., "From the general treasury fund" or "From the Highway Trust Fund").

2. A Designated Purpose: What exactly the money is allowed to be used for (e.g., "...to build a new federal courthouse in Chicago").

CFPB v. Community Financial Services Association (2024)

The CFPB is a federal watchdog agency. In 2017, they passed a strict rule regulating high-interest payday lenders (the CFSA).

Most federal agencies are funded through annual appropriations. They have to go to Congress every single year and ask for a budget. If Congress doesn't pass it, the agency shuts down.

However, when Congress created the CFPB, they wanted the agency to be shielded from political pressure. So, they passed a statute giving the CFPB a standing appropriation: the CFPB Director is allowed to simply draw whatever money they deem "reasonably necessary" directly from the Federal Reserve every year, up to a set cap, without ever asking Congress for permission again.

The payday lenders argued this was a constitutional violation. They claimed Congress gave away its "power of the purse" by giving the CFPB a permanent blank check.

Holding?

To satisfy the Constitution, an appropriation only needs two things:

1. A specified source of money: The source was the combined earnings of the Federal Reserve

2. A designated purpose: The purpose was to pay the expenses of the Bureau to carry out its duties.

Impoundment: Rule

Congress writes the checks, and the President is legally required to cash them.

If Congress legally appropriates money for a specific purpose, the President cannot refuse to spend it just because they disagree with the policy. The President’s constitutional duty is to "take care that the laws be faithfully executed"—they do not have the power to override Congress's spending priorities.

Given the impoundment rule, how can the President cancel/rescind spending?

Through a strict process called a Recision Request:

1. The President must send a formal request to Congress asking to cancel the funds.

2. The President is allowed to "pause" the spending for up to 45 days while Congress considers the request.

3. If both houses of Congress do not explicitly vote to approve the cancellation within those 45 days, the President mustrelease and spend the money.

The federal government's fiscal year ends on September 30. Any annual money that isn't spent by that date simply expires and disappears.

If a President submits a rescission request to Congress in late August, the 45-day pause stretches past September 30. Even if Congress ignores the request or plans to vote no, the fiscal year ends during the pause.

What happens to the funds?

The money expires, and the President successfully kills the funding without congressional approval. (loophole)

What is the Federal Budget process?

1. Early February: President’s Request/Wishlist to Congress

2. Spring: Congress drafts a budget resolution to set maximums spending overall.

3. Summer: The massive budget is chopped into 12 distinct categories (Defense, Agriculture, Homeland Security, etc). Subcommittees write the bills designating $$.

4. Fall: Bills are sent to the House and Senate. Members of Congress debate, amend, and vote.

5. House & Senate have a conference to negotiate their differences to build a final bill.

6. President signs or vetoes.

7. Most years, a continuing resolution is needed to avoid a government shutdown to keep the government funded for a few more weeks while they finish arguing.

Treaty Power governs how the United States makes formal, binding agreements with foreign nations and how those agreements fit into domestic American law. Who makes treaties?

The President negotiates/drafts the treaty.

It becomes law with the “advice and consent” of 2/3 supermajority of the Senate.

How do treaties take effect?

Self-Executing: Clear and specific language. Becomes enforceable domestic law the moment its ratified.

Non Self-Executing: A mere promise to a foreign nation. Congress must pass an implementing statute (a regular domestic law that makes the treaty actionable).

Do treaties supersede state laws?

Yes

Do treaties supersede federal law?

No. They are equivalent.

What happens if a treaty and federal statute contradict each other?

The latest one wins

What are the limits of a treaty?

1. Treaties cannot override the constitution.

2. President and Senate don’t have to accept treaties “as is.” During ratification, they can attach “reservations” e.g. "The United States agrees to be bound by this treaty, except for Article 4."

The US signs a federal treaty on a subject usually handled by local states, such as regulating local wildlife or local crime. Does Congress have the power to pass federal wildlife laws?

Yes, to enforce the treaty

What is the Clear Statement Rule?

If a federal law is going to criminalize traditionally state-handled conduct, Congress must say so LOUDLY and explicitly.

If the law's wording is even slightly vague, the Court will interpret it in a way that protects state power and avoids a constitutional crisis.

Bond Case: A microbiologist named Carol Bond found out her closest friend was pregnant by Bond’s husband. Seeking revenge, Bond stole toxic chemicals from her lab and smeared them on the friend's doorknob and car door, causing a minor thumb burn.

Normally, this is a basic, local assault. The local Pennsylvania police should have arrested her.

Instead, overzealous federal prosecutors charged her with a federal crime under a statute designed to implement an international Chemical Weapons Convention treaty.

What did Chief Justice Roberts hold?

Applying the Clear Statement rule, no ordinary English speaker would look at a jealous wife putting chemicals on a doorknob and call it a "chemical weapon." Because Congress didn't explicitly state that the treaty-enforcing law was meant to cover local domestic disputes, the Court refused to let the federal government overreach.

Can the Necessary and Proper Clause create new substantive powers simply because a treaty exists?

No, the Necessary and Proper Clause cannot create new powers solely based on the existence of a treaty. It allows Congress to enact laws that are necessary to execute its enumerated powers, but not to expand those powers beyond constitutional limits.

Can the President alone implement treaties domestically without congressional legislation?

No. Congressional approval required to enforce at the national level.

True or false: The federal government draws its power from the people, not the states, and a state cannot tax a federal entity directly.

True. The federal government derives its powers from the Constitution, which is established by the people, and states are not permitted to tax federal entities as it could interfere with federal operations.

When is Federal Law Supreme?

The Supremacy Clause makes federal law supreme only when it is “made in pursuance of the Constitution.”

The United States ratifies a new treaty on cybercrime. To implement the treaty, Congress enacts a law criminalizing all instances of online harassment, even purely intrastate conduct with no foreign connection. A state challenges the law, arguing that it exceeds Congress’s constitutional powers. Which concerns from Bond v. United States (2014) would support the state’s challenge? Select all that apply. 1

1. The Supremacy Clause automatically allows treaties to override any state law, so the challenge has no merit.

2. Congress lacks power to legislate beyond its enumerated Article I powers, and treaty implementation cannot expand that list.

3. The President’s power to enter treaties includes all domestic implementation authority, making congressional involvement unnecessary.

4. The treaty power, even when paired with the Necessary and Proper Clause, does not allow Congress to regulate purely local conduct normally left to the states.

2 and 4.

1 is inaccurate because while the Supremacy Clause establishes that valid treaties are supreme law of the land, those treaties CANNOT violate the Constitution.

3 is inaccurate because treaties require 2/3 vote of Congress for ratification.