Federal Legislative Power

No Federal Police Power

Congress may only act pursuant to an express or implied power granted in the Constitution. Congress has no general police power (the general power to adopt laws for the health, safety, and welfare of citizens.) However, Congress does have general police type power of the District of Columbia, federal lands and territories, military bases, and Indian reservations because of its power over the capital and federal properties.

Necessary and Proper Clause (NPC)

Congress had the power to make all laws necessary and proper for executing any power granted to any branch of the federal government. However, the NPC only applies to matters subservient to a greater and independently-valid execution of power

Taxing and Spending Power, Generally

The Constitution gives Congress the power to tax and spend for the general welfare. Taxing and spending may be for any public purpose not prohibited by the Constitution

Validity of Taxes

Most taxes will be upheld if they bear some reasonable relationship to revenue production or if Congress has the power to regulate the activity taxed

Commerce Clause

Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce clause, a federal law regulating interstate commerce must either: (1) regulate the channels of interstate commerce; (2) regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or (3) regulate activities, even though local, that have a substantial effect on interstate commerce

Commerce Clause Intrastate Activity

When Congress attempts to regulate intrastate activity, the Court will uphold the regulation only if: (1) it is of economic or commercial activity; and (2) the Court can conceive of a rational basis on which Congress could conclude that the activity in the aggregate substantially effects interstate commerce. The Court can uphold regulation of noncommercial and noneconomic activities, but only if Congress can show a direct substantial effect on interstate commerce, which it can rarely do

Commerce Clause: Activity vs Inactivity

The Commerce Clause gives Congress power only to regulate existing commercial activity. Although not officially held, many justices have said in dicta that Congress cannot compel activity by regulating inactivity

10th Amendment, generally

All powers not granted to the United States, nor prohibited to the states, are reserved to the state or to the people

Anti-Commandeering Principle

Congress cannot compel regulatory or legislative action from the states

Spending Power Conditions

Congress can induce state and local government actions by placing conditions on the grant of money to those governments. Such grants won’t violate the 10th Amendment if the conditions: (1) are expressly stated; (2) relate to the purpose of the program; (3) are not unduly coercive; and (4) do not otherwise violate the Constitution

Preventing Harmful State Activity

Congress may prohibit harmful commercial activities by state governments without violating 10A

Congressional Power under 14A

14A Section 5 gives Congress the power to adopt appropriate legislation to enforce the rights and guarantees provided by 14A. Congress may not create new rights or expand the scope of rights under this provision; it may act only to prevent or remedy violations of rights recognized by the courts. Such laws must be proportionate and congruent to remedying the constitutional violations

War and Related Powers

Congress has the power to declare war, raise and support armies, and provide for and maintain a navy

Investigatory Power

Congress has an implied power to investigate to secure information as a basis for potential legislation or other official action

Property Power

Congress has the power to dispose of and make rules for territories and other properties of the US. While there is no express limitation on Congress’s power to dispose of property, federal takings (eminent domain) must be for the purpose of effectuating an enumerated power under some other provision of the Constitution

Bankruptcy Power

Congress has the power to establish uniform rules for bankruptcy. This power is nonexclusive, so states may legislate in the field as long as their laws do not conflict with federal law.

Postal Power

Congress has an exclusive postal power. Under that power, Congress may validly classify and place reasonable restrictions on use of mail, but may not deprive any citizen or group of citizens of the general mail “privilege”

Power over Citizenship

Congress has the power to establish uniform rules of naturalization. This gives Congress plenary power over aliens

Exclusion of Aliens

Aliens have no right to enter the US and can be refused entry summarily because of their political beliefs. However, despite Congress’s plenary power, resident aliens are entitled to notice and a hearing before they can be deported

Naturalization and Denaturalization

Congress has exclusive power over naturalization and denaturalization. However, Congress may not take away the citizenship of any citizen, native-born or naturalized, without his consent

Admiralty Power

Congress has plenary and exclusive power over admiralty issues except to the extent that Congress leaves maritime matters to state jurisdiction

Coinage Weights and Measures

Congress has the power to coin money and fix standards for weights and measures

Patent/Copyright

The Constitution gives Congress the power to control the issuance of patents and copyrights

List of Congressional Powers

(1) NPC; (2) Taxing and Spending; (3) commerce; (4) 14A power; (5) declaring war and raising and supporting the armed forces; (6) investigatory power; (7) property power; (8) bankruptcy power; (9) postal power; (10) power over citizenship rules; (11) admiralty power; (12) coinage, weights, and measures; and (13) patent/copyright.

Main limits on Congressional Power

(1) Needing authority from the Constitution; (2) Lack of general police power; and (3) the 10th Amendment

Delegation of Power

Practically, there is no limit on Congress’s ability to delegate legislative power. Congress can delegate rulemaking or regulatory power to the executive branch or judicial branch as long as intelligible standards are set and the power is not something uniquely confined to Congress. A general standard will usually suffice as an intelligible principle

Major Questions Doctrine

When an agency adopts regulations that have extraordinary economic and political significance, it must be able to point to clear congressional authorization for the exercise of such power. Modest, vague, or subtle language is not sufficient.

Legislative Vetoes

A legislative veto occurs when Congress attempts to overturn an executive action without bicameralism and presentment. This is unconstitutional.

Line-Item veto

A line-item veto occurs when the President attempts to veto part of a bill while signing the rest into law. It is unconstitutional

Bicameralism

For Congress to act, both the House and the Senate need to pass the bill

Presentment

For a bill to become law, the bill must be presented to the President to sign or veto