Legislative Power

Question 1

ENUMERATED AND IMPLIED POWERS

Answer 1

• Constit grants Congress specific powers enumerated in Art 1 Sect 3 & auxiliary power under Necessary & Proper Clause.

Question 2

Necessary and Proper “Power”

Answer 2

• Grants Congress power to make all laws necessary & proper (i.e., appropriate) for execution of any power granted to any branch

Question 3

Note on NPC

Answer 3

• Not itself a basis of power; it merely gives Congress power to execute specifically granted powers.
• Thus, if question asks what is best source of power for a particular act of Congress, answer should not be NPC, standing alone.

Question 4

NPC Limit

Answer 4

Congress cannot adopt a law that is expressly prohibited by another Constit provision

Question 5

Taxing Power

Answer 5

• Congress has power to lay & collect taxes, imposts, & excises, but they must be uniform throughout US.
• Capitation/other direct taxes must be in proportion to the census & direct taxes must be apportioned among states

Question 6

Determining What Is a Tax

Answer 6

The determination of whether a legislative enactment imposes a tax does not depend on the label Congress gives it, but rather on its function.

Question 7

Uniformity

Answer 7

Requirement of uniformity in the levy of indirect taxes (generally, this means any kind of “privilege” tax, including duties & excises) has been interpreted by Ct to mean geographical uniformity only—i.e., identical taxation of taxed Article in every state where it is found.

Question 8

Direct Taxes—Must Be Apportioned

Answer 8

• A “direct” tax (imposed directly on property/ person) has seldom been employed by Congress b/c of cumbersome apportionment requirement; taxes on income from real/personal property were initially held “direct” by Ct, but the resulting need for apportioning such taxes was removed by 6th Amend (income tax amendment).

Question 9

Taxes Are Generally Valid

Answer 9

• Absent a specific restriction such as those above, be very hesitant to rule against a tax
• A tax measure will be upheld if it bears some reasonable relationship to revenue production/if Congress has the power to regulate the taxed activity.

Question 10

Spending Power

Answer 10

• Congress may spend to “provide for the common defense & general welfare.” [Art. I, §8]
• Spending may be for any public purpose—not merely accomplishment of other enumerated powers.
• Nonspending regulations: unauthorized.
• Remember Bill of Rights applies power; i.e., fed gov could not condition welfare payments on an agreement not to criticize government policies.

Question 11

Regulation Through Spending

Answer 11

• Congress can use spending power to “regulate” areas, even where it otherwise has no power to regulate area, by requiring entities that accept gov money to act in a certain manner (i.e., attaching “strings” to government grants).

Question 12

Commerce Power

Answer 12

• Empowers Congress to “regulate commerce w/ foreign nations, & among the several states, & w/ Indian tribes.”

Question 13

Definition of Commerce

Answer 13

1) Includes Basically All Activity Affecting 2/ More States
- “every species of commercial intercourse . . . which concerns more states than one” & included virtually every form of activity involving/affecting 2/ more states.

2) Includes Transportation/Traffic
- Transportation/traffic is commerce, whether/not a commercial activity is involved.

Vehicular Transportation Not Required
- Any transmission across state lines, such as electricity, gas, telegraph, telephone, TV, radio, & mail transmission (including educational materials & sale of insurance), will constitute interstate commerce.

Question 14

“Substantial Economic Effect”

Answer 14

• Congress has power to regulate any activity, local/interstate, that either in itself/ in combination w/ other activities has a “substantial economic effect upon,” or “effect on movement in,” interstate commerce.

Question 15

Power Not Unlimited

Answer 15

• To be w/in Congress’s power under Commerce Clause, a fed law must either:
  (i) Regulate channels of interstate commerce;
  (ii) Regulate instrumentalities of interstate commerce & persons & things in interstate commerce; or
  (iii) Regulate activities that have a substantial effect on interstate commerce.

Question 16

Intrastate Activity

Answer 16

• When Congress attempts to regulate intrastate activity under 3rd prong, above, Ct will uphold regulation if it is of economic/ commercial activity & there is a rational basis to conclude that activity in aggregate substantially affects interstate commerce.
• If regulated intrastate activity is not commercial/economic, Ct generally will not aggregate effects & regulation will be upheld only if Congress can show a direct
  substantial economic effect on interstate commerce, which it generally will not be able to do.

Activity vs. Inactivity
- CC gives Congress power only to regulate existing commercial activity; it does not give Congress power to compel activity, even if failure to undertake the activity may affect interstate commerce

Question 17

War and Related Powers

Answer 17

• Congress has power to declare war, raise & support armies, provide for & maintain a navy, make rules for the gov & regulation of armed forces, & organize, arm, discipline, & call up the militia.
• Of course, several other congressional powers may have direct/indirect application to military purposes: tax & spending power, commerce power, Senate’s treaty consent power, maritime power, investigatory power, etc.

Question 18

Economic Regulation

Answer 18

1) During War
- Regulatory power of Congress, especially in economic matters & mobilization of troops, in support of war effort is pervasive (although theoretically limited by the Bill of Rights); thus, Ct has sustained national price & rent control, as well as conscription & regulation of civilian/military production & services.

2) Postwar
- To a considerable extent, this pervasive regulatory power may be validly extended into post-wartime periods both to remedy wartime disruptions & to cope w/ “cold war” exigencies.
- Legislation in the field of veterans’ rights & limitations thereon may be extended indefinitely as long as veterans/their relatives may survive.

Question 19

Military Courts and Tribunals

Answer 19

• The constitutional basis of courts of military justice (trial & review of offenses by military personnel, including cts-martial & reviewing agencies & tribunals) is not Article III, but rather Article I, Section 8, Clause 14 (congressional power to make rules for government and regulation of armed forces), buttressed by the Necessary and Proper Clause.

Question 20

Judicial Review

Answer 20

• The regular fed (or state) cts have no general power to review ct-martial proceedings.
• However, in habeas corpus cases, Art III cts, including SC, may make a limited inquiry into military ct’s jurisdiction of the person & offense/validity of ct’s legislative creation.

Question 21

Court-Martial of Enemy Civilians and Soldiers Permitted

Answer 21

• Military courts may try enemy civilians as well as enemy military personnel, at least during wartime.

Suspension of Habeas Corpus for Enemy Combatants
- Congress does not have power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review.
- A meaningful substitute would allow prisoners to
(1) challenge President’s authority to detain them indefinitely,
(2) contest military commission’s findings of fact,
(3) supplement the record on review w/ exculpatory evidence discovered after the military commission’s proceedings, and
(4) request release.

Question 22

Court-Martial of American Soldiers Permitted

Answer 22

• Military cts have jurisdiction over all offenses (not just service connected offenses) committed by persons who are members of armed services, both when charged & at time of offense.

Question 23

Court-Martial of American Civilians Generally Prohibited

Answer 23

The Supreme Court has denied Congress the power to authorize the court-martial trial of American civilians as long as actual warfare has not forced courts to shut down, even though martial law has been declared

Question 24

Calling Forth the Militia

Answer 24

• Under the Militia Clauses, Congress has power to authorize President to order members of National Guard units into federal service—even in circumstances that do not involve a national emergency (e.g., for training outside US).
• President need not obtain consent of the governor of a unit’s home state to call it into such service

Question 25

Investigatory Power

Answer 25

- Power to investigate to secure info for potential legislation/other official action (like impeachment) is an implied power. - Very broad power, investigation need not be directed toward enactment of particular legislation, but the following limitations on its use do exist.

Question 26

Authorized Investigation

Answer 26

Investigation must be expressly/impliedly authorized by congressional house concerned, i.e., by statute/resolution creating/directing investigating committee/subcommittee.

Question 27

Witnesses’ Rights

Answer 27

Fifth Amendment - Privilege against compulsory self-incrimination is available to witnesses, whether formal/informal, unless a statutory immunity co-extensive with the constitutional immunity is granted. Relevance - Written/oral info elicited by investigation must be “pertinent” to subject of inquiry. Procedural Due Process - Witnesses are generally entitled to procedural due process, like presence of counsel & right of cross-examination; but it is not yet clear whether such rights are constitutionally required/whether some of them are required merely by house rule or statute.

Question 28

Enforcement of Investigatory Powers

Answer 28

Congress can hold subpoenaed witness in contempt for refusing to appear/answer b/f Congress.

Question 29

Subpoena of Presidential Information

Answer 29

A congressional subpoena for President’s personal info must advance a legit legislative purpose, based on: (1) whether legislative purpose warrants involving President & his papers (or whether other sources could reasonably provide Congress w info it needs) (2) whether subpoena is no broader than reasonably necessary to support legislative objective; (3) nature of evidence offered by Congress to establish that subpoena advances a valid legislative purpose (the more detailed the evidence, the better); and (4) burdens imposed on President by subpoena.

Question 30

Property Power

Answer 30

- Congress has power to “dispose of & make all necessary rules & regulations for territory/ other property belonging to US.” - Many other congressional powers (war, commerce, postal, fiscal, etc.) obviously would be unworkable if the ancillary power to acquire & dispose of property of all kinds—real, personal, & intangible—were not also implied from the main grants.

Question 31

No Limits on Disposition of Property

Answer 31

- No express limitation on Congress’s power to dispose of property owned by US. - Power extends to all species of property, like leasehold interests & electrical energy, & ordinary realty & personalty. - Moreover, disposal may involve direct competition w/ private enterprise

Question 32

Eminent Domain

Answer 32

- Obtaining property for public purpose by eminent domain is recognized by 5th Amend: “. . . nor shall private property be taken for public use, w/o just compensation.” - Federal taking must be for purpose of effectuating an enumerated power under some other provision of Constit.

Question 33

No Federal Police Power

Answer 33

- Congress has no general police power (i.e., power to legislate for health, welfare, morals, etc., of citizens). - Thus, on exam validity of fed statute cannot rely on “police power.” - However, Congress can exercise police power-type powers as to DC pursuant to its power to legislate over the capital & over all US possessions (e.g., territories, military bases, Indian reservations) pursuant to the property power.

Question 34

Postal Power

Answer 34

- Congress has power “to establish post offices & post roads.” Exclusive - Postal power has been interpreted as granting Congress a postal monopoly. - Neither private business nor states may compete w/ Federal Postal Service w/o Congress’s consent. Scope of Power - Congress may validly classify & place reasonable restrictions on use of mails, but cannot deprive any citizen/s of general mail “privilege”/ regulate mail where is violates freedom of speech/ press (except under valid standards, such as “obscenity”)/ violate ban of 4th Amend against unreasonable search & seizure.

Question 35

Power Over Citizenship

Answer 35

- Congress has power “to establish a uniform rule of naturalization.” Exclusion of Aliens Congress’s power to exclude aliens is broad. Nonresident Aliens - Aliens have no right to enter US & can be refused entry b/c of their political beliefs. Resident Aliens - Resident aliens are entitled to notice & hearing b/f they can be deported.

Question 36

Naturalization and Denaturalization—Exclusive Control of Congress

Answer 36

- Congress has exclusive power over naturalization & denaturalization. - Congress has plenary power over aliens

Question 37

No Loss of Citizenship Without Consent

Answer 37

- 14th Amend: Congress may not take away citizenship of any citizen—native-born/naturalized—w/o his consent. Proof of Intent - Citizen’s intent to give up citizenship may be by words/ conduct—& Congress may require intent to be proven by a preponderance of the evidence.

Question 38

Rights of Children of Citizens

Answer 38

- Person born in another country to US citizen parents does not have a constitutional right to become a US citizen. - Congress can grant citizenship to children born abroad conditioned on their return to live in the US w/in a specified period of time/for a specified number of years. - Such a child who fails to return to the US loses his grant of citizenship b/c he failed to meet statutory condition precedent to his final grant of citizenship.

Question 39

Admiralty Power

Answer 39

- Although congressional power to legislate in maritime matters is not expressed in the Constit, SC has implied it from the exclusive jurisdiction given the fed cts by Article III, Section 2, supported by the NPC Exclusive Power - Power is plenary & exclusive, except to extent that Congress may leave (& has left) some maritime matters to state jurisdiction. Navigable Waterways - Federal admiralty power attaches to all navigable waterways—actually/potentially navigable— & to small rivers/streams that affect navigable waterways. - Not limited to tidewaters/interstate waters.

Question 40

Power to Coin Money and Fix Weights and Measures

Answer 40

- Congress has power to coin money & fix standard of weights & measures

Question 41

Patent/Copyright Power

Answer 41

Congress has the power to control issuance of patents & copyrights

Question 42

DELEGATION OF LEGISLATIVE POWER: Broad Delegation Allowed

Answer 42

Congress has broad discretion to delegate its legislative power to executive officers and/or administrative agencies & even delegation of rulemaking power to cts has been upheld

Question 43

Limitations on Delegation

Answer 43

Power Cannot Be Uniquely Confined to Congress - To be delegable, power must not be uniquely confined to Congress; e.g., power to declare war cannot be delegated, nor power to impeach. Clear Standard - Delegation must include clear standards for delegate to follow. Claims of Broad Delegation on Major Questions - Claims that Congress delegated broad power to adopt regulations having wide-sweeping economic & political significance (“major questions”) will not automatically be upheld. - Ct will consider whether agency has historically asserted such power & whether there is clear congressional authorization for claimed power. - In such major questions cases, a claim of broad delegation cannot be based on modest, vague, or subtle language.

Question 44

Separation of Powers Limitations

Answer 44

- While Congress has broad power to delegate, separation of powers doctrine restricts Congress from keeping certain controls over certain delegates - Ex: Congress cannot give itself power to remove an officer of executive branch by any means other than impeachment (e.g., if Congress delegates rulemaking power to an executive branch agency (e.g., the FCC), it may not retain the power to fire the agency head). - Similarly, Congress cannot give a gov employee who is subject to removal by Congress (other than by impeachment) purely executive powers.

Question 45

Important Liberty Interests

Answer 45

- If delegate interferes w/ the exercise of a fundamental liberty/right, burden falls on delegate to show she has the power to prevent the exercise of the right & her decision was in furtherance of that particular policy.

Question 46

Criminal vs. Civil Punishment

Answer 46

- Legislature may delegate its authority to enact regulations, the violation of which are crimes, but prosecution for such violations must be left to the executive & judicial branches. - However, agencies may enact & impose civil penalties (i.e., fines labeled as civil fines) w/o prosecution in court.

Question 47

THE SPEECH OR DEBATE CLAUSE—SPECIAL IMMUNITY FOR FEDERAL LEGISLATORS

Answer 47

“For any speech/ debate in either House [members of Congress] shall not be questioned in any other place.”

Question 48

Persons Covered

Answer 48

- Immunity extends to aides who engage in acts that would be immune if performed by a legislator. - Note: The Speech/Debate Clause does not extend to state legislators who are prosecuted for violation of fed law

Question 49

Scope of Immunity

Answer 49

- Conduct that occurs in regular course of legislative process & motivation behind that conduct are immune from prosecution. Bribes Excluded - Taking a bribe is not an act in regular course of legislative process and is actionable. Speeches Outside Congress - Speeches & publications made outside Congress are not protected. Defamatory Statements - Republication in a press release/newsletter of a defamatory statement originally made in Congress is not immune.