Constitutional Law
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| Necessary and Proper Clause | Grants Congress the power to make all laws necessary and proper for carrying into execution ANY power granted to ANY branch of the federal government.
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| Necessary and Proper Clause **NOTE** | It is not itself a basis of power; it merely gives Congress power to execute specifically granted powers. Thus answers should not by N&P Clause standing alone.
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| Congress' Taxing Power | Congress has the power to law and collect taxes, but they must be UNIFORM throughout the US.
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| Export Taxes | Neither Congress nor the state can tax exports to foreign countries
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| Tax will be upheld if: | It bears some REASONABLE RELATIONSHIP TO REVENUE PRODUCTION or if Congress has the POWER TO REGULATE the taxed activity.
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| Congress' Spending Power | Congress may spend to "provide for the common defense and general welfare." This spending may be for ANY PUBLIC PURPOSE - not merely the accomplishment of other enumerated powers.
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| Commerce Power | Art. 1 gives Congress power to regulate commerce with foreign nations and among the several states, and with the Indian tribes.
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| "Substantial Economic Effect" | Congress has power to regulate any activity, local or interstate, that either in itself or in COMBINATION WITH OTHER ACTIVITIES has a "substantial economic effect" upon interstate commerce. Ex: Wheat grown for home consumption
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| Congress' power under Commerce Clause | 1. Regulate channels of interstate commerce
2. Regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or
3. Regulate activities that have a substantial effect on interstate commerce
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| Commercial or Economic Activity vs. Noncommercial or Noneconomic Activity | If commercial or economic: RATIONAL BASIS
If noncommercial and noneconomic: regulated under Commerce Clause only if Congress can show a SUBSTANTIAL ECONOMIC EFFECT
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| Congress' War Powers | Power to declare war, raise and support armies, provide for and maintain a navy, make rules for gov't and regulation of the armed forces, and organize, arm, discipline, and call up the militia
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| Congress' Economic Regulation (During War) | Regulatory power of Congress in support of war effort is pervasive
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| Congress' Economic Regulation (Postwar) | To a considerable extent, pervasive regulatory power may be validly extended into post-wartime periods both to remedy wartime disruptions and to cope with "cold war" exigencies.
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| Suspension of Habeas Corpus for Enemy Combatants | Congress does not have the power to deny habeas corpus review to all aliens detained as enemy combatants absent a meaningful substitute for habeas corpus review.
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| Meaningful substitute for habeas corpus review allows prisoners to: | 1. challenge President's authority to detain them indefinitely;
2. contest findings of fact;
3. supplement the record on review with evidence discovered after the military commission's proceedings; and
4. request release
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| Court-martial of American soldiers | Military courts have jurisdiction over ALL offenses (not just service connected offenses) committed by persons who are members of the armed services, both when charged and at the time of the offense
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| Court-martial of American civilians | GENERALLY PROHIBITED as long as actual warfare has not forced courts to shut down. Such trials by court-martial violate the 5th & 6th Amendments
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| Investigatory Power | VERY BROAD - the power to investigate to secure information as a basis for potential legislation or other official action such as impeachment or trying impeachments.
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| Property Power | Congress has the power to acquire and dispose of property of all kinds (real, personal and intangible).
Ex: The Property Clause empowers Congress to even protect wildlife wandering onto federally owned lands.
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| Eminent Domain | 5th Amendment - acquisition of property for a public purpose. Federal taking must be for the purpose of EFFECTUATING AN ENUMERATED POWER under some other provision of the Constitution.
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| Is there such a thing as Federal Police Power? | No
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| Bankruptcy Power | Nonexclusive - state legislation in the field is superseded only to the extent that it conflicts with federal legislation therein.
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| Postal Power | - EXCLUSIVE to Congress
- Congress may validly classify and place REASONABLE RESTRICTIONS on use of mail but may not deprive citizens of the general mail "privilege"
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| Power over Citizenship | To establish a uniform rule of naturalization
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| Nonresident Aliens | No right to enter US and can be refused entry because of their political beliefs
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| Resident Aliens | Entitled to NOTICE AND HEARING before they can be deported
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| In order to take away citizenship, what must Congress have? | Consent
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| Admiralty Power | Plenary and exclusive to Congress
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| Delegation of Legislative power | Congress has BROAD discretion to delegate its legislative power to executive offices and/or administrative agencies.
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| Limitations on Congressional delegation | 1. Power cannot be uniquely confined to Congress
2. Must have intelligible standards for delegate to follow
3. Limited by separation of powers
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| Criminal v. Civil Punishment | Legislature may delegate authority to enact regulations where a violation is a crime, but prosecution must be left to executive and judicial branches. However, agencies may enact and impose civil penalties without prosecution in court.
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| Speech and Debate Clause | SCOPE: Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution.
Immunity extends to aids who engage in acts that would be immune if performed by a legislator.
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| Speech and Debate Exclusions | 1. Bribes
2. Speeches made outside of Congress
3. Republication of a defamatory statement originally made in Congress
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| Bicameralism | Passage of a bill by both houses of Congress
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| Presentment | Giving the bill to the President for his signature or veto
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| Legislative veto (examples on pg 23) | INVALID - an attempt by Congress to overturn an executive agency action WITHOUT bicameralism or presentment
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