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"The powers not delegated to the US Constitution, nor prohibited by the States, are reserved to the States respectively, or to the people."
Three issues when looking at powers of the federal government
- 1. Does Congress have the power to take action? (If not, the power is in the people)
- 2. Has the correct branch of the federal government exercised its power in the proper way?
- 3. Does the action violate any of the limitations of the Constitution?
Necessary and Proper Clause
Definition: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers."
Necessary and Proper Test
(Rational Basis Test)
- Test: If the ends are legitimate, the means are up to Congress.
- -Motives of the legislature are irrelevant, objective must only be rationally related to one or the constitutionally enumerated powers (rational basis)
- -Cannot stand alone: Must be attached to an enumerated power:
- Apply to the rational basis standard
- -Lay and collect taxes
- -To borrow money
- -To regulate commerce
- -To conduct a war
- -To raise and support an army and navy
Definition: Interstate commerce, intercourse between states and not limited to buying and selling of goods, can regulate matters within a state so long as the activity has some connection with another state.
Rule: Commerce Clause gives Congress the authority to regulate: (1) the use of channels of interstate commerce, (2) the instrumentalities of interstate commerce or persons or things on Interstate Commerce, (3) those activities substantially affecting interstate commerce
Test to see if the activity substantially affects interstate commerce (Category 3)
- Step 1: Is it a comprehensive scheme of regulation?
- Step 2: Is it an economic/commerical activity?
- Step 3: Is it a non-economic activity?
Comprehensive Scheme of regulation
- 1. Whether Congress intended for local activity to be a national problem.
- i. Is local activity a national problem? Would the activity undercut the regulation of the interstate market?
- 2. Consider the comprehensive scheme of regulatoin:
- i. Raich: comprehensive scheme, the Controlled Drug Act would affect manufacturing, distribution, and transportation of drugs.
- ii. Wickard: still comprehensive even though only one commodity (wheat), is affected the whole national market for the wheat
- 3. If Yes: Congress may be able to regulate if it is rational to believe it would undercut regulation of national market,
- 4. Apply a higher level of scrutiny.
(lower level of scrutiny)
- 1. Rational Basis Test: Is it rational for Congress to determine that the underlying regulated activity substantially affected Interstate Commerce.
- 2. Pretext/Motive not important (as long as the ends are legitimate, the means are not important)
- 3. Aggregation of effects
- -piling inference upon inference: Congress can aggregate activity of a certain class to determine if that class has a substantial impact on commerce.
- -A drop in the bucket is enough (Wickard)
- 4. Findings: whether Congress found that the activity has a substantial effect on Interstate Commerce
(higher level of scrutiny)
- 1. No rational basis test
- 2. Hearings and Congressional evidence may be helpful but not sufficient (only helpful if economic) (Morrison- gender based violence is not economic)
- 3. May not use cumulative effect doctrine
- 4. Is this an area of traditional state regulation? (Crime, education, and family law are not likely to be regulated by the Fed. Gov't)
- 5. Look for a jurisdictional hook-language that ties activity to statute
- 1. Motive and purpose is irrelevant as long as it functions with a regulatory effect
- 2. Must be for the general welfare
- 3. Raise some revenue
- 4. Cannot violate any Constitutional provision
- (May be independent of other enumerated powers)
- 1. Must be for the general welfare
- 2. Conditions must be clear and unambiguously stated so states can knowingly assume conditions
- 3. Conditions must be related to the federal interest
- 4. Cannot be coercive
- 5. Cannot violate any Constitutional provision
- Congress has the power to declare war and remedy its evils even after the cessation of the hostilities
- Not enumerated in the Constitution, but because the US is a sovereign power and all other sovereign powers have this right, we also have this right.
- Remedy effects of war: established by the N&P clause with the war power. The power continues past cessation of hostilities to remedy effects of war.
- No state can engage in war, unless actually invaded ot in threat of imminent danger.
Treaty Power/Executive Agreements
- The President may enter into treaties with the advice and consent of the Senate.
- The President also has the authority to enter into Exective Agreements with foreign nations without the advice and consent of Senate.
- 1. Treaties must conform to international law-UN Charter, Geneva Convention
- 2. As a matter of constitutional law
- 3. Tenth Amendment limits state power-No state can make a treaty
- 4. Last in time governs between treaty and federal law.
- 5. Congress can enact statutes to execute treaties with N&P clause
- 6. Does not seem to need senate's consent to withdraw from a treaty, just to enter into one.
- Congress has plenary power to regulate the admission or denial of aliens and to set conditions on their admission into the country.
- 1. Constitution gives Congress the right of naturalization not specifically immigration
- 2. Power comes from international laws-lodged in federal powers even if there is not a textual basis for it
- 3. Congress can also put conditions on aliens' admission
- Gives Congress the power to enforce the provisions of the Amendments and prohibitions on states.
- This is essentially Congress;s Necessary and Proper Clause
Civil War Amendments
- 13th Amendment
- 14th Amendment
- 15th Amendment
- Section 1: expressly prohibits slavery
- i. Self-executing-do not need to wait for Congress, can claim intentional discrimination, but have to wait for Congress to enact a law under section 2 for non-conventional forms of slavery
- Section 2: Congress has the power to enact laws N&P
- i. Badges and incidents of slavery-rational basis is very broad
- ii-Basic civil rights-make and enforce contracts, sue and be sued, be parties, give evidence, and inherit, purchase, sell, lease and convey property
- Applies and restricts state action in citizenship, privileges and immunities, due process and equal protection, includes power to remedy past discrimination.
- i. Enabling clause in section 5 only applies to states in discrimination, not private discrimination
- ii. Congress has the power to enact laws necessary and proper to enforce the prohibitions on the states in the 14th Amendment, including the prohibition on discrimination in the equal protection clause, citizenship, privileges and immunities, and due process.
- Discrimination in voting-Congress has the power to enact laws necessary and proper to enforce the 15th Amendment's prohibition on state denials of the right to vote based on race. This includes the power to remedy past discrimination
- i. Section 1-the rights of the US to vote shall not be abridged on account of race, color, or previous condition.
- ii. Section 2-Congress has authority to execute laws to prohibit practices that have a discriminatory effect if congruent and proportional to section 1's injuries (e.g., literacy tests, at large voting, poll taxes, and property requirement)
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