Congress Powers
Origination Clause (taxing power) (taxation and spending)
"All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills." Origination Clause is limited to "bills that levy taxes in the strict sense of the word, and are not bills for other purposes which may incidentally create revenue." United States v. Munoz-Flores, 495 U.S. 385, 397 (1990), citing Twin City Bank v. Nebeker, 167 U.S. 196, 202 (1897).
Direct tax—apportionment (taxing power) (taxation and spending)
"[r]epresentatives and direct taxes shall be apportioned among the several states," and that "no...direct tax shall be laid, unless in proportion to the Census...." A direct tax (one imposed directly on property or persons, such as an ad valorem property tax) would therefore have to be apportioned evenly among the states. The difficulty of ensuring this outcome explains Congress's reluctance to enact such taxes—or perhaps the Supreme Court's reluctance to find that federal taxes are "direct." The Sixteenth Amendment gave Congress the power to lay and collect income tax without apportionment among the states.
Article I, Section 8, Clause 3 of the Constitution, known as the Commerce Clause
"[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The term "commerce" has been defined to include essentially all activity—including transportation, traffic, or transmission of gas, electricity, radio, TV, mail, and telegraph—involving or affecting two or more states.
Enforcement and Witness's Rights (investigatory power)
A subpoenaed witness who fails to appear before Congress or refuses to answer questions may be cited for contempt. The witness is entitled to certain rights, including procedural due process (e.g., presence of counsel) and the privilege against self-incrimination.
A tax by Congress will generally be upheld if (taxing power) (taxation and spending)
A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production. Any purpose; Indirect tax- uniformity; Direct tax- apportionment; Export tax prohibition; Origination clause
Power over aliens and citizenship encompasses
Aliens; Naturalization
Judicial limitation of congressional power example
An action brought in federal court under federal question jurisdiction was dismissed with prejudice because it was not timely filed. A statute that revived the plaintiff's right to bring the action was struck down as a violation of the separation of powers doctrine. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995).
Elections clause (other Article I powers)
Article I, Section 4 of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may...make or alter such regulations." The Elections Clause explicitly empowers Congress to override state laws concerning federal elections.
Any purpose (taxing power) (taxation and spending)
Article I, Section 8 gives Congress the plenary (i.e., exclusive) power to raise revenue through the imposition of taxes. The government has no burden to prove that the tax is necessary to any compelling governmental interest. Instead, the General Welfare Clause has been interpreted as permitting Congress to exercise its power to tax for any public purpose. While the General Welfare Clause gives Congress broad power in exercising its spending and taxing powers, it does not give Congress the specific power to legislate for the public welfare in general. Such "police power" is reserved for the states
War and Defense Powers intro
Article I, Section 8 gives Congress the power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia.
Taxation and Spending intro
Article I, Section 8 provides: "Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States." If you see the terms "appropriation bill" or "authorization bill" on the exam, the power to spend is likely a consideration.
Power over the District of Columbia (other Article I powers)
Article I, Section 8, Clause 17 provides that Congress has the power to "exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States." Under this provision, which is known as the "Enclave Clause," Congress has supreme authority over Washington, D.C., and may legislate freely with regard to D.C. law.
Spending Power unconstitutional conditions (spending power) (taxation and spending)
Congress cannot, however, impose unconstitutional conditions, such as requiring distribution of the Ten Commandments to patients as a condition of Medicaid funding. Moreover, to be enforceable, conditions must be set out unambiguously.
Investigatory Power intro
Congress does not have an express power to investigate, but the Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate.
Naturalization (power over Aliens and citizenship encompasses)
Congress has exclusive authority over naturalization. Article I, Section 8, Clause 4 allows Congress to "establish a uniform rule of naturalization." However, the right of national citizenship in the Fourteenth Amendment prevents Congress from taking away the citizenship of any citizen without her consent, unless that citizenship was obtained by fraud or in bad faith.
Aliens (power over Aliens and citizenship encompasses)
Congress has plenary power over aliens. Aliens have no right to enter the United States and may be refused entry for reasons such as their political beliefs. However, this power is subject to the constraints of the Fifth Amendment Due Process Clause for an alien within the United States. An alien may generally be removed from the United States, but only after notice and a removal hearing.
Other Article I powers intro
Congress has power over bankruptcies, maritime matters, coining of money, fixing of weights and measures, and patents and copyrights. Power over District of Columbia; Elections clause; Necessary and proper clause
Postal Power
Congress has the exclusive power "to establish post offices and post roads" under Article I, Section 8, Clause 7. Congress may impose reasonable restrictions on the use of the mail (such as prohibiting obscene or fraudulent material to be mailed), but the postal power may not be used to abridge any right guaranteed by the Constitution (e.g., the First Amendment).
Thirteenth Amendment—Ban on Slavery ("Civil War Amendments")
Congress has the power to adopt legislation rationally related to eliminating racial discrimination, as it is among the "badges or incidents" of slavery. This power has been broadly interpreted to allow Congress to regulate both private and government action, including racial discrimination by private housing sellers, private schools, and private employers. (This is the only amendment that authorizes Congress to regulate purely private conduct.) This clause also gives Congress the power to eliminate involuntary servitude.
Courts and Tribunals (war and defense powers intro)
Congress has the power to establish military courts and tribunals under Article I, Section 8, Clause 14 and the Necessary and Proper Clause. These courts may try enemy soldiers, enemy civilians, and current members of the U.S. armed forces, but they do not have jurisdiction over U.S. civilians. U.S. citizens captured and held as "enemy combatants" are entitled, as a matter of due process, to contest the factual basis of their detention before a neutral decision maker. Under the Suspension Clause, all persons held in a territory over which the United States has sovereign control are entitled to habeas corpus (or similar) review of the basis for their detention, unless the privilege of seeking habeas corpus has been suspended.
Power to regulate interstate commerce
Congress has the power to regulate (i) the channels (highways, waterways, airways, etc.) and (ii) the instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii) any activity that substantially affects interstate commerce, provided that the regulation does not infringe upon any other constitutional right.
"Substantial Economic Effect" of interstate commerce
Congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with other activities has a "substantial economic effect upon" or "effect on movement in" interstate commerce.
Necessary and proper clause (other Article I powers)
Congress is given the power to enact any legislation necessary and proper to execute any authority granted to any branch of the federal government. The Necessary and Proper Clause is not an independent source of power, but it permits Congress's otherwise designated authority to be exercised fully. This clause permits Congress to enact legislation to execute a treaty
Federalism intro example
Congress may amend or repeal existing law and direct that the change be applied in all related pending actions, i.e., those in which a final judgment has not been entered. If a bar exam question involves application of new legislation, pay attention to the status of any case to which it is to be applied.
Property Power
Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." There is no express limit on Congress's power to dispose of property owned by the United States. Under the Fifth Amendment, however, Congress may only take private property for public use (eminent domain) with just compensation and in order to effectuate an enumerated power.
Non-Economic Activity (interstate commerce)
Congress's power under the Commerce Clause to regulate intrastate activity that is not obviously economic (so-called "non-economic" activity) is limited to some degree by principles of federalism, at least when the regulation involves an area of traditional state concern. The non-economic activity must have a substantial economic effect on interstate commerce. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012) (requiring individuals not engaged in commercial activities to buy unwanted health insurance could not be sustained as a regulation of interstate commerce); United States v. Morrison, 529 U.S. 598 (2000) (federal civil remedy for victims of gender-motivated violence held invalid); United States v. Lopez, 514 U.S. 549 (1995) (federal statute regulating possession of a firearm within 1,000 feet of a public school struck down).
Power to Enforce the Thirteenth, Fourteenth, and Fifteenth Amendments, - "Civil War Amendments" Intro
Each of the Thirteenth, Fourteenth, and Fifteenth Amendments contains a provision that authorizes Congress to pass "appropriate legislation" to enforce the civil rights guaranteed by those amendments. Thirteent;, Fourteenth; Fifteenth Amendments
Fourteenth Amendment—Equal Protection and Due Process ("Civil War Amendments")
Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones. Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court. In enforcing such rights, there must be a "congruence and proportionality" between the injury to be prevented or remedied and the means adopted to achieve that end. Congress may override state government action, but it may not under this amendment regulate wholly private conduct. Congress can override the Eleventh Amendment immunity of states.
Export tax prohibition (taxing power) (taxation and spending)
Goods exported to foreign countries may not be taxed by Congress. A tax or duty that falls on goods during the course of exportation or on services or activities closely related to the export process is prohibited. United States v. International Business Machines Corp., 517 U.S. 843 (1996) (tax on insurance premiums paid to foreign insurers of goods being exported).
National Guard (war and defense powers intro)
National Guard units are under the dual control of the federal and state governments. Under the Militia Clauses, Congress has the power to authorize the President to call National Guard units to execute federal laws, suppress insurrections, and repel invasions. This constitutional authority extends to use of National Guard units in domestic situations and non-emergency circumstances, and is not subject the approval or veto of the governor of a state.
Spending Power unconstitutional conditions example (spending power) (taxation and spending)
Parents who prevailed against local school board for violation of Individuals with Disabilities Education Act could not recover expert fees from local school board under a provision providing for recovery of costs. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006).
Spending Power example (taxation and spending)
Statute upheld withholding federal highway funds from states unless they barred the sale of alcoholic beverages to individuals under the age of 21. South Dakota v. Dole, 483 U.S. 203 (1987).
Federalism intro
Tenth Amendment makes clear, the federal government may exercise only those powers specifically enumerated by the Constitution; it is state governments and the people, not the national government, that retain any powers not mentioned in the federal charter. Any action by the federal government must be supported by a source of power originating in the Constitution. Article I, Section 1 vests all legislative powers of the federal government in Congress.
Interstate commerce is construed broadly
The Supreme Court has upheld acts of Congress seeking to prohibit or restrict the entry of persons, products, and services into the stream of interstate commerce, as well as acts regulating the interstate movement of kidnap victims, stolen vehicles, and telephone transmissions. However, the Commerce Clause does not give Congress the power to mandate that individuals not engaged in commercial activities engage in commerce. Nat'l Fed'n of Indep. Bus. v. Sebelius (The Patient Protection and Affordable Care Cases), 567 U.S. 519 (2012) (requiring individuals not engaged in commercial activities to buy unwanted health insurance could not be sustained as a regulation of interstate commerce).
Aggregation example (substantial economic effect) (interstate commerce)
The Supreme Court upheld congressional restriction of wheat production, even when applied to a farmer growing only 23 acres of wheat, primarily for personal use. The rationale behind the decision was that if every small farmer were allowed to grow an unrestricted amount of wheat, the combined effect could have an impact on supply and demand in the interstate market. Wickard v. Filburn, 317 U.S. 111 (1942).
Providing for the national defense (war and defense powers intro)
The authority granted to Congress under the war power is very broad. Congress may take whatever action it deems necessary to provide for the national defense in both wartime and peacetime. The Court has upheld the military draft and selective service; wage, price, and rent control of the civilian economy during wartime (and even during the post-war period); and the exclusion of civilians from restricted areas.
Investigatory Power scope
The investigatory power may extend to any matter within a "legitimate legislative sphere." According to the Speech and Debate Clause of Article I, Section 6, members of Congress cannot be questioned in regard to activities such as speech or debate taking place during a session in either House of Congress in relation to the business before it. This provides an absolute immunity from judicial interference.
Qualifications of members of congress
The qualifications for members of Congress are set forth in Article I and cannot be altered by Congress or the states. United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (state-mandated term limits for federal representatives invalid); Powell v. McCormack, 395 U.S. 486 (1969) (House of Representatives could not refuse to seat a scandal-plagued member who satisfied constitutional criteria for service).
Indirect tax—uniformity (taxing power) (taxation and spending)
The requirement that indirect federal taxes (i.e., duties, sales taxes, and import & excise taxes) must be uniform throughout the United States has been interpreted to mean geographicaluniformity only; the product or activity at issue must be identically taxed in every state in which it is found. Differences in state law do not destroy this uniformity. Fernandez v. Wiener, 326 U.S. 340 (1945) (federal estate tax on "community property" valid despite variation in state laws regarding marital property).
Judicial limitation of congressional power
Under the doctrine of separation of powers, Congress may not reinstate the right to bring a legal action after the judgment in the action has become final. Similarly, Congress cannot prescribe rules of decision to the federal courts in cases pending before it. However, when Congress changes the law underlying a judgment awarding ongoing relief, that relief is no longer enforceable to the extent it is inconsistent with the new law.
Aggregation (substantial economic effect) (interstate commerce)
With respect to an intrastate activity that does not have a direct economic impact on interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce, Congress may regulate even a minute amount of that total. Gonzales v. Raich, 545 U.S. 1 (2005) (prohibition on personal cultivation and use of medical marijuana upheld due to effect on overall interstate trade). The practical effect of this rule is that with regard to economic activity, a substantial economic effect is presumed.
Spending Power (taxation and spending)
has been interpreted very broadly. Congress has the power to spend for the "general welfare"—i.e., any public purpose—not just to pursue its other enumerated powers. For example, Congress can provide for the public funding of presidential nominating conventions as well as election campaigns. Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish such regulation indirectly by conditioning federal funding.
Fifteenth Amendment—Voting ("Civil War Amendments")
prohibits both the state and federal governments from denying any citizen the right to vote on the basis of race, color, or previous condition of servitude. The courts have interpreted the right to vote to include the right to have that vote meaningfully counted. In enacting provisions based on the Fifteenth Amendment, Congress cannot treat states differently and thereby impinge on their "equal sovereignty" unless the different treatment is rationally justified by current circumstances.