2. Con Law: Legislative Power

Absent a specific restriction, be hesitant to rule against a tax measure on the test -- a tax measure will be upheld if it bears some reasonable relationship to revenue production or if congress has the power to regulate the taxed activity.

UNIFORMITY -- there must be geographical uniformity in the levy of indirect taxes, ie, taxed article must have identical taxation in each state.

DIRECT TAX -- Direct taxes (ie, imposed directly on property or on the person) have seldom been employed because of the cumbersome apportionment requirement, but this has been obviated by the 16th amendment.

EXPORT TAX -- not permitted by states or fed.

The necessary and proper clause grants congress the power to make all laws appropriate for carrying into execution any power granted to any branch of the federal gov't. It is not itself a basis of power, but merely gives congress the power to execute specifically granted powers.

Congress may spend to provide for the common defense and general welfare. Spending may be for any public purpose. However, nonspending regulations are not authorized.

Congress can use its spending power to regulate areas, even where it otherwise has no power to regulate the area, by requiring entities that accept gov't money to act in a certain manner.

Empowers congress to regulate commerce with foreign nations and among the several states, and with the Indian tribles.

The court has consistently regarded transportation or traffic as commerce, whether or not a commercial activity is involved.

Any transmission across state lines will constitute interstate commerce.

May regulate any activity, local or interstate, that either in itself or in combination with other activities has a substantial economic effect upon, or effect on movement in, interstate commerce.

Power is very broad but not unlimited:

-- must regulate the channels of interstate commerce;

-- regulate the instrumentalities of interstate commerce and persons and things in interstate commerce; or

-- regulate activities that have a substantial effect on interstate commerce -- this prong applies only if the regulation is of economic or commercial activity and/or the court can conceive of a rational basis on which congress could conclude that the activity in aggregate substantially affects interstate commerce.

Congress has the power to declare war, raise and support armies, provide for and maintain a navy, make rules for the gov't and regulation of the armed forces, and organize, arm, discipline, and call up the militia.

Military courts may try enemy civilians and military personnel, at least during war time, as well as all offenses (not just service related) committed by persons who are members of the armed services, both when charged and at the time of the offense.

The USSC has denied congress the power to authorize the court-maritial trial of american civilians as long as actual warfare has not forced courts to shut down, even though martial law has been declared; even though the civilians involved may have been members of the armed forces when committing the alleged offense or are dependents of military personnel accompanying the latter overseas or are civilian employees of the military at overseas bases and installations; such trial violate the fifth and sixth amendments, particularly the right to trial by jury.

Under the militia clauses, congress has the power to authorize the president to order members of national guard units into federal service -- even if the circumstances are not a national emergency.

A very broad power, but the following limits apply:

-- The investigatory inquiry must be expressly or impliedly authorized by the congressional house concerned, ie, by statute or resolution creating or directing the investigating committee or subcommittee.

• -- Witnesses' Rights:
• --> 5th amendment privilege against compulsory self-incrimination
• --> relevance
• --> procedural due process, such as presence of counsel and right of cross-examination; but not clear whether such rights are constitutionally required or whether some of them are required merely by house rule or statute.

Congress can hold a subpoenaed witness in contempt for refusing to appear or answer before congress.

Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the US. The power to acquire and dispose of property of all kinds, real, personal, and intangible, is implied from the main grants.

Acquistion of property for a public purpose by eminent domain is indirectly recognized by the 5th amendment takings clause. Federal taking must be for the purpose of effectuating and enumberated power under some other provision of the constitution.

Congress has no general police power (ie, power to legislate for the health, welfare, morals, etc of the citizens). However, congress can exercise police power-type powers over DC and possessions (territories, military bases, indian reservations) pursuant to the property power.

Congress has the power to establish uniform laws on the subect of bankruptcies throughout the US. Has been interpreted by the court as nonexclusive, ie, state legislation is superseded only to the extent that it conflicts with federal legislation therein.

Congress has the power to establish post offices and post roads. This is exclusive -- neither states nor private business may compete with the federal postal service absent congress's consent.

Congress may validly classify and place reasonable restrictions on the use of the mails, but may not deprive any citizen or group of citizens of the general mail privilege or regulate the mail in such a way as to abridge freedom of speech or press or violate the ban of the 14th amendment against unreasonable search and seizure.

Congress is empowered to establish a uniform rule of naturalization.

Congress has a broad power to exclude aliens. Aliens have no right to enter the US and can be refused entry because of their political beliefs.

Resident aliens are entitled to notice and hearing before they can be deported.

Under the 14th amendment, congress may not take away the citizenship of any citizen without his consent. A citizen's intent to relinquish citizenship may be expressed by words or conduct -- and congress may provide that such intent may be proven by a preponderance of the evidence.

A person born in another country to US citizens doesn't have a constitutional right to citizenship. Congress can grant citizenship to children born abroad conditioned on their return to live in the US within a specified period of time or for a specified number of years.

Congressional power to legislate in maritime matters is not expressed in the constitution, but the USSC has implied it from the exclusive jurisdiction given the federal courts in this field by article III, section 2, supported by the necessary and proper clause.

The congressional power is plenary and exclusive, except to the extent that congress may leave some maritime matters to state jurisdiction.

Attaches to all navigable waterways and to small tributaries that affect navigable waterways.

Congress has it.

Congress has the power to control the issuance of patents and copyrights.

Congress has broad discretion to delegate its legislative power to executive officers and/or administrative agencies, and even delegation of rulemaking power to the courts has been upheld.

Limitations on Delegation:

-- Power cannot be uniquely confined to congress -- ie, the power to impeach and the power to declare war cannot be delegated.

-- Clear standard -- delegation will be upheld only if it includes intelligible standards for the delegate to follow. However, almost anything will pass as an intelligible standard.

-- Separation of powers limitations -- restricts congress from keeping certain controls over certain delegates.

-- Important liberty interests -- if the delegate interferes with the exercise of a findamental liberty or right, the burden falls upon the delegate to show that she has the power to prevent the exercise of the right and her decision was in furtherance of that particular policy.

-- Civil vs. Criminal Punishment -- the legislature may delegate its authority to enact regs, the violation of which are crimes, but prosecution for such violations must be left to the executive and judicial branches. However, agencies may enact and impose civil penalties without prosecution in court.

For any speech or debate in either house, members of congress shall not be questioned in any other place.

Immunity extends to aides who engage in acts that would be immune if performed by a legislator.

Conduct that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution.

The taking of bribes, speeches made outside of congress, and republication of a defamatory statement originally made in congress is not immune.

This comes up when congress delegates to the executive, but requires congressional approval by one house or just a few members. This is unconstitutional because to be valid the action must be approved by both houses and presented to the president for approval.