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The Constitution grants Congress a number of specific powers many of which are enumerated where?
Article1 Sec. 8
The Constitution grants Congress what type of power under the necessary and proper clause
An Auxiliary power...provides additional backup power...power that supports that main enumerated powers. A "special power"
The Necessary and Proper Clause Grants Congress the power to...
Make all laws necessary and proper (appropriate) for carrying into execution any and all powers granted to any and all branches of the federal government.
A law is necessary and proper for carrying into execution some other power if...
that law is appropriate for carrying into execution the power.
Congress has the power to charter bancks since that power is appropriate to executing Congress's enumerated powers to ....
A). Tax, borrow money, regulate commerce, etc.
True or False. The necessary and proper clause is not itself a basis for power?
A). True; it merely gives Congress the power to execute its specifically granted powers.

Thus, if a bar exam questsion asks what is the best source of power for a particular act of Congress, the answer should not be the necessary and Proper Clause standing alone.

It merely supports the execution of other powers.
What are the limitations on the necesssary and proper Clauses support of other powers?
Congress cannot adopt any law that is necessary and proper (appropriate) for executing specifically granted powers


IF
:

such an appropriate law is expressly prohibited by another provision of the Constitution.

i.e. can't make a tax law that is appropriate if it violates due process of law.
What are Congress' 14 enumerated powers?
1. The Necessary and Proper "Auxiliary Power"

2. The Taxing Power

3. The Spending Power

4. The Commerce Power (regulatory power)

5. The War Power and Related Powers

6. The Investigatory Power

7. The Property Power

8. The LACK of a federal Police Power

9. The Bankruptcy Power

10. The Postal Power.

11. The Power over Citizenship

12. The Admiralty Power

13. The power to Coin Money and Fix Weights and Measures

14. The Patent/Copyright Power
What is the one tax that congress nor the states can explicity NOT LEVY?
A). A tax on exports to foreign countries.
Congress has the power to lay and collect taxes, imposts and excises, BUT...what requirment must such "indirect taxes" meet?
A). they must be uniform throughout the united states
What kinds of taxes levied by Congress need to be uniform throughout the united states?
A). Indirect taxes such as imposts, duties and excise taxes (privilege taxes).
direct taxes or poll or head taxes must be....what?
laid in proportion to the census.
Capitation taxes (head taxes) or other direct taxes must be laid in proportion to the census.
Congress cannot adopta a law under the necessary and proper clause IF!
A). the law is expressly prohibited by another provision of the Constitution.
The requirements of uniformity in the levy of indirect taxes, ("privilege taxes" like excise taxes and duties) has been interpreted by the Scotus to mean....What?
A). geographical uniformity ONLY. i.e. identical taxation of the taxed item/article in every state where it is found.

i.e. excise tax on cigarettes must be levied in every state where cigarettes are sold.
An indirect tax is constitutional if;
A). the tax is levied uniformally throughout the u.s. meaning....geographical uniformity....that the same item/article is taxed in every state where it is found.
An indirect tax like an excise or duty will be sufficiently uniform if...
the tax is levied in each state where the the item being taxed can be found.
Compare a direct tax as opposed to an indirect tax
1. A direct tax is imposed directly on property or on a person. and it must be apportioned

2. An indirect tax generally is any kind of "privilege tax" such as a duty or excise and it need not be apportioned but only has to be geographically uniform in that there is identical taxation of the taxed article in every state where it is found.
Why are direct taxes on property or persons seldom employed by congress?
A). because of the cumbersome apportionment requirement.

(taxes on income from real or personal property were initially held to be direct taxes needing to be apportioned but that was done away with by the 16th amendment.
True or False. Both congress and the states can tax levy taxes on exports to foreign countries.
False. neither can.
Absent a specific restriction such as,

a). A tax being a tax on exports

b). a tax being an indirecf tax that is not uniform

OR

c). a tax being a direct tax that is not apportioned,

A court will....what?
A). be very hesitant to rule against a tax measure on the bar exam.

Most Taxes are generally valid

A tax measure will be upheld if it bears some reasonable relationship to revenue producion

OR

if Congress has the power to regulate the taxed activity
A Tax measure will be upheld IF:
1. It is NOT an indirect tax that is levied without uniformity

2. It is NOT a tax on exports

3. It is NOT an unapportioned direct tax

AND


I. It bears some reasonable relationship to revenue production

OR

II. If Congress has the power to regulate the taxed activity.
If a tax that complies with a the letter of the taxing power bears even the slightest reasonable relationship to revenue production, will it be upheld?
A). Yes. Most taxes are going to be valid.
Generally direct taxes must be apportioned....What does that mean?
Generally, a direct tax is subject to the apportionment rule, meaning taxes must be imposed among the states in proportion to each state's population in respect to that state's share of the whole national population. For example: As of the 2000 Census, nearly 34 million people populated California (CA). At the same time, the national population was 281.5 million people. This gave CA a 12 percent share of the national population, roughly. Were Congress to impose a direct tax in order to raise $1 trillion before the next census, the taxpayers of CA would be required to fund 12 percent of the total amount: $120 billion dollars.
What may congress spend money on under the spending power?
A). Congress may spend money "to provide for the common defense and general welfare"

Which means that congress may spend money for any public purpose. ---Not merely the accomplishment of other enumerated powers.

***Nonspending regulations are not authorized under the spending power

AND

**The Bill of Rights still applies to this power to limit it; i.e. the federal governmetn could not condition welfare payments on an agreement not to criticize government policies.
True or False. Under the spending power Congress may only spend taxpayer money to accomplish or executer the other enumerated powers?
A). No, spending may be for any public purpose---Not merely the accomplishment of other enumerated powers.
Under the spending power may congress make regulations that are not spending related?
A). NO.
Congress can use its spending power ___________________ by requiring entities that accept government money to act in a certain manner (i.e. attach strings to government grants)
A). "regulate" areas, even where it otherswise has no power to regulate the area.
How might congress use its spending power to regulate an area that Congress has no enumerated power to regulate?
A). By requiring entities that accept government money to act in a certain manner (i.e. attaching strings to government grants).
The feds attach a condition that a State must adhere to when it receives a federal grant...what is Congress doing and is it constitutional?
A). Congress is using its spedning power to regulate an area...regulation through spending....Yes it is constitutional under the spending power
Can congress regulate an activity over which it has no power under the constitution through the clever use of its spending power (i.e. attaching strings to federal grants?)
A). Yes.
Congress has the plenary power expressed in the constitution to regulate interstate commerce

1. What is meant by the term "commerce"

2. What then may congress regulated under the commerce power?
1. "commerce" means; basically all "ACTIVITY" AFFECTING two or more statess.

Justice marshall; commerce is "every species of commercial intercours...which concerns more states than one."

virtually every form of activity involving or affecting two or more states is commerce.

2. Hence, Congress has the power to regulate basically all activity that affects two or more states.

***NOTE interstate commerce includes interestate "transportation or traffic"; Scotus has consistently regarded transportation or traffic as commerce, whether or not a commercial activity is involed.
Scotus has considtently regarded __________________________ as commerce whether or not a commercial activity is involved.
A). Interstate Transportation or traffic.
"Commerce" under the Commerce power, includes...
1. bascially all activity affecting two or more states

AND

2. Interstate Transportation or Traffic
1. Interstate transportation of liquor for personal consumption

2. interstate transportation of women for immoral puposes (not necessarily prostitution)

AND

3. interstate transportation of stolen motor vehicles

all constitute....What?
A) interstate commerce.

**Note vehicular transportion across state lines isn't required

Any transmission across state lines, such as electriticy, gas, telegraph, telphone, TV, radio and mail transmission (including eductation materals and sale of insurance) will constitute interstate commerce.
True or False, In order for transportation across state lines to be considered interstate commerce under the commerce clause it must be done in a vehicle
False

vehicular transportion across state lines isn't required

Any transmission across state lines, such as electriticy, gas, telegraph, telphone, TV, radio and mail transmission (including eductation materals and sale of insurance) will constitute interstate commerce.
Any transmission across state lines will constitute what?
interstate commerce

vehicular transportion across state lines isn't required

such as electriticy, gas, telegraph, telphone, TV, radio and mail transmission (including eductation materals and sale of insurance) will constitute interstate commerce.
What is the substantial economic effect doctrine?
It is the doctrine that permits Congress to regulate,

1. any activity

2. Local (intrastate) or interstate

That either,

I. In itself

OR

2. In Combination with other activities

has/had a "substantial economic effect upon"

OR

an effect on movement in,

interstate commerce
Under the Substantial Economic Effect Doctrine, The Supreme Court has sustatiend congressional power to regulate any activity, local or non-local (interstate) that;
Either

1. In itself OR in combination with other activities

has/had a

2. substantial economic effect upon interstate commerce

OR

has/had

3. an "effect on movement" in interstate commerce.
What are all the combinations of when Congress may regulate an activity under the substantial economic effects doctrine?
1. The Activity is a local (intrastate) activity that has a substantial economic effect upon interstate commerce

2. The Activity is a local (intrastate) activity that has an effect on movement within interstate commerce

3. The Activity is an interstate activity that has a substantial economic effect upon interstate commerce

4. The Activity is an interstate activity that has an effect on movement in interstate commerce

5. The activity is an intrastate/local activity that, in conjuction/combination with other activities has a substantial economic effect upon interstate commerce.

6. The activity is a local activity that, in combination with other activities, has an effect on mevement in interstate commerce.

7. The activity is an interstate activity that,. in combination with other activites has a substantial economic effect upon interstate commerce

AND/OR

8. The Activity regulated is an interstate one and, in combination with other activities, it had an effect on movement in interstate commerce
The Commerce power is very broad but does have its limits so as not to obliterate the distincting between what is national and what is local.

To be within Congress's power under the Commerce Clause, a federal law must either:
1. regulate the channels of interstate commerce (i.e. roads, airplane paths, train tracks, internet, cell phones etc.)

2. regulate the instrumentalities of interstate commerce AND persons and things, in interstate commerce. (i.e. credit cards, cars, money, sales, goods)

OR

3. Regulate Activities that have a substantial effect on interstate commerce. (i.e. local activities that affect whole nationwide market)
Under the Commerce Power, Congress may only regulate, what?
1. the channels of interstate commerce (i.e. roads, airplane paths, train tracks, internet, cell phones etc.)

2. the instrumentalities of interstate commerce AND persons and things, in interstate commerce. (i.e. credit cards, cars, money, sales, goods)

OR

3. Activities that have a substantial effect on interstate commerce. (i.e. local activities that affect whole nationwide market)
May Congress regulate a purely local/intrastate activity under the third prong (saying it substantially effects interstate commerce) of what Congress may regulate under the commerce power?
A). Yes, Congress can constitutionally regulate intrastate/local activity because it substantially effecfts interstate commerce IF:

1. the local/intrastate activity being regulated is economic or commercial activity

AND

2. the court can conceive of a rational basis on which Congress could conclude that the activity in the aggregate substantially affects interstate commerce.

***intrastate, non-commercial, non-economic actviity cannot be regulated under the Commerce Clause UNLESS, Congress can factually show a substantial economic effect on interstate commerce.
Can Congress regulate the following types of "activity" under the commerce clause?

1. Interstate Activity

2. Intrastate/local (non-interstate) activity that is either economic or commercial in nature

3. Intrastate/local (non-interstate) activity that is neither commercial nor economic in nature (i.e. noneconomic and noncommercial)
1). Congress has the plenary power to regulate interstate commerce which includes essentally ALL ACTIVITY Affecting two or more states. Since Interstate activity affects two or more states, Congress Can Regulate it.

2. Congress may regulate it if the court can conceive of a rational basis on which Congress could conclude that the activity in the aggregate, substantially affects interstate commerce.

3. Congress can regulate such activity under the Commerce Clause ONLY IF Congress can show a substantial economic effect on interstate commerce.
The Court will rule that commercial or economic intrastate activity has a substantial effect on interstate commerce and therefore may be regulated under Congress' commerce power IF:
A). The court can conceive of a rational basis on which Congress could conclude tha tthe activity in the aggregate (rational basis that all the people doing it) substantially effects interstate commerce.
The Court will rule that non-commercial or non-economic intrastate activity has a substantial effect on interstate commerce and therefore may be regulated under Congress' commerce power ONLY IF:
A). congress can factually show a substantial economic effect on interstate commerce.
What is Congress limited to regulating under its broad commerce power (not unlimited)
1. The channels of interstate commerce

2. The instrumentalities of interstate commerce

3. Persons and Things in interstate commerce

OR

4. Activities that hav e a substantial effect on interstate commerce.
What is commerce?
A). commercial intercourse

**The Whole system of an economy that constitutes an environment for business (wikipedia)
1. economic or commercial intrastate activity substantially effects interstate commerce IF:

2. noneconomic or noncommercial intrastate activity substantially effects interstate commerce ONLY IF:
1. the court can concevien of a rational basis on which Congress could conclude that the activity in the aggregate effects interstate commerce substantially

(i.e. if Congress could rationally believe that intrastate activity as a whole was substantially affecting or could do so to interstate commerce)

2. Congress can factually show a substantial economic effect on interstate commerce.

i.e. barring possession of a gun in a school zone regulated noneconomic activity and it was not shown that it substantially effected interstae commerce as a matter of fact.
What are Congress' "War Related Powers?"
A). the power to...

1. declare war

2. the power to raise and support armies,

3. the power to provide for and maintain a navy,

4. The power to make rules for the government and regulation of the armed forces.

5. The power to organize, arm, discipline and call up the militia.

(of course other powers may effect the government's war making abilities i.e. taxation).

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