MBE Constitutional Law - Separation of Powers

Enumerated powers (Article I, Section 8)

Implied Powers

Necessary and Proper Clause (Article I, Section 8)

Taxing and Spending Power (Article I, Section 8, Clause 1)

Commerce Clause (Article I, Section 8, Clause 3)

No

Allows Congress to enact any legislation necessary to carry out its enumerated powers

⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.

Two broad categories:

Interstate commerce:

Channels (highways, waterways);

Instrumentalities (cars, ships, trucks, airplanes);

Articles moving in interstate commerce; and

Activities that substantially affect interstate commerce

Intrastate commerce:

Economic activities: must substantially affect commercial activity in the aggregate

Non-economic activities: must substantially and directly affect commercial activity (higher burden)

More info: Commerce Clause

The word is not explicitly defined in the Constitution, but has generally come to mean the majority of activities between two states (e.g. TV, radio, traffic, crops, marijuana, etc).
15 U.S.C. §1127 defines commerce as the “the exchanging, buying, or selling of things having economic value between two or more entities, for example goods, services, and money.”

General Welfare Clause gives Congress the power to lay and collect taxes (on income from any source), as well as duties, imposts, and excises, for any public purpose. (Article I, Section 8).

Government has no burden to show compelling purpose for the tax.

Must raise revenue

Yes, a tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden).

More info: Regulation by Taxation

Tax that is paid by a consumer to a business or intermediary, who then pays the tax to the government (e.g. import duties, sales tax, cigarette tax)

must be geographically uniform in every state in which it exists

⚠️ Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist

Must be evenly apportioned among the states according to population

Prohibits Congress from taxing goods exported to foreign countries

Power to “pay the debts and provide for the common defense and general welfare of the United States”

Yes, but the conditions:

Must be related to the general welfare;

Expressly stated; and

Not going to coerce the states into unconstitutional behavior

No; Congress only has the power to promote the general welfare via its taxing and spending power

Yes, via its power to regulate international commerce in Article I, Section 8

Declare war;

Raise and maintain armies, navy, and a militia; and

Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

Yes, pursuant to war powers under Article I, Section 8

To execute federal laws; suppress insurrections; or repel invasions

Yes

No, and the governor cannot veto Congressional authorization

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

Can establish “uniform rule of naturalization” under Article 1, Section 8, Clause 4

No, unless citizen either:

Obtained citizenship through fraud;

Refused to testify before Congress; or

Was a member of a subversive organization within five years of becoming a citizen

Gives Congress police and regulatory powers over the District of Columbia (Article I, Section 8, Clause 17)

Power to investigate anything in a "legitimate legislative sphere" via the Necessary and Proper Clause

Power to regulate, buy, and sell federal property

Provides immunity to members of Congress and their Congressional aides for actions related to their legislative duties

Gives Congress the power to enforce the 13th, 14th, and 15th Amendments via "appropriate legislation"

Slavery.

Congress can enact legislation to prohibit discrimination by either the government or private actors that has "badges or incidents of slavery"

⭐️ This is one of only two amendments that apply to behavior by private individuals (the other is that private individuals also may not restrict freedom of movement among the states)

Prohibits the states from violating the Due Process Clause and Equal Protection Clause

Congress has the power to override 11th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

Congress shows historical and widespread discrimination by the state; and

Law is "congruent and proportional" to remedying discrimination

Prohibits states and the federal government from denying voting rights based on "race, color, or previous condition of servitude"

Allows Congress to nullify an Executive Branch action. Ruled unconstitutional by INS v. Chadha (1983).

Ex. In INS, Congress used a legislative veto to invalidate a deportation authorized by the Attorney General.

Holds that powers not delegated to the federal government, nor prohibited to the states, are reserved to the states.

Prohibits Congress from forcing states to enact federal regulatory programs (Anti-Comandeering Doctrine)

Prohibits the federal government from "commandeering" state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an "intelligible principle" on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

Yes