Substantive Law Study Support

Questions for Review and Answers

1. List the enumerated powers of Congress.

• to tax and borrow money

• to regulate interstate and foreign commerce

• to regulate immigration

• to regulate bankruptcies

• to coin money and punish counterfeiting

• to establish post offices

• to regulate patents and copyrights

• to establish lower federal courts

• to regulate maritime matters

• to declare war

• to provide for and regulate an army and navy

• to regulate a militia

• to make all laws for the nation’s capitol

2. What parts of the Constitution contain the enumerated powers of Congress?

Article 1 §8.

3. What is the Necessary and Proper Clause, and where is it found?

This clause allows Congress to pass laws related to express powers. It is found in Article I §8 and also in some of the amendments.

4. Describe the taxing and spending powers of the federal government.

The Constitution refers to the following types of taxes, although it does not define them: duty, impost, excise, direct tax, and capitation tax. The meanings of a duty, impost, excise, and capitation tax are well established. A duty is a tax on imports or exports. An impost tax is an import tax. An excise tax is a tax on the manufacture, sale, or use of goods or on the carrying on of an occupation or activity. A capitation tax is a tax on a person at a fixed rate, such as a poll tax. The meaning of direct tax is not clear.

Along with the power to tax, the federal government has the power to spend for the “general welfare.” This provision is broadly interpreted by the Supreme Court. The Court has said that it is up to Congress, not the Court, to determine what constitutes the general welfare.

5. Why did the Supreme Court once hold the income tax unconstitutional? Is it still unconstitutional? Explain.
It violated Article 1 §9 because it was held to be a direct tax and not in proportion to state population. The Sixteenth Amendment allows the income tax.

6. What is the difference between interstate and intrastate commerce?

Interstate commerce is between two or more states; intrastate commerce is totally within one state.

7. List and explain the various tests used by the Supreme Court to determine if an activity can be regulated by Congress under the Interstate Commerce Clause. Before the late 1930s, the Court used the following tests:
1. Did the regulated activity have a direct rather than an indirect impact on interstate commerce? This test allowed the legislature to enact laws affecting commerce that was totally intrastate if it had a direct impact on interstate commerce, but not if it had simply an indirect result.
2. Did the regulated activity concern something that was in the stream of commerce?

If so, the activity could be regulated under the Interstate Commerce Clause.

Current Tests:

1. Does the regulation affect a channel of interstate commerce? Channels of interstate commerce include roads, waterways, and so forth. If a law affects a channel of interstate commerce, it is a proper exercise of congressional power.
2. Does the regulation affect an instrumentality of interstate commerce?

Instrumentalities include such things as the telephone, telegraph, and so forth. Laws affecting instrumentalities of interstate commerce are a proper exercise of congressional power.
3. Does the regulated activity have a substantial impact on interstate commerce? The key here is that the activity must have a substantial impact. If the activity is not an economic activity, the Court has difficulty finding a substantial impact.

8. What types of laws have been passed by Congress pursuant to the Interstate Commerce Clause?
Business legislation

• Antitrust laws
• Laws regarding the stock market
• Creation of the S.E.C.
• Labor and minimum wage laws
• Employment discrimination

Criminal laws

• Arson
• Failure to pay child support
• Racketeering
• Transportation of drugs Environment
• Laws dealing with air, water, solid waste disposal, asbestos, tropical forests, and oil pollution
• Creation of the Environmental Protection Agency Communications and Internet
• Creation of the F.C.C.

• Telecommunications Act

• Internet pornography Civil rights
• Various civil rights acts

9. Describe the war powers and fiscal powers of Congress.

• War Powers: Congress has the power to declare war. Using this power, it enacted the War Powers Resolution Act, the Code of Military Justice, and authorized military tribunals to try enemy combatants.
• Fiscal Powers: Using this power, Congress does such things as regulate the money system, spend for general welfare, and regulate bankruptcy.

10. Under what situations can Congress conduct investigations and delegate authority to administrative agencies?
Investigations must be related to the constitutional powers of Congress; they cannot be conducted merely to look into individual affairs. Commonly, investigations are related to proposed legislation, to the conduct of the president or other national officers, or to qualifications of individuals appointed to federal positions such as judges and cabinet heads.