The separation of powers - The powers of Congress

Learning Outcomes

After reading this article, you will be able to explain the constitutional sources and limits of Congress’s powers, distinguish between the main enumerated powers (commerce, taxing, spending, war, and enforcement), and apply the correct legal standards for evaluating federal statutes on the MBE. You will also recognize the boundaries of congressional authority and identify common exam pitfalls.

MBE Syllabus

For MBE, you are required to understand the scope and limits of Congress’s powers under the U.S. Constitution. This includes the ability to:

• Identify the main enumerated powers of Congress (commerce, taxing, spending, war, and enforcement).
• Distinguish between valid exercises of congressional power and unconstitutional overreach.
• Analyze the interaction between federal and state authority, including preemption and the Tenth Amendment.
• Apply the correct scrutiny to federal statutes challenged on constitutional grounds.
• Recognize the limits on Congress’s ability to delegate, commandeer, or abrogate state authority.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Congress enacts a law requiring all states to adopt a uniform system for licensing drivers. Which is the strongest constitutional objection?
   1. Congress lacks authority under the Commerce Clause.
   2. The law violates the Tenth Amendment by commandeering state legislatures.
   3. Congress may regulate for the general welfare.
   4. Congress can preempt all state regulation.
2. Which of the following is a valid exercise of Congress’s spending power?
   1. Congress taxes only out-of-state businesses.
   2. Congress spends to further the general welfare, attaching reasonable conditions to federal grants.
   3. Congress spends to regulate purely local, non-economic activity.
   4. Congress spends to enforce state criminal laws.
3. Congress passes a statute prohibiting racial discrimination by private landlords. Which constitutional provision best supports this law?
   1. The Commerce Clause.
   2. The Tenth Amendment.
   3. The Privileges and Immunities Clause.
   4. The General Welfare Clause.

Introduction

The U.S. Constitution divides governmental power among three branches. Congress, as the legislative branch, is limited to powers expressly granted or implied by the Constitution. Understanding the scope and limits of these powers is essential for MBE success, as many questions test whether a federal statute is a valid exercise of congressional authority or violates constitutional boundaries.

Enumerated Powers of Congress

Congress may act only if the Constitution grants it the power. The main sources are the enumerated powers in Article I, Section 8, and the post-Civil War Amendments. If Congress acts outside these powers, the law is unconstitutional.

Key Term: Enumerated Powers The specific powers granted to Congress by the Constitution, primarily in Article I, Section 8, and certain amendments.

The Commerce Power

Congress may regulate:

• Channels of interstate commerce (roads, waterways, airways).
• Instrumentalities of interstate commerce (vehicles, goods, people).
• Activities that substantially affect interstate commerce.

For economic or commercial activity, Congress can regulate if, in the aggregate, the activity has a substantial effect on interstate commerce. For non-economic activity, a direct and obvious connection to interstate commerce is required.

Key Term: Commerce Clause The constitutional provision (Art. I, §8, cl. 3) granting Congress power to regulate commerce among the states, foreign nations, and Indian tribes.

The Taxing and Spending Power

Congress may tax and spend for the general welfare. Taxes must be uniform among the states, and spending must be rationally related to a legitimate public purpose. Congress may attach conditions to federal funds, provided the conditions are clear, related to the purpose of the spending, and not unduly coercive.

Key Term: Taxing and Spending Power Congress’s authority to levy taxes and spend federal funds for the general welfare (Art. I, §8, cl. 1).

The War and Defense Powers

Congress may declare war, raise and support armies, provide for the navy, and regulate military forces. Congress may also regulate economic activity during wartime and address postwar issues.

The Enforcement Powers

Congress may enforce the Thirteenth, Fourteenth, and Fifteenth Amendments by adopting legislation to remedy or prevent constitutional violations by states. However, Congress may not redefine constitutional rights or regulate purely private conduct under the Fourteenth or Fifteenth Amendments.

Key Term: Enforcement Power Congress’s authority to pass laws enforcing the Civil War Amendments, limited to preventing or remedying state violations of constitutional rights.

The Necessary and Proper Clause

Congress may make laws necessary and proper for carrying out its enumerated powers and those of other branches. This clause does not grant independent power but allows Congress to choose rational means to achieve its constitutional ends.

Key Term: Necessary and Proper Clause The constitutional provision (Art. I, §8, cl. 18) allowing Congress to make laws needed to execute its enumerated powers.

Limits on Congressional Power

Congress cannot:

• Exercise a general police power (except in D.C., federal lands, military, or Indian reservations).
• Commandeer state governments to enact or enforce federal programs (Tenth Amendment).
• Violate other constitutional provisions (e.g., Bill of Rights, Equal Protection).
• Delegate legislative power without providing intelligible standards.

Key Term: Tenth Amendment The constitutional amendment reserving powers not delegated to the federal government to the states or the people.

Preemption and Supremacy

If Congress validly legislates in an area, federal law preempts conflicting state law. Preemption may be express or implied (field or conflict preemption).

Key Term: Preemption The principle that valid federal law overrides conflicting state law under the Supremacy Clause.

Worked Example 1.1

Congress enacts a law prohibiting racial discrimination by restaurants serving interstate travelers. Is this law likely constitutional?

Answer: Yes. Congress may regulate local businesses if their activities, in the aggregate, have a substantial effect on interstate commerce. Discrimination by restaurants serving interstate travelers affects interstate commerce, so the law is valid under the Commerce Clause.

Worked Example 1.2

Congress passes a statute requiring states to adopt a specific curriculum for public schools. Is this statute valid?

Answer: No. Congress cannot compel state legislatures to enact or enforce federal programs. This violates the Tenth Amendment’s anti-commandeering principle.

Worked Example 1.3

Congress offers states highway funds on the condition that they set the drinking age at 21. Is this constitutional?

Answer: Yes. Congress may attach conditions to federal funds if the conditions are clear, related to the purpose of the spending, and not unduly coercive.

Exam Warning

Be alert for questions where Congress tries to regulate purely local, non-economic activity under the Commerce Clause. Unless there is a direct, substantial effect on interstate commerce, such regulation is likely invalid.

Revision Tip

When analyzing a federal statute, always identify the source of congressional power and check for constitutional limits, especially the Tenth Amendment and the Bill of Rights.

Key Point Checklist

This article has covered the following key knowledge points:

• Congress has only those powers granted by the Constitution (enumerated and enforcement powers).
• The Commerce Clause allows regulation of interstate commerce and activities substantially affecting it.
• The Taxing and Spending Power permits Congress to tax and spend for the general welfare, with reasonable conditions.
• Congress cannot commandeer state governments or exercise a general police power.
• The Necessary and Proper Clause enables Congress to choose rational means to carry out its powers.
• Enforcement powers under the Civil War Amendments allow Congress to remedy state violations, not redefine rights.
• Valid federal law preempts conflicting state law under the Supremacy Clause.
• Congressional delegation of power requires intelligible standards.

Key Terms and Concepts

• Enumerated Powers
• Commerce Clause
• Taxing and Spending Power
• Enforcement Power
• Necessary and Proper Clause
• Tenth Amendment
• Preemption