CON LAW (BREEDEN ATTACK SHEET)
WHO IS THE ACTOR?
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CONGRESS:
(ASK ONE OR BOTH QUESTIONS)
DOES CONGRESS HAVE AUTHORITY TO ACT? (“DEPOT C14”)
1.
DOCTRINE OF ENUMERATED POWERS [(1) those powers expressed or implied by Constitution; (2) 10th Amendment limit on
Congressional powers (those powers not delegated to FG are retained by States; (3) Necessary and proper clause]
2.
TAXING AND SPENDING POWER [May tax and spend for any reason reasonably regarded for general welfare; can attach strings
to federal appropriations; a federal tax valid if dominant intent is fiscal]
3.
COMMERCE POWER [Congress may regulate (“CIA”): (1) Channels of Interstate Commerce (highways, waterways, internet); (2)
Instrumentalities of interstate commerce and person or things in interstate commerce (trucks, planes, internet); (3) Activities that
have a substantial effect on interstate commerce (if non-econ interstate activity, must show activity affects interstate commerce)]
4.
NO EXPRESS GENERAL POLICE POWER [4 exceptions “MILD”: where Congress legislating for (1) military (2) Indian
reservations (3) federal lands and territories (4) DC]
5.
CONGRESSIONAL POWER UNDER 14 AMENDMENT, SEC 5 [Congress can’t create new rights or expand scope of rights, but
can prevent or remedy violations of rights recognized by courts/must be narrowly tailored]
6.
OTHER POWERS [War power (declare/raise & support forces/make rules to regulate armed forces); Postal power; Power to coin
money; Immigration; Copyright; Patent; Bankruptcy; Impeachment]
7.
DELEGATION OF POWERS [No limit on delegation; Legislative/line-item vetoes unconstitutional; May NOT delegate executive
power to itself or its officers]
(AND/OR)
HAS CONGRESS VIOLATED A LIMIT ON ITS POWER? (“FEDS”)
1.
STATE ACTION (“P.E.”) [Always start with discussing state action to make sure government is doing the action (should be
obvious in most questions but if it is a non-governmental actor, need to discuss h