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1 1 (December 20, 2022)

handle is hein.crs/govejvp0001 and id is 1 raw text is: Congressional Research Service Informing the Iegitive debate since 1914 S December 20, 2022 Recurring Constitutional Issues in Federal Legislation The Constitution both empowers and limits Congress in its lawmaking function. Each piece of federal legislation potentially raises two questions: (1) has Congress acted within the bounds of its enumerated powers; and (2) does the legislation implicate any other constitutional constraints, such as federalism, the separation of powers, or individual rights? This In Focus highlights constitutional issues that frequently arise in drafting and reviewing federal legislation. It sets out the main legal standards for each constitutional power and constraint discussed below to aid Members and congressional staff when analyzing these issues in consultation with CRS Legislative Attorneys. Cornronly Invoked Enu erated Powers Federal statutes must fall within the scope of Congress's enumerated, constitutional powers. Congress often relies on its Commerce Clause and Spending Clause powers to enact federal programs and regulate the activities of private entities and even states. See CRS Report R44729, Constitutional Authority Statements and the Powers of Congress: An Overview. Congress also has lawmaking authority under other parts of the Constitution, such as the Fourteenth Amendment. Commerce Clause: The Supreme Court has identified three broad categories of activity that Congress may regulate under its Commerce Clause power (U.S. CONST. art. I, § 8, cl. 3): (1) use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). When a law regulates noneconomic activity under the third category, courts generally look for (1) an express jurisdictional element limiting the law's reach to activities that have an explicit connection with or effect on interstate commerce; and (2) express congressional findings regarding the regulated activity's effects on interstate commerce, which cannot be too attenuated. Id. at 562; United States v. Morrison, 529 U.S. 598, 612-14 (2000). Spending Clause: Congress may spend federal funds to provide for the country's general Welfare. U.S. CONST. art. I, § 8, cl. 1. It may also attach conditions to those funds, subject to four limitations. First, the law must provide clear notice of the condition to give recipients an opportunity to accept or reject the funding. Second, the condition must be related to the purpose of the funding. Third, Congress may encourage, but not coerce, states to accept the condition. Fourth, the condition must not violate an independent constitutional bar, such as the First Amendment. South Dakota v. Dole, 483 U.S. 203 (1987); see CRS Report R46827, Funding Conditions: Constitutional Limits on Congress's Spending Power. Power to Enforce the Civil War Amendments: The Thirteenth, Fourteenth, and Fifteenth Amendments respectively abolished slavery, enshrined rights to due process and equal protection of the laws, and barred states from abridging the right to vote because of race. Congress may enforce these rights through appropriate legislation. U.S. CONST. amends. XIII, § 2, XIV, § 5, XV, § 2. Such power allows Congress to remedy or prevent a constitutional violation, not to change the nature or scope of a constitutional right. City of Boerne v. Flores, 521 U.S. 507 (1997). The Court's standards for deciding whether an enforcement measure is appropriate may depend on the right at issue. Fourteenth Amendment legislation must be congruent and proportional to the asserted injury. Id. at 530-33. Measures imposed on particular states under the Fifteenth Amendment must reflect current conditions to preserve the states' equal sovereignty. Shelby Cty. v. Holder, 570 U.S. 529, 557 (2013). Necessary and Proper Clause: Congress may make laws that are necessary and propef' for carrying out not only its own enumerated powers but also all other Powers that the Constitution vests in the federal government or its departments or officers. U.S. CONST. art. I, § 8, cl. 18. Necessary in this sense means that a law is rationally related to implementing a federal power. United States v. Comstock, 560 U.S. 126, 134 (2010). Common Constitutional Limits Federalism The federal and state governments each have sovereign powers under the Constitution, creating federalism-based limits on Congress's powers. See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview. The following doctrine and many of the foregoing limits on Congress's enumerated powers are based on federalism concerns. Anti-commandeering: This doctrine prohibits Congress from issuing direct orders to the states to enact or enforce a federal regulatory program or bar states from enacting a law otherwise within their power. Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018). The doctrine does not prevent Congress from preempting state law so long as the federal law regulates private entities and states rather than simply dictating what laws a state may or may not enact. Separation of Powers The Constitution divides the federal government's powers into three branches (executive, legislative, and judicial), vesting each with specific authorities. A statute can implicate the separation of powers if it violates either an express or implied constitutional grant of authority to a

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