Congress’s commerce, taxing, and spending powers - Next Generation Bar Exam

1. Under Lopez and United States v. Morrison, what activity may Congress not reach by aggregating its effects on commerce?

   Intrastate activity that is not economic, such as gun possession near schools or gender-motivated violence. Aggregation is permitted only for economic activity.

2. Under NFIB v. Sebelius, what may Congress not do under the Commerce Clause?

   Compel individuals to engage in commerce, such as by requiring them to buy insurance. The Commerce Clause regulates existing activity; it does not create activity in order to regulate it.

3. Under South Dakota v. Dole, what limits apply to conditions on federal grants to states?

   They must be unambiguous, related to the federal interest in the program, not require unconstitutional acts, and not be coercive. Dole upheld conditioning a small share of highway funds on a drinking age of 21.

4. Under Wickard v. Filburn and Gonzales v. Raich, what local activity may Congress regulate?

   Intrastate economic activity that, in the aggregate, substantially affects interstate commerce. Raich upheld a ban on home-grown marijuana for personal use as part of a comprehensive regulatory scheme.

5. Congress withholds 5 percent of federal highway funds from any state with a drinking age below 21. On what ground is the condition valid?

   It satisfies the Dole limits, including relevance to highway safety and lack of coercion. The amount at stake was relatively mild encouragement, not compulsion.

6. Under United States v. Lopez, which three categories may Congress regulate under the Commerce Clause?

   The channels of interstate commerce, its instrumentalities and persons or things in it, and activities substantially affecting it. Most modern Commerce Clause cases turn on the third category.

7. On what power did NFIB v. Sebelius uphold the individual mandate's shared-responsibility payment?

   The taxing power. The payment was upheld as a tax because it raised revenue and was not so punitive as to be a penalty.

8. What is the scope of Congress's power to spend for the general welfare?

   Congress may spend for any purpose serving the general welfare, not only to carry out other enumerated powers. The spending power is independent of the other powers in Article I, Section 8.

9. What source of power does Congress lack that states possess?

   A general police power. Every federal statute must rest on an enumerated power or a means of executing one.

10. Under NFIB v. Sebelius, what made the Medicaid expansion condition unconstitutionally coercive?

    It threatened states with the loss of all their existing Medicaid funding. The threat was a gun to the head rather than relatively mild encouragement.

11. Under McCulloch v. Maryland, what means may Congress use under the Necessary and Proper Clause?

    Any means rationally related to carrying out an enumerated power. Necessary means convenient or useful, not absolutely necessary.

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