kaiser wrote:hds2388 wrote:Mroberts3 wrote:hds2388 wrote:Wanted to gripe about/hear other takes on a problem. MPQ2, Mixed Set 7, Question 25. I know these queries are sometimes boring, and I apologize to all for having to even read this far because I am being petty over 1 missed MBE question.
The gist of the question is, given a US congressional regulation requiring specifications for containers that nonprescription drugs had to be in for marketing those products, is congress's power to pass this legislation derived from the Necessary and Proper Clause or the Commerce Clause. Barbri says the answer is commerce clause.
My initial answer (in my head) was both; obviously I needed to choose one or the other. The grant of power over interstate congress certainly puts the subject of this legislation in the realm of commerce clause, but the very power to adopt the legislation (and the stem of the question is: "Congress's power to pass this legislation is derived from:"), in my mind, comes from N+P. So I focused on the "power to pass" language. To bolster my case, I cite to http://en.wikipedia.org/wiki/Necessary_ ... per_Clause, in the Later Applications section.
Can someone explain to me why this is wrong? In general, I'm bad at con law, so I will happily defer to everyone else's choice wisdom.
Again, sorry for being petty.
Because necessary and proper clause can't ever stand alone. It must be linked with another enumerated power. I don't know the question first hand, but if the answer choice only says N+P it will always be wrong. Plus, congress doesn't need it to pass the drug packaging law because that is entirely within the commerce power anyway...no need to rely on necessary and proper clause.
Fair enough. Better explanation than barbri's.
Right, the N & P clause is never a standalone source of power. You would never say that "X action is justified by the N & P clause". You would instead say that X action is justified by Congress's enumerated power to do so and so (ex. regulate commerce). The N & P clause merely gives them the flexibility to carry out action pursuant to enumerated powers.
Another very common "power" that isn't a power is the general welfare clause. I keep seeing that one, and its never right. Congress can tax and spend for the general welfare, but they can't just do anything, and say it is in the general welfare.
Yeah, I was familiar with the general welfare power never being right. Glad to throw another choice into the "automatically wrong" category. I think I was just tripped up by the "power to pass" wording. Should have looke to the underlying power and not merely a power that contours underlying powers. Thanks all.