(15) Constitutional Law: Separation of Powers Flashcards
Supreme Court Judicial Review Powers
The Supreme Court has the final say in interpreting the constitution and may review the act of another branch of the government (this includes state acts) and declare it unconstitutional if not in conformity with the constitution and laws of the US.
Supreme Court Original Jurisdiction
The supreme court has original jurisdiction over cases invovling foreign dipolmats and states.
Can Congress modify the Supreme Courts original jurisdiction?
NO, congress cannot change the Supreme Courts original jurisdiction.
Supremacy Clause and the Supreme Court
Under the Supremacy Clause the Supreme Court may review state actions to ensure conformity with the constitution and laws of the US.
Powers of Congress
Overview
Congress has the power to Legislate which is to make laws. This includes the following powers:
1) Legislative Power
2) Commerce Power
3) Taxing Power
4) Spending Power
5) War and Defense Powers
6) Civil War Amendments (13th,14th and 15th)
7) Delegation of Power
8) Powers over the Lower Federal Courts
Additional Powers: (a) Property Powers; (b) Postal Power; (c) Naturalization; (d) Aliens; (e) D.C.; (f) Elections; (g) Impeachment Power; (h) Appropriations Power; (i) Other matters.
Legislative Powers
Powers of Congress / Overview
Congress has the power to pass laws without violating constitutional rights through their:
a. Enumerated Powers
b. Enabling Clauses
c. Necessary and Proper Clause
Powers of Congress
Enumerated Powers
Legislative Powers
Article I, Section 1 vests all legislative powers of the federal government in Congress.
Powers of Congress
Enabiling Clauses
Legislative Powers
Congress may enforce Civil War Amendments (13th 14th and 15th) by appropriate legislation.
Powers of Congress
Necessary and Proper Clause
Legislative Powers
Congress may enact any legislation necessary and proper to execute any enumerated power.
Ex. Congress doens’t have the power to investigate but the necessary and proper clause allows Congress broad authority to conduct investigations incident to its power to legislate.
Commerce Clause
Powers of Congress
The constitution grants congress the authority to regulate commerce between the states (interstate commerce), foreign nations and Indian tribes.
What may Congress regulate through the Commerce Clause?
Powers of Congress
Congress may regulate (1) the channels of interstate commerce; (2) the people and instrumentalities that work and travel in interstate commerce; AND (3) economic or commercial activities that have a substantial effect on interstate commerce.Congress may regulate (1) the channels of interstate commerce; (2) the people and instrumentalities that work and travel in interstate commerce; AND (3) economic or commercial activities that have a substantial effect on interstate commerce.
Intrastate Activities
Commerce Clause
Powers of Congress
Congress may regulate economic intrastate activities if (1) there is a rational basis; (2) to conclude that the cumulative national impact of the economic activities (aggregation); (3) have a substantial effect on interstate commerce.
This only applies to economic activities
Commerce Clause - Intrastate Activities
Can congress regulate non-economic intrastate activities?
Powers of Congress
YES, if the non-economic activity has a substantial ECONOMIC effect on interstate commerce.
Non-economic activity incldues possession of a handgun.
**This is different from economic activity in that the substantial effect there does not need to be economic on interstate commerce, whereas here it does.
Taxing Powers
Powers of Congress
Congress has the power to lay and collect taxes for any public purpose (the general welfare).
Taxing Powers:
When will a tax by Congress be upheld?
Powers of Congress
A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.
(i.e., it raises revenue or it was intended to raise revenue - even if it doesn’t)
Taxing Powers:
Must a tax by Congress be geographically uniform?
Powers of Congress
YES, the tax must be geographically uniform.
Taxing Powers:
What sources of income can Congress collect taxes from?
Powers of Congress
Congress has the power to collect taxes on income derived from any source.
Spending Powers
Powers of Congress
Congress has the power to spend for the common defense and general welfare of the U.S. The power is interpreted broadly and allows Congress to attach conditions on States receiving federal funds upon compliance with federal directives (allowing congress to regulate activities they do not otherwise have the power to).
Spending Powers
When can Congress place conditions on a State recieving Federal funds?
Powers of Congress
Congress must satisfy 5 conditions when placing conditions on states receiving federal funds: (1) spending is for general welfare; (2) condition is imposed unambiguously; (3) the condition is related to a federal interest; (4) the condition cannot induce activities which are unconstitutional; AND (5) the condition cannot be so coercive as to turn pressure into compulsion (Compulsion is when the states have no real option but to acquiesce).
Delegation of Powers
Powers of Congress
Congress can create executive agencies and give the agencies legislative power, if there is some “intelligible principle” that guides the agency.
ex. FDA
Delegation of Powers:
Are the actions of the agencies created by congress supreme over inconsistent state law?
Powers of Congress
YES, these agencies actions will prevail over inconsistent state laws.
Delegation of Powers:
Non-Delegation Doctrine
Powers of Congress
Certain powers are not delegable by Congress such as the power of impeachment and the power to declare war.
War and Defense Powers
Powers of Congress
Congress has the power to declare war, raise and support armies, provide and maintain a navy and make rules for organizing and regulating military land.
War and Defense Powers:
During War Congress can?
Powers of Congress
During war, Congress may institute a draft and initiate wage, price and rent control of the civilian economy.
War and Defense Powers:
Who controls the national guard?
Powers of Congress
The national guard is under the control of Congress and States.
Civil War Amendments
Powers of Congress
The 13th, 14th, and 15th Amendments contain a provision authorizing Congress to pass appropriate legislation to enforce the civil rights guaranteed by those amendments.
a. 13th amendment – Bans slavery
b. 14th Amendment – Equal Protection and Due Process
c. 15th Amendment – Voting (cannot deny a person the right to vote based on race, color, or previous condition of servitude)
Civil War Amendments:
How can Congress enforce the civil war amendments?
Powers of Congress
The legislative remedy must be “congruent and proportional to” the violation.
Congress can overcome state sovereign immunity from the 11th amendment and authorize money damages.
Civil War Amendments
Who can Congress enforce the civil war amendments against?
Powes of Congress
Congress can only regulate states, not private individuals under the 14th and 15th Amendments.
However Congress can regulate individuals and states under the 13th Amendment.
Civil War Amendments:
When can Congress enforce the civil war amendments?
Powers of Congress
State governments must have engaged in widespread violations of the Amendment.
Property Power
Powers of Congress
Congress has the power to dispose of and make all needful rules and regulations respecting territory owned by the U.S. Under the 5th amendment Congress may only take private property for public use with just compensation.
Postal Power
Powers of Congress
Congress has the exclusive power to establish post offices and post roads.
Naturalization
Powers of Congress
Congress has the exclusive authority over naturalization and establishing a uniform rule of naturalization.
Aliens
Powers of Congress
Congress has plenary power over aliens. Aliens have no right to enter the U.S. but the 5th amendment states aliens may not be removed from the U.S. until after they receive notice and a removal hearing.
aka: Aliens are entitled to due process
D.C.
Powers of Congress
Congress has supreme authority over Washington, D.C. and may legislate freely with regard to D.C. law.
Elections Clause
Powers of Congress
The time, place and manner, of holding elections for senators and representatives is determined by the State however Congress may alter such regulations.
Impeachment Power
Powers of Congress
The House has the sole power to impeach and the Senate has the power to convict by a 2/3rd vote.
Impeachment Power:
What are the Impeachment Offences?
Powers of Congress
Treason, bribery, and other high crimes and misdemeanors
Appropriations Power
Powers of Congress
The president cannot refuse/delay spending appropriated authorized funds that Congress explicitly directs the President to spend by legislative act.
Doesnt matter if there is a good reason to do so.
What are the requirements required for Congress to pass legislation to monitor a federal agency? (This includes regulating the agencies funding)
The legislative action must be voted on by both houses of Congress (House and Senate) as well as be presented to the President. This is the same requirements for a bill to become a law.
Hint: $ & IP
Other General Powers of Congress
Powers of Congress
Congress has power over bankruptcies, maritime matters, coining of money, fixing weights and measures, and patents and copyrights.
Executive Powers
Powers of the President / Overview
- Enforcement Power
- Appointment Power
- Removal Power
- Veto Power
- Pardon Power
- Military Powers
- Treaty Powers
- Executive Agreements Power
- International Affairs
Enforcement Powers
Executive Powers (Powers of the President)
The President has the power to enforce (NOT create) federal laws and manage the executive branch.
Enforcement Powers
Are the Presidents actions valid when Congress has spoken to the contrary on the action?
Executive Powers (Powers of the President)
NO, When congress has spoken to the contrary of the president’s action then the action is invalid.
Enforcement Powers:
Are the Presidents actions valid, if Congress is silent on the actions?
Executive Powers (Powers of the President)
When a president acts but Congress has been silent on the action, the action is valid unless the action interferes with the operation of power of another branch the action is invalid.
Enforcement Powers:
Are the Presidents actions valid, if Congress has implied authorization?
Executive Powers (Powers of the President)
YES, When a president acts with the express or implied authorization of Congress the action is presumed valid.
Appointment Power
Executive Powers (Powers of the President)
The president may appoint, with the consent and advice of the Senate all officers of the U.S.
Appointment Power
Who is considered an “officer of the US” that the President can appoint with the consent and advice of the Senate?
Executive Powers (Powers of the President)
This includes ambassadors, public ministers, Supreme Court Justices, Federal court judges and other officers of the U.S.
Appointment Power:
Can the President appoint inferiror officials without Senates approval?
Executive Powers (Powers of the President)
Congress may delegate appointment of inferior officials to the President (judiciary or head of an executive department) without the need for the Senates approval.
Appointment Power:
Who are Inferior Officials?
Executive Powers (Powers of the President)
Inferior officials are those supervised by Senate-confirmed appointees.
Aka: anyone who has a superior
Removal Power
Executive Powers (Powers of the President)
The President may remove executive officers and agency members without cause or Senates approval.
The President must have cause to remove executive officers with fixed terms and officers who perform judicial or quasi judicial functions (ex. member of the Federal Trade Commission).
Ex of executive officer - a cabinent member.
Removal Power:
How can a Federal Judge be removed from office?
Executive Powers (Powers of the President)
A president cannot remove a Federal Judge, they can only be removed by impeachment.
Veto Power
Executive Powers (Powers of the President)
President may veto any bill presented to him by Congress. Congress may override the veto by a 2/3rd vote.
Veto Power:
Can the president issue a line-item veto? [Where they cancel certain provisions of the bill but not the entire bill]
Executive Powers (Powers of the President)
NO, a President cannot issue a line-item veto.
Pardon Power
Executive Powers (Powers of the President)
The president may pardon federal crimes except in cases of impeachment (since impeachment is not a criminal conviction).
Note: A president is impeached through a 2/3rd vote from the Senate.
Military Power
Executive Powers (Powers of the President)
The President is the commander in chief of the military and has the power to control and deploy troops.
Note: If congress hasnt declared war, then the Presidents powers are limited.
Treaty Power
Executive Powers (Powers of the President)
The President has the power to negotiate treaties although a treaty cannot be ratified without a 2/3rd vote of the Senate.
Treaty Power:
Does a Treaty override Federal and State law?
Executive Powers (Powers of the President)
Federal Law – treaties have the same status as Federal law and override earlier created Federal law.
State Law – treaties take precedence over any conflicting State Law.
Executive Agreement Power
Executive Powers (Powers of the President)
The President has the power to negotiate and enter into executive agreements with foreign nations (ex. Reciprocal trade agreements) and these do not require a 2/3rd Senate vote.
Executive Agreement Power:
Does an Executive Agreement override Federal Law, State Law and Treaties?
Executive Powers (Powers of the President)
Conflicting federal statutes and treaties will override executive agreements but executive agreements override conflicting state law.
International Affairs
Executive Powers (Powers of the President)
The President represents the U.S. internationally and has the power to appoint and receive ambassadors as well as recognize foreign governments.
