2. Separation of Power

Question 1

What is required for a federal law to be constitutional?

Answer 1

Congress must have the power to pass the law and the law must not violate a constitutional right.

Question 2

What are the three categories under which Congress can regulate interstate commerce?

Answer 2

1. Channels of interstate commerce (i.e., highways, waterways, and air traffic)
2. Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes)
3. Activities that “substantially affect” interstate commerce.

Question 3

What must Congress show to validly exercise its Commerce Clause power under the substantial effects test?

Answer 3

1. The regulated activity is economic in nature
2. The regulated activity has a substantial effect on interstate commerce when taken cumulatively throughout the nation.

Question 4

True or False: Congress can regulate intrastate non-economic activity under the Commerce Clause.

Answer 4

False

Question 5

What power does Congress have regarding taxes?

Answer 5

Congress has the power to impose and collect taxes to pay debts and spend for the general welfare.

Question 6

What are the criteria for a congressional act to be upheld as a valid exercise of the taxing power?

Answer 6

1. It raises revenue
2. It was intended to raise revenue even if it doesn’t
3. Congress has the power to regulate the activity being taxed.

Congress’s powers to tax and to spend funds are both very broad, and there is NO requirement that what is spent be related in any way to what is taxed.

Question 7

What conditions must be met for Congress to place conditions on federal funds given to states?

Answer 7

1. The spending serves the general welfare
2. The condition is unambiguous
3. The condition is related to the federal program
4. The state is not required to undertake unconstitutional action
5. The amount in question does not coerce the state.

Question 8

Can Congress condition the grant of federal funds to public bodies?

Answer 8

Yes. Congress can condition the grant of federal funds to public bodies on compliance with measures related to the public welfare as long the public body is free to accept or reject the grants.

Question 9

What powers does Congress have during wartime?

Answer 9

1. Activate the military draft
2. Initiate wage, price, and rent control
3. Exclude civilians from certain restricted areas.

Question 10

What is Congress’s investigatory power?

Answer 10

Congress has broad investigatory powers that may extend to any matter within its legitimate lawmaking functions.

Power to:
1. Summon a witness to appear before a congressional committee
2. Pose questions to a witness before a congressional committee
3. Cite a witness for contempt
4. Refer the matter to the U.S. attorney general for prosecution

Question 11

What defenses can a witness raise against Congress’s investigatory power?

Answer 11

1. The privilege against self-incrimination
2. Lack of due process safeguards
3. Interference with First Amendment rights.

Question 12

What is the power of eminent domain?

Answer 12

Congress has the power to take private property for public use, with compensation under the Takings Clause.

Question 13

What power does Congress have regarding bankruptcy?

Answer 13

Congress has the power to establish uniform laws on the subject of bankruptcies throughout the United States.

Question 14

What does the Speech and Debate Clause entail?

Answer 14

Members of Congress cannot be punished for anything said during debate on the floor in either house.

Immunity from such conduct extends to their assistant, who engaged in acts (i.e., research) that would be immune if performed by the legislation.

Question 15

What amendments does Congress have the power to enforce?

Answer 15

• 13th Amendment (bans slavery)
• 14th Amendment (prohibits states from violating due process, equal protection)
• 15th Amendment (prohibits states from racial discrimination in voting rights).

Question 16

What is required for Congress to delegate rulemaking power to an executive agency?

Answer 16

Congress can enact legislation that delegates rulemaking power to an executive or administrative agency (i.e., FDA) and give the agency some legislative power that will prevail over inconsistent state law.

Congress has the power to delegate the authority to make rules having the power of law to the executive branch as long as Congress provides intelligible principles to guide the executive branch.

Question 17

Necessary and Proper Clause gives Congress the authority to require executive agencies to……

Answer 17

The Necessary and Proper Clause gives Congress the authority to require executive agencies to REPORT decisions to Congress, assuming this requirement is rationally related to a proper objective and is otherwise constitutional.

Question 18

True or False: Congress Can appoint members to any agency or commission with administrative powers.

Answer 18

False.

Question 19

Who can Congress delegate the appointment of inferior officers to?

Answer 19

• The President
• The judiciary
• The head of an executive department.

Question 20

True or False: Congress has NO power to summarily remove an executive officer.

Answer 20

True

Question 21

Congress has the power to remove certain types of federal officials:

Answer 21

i.) those serving as members of the governing bodies of regulatory agencies; and
ii.) inferior officers in agencies where the head of the agency may be removed by the President at will.

Question 22

Congress and Foreign Affairs

Answer 22

Foreign policy resolutions fall within the implied congressional power to conduct foreign affairs.

Question 23

What is the President’s power regarding executive appointees?

Answer 23

The President may remove any executive appointee without cause.

Question 24

President can enforce laws but CANNOT ___________

Answer 24

Make laws.

Question 25

What is the President’s Appointment Power?

Answer 25

The President appoints “high-level officials” such as Ambassadors and Cabinet members with the advice and consent of the Senate.

Commissioners are officers of the US(authority to adopt and enforce regulations)

Question 26

What is the President’s Removal Power of an Executive Appointee?

Answer 26

The President may remove ANY executive appointee WITHOUT CAUSE (i.e., an ambassador or cabinet member).

Question 27

What is the President’s Removal Power of a Presidential Appointee?

Answer 27

The President may constitutionally remove a presidential appointee WITHOUT the consent of the Senate.

Question 28

The President must have cause to remove executive officers who have:

Answer 28

i.) fixed terms; and
ii.) officers who perform judicial or quasi-judicial functions (e.g., a member of the Federal Trade Commission).

Question 29

President cannot remove _______, even for cause.

Answer 29

Judges. The only way a federal judge may be removed is by impeachment.

Question 30

Veto Power

Answer 30

Once Congress has passed legislation by a majority vote in each house, the President must sign the bill for it to become law.

If the President vetoes it, Congress must override the veto

Question 31

What happens if the President takes no action on a bill within 10 days?

Answer 31

It becomes law.

Question 32

What is a pocket veto?

Answer 32

The President can not sign a bill presented less than 10 days before the end of a legislative session.

Question 33

Congress override a President’s veto

Answer 33

Congress has the power to override a President’s veto by a two-thirds vote in both the Senate and House.

Question 34

Line-Item Veto

Answer 34

A president CANNOT cancel particular provisions of new federal legislation. The President has to either accept a bill or veto it as a whole.

Question 35

Congressional Legislation and Presidential Power

Answer 35

The president may exercise ONLY those powers expressly or impliedly granted by the Constitution or an act of Congress.

If Congress validly exercises one of its powers and overrides the president, then Congress prevails over the President.

Question 36

What is the President’s power regarding pardons?

Answer 36

The President can issue pardons for federal crimes only.

Solely an executive power.

Congress’s attempt to qualify this power is unconstitutional.

Question 37

What is executive privilege?

Answer 37

The President has an absolute privilege to refuse to disclose information related to military, diplomatic, or sensitive national security services.

Privilege: Confidential communication between the President and his advisors

NO Privilege: Confidential communications are subpoenaed as evidence in a criminal trial.

Question 38

What powers does the President have regarding military forces?

Answer 38

The President can deploy military forces without a formal declaration of war in response to an attack upon the US.

If the President and Congress disagree, the President prevails ONLY with respect to battlefield tactical decisions.

Question 39

Does President have power to seize property during wartime?

Answer 39

Power to seize private property during wartime UNLESS Congress denies him that power.

Question 40

The President has the power to make treaties with foreign nations with ___________, requires __________before it is enacted.

Answer 40

the advice and consent of the Senate, requiring a two-thirds vote before it is enacted.

Question 41

Treaties and state laws

Answer 41

Treaties take precedence over any conflicting state law.

Question 42

Treaties and federal statutes

Answer 42

When a treaty and federal statute conflict on the issue in question, time determines the controlling authority–the last-in-time will prevail.

A new federal law enacted after the treaty will override that treaty.

Question 43

Executive Agreements

Answer 43

The president has the power to enter into executive agreements and compacts with foreign nations.

Executive agreements are the sole responsibility of the President and do NOT need to be ratified by Congress.

Question 44

Executive Agreements ________ over federal law.

Executive Agreements _______over inconsistent state law

Answer 44

DO NOT PREVAIL

PREVAIL

Question 45

What is the legislative veto?

Answer 45

A device that enables Congress to monitor actions by the executive branch, but a one-house legislative veto is unconstitutional.

Question 46

Congress Monitoring Federal Agencies

Answer 46

When Congress monitors federal agencies, such as when it seeks to control structures, funding, and regulations, it MUST pass official legislation.

This legislative action or provision MUST abide by the same bicameral constitutional requirements as any other law, meaning, it MUST be:
(i) approved in BOTH congressional houses; and
(ii) presented to the President for either signature or veto.

Question 47

Who has the sole power to impeach?

Answer 47

The House of Representatives.

Question 48

What is required for the Senate to convict in an impeachment trial?

Answer 48

A two-thirds vote.

Question 49

What must every act of Congress receive to become law?

Answer 49

Approval and signature of the President.

Question 50

What can Congress do if the President vetoes a bill?

Answer 50

It can override the veto by a two-thirds vote of each house.

Question 51

What limits does the judiciary have on Congress and the President?

Answer 51

The only thing a court can do is hold a federal law unconstitutional.

Question 52

Appropriations Power

Answer 52

Where Congress by legislative act explicitly directs the President to spend appropriated money, the President has NO power to REFUSE to spend or DELAY spending the authorized funds.

But, if Congress was silent on that point, the president has discretion.