Backup-Sep Powers

Question 2

What is required for a Federal law to be Constitutional?

Answer 2

1. Legislating the area is within the rights of Congress +
2. The law violates no Constitutional rights.

Question 3

What is required for a state law to be Constitutional?

Answer 3

It cannot violate a Constitutional right.

Question 4

What are Congress’ three sources of power to legislate?

Answer 4

1. Enumerated powers;
2. Enabling Clauses;
3. Necessary and Proper Clause.

Question 5

Does Congress have Federal police power or power to promote general welfare?

Answer 5

Not generally, often the wrong answer on the MBE.

Question 6

What are the enumerated powers of Congress?

Answer 6

1. Commercel;
2. Taxing;
3. Spending.

Question 7

What is the scope of the enabling clauses of Congress?

Answer 7

The enabling clauses give Congress the power to enforce 13th, 14th, and 15th Amendments.

Question 8

What does the Necessary and Proper Clause allow Congress to do?

Answer 8

If Congress is pursuing some end, it can choose whatever means necessary pursue that end.

Question 9

What is the power of the Necessary and Proper Clause to legislate by itself?

Answer 9

It is generally not enough, it needs to be combined with another source of power.

Question 10

What does the commerce power allow for Congress to regulate?

Answer 10

1. Channels of interstate commerce (highways, waterways);
2. Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes);
3. Activities that “substantially effect interstate commerce.”

Question 11

What is the Cumulative Effects Doctrine?

Answer 11

A substantial effect on interstate commerce can be found when looking at how the sum of a specific action across a market effects commerce. To analyze, look at the cumulative effect of all actions of those similarly situated to see if there is substantial effect on interstate commerce.

Question 12

What does commerce power not allow Congress to regulate?

Answer 12

1. Cannot use the power to regulate intrastate **non-economic** activity; and,
2. Cannot use the power to overcome state sovereign immunity.

Question 13

When can Congress regulate non-economic activity through the Commerce Clause?

Answer 13

When the regulation is the result of a comprehensive scheme.

Question 14

If Congress is regulating a private business, what is the source of their power?

Answer 14

The Commerce Power.

Question 15

When is a tax valid?

Answer 15

If the answer is yes to any one of the following:

1. The tax raise revenue;
2. If the tax was intended to raise revenue; or,
3. Is it being used as a regulatory device.

Question 16

On what does Congress have the power to spend?

Answer 16

Anything remotely related to the general welfare of the people

Question 17

Congress may place a condition on receipt of Federal funds by a state if what conditions are met?

Answer 17

1. Spending serves general welfare +
2. Condition on funds is unambiguous +
3. Condition on funds **relates** to Federal program spending +
4. The state is not required to break Constitution +
5. There cannot be coercion (no bright line rule).

Question 18

What is the key inquiry in determining the limits of Congress’ spending power?

Answer 18

Is the condition related to the spending?

Question 19

What are the war and defense powers of Congress in a time of peace?

Answer 19

1. Congress has power to declare war;
2. Congress has the power to raise and maintain Army (air force);
3. Congress has the power to raise and maintain a Navy;
4. Congress can raise a militia; and,
5. Establish military courts for US service members and enemy.

Question 20

What are Congress war and defense powers in a time of war?

Answer 20

Congress has the power to:

1. Declare a Draft;
2. Impose price controls;
3. Confine/Exclude civilians from an area

Question 21

What rights does a citizen or non-citizen suspected of terrorisim detained inside the US/Territories maintain?

Answer 21

They are entitled due process rights.

Question 22

What is Congress’ immigration and naturalization power?

Answer 22

Congress can control the law regarding immigaration and naturalization procedures.

Question 23

What does Congress’ investigatory power allow it to do?

Answer 23

Investigate anything related to any of its law making functions.

Question 24

What can Congress limits with investigatory power?

Answer 24

Congress cannot limit the rights of persons under investigation.

Question 25

What does Congress’ property power allow it to do?

Answer 25

Allows it to regulate, buy, and sell Federal property.

Question 26

What is Congress’ power of eminent domain?

Answer 26

Congress can take property for public use if they give just compensation.

Question 27

What does the Speech and Debate Clause prohibit?

Answer 27

Punishing any member of Congress for words spoken on the floor of the House or Senate.

Question 28

13th Amendment bans?

Answer 28

Slavery.

Question 29

14th Amendment bans?

Answer 29

States from violating the following clauses:

1. Due process;
2. Equal protection;
3. Privileges and immunities.

Question 30

15th Amendment bans?

Answer 30

Discrimination in voting based solely upon race.

Question 31

What are the limitations on Congress ability enforce 13-15th Amendments?

Answer 31

1. Can only enforce 14th and 15th against the states;
2. Congress has the burden of proving a violation; and,
3. The remedy Congress seeks has to be congruent and proportional to preventing a violation of 13-15th Amendment

Question 32

14th or 15th Amendment legislation is only enforced against?

Answer 32

The states.

Question 33

How can a Congress create a Federal Agency?

Answer 33

By passing legislation that gives the agency some intelligible principle to guide the agency’s actions.

Question 34

What are the powers of president as Chief of the Executive Branch?

Answer 34

1. Enforcement of Laws;
2. Appointment Power;
3. Removal Power.

Question 35

How are high level executive branch officials appointed?

Answer 35

Step 1. The president appoints;

Step 2. Senate Confirms.

Question 36

Who can appoint executive branch inferior officers?

Answer 36

By default, president appoints, Senate confirms. However, any of the following can appoint:

1. The president;
2. The courts;
3. Heads of executive departments.

Question 37

Who is an inferior officer in the executive branch?

Answer 37

An officer who has a superior.

Question 38

What are the limits on president’s removal power?

Answer 38

The president can remove executive officials at will and without cause; unless:

1. Congress sets a term on appointment, then they can only be removed for cause;
2. Judicial or quasi judicial officials can only be removed for cause; or,
3. Special prosecutor investigating the president cannot be remove.

Question 39

Can Congress remove an executive branch official?

Answer 39

No.

Question 40

How long does president have to sign a bill approved by both houses of Congress?

Answer 40

Once signed, president has 10 days to sign.

Question 41

What happens if the president does not sign a bill within 10 days after Congress’ approval?

Answer 41

If not signed, then by default treat as if signed. However, if not signed and the Congressional term ends before the date to sign, then it is treated as a pocket veto.

Question 42

If the president vetoes a bill, what can Congress do? What if the veto is a pocket veto?

Answer 42

Congress can overturn a veto with 2/3 majority vote in house and Senate; however, a pocket never goes back for another vote.

Question 43

What is the validity of a line-item veto?

Answer 43

A line-item veto (the president approves part of the bill and removes part) is invalid because it lacks:

1. Bicameralism; and,
2. Presentment.

Question 44

What does bicameralism require?

Answer 44

The entirety of the bill needs to be presented to both houses.

Question 45

When does a legislative veto occur and what is the effect?

Answer 45

It occurs when a law is passed that allows modification after the president signs it without additional presenment.

The effect is that the law becomes invalid for lack of presentment to the president.

Question 46

What are the limits on president’s pardon power?

Answer 46

1. Only extends to Federal offenses against U.S. (≠state law, ≠civil claims); and,
2. Cannot be used to undo an impeachment and restore someone to office.

Question 47

When does the executive absolute privilege apply?

Answer 47

When the subjevct matter concerns national security secrets.

Question 48

When is the executive privilege presumed?

Answer 48

When the president engages in any sort of confidential communications.

Question 49

What are the president’s war powers when Congress has not declared war?

Answer 49

The president can respond to attacks but cannot initiate wars.

Question 50

When is the President’s military authority > Congress’?

Answer 50

President has authority over military tactical decisions.

Question 51

If the president signs a treaty with another nation, what must happen before it becomes law?

Answer 51

The treaty must be ratified by a 2/3 vote of the Senate.

Question 52

If treaties and Federal law conflict, which has priority?

Answer 52

The one that was signed most recently prevails.

Question 53

If treaty and state law conflict, which has priority?

Answer 53

The treaty has priority over the sate law.

Question 54

If the president’s enters into an executive agreement, the it must be ratified by Congress how?

Answer 54

It does not need to be ratified by Congress.

Question 55

If executive agreement and Federal statute conflict, which has priority?

Answer 55

The Federal statute.

Question 56

If executive agreement and state law conflict, which has priority?

Answer 56

The executive agreement.

Question 57

What actions can a president take with an executive agreement?

Answer 57

Enter into agreements with foreign governments.

Question 58

When are Congressional limits imposed on the executive valid?

Answer 58

If the law is valid, the the limit is valid.

Question 59

Who has the sole power to impeach the president? How?

Answer 59

The House of Representatives has the sole power to impeach by a majority vote.

Question 60

Who has the sole power to conduct a presidential impeachment trial? How?

Answer 60

The Senate holds a presidential impeachment trial and needs 2/3 vote to remove from office.

Question 61

Congress can impeach who?

Answer 61

Any Federal official.

Question 62

What can get a federal official impeached?

Answer 62

1. Treason;
2. Bribery;
3. Other high crimes and misdemeanors (anything Congress says).

Question 63

What is the appeal process for congressional impeachment?

Answer 63

There is none.

Question 64

What is the effect of impeachment?

Answer 64

Removal from office.

Question 65

When does Congress have the power to regulate for the general welfare.

Answer 65

Never, it is not a source of power for legislation.

Question 66

How can Congress alter the U.S. Supreme Court’s jurisdiction?

Answer 66

Congress can expand or restrict the number and types of lower court decisions which the court may hear.

Question 67

A state mandating that all persons wishing to practice a profession must be schooled in the state and have lived in the state, will likely be held to be?

Answer 67

In violation of the commerce clause.

Question 68

When should a court allow a State tax in violation the commerce clause?

Answer 68

1. the tax is applied to an activity with a substantial nexus with the taxing state +
2. the tax is fairly apportioned +
3. the tax does not discriminate against interstate commerce +
4. the tax is fairly related to the services provided by the state

Question 69

What is Congress’ power to appoint members of an agency or commission with administrative powers?

Answer 69

It cannot appoint officials to administrative offices, it can only approve nominations.