BIAF-ConLaw-Gov Powers

Question 1

Congressional Authority

Answer 1

Congress’s authority is derived from the constitution’s granting of express (eunmerated, A-I-S-8) powers and the courts’ reading of the necessary and proper clause (implied powers).

Enumerated Powers (NTS-CCC-WEB-PP)

1. Necessary
2. Tax
3. Spend
4. Commerce
5. Coin
6. Citizenship
7. War
8. Establish Courts
9. Patent
10. Post

Implied Powers: (FIP)

1. Foreign-President instrument
2. Investigatory
3. Property

Question 2

Necessary and Proper

Answer 2

The necessary and proper clause of Article I Section 8 authorizes Congress to carry out its authority by any means not prohibited by the constitution.

Question 3

Taxing and Spending Power

Answer 3

Congress has broad power to tax for revenue-raising purposes, subject to the following restrictions:

1. All indirect taxes (duties or excise tax) are imposed uniformly among the states,
2. All direct taxes (applied to people/property) must be apportioned among the states and
3. Export taxes are prohibited.

**General Welfare: **Congress’s power to tax and spend must be for the “common defense and general welfare of the United States.”

Regulation throug T & S

**Rule: **Courts will not question congressional motives or the regulatory effects of a tax if congress has the power to impose the tax and the tax will, in fact, raise revenue.

**Conditional funding: **Congress ma use its power to tax and spend for regulatory purposes by placing conditions on qualifications for federal funding if:

1. Congress is acting in the public interest,
   
   • the conditions are expressly stated,
   • the conditions relate to the general welfare purpose of the spending program, and
   • the spending is not for an unconstitutional purpose (e.g. discrimination).
2. Congress may compel private action by imposing a tax penalty on individuals for failure to comply.

Question 4

Commerce Clause

Answer 4

**Rule: **Under the Commerce Clause, Congress may regulate:

1. the channels of interstate commerce,
2. the instrumentalities of interstate commerce,
3. persons or things in interstate commerce, and
4. activities that have a substantial effect on interstate commerce.
   
   • If economic, cumulative effect considered
   • If non-economic, cumulative effect not considered

**Caveat: **Congress may not use its commerce power to compel a state to enact or enforce a federal regulation.

Congress my regulate only existig commercial activities, as opposed to coompelling activity.

**Tip: **Check for taxing / spending power if it appears that congress is using commerce clause to compel state action.

Canned Statement

Article 1, Section 8 gives Congress the power to regulate commerce among the several states to assure survival of a non-fragmented central government and to prevent intertstate rivalries.

Over the years, case law has indicated that Congress’s commerce power is essentially absolute. In addition to the channels of interstate commerce, the power has been extended to the areas of crime, discrimination and almost any activity at any level–national, state or local–which, taken separately or cumulatively, potentially or actually affects interstate commerce, with very few exceptions.

Question 5

War Power

Answer 5

Congress has the power to declare war, raise and support the armed forces, and make laws governing the armed forces.

Question 6

Bankruptcy Power

Answer 6

Congress has the power to extablish uniform laws regulating bankruptcy through out the US.

Question 7

Investigatory Power

Answer 7

Under the necessary and proper clause, congress has an implied power to investigate any matter that falls within the legislative sphere. Includes the power to subpoena witnesses and hold uncooperative witnesses in contempt, subject to prosecution by the Attorney General.

Question 8

Property Power

Answer 8

Congress has the power to enact laws regulating the territory and property of the united states.

Question 9

Congressional Power:

13th Amendment

Answer 9

The 13th Amendment prohibits slavery and indentured servitude. Congress may regulate private behavior under the 13th Amendment to prevent racially discriminatory activity, i.e. there is no state action requirement under the 13th Amendment.

Question 10

Congressional Power:

14th & 15th Amendments

Answer 10

Congress has broad power to enforce rights recognized by the courts under the 14th and 15th Amendments, but may not create new rights or expand the scope of rights. Laws enacted to enforce these rights must be proportionate and congruent to remedying constitutional violations.

Question 11

Executive Powers

Answer 11

The 6 Presidential Powers

• Commander in Chief

The President serves as commander-in-chief of the US military. Pursuant to this power, the President may deploy American forces abroad without a declaration of war.

• Head of State

The president has the power to make treaties and enter into executive agreements with foreign nations. Signed treaties must be ratified by 2/3 of the Senate.

• Appointment Power

The President has the power to appoint ambassadors, federal judges, and officers of the United States. Needs Senate confirmation.

• Removal Power

The President has the power to remove with or without cause any executive appointee. **Caveat: **The President may not remove federal judges, or remove appointees in offices where the term is fixed by statute, unless good cause exists. **Note: **Congress may limit removal if the office is one in which independence from the President is desirable where good cause exists.

• Veto Power

The Constitution requires the President to sign or veto federal legislation within ten days (excluding Sundays) of presentment of a bill by Congress. If the bill is not signed and Congress is in session the bill becomes law; if congress adjourns within ten days, the bill does not become law, i.e. pocket veto.

• Pardon Power

The president may pardon persons accused or convicted of a federal crime. Under the Pardon Power, the President may

1. Grant a full pardon,
2. Commute a federal sentence,
3. Grant a conditional pardon,
4. Pardon an entire class of people.

Power does not extend to impeachments, civil judgments, findings of civil contempt, or state criminal charges.

**Tip: **Though rare, the President can also pardon person not yet charged with a criminal violation.

Question 12

Congressional Power:

Delegation

Answer 12

Congress can delegate legislative powers to the judicial or executive branches unless the power is exclusive to Congress, so long as it provides an intelligible principle to guide the use of the delegated power.

Question 13

Congressional Checks

on Executive

Answer 13

• Power to Impeach & Remove

The President, federal judges, and officers of the United States may be impeached and removed for treason, bribery, or high crimes and misdemeanors. Removal requires impeachment in the House by a simple majority (51%), and conviction by the Senate by a super-majority (67%).

• Investigatory Power
• Apportionment power (direct president to spend)

**Does NOT Include Legislative Veto: **A legislative veto is a resolution by Congress to nullify or overturn an action by an agency of the executive branch. Legislative Vetos are unconstitutional as an intrusion of executive authority.

Question 14

Judicial Checks

Answer 14

The judiciary has the power of judicial review over the acts of the executive and legislative branches and may rule such acts unconstitutional.

Question 15

Congressional Checks

on Judiciary

Answer 15

• Congress has the power to establish and determine the jurisdiction of courts inferior to the Supreme Court.
• Congress regulates the size of the federal courts, including the supreme Court.
• Congress may impeach members of the Judiciary (Impeach 51% House, convict 67% Senate)

Question 16

Executive Checks

on Congress

and Judiciary

Answer 16

Congress

**Veto: **The President may veto legislative action.

**Line Item Veto: Prohibited: **A line item veto is a veto that grants the President the power to veto selected provisions of Congressional bills. This is unconstitutional legislative action by the Executive.

Judiciary

Appointment: The President appoints the members of the judiciary with the advice and consent of the Senate. (Senate rule change 2014, no filibuster for judicial appointees in Senate)

**Executive Privilege: **The President and executive officials may refuse to disclose information regarding presidential papers and conversations to Congress and the judiciary. (Not absolute power, subject to other important government interests. Does not protect President from criminal inquiries into acts carried out while in office)

Question 17

Executive Power:

Treaties

and

Executive Agreements

Answer 17

Treaty: Treaties are agreemetns between the United States and a foreign country that are negotiated by the President and become effective when ratified by the Senate.

**Precedence: **Constitution>Treaties>State Law & Executive Agreement, Fed Law v. Treaty = Most recent

**Executive Agreement: **An executive agreement is an agreement between the US and a foreign country that becomes effective when signed by the POTUS and a foreign nation.

**Note: **No senate ratification.

**Precedence: **Constitution, Fed Law, Treaties > Exec. Agreement > State Law

Question 18

Federalism

Answer 18

• Preemption
• Intergovernmental Immunities
• Dormant Commerce Clause
• Privileges & Immunities Clause
• Full Faith & Credit
• Federal Police Power

Question 19

Federalism: Preemption

Answer 19

**Rule: **The supremacy clause of Article VI provides that the Copnstitution, and laws and treaties made pursuant to it, are the supreme law of the land. Thus, if federal and state laws conflict, the federal law will preempt the state law.

**Express Preemption: **Federal law will preempt any state law if Congress explicitly states its intention that the federal law preclude state legislation.

**Implied Preemption: **In the absence of express preemption, implied preemption may be found if:

• The state law impedes a federal objective,
• Congress has signaled an intent to wholly occupy the field, or
  
  • ​Inferred from the wording of the legislation or legislative history
• the stat law sets a standard below a federal minimum standard.

**Note: **States are generally free to enact more restrictive regulations, provided that doing so does not impede a federal objective.

Question 20

Federalism:

Intergovernment Immunities

Answer 20

Federal Immunity

States may not tax or regulate federal activities. However, states may tax:

• independent contractors working for or with the federal government provided that the tax does not discriminate against federal contractors.
• income of federal employees.

States may regulate federal land or territories only if Congress grants them the power to do so.

State Immunity

The 10th Amendment prohibits the federal government from taxing unique state activities or essential state government funcitons.

Soverign Immunity

The doctrine of soverign immunity prohibits federal courts from hearing suits against state governments without the state’s consent. A state may only be sued in federal court when:

• A state explicitly waives immunity,
• The federal government brings suit, or
• The suit is brought pursuant to federal laws adopted under section 5 of the 14th Amendment.

Suit may be brough to enforce a state’s compliance with federal laws by individuals or by an agency of the state that is being sued.

**Suits Against State Officers: **Lawsuits may be brought against state officers for injunctive reliev and money damages, so long as the state officers can be held personally liable and the state treasury will not have to pay retroactive damages.

Question 21

Congress Compelling State Action

Answer 21

The 10th Amendment prohibits congress form compelling state regulatory or legislative action. Congress may:

• Induce state governments to act by placing mandates on money grants to the states if the mandates are expressly stated and related to the purpose of the spending program,
• Prohibit harmful commercial activity by state governments.

Question 22

Dormant Commerce Clause

Answer 22

Under the Dormant Commerce Clause doctrine, where Congress has declined to regulate an area of interstate commerce, states may enact laws that regulate interstate commerce if the regulation does not place an excessive burden on interstate commerce or discriminate against interstate commerce.

Review: A state law that discriminates (de jure or de facto) against interstate commerce is subject to strict scrutiny.

**Market Participation: **A state may discriminate against out-of-state persons or businesses when a state acts as a market participant. Under the market participant exception, states may:

• Choose to do business with in-state companies rather than out-of-state companies,
• Grant lower tuition to in-state residents, and
• Require that private companies performing traditional government activities (e.g., trash collection) within the state deal exclusively with state-owned and controlled repositories.

**Undue Burden on Interstate Commerce: **If a state law places an undeu burden on interstate commerce, courts will balance the burden on commerce against the legitimate purpose of the state. (i.e. less restrictive means test)

Question 23

Federalism:

Privileges and Immunities

Answer 23

**A-4-S-2: State to State: **Under Article IV Section 2 of the US Constitution, the privileges and immunities clause prohibits states from discriminating against nonresidents with respect to fundamental rightes related to essential commercial activities (e.g., employment or earning a livelihood). This means that the citizens of each state are entitled to the privileges and immunities of the citizens oin the several states.

**Exception: **A state law that discriminates against nonresidents with respect to fundamental economic activities ill be valid if the state can show that nonresidents are the source of a problem the law is designed to remedy and the law is narrowly tailored to remedying that harm (Intermediate Scrutiny / Substantial Relationship Test)

**Fed to State: **Under the 14th Amendment, the rights of citizens to the privileges of national citizenship are protected from infringement by the states. These rights include:

• The right to vote inf ederal elections,
• The right to travel from state to state,
• The right to enter public lands,
• The right to petition Congress for redress.

**Note: **Both only apply to citizens, not corporations (? still valid after Citizens United?) or aliens.

Question 24

Full Faith & Credit

Answer 24

The full faith and credit clause requires that courts in every state enforce the judgments of out-of-state courts if:

1. The out-of-state court had personal and subject matter jurisdiction,
2. The judgment was on the merits, and
3. The judgment was final.

Question 25

Federal Police Power

Answer 25

Generally, policing authority is the states’ domain. Federal police power may only be exercised:

1. In Washington D.C.,
2. To exclude access to military bases,
3. On indian reservations,
4. On federal lands and territories, and/or
5. To confiscate property from enemy aliens.

Question 26

Takings Clause

Answer 26

**Rule: **Under the 5th Amendment’s takings clause, the government may confiscate private property for public use if the owner is provided just compensation.

A Possessory Taking is a confiscation of property by the government.

A Regulatory Taking is Government regulation that is so oppressive as to leave no reasonably economically viable use for the property.

Regulatory Takings Notes

• Devalue: A regulation causing a mere decrease in the value of a property does not qualify as a taking,
• **Retroactive Challenge: **A P may challenge as a taking a regulation that was already in place when the P purchased the property.
• **Temporary: **A temporary restriction on development is not a taking if the restriction is not in place for an unreasonably long period of time.
• **Proportionality: **A regulation on development must be justified by a benefit proportionate to the burden imposed.

**Public Use: **A taking is for the public use if the government acts with a reasonable belief that the appropriated property will serve a public purpose.

• Gov. may not take private property to benefit a particular class of identifiable individuals. However, condemned property does not have to be made available to the general public. Taking is allowed as long as the use of the condemned property confers a benefit on the community (e.g., creation of jobs, increased tax revenue).

Just Compensation

Just compensation is based on the loss suffered by the owner, which is measured yb the property’s market value at the time of the taking. Benefit on government/entitiy irrelevant.

Question 27

Contracts Clause

Answer 27

Under Article I, Section 10, states are prohibited from imparing private contract rights. A law which does impairs private contract rights is subject to intermediate scrutiny.

Question 28

Ex Post Facto Clause

Answer 28

**Rule: **Federal and state governments are prohibited from adopting laws that criminally punish conduct that was lawful when it was carreid out, or increase the punishment for a crime after it has been completed.

An ex post facto law is a law that retroactively changes the legal consequences of acts already committed.

Question 29

Bill of Attainder

Answer 29

A bill of attainder is a law that inflicts punishment on a specific person or easily ascertainable group of persons without a trial. Such laws constitute and unconstitutional overreach of the legislative branch into the judicial power.