Con Law 2 - Separation of Powers, Federalism, State Action

Question 1

Requirement for a Constitutional State Law

Answer 1

IT can’t conflict with an individual right.

Question 2

3 Sources of Congressional Power

Answer 2

1. Enumerated Powers.
2. Enforcement Powers of the 13th, 14th, and 15th amendments.
3. Necessary and Proper Clause

Question 3

Commerce Power - 3 Subjects of Regulation

Answer 3

1. Channels - through which interstate commerce flows.
2. Instrumentalities - things that cross state lines including the means by which commerce is conducted e.g. cars, trains, etc.
3. Substantial effect on interstate commerce.

Question 4

“Substantial Effect” on Interstate Commerce

Answer 4

Cumulative Effect Doctrine - all similar actions by small actors addd up to a substantial effect.
Limitations - can’t be for in-state non-economic activity.

Question 5

Taxing Power

Answer 5

Congress can tax if it falls into one of 3 categories:

(1) Objective - tax objectively raises revenue.
(2) Subjective - congress was trying to raise $ when it enacted the tax
(3) Regulator - if congress has the power to directly regulate the activity at hand, it can use a tax as a regulation device.

Question 6

Spending Power

Answer 6

Congress may place a condition on receipt of federal funds by a state if:

(1) General welfare - the spending must serve it.
(2) Unambiguous - the condition must be unambiguous, states have to know what they’re being told to do.
(3) Relatedness - condition imposed must relate to the federal program.
(4) Constitutional - can’t tell states to do something unconstitutional.
(5) No-coercion - the amount of $ cant be so great the state is coerced into taking it and meeting the condition

Question 7

Congressional War Powers

Answer 7

1. Declare war.
2. Raise and support the army.
3. Provide and maintain a navy.
4. Organize, arm, and call out the militia.

Question 8

Congressional Wartime Powers

Answer 8

1. Draft. Can also do this in peacetime.
2. Price controls.
3. Civilian exclusion. Confine or exclude civilians from certain areas during wartime.

Question 9

Investigatory Power

Answer 9

Congress can investigate any matter it can legislate about and do what’s necessary to facilitate the investigation. Cannot override rights though.

Question 10

Property Power

Answer 10

Can regulate federal property by passing whatever laws it wants on them.

Question 11

Power of Eminent Domain

Answer 11

Power to take private property away and pay compensation.

Question 12

Admiralty and Maritime Power

Answer 12

Necessary and proper clause gives congress power to fix and determine maritime laws.

Question 13

Bankruptcy Power

Answer 13

Power to establish uniform laws on the subject of bankruptcies.

Question 14

Postal Power

Answer 14

Can establish a post office.

Question 15

Copyright and Patent Power

Answer 15

Promote the progress of science and useful arts by making copyright and patent laws.

Question 16

Speech and Debate Clause

Answer 16

Legislators are immune for things said in debate in the houses of congress.

Question 17

13th Amendment

Answer 17

Bans slavery.

Question 18

14th Amendment

Answer 18

Protects due process, equal protection, and privileges and immunities.

Question 19

15th Amendment

Answer 19

Bans race discrimination in voting.

Question 20

Civil War Amendments Enforcement

Answer 20

(1) Congress cant regulate private individuals under 14 and 15.
(2) Must create a record, e.g. holding hearings to show there’s a problem.
(3) Congruent and proportional. Cant go to far past what the amendment itself does.

Question 21

Congressional Delegation of Power

Answer 21

Congress can create agencies with rule making authority. Has to be some intelligible principle limiting the kinds of rules the agency is allowed to make.

Question 22

Executive Power - Enforcement

Answer 22

President can enforce laws but cannot make them.

Question 23

Executive Appointment

Answer 23

Can appoint high level officials with advice and consent of the senate.

Question 24

Congressional Delegation of Appointment of Inferior Officers

Answer 24

Can delegate to:

(1) President. No senate confirmation needed.
(2) . The courts. No confirmation needed.
(3) Heads of executive departments - can appoint people in their department.

Question 25

Executive Removal Power

Answer 25

(1) Can remove executive officials at will and without cause.
(2) Official with fixed term or who performs a judicial or quasi judicial function have to remove for cause.
(3) Can’t remove fed judges. Have to be impeached by congress.
(4) Needs no permission from congress and congress cant remove people.

Question 26

Veto Power

Answer 26

Has 10 days to sign or veto, after 10 days it automatically gets ‘signed.’
Pocket veto is when congressional term ends before the 10 days and president doesn’t sign, it automatically kills the bill.

Question 27

Pardons - Limitations

Answer 27

1. Only offenses against the US. (No state crime or civil liability.)
2. Can’t undo an impeachment.

Question 28

Executive Privilege

Answer 28

Absolute - for national security secrets if revealing the info would compromise national security.
Presumptive - for other confidential communications. Balance the requester’s need for info against the sensitivity of its disclosure.

Question 29

Executive Military Powers

Answer 29

(1) If congress hasn’t declared war, president is limited to responding to attacks.
(2) If president and congress disagree about how to conduct a war, president only prevails with respect to battlefield tactics.

Question 30

Treaty Power

Answer 30

President has power to make treaties with 2/3 senate ratification. If treaty and fed law conflict, whichever was more recently passed wins.

Question 31

Executive Agreements

Answer 31

With other nations. No need for ratification. If conflicting with fed law, fed law wins. If conflicting with state law, exec agreement wins.

Question 32

Congressional Power Over Executive

Answer 32

If congress is acting within its powers and has a valid law, the president has to follow it.

Question 33

Impeachment Power

Answer 33

House has sole power to impeach, majority vote.
Senate has sole power to conduct trial, 2/3 vote.
Impeachable offense: (1) treason (2) bribery (3) high crimes and misdemeanors.

Question 34

Appropriations Power

Answer 34

Where congress by legislative act explicitly directs prez to send appropriated money, the prez has no power to refuse to spend or delay spending the authorized funds.

Question 35

Nature and Scope of Federal Powers

Answer 35

Limited powers. Has the powers the constitution gives it.

Question 36

State Police Powers

Answer 36

Limited by:

(1) Exclusive federal powers. E.g. coining money, treaties, foreign affairs
(2) Can conflict with individual rights.
(3) Can be preempted by federal laws in areas where congress has the power to regulate. Congress can also flat out say states cant regulate in certain areas where congress has regulation power.

Question 37

Federal Sovereign Immunity

Answer 37

No suit without consent. State can’t create a cause of action against the feds unless the feds consent.

Question 38

Supremacy Clause

Answer 38

Federal law is supreme over state law in a conflict.

Question 39

Taxation of Feds by States

Answer 39

The feds and its agencies are immune from state taxation and regulation that would interfere with federal functions.

Question 40

State Immunity from Fed Taxes

Answer 40

Only if:
(1) Unique state govt activity. Something only the state govt does.
(2) Essential state government activity.
E.g. Can’t tax passing laws.

Question 41

Anti-Commandeering Doctrine

Answer 41

Feds can’t make states act as sovereigns, can’t force them to:

(1) Pass laws
(2) Enforce federal laws.

Question 42

Dormant Commerce Clause

Answer 42

States can’t discriminate against out of state economic actors.

Question 43

State Law Facially Discriminates Against OUt-of-state goods or economic actors

Answer 43

Strict Scrutiny:

(1) Compelling interest.
(2) Necessity.

Question 44

State Law incidentally burdens interstate commerce

Answer 44

(1) Important state interest

(2) No excessive burden

Question 45

Market-Participant Doctrine

Answer 45

Exception to dormant commerce clause, state is acting in the marketplace itself, buying things. Can buy from wherever it wants.

Question 46

State Action - Public Function Theory

Answer 46

Activity traditionally performed by the govt. One private individual has the kind of power over another private individual that usually only the govt has.

Question 47

State Action - Significant State Involvement

Answer 47

“State hand in private glove.” State closely encouraged and supported. The state wants something done and is exerting significant control over how it gets done, but it’s got a private individual to do it.

Question 48

2 Requirements for Constitutional Federal Law

Answer 48

(1) There must be some power that justifies it.

(2) It can’t conflict with an individual right.