Con Law Separation of Powers Flashcards
The Enumerated Powers of Congress are:
Commerce, taxing, spending, declaring war and raising an Army, Navy and Militia
The Enabling Clauses are which 3 amendments and allow Congress to do what?
13th, 14th, and 15th Amendments.Allows Congress to prohibit anything that these Amendments prohibit.
The Necessary and Proper Clause allows Congress:
to enact laws necessary and proper to carry out its other powers. *Usually necessary and proper will only be correct on MBE if it is in conjunction with another power.
The Commerce Power allows Congress to regulate:
Channels and istrumentalities of interstate commerce, as well as activities that substantially affect interstate commerceAffectation doctrine: Congress has the power to regulate any economic activity, whether carried on in one state or many, that ha a substantial affect (whether directly or indirectly) upon interstate commerce.
The Commerce Power cannot be used to regulate:
intrastate non-economic activity
Taxing Power: A tax imposed by Congress is valid if it falls within one of three categories:
Objective: Does the tax in fact objectively raise revenue?Subjective: Does Congress subjectively intend to raise revenue?Regulatory - use it to regulate behavior.
The Spending Power allows Congress to spend for:
The general welfare*Don’t say something is unconstitutional b/c it is not for the general welfare - usually always for the general welfare.
War & Defense Power allows Congress to:
Declare war, raise an Army (including Air Force) and Navy, and Militia.
During Wartime, Congress may:
Enact military draft, impose price controls, and civilian exclusion from designated areas
Congress may place a condition on a state’s receipt of federal funds if:
For the general welfare;Unambiguous; Related to the federal programNot unconstitutionalNo coercion
How can Congress bypass the Commerce clause to regulate things such as public schools?
By using the spending power to offer money to the schools if they agree to implement standardized testing (or other appropriate measure).
Other powers of Congress:
Immigration and NaturalizationInvestigatory powerProperty PowerPower of Eminent DomainAdmiralty and Maritime PowerBankruptcy PowerPostal PowerCopyright and Patent PowerSpeech and Debate Clause
President’s Removal Power of:1) Executive Officials2) Executive Officials with fixed terms3) Federal Judges4) Special Prosecutor
1) Exec. officials: President can remove for any reason (ex: an ambassador or cabinet member)2) Exec. officials with fixed terms: Need cause (ex: member of the Federal Trade Commission)3) Federal Judges: Only by impeachment4) Special Prosecutor: President cannot remove
Veto Process:
President has 10 days to sign or reject a bill. If no decision, the bill becomes law.
Pocket Veto:
If Congress’s term expires, there is a veto through inaction.
Congress may override a Presidential veto with:
A 2/3 vote.
Two unconstitutional vetoes:
Line-item veto: President must approve and veto all laws together; cannot pick and choose. Legislative veto: The law is “x” but Congress tries to change it without the President’s signature.
Limitations on Presidential pardons:
President can only pardon for offenses against the United States (and not state law offenses)Cannot undue an impeachment to restore someone to power
Absolute executive privilege:
National Security Secrets
Presumptive Executive Privilege:
Other confidential communications. Balance the governmental interest vs president’s privacy (Think Nixon, Watergate tapes).
Treaties:1) The president can make a treaty with a ___ vote from the Senate.2) Treaties prevail over an earlier ____ _____ if conflicting. 3) Treaties always trump ___ _____.
1) 2/3 vote2) Federal Statute3) State statute
Does an Executive Agreement need to be ratified?
No.
Does an Executive Agreement trump federal law?
No - federal law trumps.
Does an Executive Agreement trump state law?
Yes.
The sole power to impeach is with the:
House of Representatives. Majority vote needed.
For an impeachment trial, who conducts the trial and what vote percent vote does it take to convict and remove?
Senate conducts the trial, need a 2/3 vote for removal.
The States’ power is limited for some exclusive federal powers:
Coin money; make treaties; conduct foreign affairs; have an army
Anti-Commandeering Doctrine:
The Federal gov’t cannot make states act in their Sovereign capacities. *10th Amendment would also be a correct answer for this.
Congress can appoint officials to its legislative committees but cannot appoint members to:
any agency or commission with administrative powers. Ex: An attempt to vest the power to appoint members of the Federal Elections Commission in the speaker of the House of Representatives was held unconstitutional.
The President has the power to nominate high-level officials such as cabinet members, ambassadors and heads of agencies, but _____ has the power to confirm or reject the President’s nominees.
Senate.
Congress can delegate the appointment of “inferior” officers (including special prosecutors) to:
The president; the judiciary; or heads of departments
