ConLaw - Separation of Powers

Question 1

Powers of Congress

Can Congress tax and spend/appropriate?

Answer 1

Congress has the power to tax, and most taxes will be upheld if:
(1) They bear some reasonable relationship to revenue production for general welfare; OR
(2) Congress has the power to regulate the activity taxed.

a) Spending Power. Congress may spend to “provide for the common defense and general welfare.”

So if you see “general welfare” we are talking about the power to tax/spend; it sounds so ubiquitous and like a good answer choice, so make sure if you choose this answer choice (eg, because important to the general welfare) it has to do with tax/spending by Congress

Note: Spending may be for any public purpose (do not confuse this with a general police power – Congress has NO general police power).

Question 2

Powers of Congress

What is the commerce power?

Answer 2

Anything about manufacturing, marketing, transportation of, etc. of “widgets”
Official language=channels of interstate commerce, instrumentalities/persons/things in interestate commerce, OR activities that have substantial effect on IC

Congress can pass any law regarding regulation of business, BOTH domestic and foreign

This is among its broadest powers

When on question and not sure what F’s are about, look for anything to do with business/widgets, and this is likely related to commerce clause.

Question 3

When Congress attempts to regulate intrastate activity under the activities that have substantial effect on IC prong, the Court will uphold the regulation if:

However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence):

Answer 3

(1) The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
(2) The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.

However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.

Question 5

Powers of Congress

Who had the power to declare war?

Answer 5

Congress.

They have war power to declare war and do anything for general defense of country.

Question 6

Powers of Congress

What is foreign affairs power?

Answer 6

Congress has the foreign affairs power

Tip: when question involves foreign countries and When in doubt, choose Congress, unless has to do with treaties, which is executive

Question 7

Powers of Congress

Who has power over aliens?

Answer 7

Congress

Question 8

Powers of Congress

Who has power to coin money?

Answer 8

Only Congress.

Question 9

Powers of Congress

Who has power over federal property/land?

Answer 9

Federal parks/property, Washington DC, federal monuments, etc, Congress has exclusive power

Question 10

Powers of Congress

Can Congress delgate their powers?

less than 1%

Answer 10

Yes, Legislative power may generally be delegated to the executive or judicial branch provided that:
(1) Intelligible standards are set to guide the delegation; AND
(2) The power is NOT uniquely confined to Congress (e.g., power to declare war).

Question 11

When Congress delegates authority to another branch, may Congress require the agency to report to it?

Answer 11

Yes, nothing wrong with Congress requiring an agency to report to due to its power under the necessary and proper clause. But may not overturn an executive action, except by enacting a statute.

Question 12

May Congress overturn an executive action? If so, how?

Answer 12

Yes, by enacting a statute.

That is, by (1) having both Houses vote to pass the statute, and (2) presenting the statute for the President’s signature or veto.

Question 13

Powers of Congress

What is the necessary and proper clause?

Answer 13

This is usually a teaser/distracter and not the correct choice

Only applicable to executing one of their enumerated powers (tax, spend, declare war, etc.). So in question, make sure if you choose this as correct answer, it’s because the question is linking it to one of Congress’ powers.

NOTE. If a fact pattern creates a scenario where Congress passes a new law; you MUST discuss which enumerated power(s) gives them the ability to make that law (e.g., taxing power, spending power, commerce power, etc.).

Question 14

What is Congress’ 13, 14, 15th amendment enforcement power?

Answer 14

Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection and due process, and voting rights) contain a provision that authorizes Congress to pass** “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.**

Question 15

Executive (Presidential) Powers

What is the veto power?

Answer 15

Congress passes law; President can veto.

Note: Neither congress nor SC can veto, only the president

Question 16

What is the procedure for vetoes?

Can prez go through and line item veto certain portions?

Answer 16

Procedure. Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature so long as Congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a two-thirds vote in each house.

No. Line Item Veto. The President may NOT exercise a line item veto (refusing part of a bill and approving the rest).

Question 17

Executive (Presidential) Powers

What is the appointment power?

Answer 17

President has power to appoint ambassadors, justices/judges, and high cabinet positions with the advice and consent of Senate

President only one that can appoint those with executive/regulatory power, such as heads of cabinets

Congress, however, has the power to appoint commission/committee/panel members (as long as don’t have regulatory/executive power)
In these situations, both president and Congress can appoint members.

Question 18

Executive (Presidential) Powers

Does president have removal power?

Answer 18

Yes, may remove any executive appointee without cause and without Senate approval, except in cases of federal judges (federal judges may only be removed by impeachment)

Question 19

Executive (Presidential) Powers

What is the pardon power?

Answer 19

President has absolute pardon power, but only as to federal offenses and does not apply to impeachment situations

Prez can also reprieve federal offenses

Question 20

Executive (Presidential) Powers

What is the president’s military power?

Does this include declarations of war?

Answer 20

As commander-in-chief, the president is the top authority over the military. (eg, can order troops to go from here to there; can seize property with military)

No, president does not have power to declare war.

Question 21

Executive (Presidential) Powers

What is the treaty power?

Answer 21

President has the power to negotiate/enter into/sign treaties.

Note: once signed, treaty may onliy be ratified with concurrence of two-thirds of the Senate

Watch for hypo where treaty conflicts with federal law. “President enters into treaty with country’s law, which prevails?” The last-in-time prevails. If treaty passed last, this prevails over federal law, and vise versa.

Question 22

Executive (Presidential) Powers

What is the removal power?

Answer 22

President has exclusive power to remove people from office?

Question 23

Executive (Presidential) Powers

Executive order v Executive agreement

Answer 23

Executive ORDER = domestic
Executive AGREEMENT = foreign

Executive agreements include trade agreements

President can order both, but they cannot override/conflict with federal law (this would abrogate Congressional power).

Look out for hypothetical: Pres can declare this “cody g day” but CANNOT order it a national holiday and make everything shut down on that day (that’s a congressional power)

Question 24

How do courts assess the scope of presidential powers?

Answer 24

Generally, courts will look at whether Congress has authorized president to act or spoken on the matter, and decide accordingly.

In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:
(1) When the president is acting with the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid.
(2) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government.
(3) When Congress has spoken to the contrary, presidential authority is at its lowest, and the action is likely invalid.

Question 25

What are the R’s as they relate to presidential communications?

Answer 25

The President has a privilege to keep certain communications secret. National security secrets are given the greatest deference by the courts. In criminal proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated.

Question 26

Who is subject to impeachment?
On what grounds?
Procedure?

Answer 26

The President, Vice President, and all civil officers of the United States are subject to impeachment.

Grounds include treason, bribery, high crimes, and misdemeanors.

Procedure: A majority vote in the House is necessary to invoke the charges of impeachment, and two-thirds vote in the Senate is necessary to convict and remove from office.

Question 27

What is the speech and debate clause?
does it apply to Congres member’s aides?

Answer 27

Article I, § 6, states that for any speech or debate in either the House of Representatives or the Senate, members of Congress shall not be questioned in any other place. as long as the words were spoken on the floor during the
session, that’s enough.

The Court has held that the clause applies ‘‘not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.’’

Question 28

May Congress require officials in other branches, such as an ambassador appointed by the president, to answer questions?

Answer 28

Yes, Congress may require people to answer questions at hearings it holds, but only if those questions are related to matters upon which it may legislate.

Congress is limited to legislating only in specific areas, but it may exercise whichever powers are necessary and proper to serve its interests in those areas.