Government Power Flashcards
State Power
the state has general police power
- states can legislate in ANY way that furthers the health, safety, and welfare of their citizens
Federal Powers
federal government must tie legislation to a specific enumerated power in the US constitution
Legislative Powers
- taxing power
- spending power
- treaty power
- commerce power
- necessary & proper power
- power of inquiry
- anti-commandeering principle
Taxing Power
Must distinguish whether the amount being charged is a penalty or a tax.
- Produces some revenue for the government?
- How burdensome?
- Scienter Requirement?
*Is there some sort of criminal mischeif or state of mind involved?
- Who collects this amount of money?
Penalty is not a tax
- exceedingly heavy burden
- scienter req
* only affects ppl that do a specific act - who collects it?
* anyone other than the IRS
Spending Power 5 factor test
- Promotes general welfare
- Unambiguous condition
- Condition must be germane (relate) to the federal interest
- Independent constitutional bar
- Too coercive
Treaty Power Analysis
- Properly Executed?
- the president passed the treaty and the senate ratified
- What type of treaty
- self-executing –> applies automatically
- non self-executing –> congress would have to pass legislation to enforce the treaty
- does congress have the power to pass the legislation?
Self-Executing Treaty
- we enter into the treaty and it automatically has effect
- president passed, and senate ratified
Non Self-Executing Treaty
- falls to congress to implement that treaty
- enables congress to pass legislation to effectuate the treaty
- enable congress to control the means of implementing the treaty
* allowed bc the treaty power combines w the necessary & proper power
Commerce Power 3 categories
- channels of interstate commerce
- instrumentality, person or thing
- intrastate activity that substantially affects interstate commerce
Necessary & Proper Power Analysis
- whether the means are rationally related to an enumerated power
- history if _______ is related to ________ statutes
- implies that theres a history of congress being involved in the particular things
- reasonably extends the existing federal law
- Accounts for state interest
- link btwn enumerated power of congress and the means are not too attenuated
Anti-Commandeering Principle (10th Amend.)
- monetary incentives
- ok as incentive
- meets Dole factors
- proper congressional authority of spending power - access Incentives
- this is ok as incentives - take title provisions
- not ok as incentive
- the states 2 options are to follow congress plan or suffer liability
- congress cannot make the states choose btwn 2 unconstitutional options
Power of Inquiry
- Courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the president and his papers
- To narrow the scope of the possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’ legislative obj.
- Courts should be attentive to the nature of the evidence offered by congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’ legislative purpose, the better.
- Courts should be careful to assess the burdens imposed on a president by a subpoena
Executive Powers
-execution of laws
- appointment & removal of officers
- national security
- foreign affairs
- major questions doctrine
- immunities & privileges
Appointment of officers
Appointment
- Principal: appointed by president –> confirmed by the senate
- Inferior: president alone, heads of departments, or judiciary
Factors to determine inferior officer
- subject to removal by a higher executive branch official
- limited duties
* no authority to make policy, no administrative duties, no establishing how laws will be enforced - limited in jurisdiction
- limited in tenure
- Is there some level of supervision by a principal officer
** no more than one layer of for-cause
Removal of Officers Key Issue
whether appellant is an inferior officer or a principle officer
National Security
the president has the power to act w/o the express approval of congress in cases of a state of war
- must be congressional grant of authority
President acts w express or implied congressional authority
- presidents power at its max
- court scrutiny: heavy burden, favor constitutionality
President acts without congressional grant or denial of authority
- president independent powers act in zone of twilight
** president and congress may have concurrent authority OR distribution of authority is uncertain - court scrutiny: practically, events congressional inertia, quiescence
President acts against express or implied will of congress
- president power: at its lowest ebb
- court scrutiny: scrutinize w power
Foreign Affairs
The president has a vast power regarding foreign affairs, the president alone has the power to speak or listen as a representative of the nation. He makes the treaties and negotiates the terms with the advice and consent of the Senate.
Delegation (Major Questions) Doctrine
The judge-made rule that the constitution does not allow Congress to make UNDULY BROAD and VAGUE delegations of authority to the executive.
This doctrine was made to guard against the broad, or otherwise unlikely delegations of the legislative powers.
Immunity Rule
- When it comes to presidential official acts, he is absolutely immune
- If not in his official capacity, he is legally liable
Privilege Issue
are the presidents communications discoverable?
