Powers of the Three Branches

Question 1

Who may impeach the president and who may convict the president?

Answer 1

The House of Representatives determines what constitutes “high crimes and misdemeanors” and may impeach by a majority vote. The Senate tries the impeached official, and a 2/3 vote is necessary for conviction.

Question 1

What standard is used to determine whether a tax by Congress should be upheld?

Answer 1

The tax only need be rationally related (or have a reasonable relationship) to revenue production.

Question 2

What does it mean for a claim to be ripe for litigation?

Answer 2

The plaintiff must have experienced a real injury (or imminent threat thereof). A federal court will not consider a claim before it has fully developed.

Question 3

What does it mean in terms of mootness when a case is capable of repetition, yet evading review?

Answer 3

A case will not be dismissed as moot if there is a reasonable expectation that the same complaining party will be subject to the same action again (capable of repetition) but that the action will not last long enough to work its way through the judicial system (yet evading review).

Note: Roe v Wade provides the classic constitutional example. By the time the woman seeking to terminate her pregnancy finally came before the Supreme Court, she was no longer pregnant, therefore the argument was made that her claim was moot. However, she could once again find herself in a similar situation, and would again be without judicial recourse.

Question 4

What is provided under the Tenth Amendment?

Answer 4

The Tenth Amendment provides that all powers not assigned by the Constitution to the federal government are reserved to the states, or to the people.

Question 5

How does aggregation come into play when considering the “substantial economic effect” of an activity for purposes of the Commerce Clause?

Answer 5

Congress has the power to regulate any activity that in and of itself, or in combination with other activities, has a substantial economic effect upon interstate commerce. Aggregation deals with the “in combination with other activities” part of the rule. While one farmer growing wheat on his farm with no intent to sell to anyone seems to be an isolated event, that can change when combined with other farmers who share that same intent. These isolated events can “in the aggregate” have a substantial effect on interstate commerce (or lack thereof) and be regulated by Congress.

Question 6

The federal government may not commandeer state legislators. What does this mean?

Answer 6

Congress cannot command state legislature to enact specific legislation or enforce a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer directly.

Note: While Congress cannot directly command (either by compelling a state to enact legislation or prohibiting a state from enacting new laws), it can use its taxing and spending powers to encourage state action.

Question 7

How does injunctive relief operate as an exception to the application of the Eleventh Amendment?

Answer 7

When a state official, rather than the state itself, is named as the defendant, the state official may be enjoined from enforcing a state law that violates FEDERAL law or may be compelled to act in accord with federal law despite state law to the contrary. However, federal courts generally may not issue injunctions against state court judges or clerks because they generally do not enforce state laws but resolve disputes between parties.

Note: This immunity extends to suits against state officials for a VIOLATION of STATE law—even if the remedy that is sought is injunctive relief instead of monetary damages.

Question 8

What is an advisory opinion and why do federal courts not render them?

Answer 8

An advisory opinion is an opinion issued by a court or a commission like an election commission that does not have the effect of adjudicating a specific legal case, but merely advises on the constitutionality or interpretation of a law. Federal courts do not render advisory opinions because federal courts only render decisions where an actual case or controversy exists.

Question 9

Over what types of cases does the Supreme Court have original jurisdiction?

Answer 9

The Supreme Court has original jurisdiction over:
(i) All cases affecting ambassadors
(ii) Other public ministers and consuls
(iii) Those in which a state is a party

Question 10

When is Congress able to regulate purely private conduct?

Answer 10

When it adopts legislation rationally related to eliminating racial discrimination (i.e., “badges or incidents” of slavery) pursuant to the Thirteenth Amendment.

Question 11

There is a general rule that states cannot enact legislation that discriminates against out-of-state commerce. What are the five exceptions to this rule?

Answer 11

(i) Necessary to important state interest and no other nondiscriminatory means are available
(ii) State as a Market Participant
(iii) Traditional government function exception
(iv) Subsidies
(v) Federal/Congressional Approval

Question 12

How does consent come into play as an exception to the application of the Eleventh Amendment?

Answer 12

A state may consent to suit by waiving its Eleventh Amendment protection.

Question 13

For what types of offenses can the President exercise the Pardon Power?

Answer 13

The Constitution grants the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” This power only applies to federal cases- the President may not pardon anyone for state offenses.

Question 14

In what three circumstances is federal preemption implied?

Answer 14

(i) Congress intended for federal law to occupy the field;
(ii) The state law directly conflicts with federal law; or
(iii) The state law indirectly conflicts with federal law by creating an obstacle or frustrating the accomplishment of that law’s purpose.

Question 15

What is a pocket veto?

Answer 15

If Congress has adjourned within the 10-day period after presenting a bill to the President, and the President had not yet acted on the bill, this is known as a “pocket veto” and the bill does not become law. This cannot be overridden.

Question 16

Name three actions not barred by the Eleventh Amendment.

Answer 16

The Eleventh Amendment does not bar:
(i) Actions against local governments
(ii) Actions by the United States government or other state governments
(iii) Bankruptcy proceedings that impact state finances

Question 17

What is a line item veto?

Answer 17

UNCONSTITUTIONAL
A line item veto is where the President refuses only part of a bill and approves the rest. Line item vetos violate the Presentment Clause and are therefore unconstitutional.

Question 18

What is a legislative veto, and is it constitutional?

Answer 18

Legislative vetoes arise when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution. Such acts are unconstitutional.

Question 19

3 requirements for standing

Answer 19

(i) Injury in fact;
(ii) Causation (the injury must be caused by the defendant’s violation of a constitutional or other federal right); and
(iii) Redressability (the relief requested must prevent or redress the injury).

Note: The federal judiciary has also established a ““prudential standing”” requirement, i.e., that a plaintiff is a proper party to invoke a judicial resolution of the dispute.

Question 20

What type of immunity does a judge have for judicial acts resulting in civil liability?

Answer 20

Absolute immunity.

Question 21

(1) When can the President invoke executive immunity; and
(2) When is the President not protected by executive immunity?

Answer 21

(1) The President may not be sued for civil damages with regard to any acts performed as part of the President’s official responsibilities.
(2) The President has no immunity for civil actions based on conduct that occurred before the President took office or completely unrelated to carrying out the job.

Question 22

What is an ex post facto law? How does a court consider whether a law is ex post facto?

Answer 22

The ex post facto clauses prohibit federal and state governments from enacting CRIMINAL laws that have a retroactive punitive effect (i.e., ex post facto laws).

As a result, this clause generally does not apply to civil laws because their purpose is nonpunitive. HOWEVER, a CIVIL law will be deemed to be an ex post facto law when its retroactive effect is so punitive that it clearly overrides its nonpunitive purpose.

Factors to consider:
- Imposes an affirmative disability or restraint (e.g., imprisonment)
- has historically been regarded as punishment (e.g., public shaming)
- promotes the traditional aims of punishment (e.g., retribution)
- is rationally related to its nonpunitive purpose

Question 23

Can Congress legislate for the general welfare?

Answer 23

NO. They can TAX AND SPEND for the general welfare but not given power to simply legislate for general welfare.