Separation of Power

Question 1

Commerce Clause

Answer 1

Under the Commerce Clause, Congress has the power to regulate: 1) the channels of interstate commerce such as highways, waterways, and airways 2) the instrumentalities of interstate commerce, or persons or things that travel in interstate commerce such as ships, cars, and the internet OR 3) any intra-state commercial activity that, in the aggregate, substantially affects interstate commerce.
a. When an economic activity is at issue, the court will use the rational basis test. This is a very easy standard to meet.

Question 2

Delegation of Legislative Powers

Answer 2

Congress has broad discretion to delegate rule-making authority to federal agencies through statutes that provide intelligible principles governing the exercise of that authority. Of course, Congress may NOT delegate a power that is uniquely confined to the legislative branch e.g. the power to declare war or to try impeachments.
a. The supreme Court has been very deferential in applying the intelligible principle requirement as almost anything will pass this standard. In fact, no congressional delegation has been invalidated in about 75 years.

Question 3

President’s Powers

Answer 3

Article II vests the executive power in the President. To best determine the validity of presidential actions regarding domestic affairs, courts use the following standard: 1) when the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum and his actions are likely valid 2) when the President acts in the absence of either a congressional grant or denial of authority (when Congress is silent) he can only rely upon his own independent powers AND 3) when the President acts contrary to the express or implied will of Congress, then the executive power is at its lowest and his actions are likely valid.

Question 4

President’s Powers - Authority over Domestic Affairs

Answer 4

The President’s power over internal affairs is unclear. Under the “take care” clause the President is given the authority to make sure that the laws are faithfully executed. However, the president cannot make the laws. All he can do is carry out the laws made by Congress.

Question 5

President’s Powers - President’s Powers Over Foreign Affairs

Answer 5

The president has the power to enter into agreements with foreign leaders, to recognize foreign governments, and to act as the commander in chief of the armed forces. In short, the President speaks for the US in foreign affairs.