Separation of Powers Flashcards
What are the powers of Congress?
- Legislative Power
- Commerce Power
- Taxing Power
- Spending Power
- War and Defense Powers
- Civil War Amendments (13, 14 & 15)
- Delegation of Power
Congress: What is “Legislative Power”?
“PEN”
i) Congress must have the power to pass the law, and the law must not violate a constitutional right
ii) Three sources of legislative power:
(1) Enumerated powers = powers stated in the Constitution (i.e., Article I, Section 8) –> collect taxes & spend $ for the general welfare, borrow $ on the credit of US, regulate commerce, declare war, and to raise & support the army, navy, and militia
(2) Enabling clauses = may enforce the 13th, 14th, and 15th Amendments by “appropriate legislation”
(3) Necessary and Proper Clause = implied power to make laws that are “necessary and proper” to carry out an enumerated power
Exam tip!
Watch out for an answer that says Congress had the power to enact the law under its federal police power or congress’ power to promote the general welfare
These powers DO NOT EXIST unless discussing DC or some other federal territory
How does a bill become a law?
Congress passes a bill with a majority in BOTH houses
Pres then signs the bill or vetoes it
If bill vetoed, Congress can override the veto IF it gets a vote of 2/3 majority in EACH house
Exam tip!
The Necessary and Proper Clause as an answer by ITSELF will usually be incorrect
If it’s the Necessary and Proper Clause in conjunction with another power, it is more likely to be a right answer
Congress: What is the “Commerce Power”?
i) Rule—Congress can regulate:
(1) Channels of interstate commerce (i.e., highways, waterways, and air traffic);
(2) Instrumentalities of interstate commerce (i.e., cars, trucks, ships, airplanes); and
(3) Activities that “substantially affect” interstate commerce
(a) Substantial effect = inter- or intrastate economic activity that has a substantial effect upon interstate commerce
ii) Limitation:
(1) Cannot regulate intrastate non-economic activity (i.e., possession of a handgun)
(a) Exception: regulating intrastate non-economic activity with a “comprehensive scheme” –> Atlanta Hotel
Congress: What is the Taxing Power?
i) Congress can impose and collect taxes in order to pay debts and spend for the general welfare
ii) Rule—An act purporting to be a “tax” should be upheld as a valid exercise of the taxing power if:
(1) It raises revenue (objective test);
(2) It was intended to raise revenue even if it doesn’t (subjective test); or
(3) Congress has the power to regulate the activity that’s being taxed (regulatory test)
Congress: What is the Spending Power?
i) Congress can spend for the general welfare (almost anything meets the definition of “general welfare”)
ii) Rule—Congress may place a condition on the receipt of federal funds by a state if:
(1) The spending serves the general welfare;
(2) The condition is unambiguous;
(3) The condition is related to the federal program (relatedness);
(4) The state is not required to undertake unconstitutional action; and
(5) The amount in question is not so much that the state is “coerced” into accepting the funds
Exam tip!
-spending power
Do NOT say that something is unconstitutional because it is not for the general welfare
Congress: What are the War and Defense Powers?
i) Congress declares war
ii) During wartime, Congress may institute a draft and initiate wage, price, and rent control of the civilian economy
Congress: What are the Civil War Amendments? (13, 14, 15)
i) Rule—To enforce these amendments:
(1) With respect to the 14th and 15th Amendments, Congress can only regulate states, not private individuals;
(a) Under these Amendments, Congress can overcome state sovereign immunity (i.e., authorize money damages)
(2) State governments must have engaged in widespread violations of the Amendment; and
(3) The legislative remedy must be “congruent and proportional to” the violation
Exam tip!
-rights of terrorist
Question might ask what rights a terrorist has iwth respect to detention
Both US citizens and non-US citizens within the US (or US territories) are entitled to Due Process rights
Congress: What is Delegation of Power?
i) Rule: Congress can create an executive agency (i.e., FDA) and give the agency some legislative power
(1) Agency actions will prevail over inconsistent state law
ii) Limitation: must be some “intelligible principle” that guides the agency
Exam tip!
if dealing with a federal territory and NOT a state, Congress has a general legislative power and can pass any law it would like
Executive Power: President is the Chief Executive
Enforcement of Laws
(1) President can enforce but not create laws
