Separation of powers

Question 1

Legislative power

Answer 1

For a federal law to be constitutional:

• Congress has powers constitution gives it and no others
• must have the power to pass the law and the law must not violate a constitutional right

Powers of congress: PEN
- Powers (enumerated):
- collect taxes and spend money for general welfare, borrow money, regulate commerce,
declare war, raise and support army, navy, militia (all military or money)
- Enabling clauses of 13,14,15A permit enforcement by Congress
- Necessary and proper clause - everything necessary for carrying out Enumerateds

For the states: police power lets states pass whatever they want. just can’t violate constitutional right. Fed gov’t only has police power for territories

Question 2

Commerce power

Answer 2

Commerce clause lets congress regulate:
- Channels of commerce (routes)
- Instrumentalities of commerce (vehicles)
- Activities that “substantially effect” interstate commerce
- cumulative effect doctrine - can regulate activities that are individually tiny as long as
cumulative effect is substantial
- limits: no intrastate non-econ activity, except via “comprehensive scheme”

Question 3

Taxing and spending power

Answer 3

Taxing power applies if:

• raises revenue (objective)
• intended to raise revenue but doesn’t (subjective)
• congress has regulatory power over activity taxed (regulatory test)

Spending power:
-spend for the general welfare (it is almost always for the general welfare)

Congress can condition money spent to states if:

• The spending serves the general welfare;
• The condition is unambiguous;
• The condition is related to the federal program (relatedness);
• The state is not required to undertake unconstitutional action; and
• The amount in question is not so much that the state is “coerced” into accepting

Question 4

War and defense powers

Answer 4

• Congress may declare war, raise and support armies, provide and maintain a navy, and organize, arm, discipline, and call forth a militia.
• During wartime, Congress has the power to:
  
  • Activate the military draft and selective service;
  • Initiate wage, price, and rent control of the civilian economy; and
    - Exclude civilians from certain restricted areas.
• Congress can establish military courts to gain jurisdiction over members of the armed forces, conduct court-martial proceedings, and try enemy combatants.

Question 5

Immigration and naturalization

Answer 5

Completely within Congress’s power

Question 6

Investigatory power

Answer 6

Broad power extending to any matter within its lawmaking functions

Can do things necessary to investigate - cite witness who fails for contempt, e.g.

Cannot override constitutional rights

Question 7

Property power

Answer 7

Can dispose of, acquire, and regulate FEDERAL PROPERTY

Question 8

Misc powers

Answer 8

Eminent domain - Can take private property for public use. Implied power, not expressly granted

Admiralty and marine power

Bankruptcy power

Postal power

Copyright and patent power

Question 9

Speech and debate clause

Answer 9

Members of Congress can’t be punished/prosecuted for statements during floor debate

Question 10

Civil war amendment enforcement

Answer 10

13th - Congress can ban slavery
14th - Congress can enforce due process, equal protection, and privileges and immunities against the states
15th - Congress can enforce prohibition on state race discrimination on voting rights

Of these, only 13th can target individuals

w/r/t 14+15, to target a state, Congress must ID “widespread violations” and remedy must be “congruent and proportional”. this bypasses 11th A sovereign immunity

Question 11

Delegation power

Answer 11

Congress can create exec agencies and delegate some legislative power to prevail over inconsistent state laws

LIMIT: need an “intelligible principle” to guide agency

Question 12

Executive powers - what does joe biden do?

Answer 12

Joe Biden is a VAPER!
Veto power
Appointment
Pardon
Enforcement
Removal

Question 13

Veto power

Answer 13

If Congress passes legislation by majority in each house, Pres can veto within 10 days

“Pocket veto” if presented less than 10 days before end of session

Override by 2/3 vote of both housese

NO line-item veto - take it or leave it

Question 14

Appointment

Answer 14

President appoints high level officials like ambassadors and cabinet members with “advice and consent” of senate

CONGRESS can delegate appointment of inferior officers to potus, judiciary, or head of exec department

Question 15

Pardon power

Answer 15

Can grant pardons for FEDERAL crimes. (Clemency for state crimes)

Cannot undo impeachment - not a criminal conviction

Question 16

Enforcement power

Answer 16

President can enforce, but not create, laws

Question 17

Removal power

Answer 17

President can remove any exec appointee WITHOUT CAUSE - unless they have fixed terms or perform judicial or quasi-judicial functions (FTC). Then you need cause

CANNOT remove judges

Congress can neither require congressional approval for removal nor remove officials itself

Question 18

Executive privilege

Answer 18

Absolute privilege for natsec

Presumptive privilege for other confidential comms to advisors - overcome by subpoena

Question 19

Commander-in-chief

Answer 19

Only congress can declare war - potus can only respond to surprise attacks

If congress and potus disagree, potus only wins on battlefield tactical decisions

Question 20

International affairs

Answer 20

Treaty power: potus can make treaties w consent of senate. 2/3 to ratify
Treaties have same status as fed law, override if later
Treaties defeat any conflicting state law regardless of timing

Executive agreements: don’t need to be ratified
Fed law > exec agreements > state law

Question 21

Congress’s limits on the executive

Answer 21

General rule: if Congress is acting within its powers, it (and its existing laws) can block the executive

Impeachment power: Congress can impeach president, fed judges, any fed official

• House has sole power to impeach (maj vote) and Senate has sole power to try (2/3)
• Impeachable offenses: treason, bribery, “high crimes and misdemeanors”

Appropriations power:
- when Congress’s law explicitly directs potus to spend money, potus has no power to impound those funds

Question 22

Presidential limits on congressional power

Answer 22

Veto

Pardon