SEPARATION OF POWERS

Question 1

Legislative Branch Checklist

Answer 1

• Necessary and Proper Clause
• Commerce Clause
  
  • Commerce Clause - Interstate Commerce
  • Intrastate Commerce
    
    • Economic or Commercial Activities
    • Non-Economic or Non-Commercial Activities
  • Substantial Economic Effect - Aggregation
• Tenth Amendment and Commandeering
• Taxing and Spending Power
  
  • Taxes
  • Regulatory Spending
    
    • Conditional Grants
• Delegation of Power

Question 2

Necessary and Proper Clause

Answer 2

Congress has the power to make all laws that shall be necessary and proper to execute the powers granted to any branch of the federal government.

Question 3

Commerce Clause - Interstate Commerce

Answer 3

The Commerce Clause gives Congress the power to regulate the

(i) channels,
(ii) instrumentalities, and
(iii) economic activities that substantially affect interstate commerce.

Question 4

Intrastate Commerce - Economic or Commercial Activities

Answer 4

Congress may regulate intrastate economic or commercial activities if there is a rational basis to believe that the activities, in aggregate, substantially affect interstate commerce.

Question 5

Intrastate Commerce - Non-Economic or Non-Commercial Activities

Answer 5

Congress may regulate intrastate non-economic or non-commercial activity if Congress can demonstrate a substantial economic effect on interstate commerce.

Question 6

Commerce Clause

Substantial Economic Effect - Aggregation

Answer 6

Congress may regulate any interstate or intrastate activity that either by itself or in combination with other activities has a substantial economic effect upon interstate commerce.

Question 7

Tenth Amendment and Commandeering

Tenth Amendment

Answer 7

Under the Tenth Amendment, all powers that are neither granted to the federal government nor prohibited to the states are reserved to the states. However, Congress has the authority to restrict state activities that violate civil liberties.

Question 8

Tenth Amendment and Commandeering

Commandeering

Answer 8

Under the Tenth Amendment, Congress may NOT commandeer state legislatures to enact specific legislation or execute a federal regulatory program. However, Congress may encourage, rather than compel, state action through its taxing and spending powers.

Question 9

Taxing and Spending Power

Answer 9

Congress has the power to tax and spend as necessary for the general welfare.

Question 10

Taxing and Spending Power

Taxes

Answer 10

Congress can tax to achieve a regulatory effect if (1) the tax’s primary purpose is to raise revenue, and (2) a reasonable relationship exists between the tax and the regulation.

Question 11

Taxing and Spending Power

Regulatory Spending

Answer 11

Congress’s spending power may be used for any public purpose

Conditional Grants - Congress can encourage, not compel, state legislation through conditional grants. This requires that the condition (1) be unambiguously state, (2) bear some relationship to the spending purpose, and (3) is not unduly coercive.

Question 12

Delegation of Power

Delegation

Answer 12

Congress may delegate legislative powers to executive officers and administrative agencies. Congress must provide intelligible standards to establish the scope of the delegates’ legislative power

*Congress may not delegate executive or judicial powers to itself or its officers

Question 13

Executive Branch Checklist

Answer 13

• Executive Powers
  
  • Domestic Affairs
  • Foreign Affairs
• Appointment and Removal
  
  • Appointment Powers
    
    • President
    • Congress
  • Removal Powers
    
    • President
    • Congress
• Pardon Power
• Treaties and Executive Agreements
  
  • Treaties
    
    • Conflicts
  • Executive Agreements
    
    • Conflicts

Question 14

Executive Powers

Answer 14

The executive power or power to issue an executive order is reserved to the President

Question 15

Executive Powers

Domestic Affairs

Answer 15

The President is empowered to appoint and remove officers and pardon offenses against the U.S. The President has the duty to execute federal law.

Question 16

Executive Powers

Foreign Affairs

Answer 16

The President has the power to act on behalf of the U.S. in foreign relations, to deploy as the commander-in-chief of the armed forces, and to negotiate and enter into executive agreements.

Question 17

Appointment Powers - President

Answer 17

The President can appoints ambassadors, top-level federal officers, and federal judges with the advice and consent of the Senate.

Question 18

Appointment Powers - Congress

Answer 18

Congress CANNOT delegate appointment powers to itself.

However, Congress can vest the power to appoint inferior officers in the President and other branches of government.

Question 19

Removal Powers - President

Answer 19

The President can remove top-level executive officers without cause, but Congress can require the President show good cause prior to removal of executive appointees.

Question 20

Removal Powers - Congress

Answer 20

Congress can only remove executive officers through exercising its impeachment power.

Question 21

Pardon Power

Answer 21

The President has the power to grant pardons for offenses against the U.S. unless that pardon is for a conviction for which he is being impeached. Congress CANNOT limit the pardon power.

Question 22

Treaties and Executive Agreements

Treaties

Answer 22

The President has the authority to make treaties.

Treaties are agreements between the U.S. and foreign countries negotiated by the President. Treaties must be ratified by two-thirds of the Senate.

Treaties override executive agreements.

Question 23

Treaties - Conflicts

Answer 23

Treaties prevail over conflicting state laws.

Between a treaty and congressional acts, whichever is the most RECENT will prevail.

The Constitution prevails over treaties.

Question 24

Treaties and Executive Agreements

Executive Agreements

Answer 24

Executive Agreements are agreements entered into between the President and heads of foreign countries. Executive agreements can be reached for any purpose that does not violate the Constitution. The President has implied approval from Congress for executive agreements.

Conflicts - Executive agreements only prevail over conflicting state laws.