Separation of Powers Flashcards
Necessary and Proper Clause
Congress can exercise those powers enumerated in the Constitution plus all auxiliary powers necessary and proper to carry out all powers vested in the federal government. Thus, Congress has the power to make all laws necessary and proper for executing any power granted to any branch of the federal government.
The Necessary and Proper Clause standing alone cannot support federal law – it MUST
work in conjunction with another federal power (several are listed below).
NOTE. If a fact pattern creates a scenario where Congress passes a new law; you MUST discuss which enumerated power(s) gives them the ability to make that law (e.g., taxing power, spending power, commerce power, etc.).
Taxing Power. Congress has the power to tax, and most taxes will be upheld if:
They bear some reasonable relationship to revenue production; OR
Congress has the power to regulate the activity taxed.
Indiv cannot challenge tax law as improper generally, but can say that it violates the establishment clause.
Indiv can also challenge the amount on their tax bill.
This is a SOURCE of power for the FEDERAL GOVERNMENT (Congress) derived from the WELFARE CLAUSE
Spending Power. Congress may spend to
“provide for the common defense and general welfare.” Spending may be for any public purpose (do not confuse this with a general police power – Congress has NO general police power; the states do).
Also, BE ON POINT: THIS IS A POWER TO SPEND OR TAX, IT IS NOT A POWER TO PASS LAWS to promote general welfare under welfare clause. Just tax and spend.
States on the other hand CAN, using their police power, pass laws for the general welfare of their citizens.
This is a SOURCE of power for the FEDERAL GOVERNMENT (Congress) derived from the WELFARE CLAUSE
Note: if Congress using spending power to coerce states to do something, then there must be a REASONABLE condition they are placing on the acceptance of federal funds. (ie, we’ll give you money for highways, but max speed is 55mph based on reasonable analysis that this is good thing)
Congress has the power to regulate all foreign and interstate commerce. To be within Congress’s power under the Commerce Clause, a federal law regulating interstate commerce must either regulate the:
Commerce clause = (very broad) POWER to FEDERAL GOVT to regulate:
Channels of interstate commerce;
Instrumentalities of interstate commerce and persons and things in interstate commerce;
OR
Activities that have a substantial effect on interstate commerce.
When Congress attempts to regulate intrastate activity under the third prong, the Court will uphold the regulation if:
The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption qualifies);
AND
The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
You shouldn’t be surprised to see an MBE question in which Congress tries to make someone who is not presently in the market for a good (e.g., broccoli) buy the good or pay a penalty; you should answer that this isn’t authorized by the Commerce Clause (but might be authorized by Congress’s power to tax and spend, if the money is collected by the IRS, as in the Affordable Care Act situation).
Commerce clause as a limitation on state power
When there’s no relevant federal legislation, then you have to determine if a state regulation unduly burdens interstate commerce.
If relevant federal legislation exists, then your analysis falls under the Supremacy Clause. There are two questions you have to ask:
- Did Congress expressly authorize or prohibit state regulation? If so, that controls. If not —
- With no express authorization or prohibition by Congress, you have to determine if the federal law preempts the state law. If the state law directly contradicts the federal law, it will be preempted. If there’s no direct conflict, you have to determine if Congress intended the federal law to occupy the entire field.
Look at four factors to determine if that is the case: (1) whether the subject matter is traditionally classified as local or federal; (2) how pervasive the federal regulation is; (3) how similar the state and federal laws are (the more they coincide, the more likely it is that federal law was intended to supersede state law); and (4) whether there’s a need for uniform federal regulation. You can remember this with a mnemonic —
PUSH (Pervasiveness, Uniformity, Similarity, History).
Note that preemption is an issue any time a state law conflicts with a federal law (or is in the same field). However, it’s *most likely to be applied in the area of interstate commerce.
Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection and due process, and voting rights) contain a provision that authorizes Congress to
pass “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.
Legislative power may generally be delegated to the executive or judicial branch provided that:
Intelligible standards are set to guide the delegation;
AND
The power is NOT uniquely confined to Congress (e.g., power to declare war).
Note: cannot create committee or agency and delegate power to them then APPOINT members…only president can appoint the officers. IF challenged in court, judiciary cannot then issue orders/tell congress what to do, they can only invalidate the unconstitutional portions
The President has the power to:
Reprieve or pardon federal offenses, except in cases of impeachment;
Appoint all officers of the United States (e.g., ambassadors, Supreme Court Justices, etc.) with the advice and consent of the Senate;
If Congress creates exec committee/agency and delegates power to exec, only president can appoint members of the agency/committee
Remove any executive appointee without cause and without Senate approval, except in cases of federal judges (federal judges may only be removed by impeachment);
AND
Veto any bill presented to her by Congress.
Note: Veto Procedure. Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature so long as Congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a two-thirds vote in each house.
Line Item Veto. The President may NOT exercise a line item veto (refusing part of a bill and approving the rest).
Scope of Presidential Power
In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:
When the president is acting with the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid.
When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government.
When Congress has spoken to the contrary, presidential authority is at its lowest, and the action is likely invalid.
President’s foreign powers
Commander in Chief. Although the President is commander in chief of the military, only Congress may declare war. However, the President may take military action without a declaration of war in the case of actual hostilities against the United States.
Treaties. The President has the exclusive power to negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate.
Executive Agreements. The President has the power to enter into executive agreements (e.g., trade agreements) with foreign nations without approval of the Senate.
The president’s executive privilege and immunity
The President has a privilege to keep certain communications secret. National security secrets are given the greatest deference by the courts. In criminal proceedings, presidential communications will be available to the prosecution where a need for such information is demonstrated.
The President has absolute immunity from civil damages based on any action he took within his official responsibilities as President; however, there is no immunity for acts that allegedly occurred before taking office.
Impeachment req’s
The President, Vice President, and all civil officers of the United States are subject to impeachment. Grounds include treason, bribery, high crimes, and misdemeanors. A majority vote in the House is necessary to invoke the charges of impeachment, and two-thirds vote in the Senate is necessary to convict and remove from office.
Congress can create
TRIBUNALS (not courts)
congress can do this under article 1
While article 3 judges get life tenure and guar’s of no reduction in salary, TRIBUNAL judges do NOT get these protections
Through federalism, states get non-enumerated to Congress powers, like control over marriages and wills, but what is an exception to when Congress can regulate things like marriage and wills?
IF IN DISTRICT OF COLUMBIA
Regulation of highways, Congress may do it under which powers?
SPENDING/TAXING POWER
AND
COMMERCE POWER
