Separation of Powers Flashcards
What is Congress’s Legislative Power?
Generally the power to make laws, right to conduct investigations and hearings, consider matters which legislation may be enacted, and all other things “necessary and proper” to enactment of legislation
What are the enumerated powers of congress?
1) collect taxes and spend money
2) borrow money on the credit of the United States
3) regulate commerce with foreign nations and among the several states
4) to declare war
5) raise and support the army, navy, and militia
Define
Necessary and Proper Clause
Gives congress the implied power to make all laws which shall be necessary and proper for carrying into execution foregoing powers
Define
The enabling clauses of the 13, 14, and 15th amendments
Give congress the power to enforce those amendments by appropriate legislation
What is the affectation doctrine?
Congerss has the power to regulate any economic activity whether carried on in one state or many that has a substantial efect upon interstate commerce
Define
The commerce power by congress
Congress can regulate commerce which concerns more states that one by:
1) channels of interstate commerce (highways, waterways, air traffic)
2) instrumentalities of interestate commerce (cars, trucks, ships, airplanes); and
3) activities that substantially effect interstate commerce
What is the cumulative affect doctrine?
Federal commerce power permits regulation over an individual’s activites in one state that can have a cumulative effect upon interstate commerce
For example, one famer growing wheat in his state together with that of
What is the substantial effects test Congress must meet to validly exercise commerce clause power?
1) the regulated activity is economic in nature; and
2) that the regulated activity (when taken cumulatively through the nation) has a substantial effect on interstate commerce
What is the 10th amendment
The 10th amendment provides that powers not delegated to the federal government are reserved to the states
This is a very weak limitation on federal commerce power today
What are some things that the 10th amendment restricts congress from imposing/doing on states?
1) congress may not commander the lawmaking/legislative process of a state
2) Congress cannot commander state officials to act as administrators of federal programs
What does the 16th amendment give congress the power to do?
To lay and collect taxes on incomes derived from any source
When will a tax generally be valid?
If it raises revenue even if it has a substantial regulatory effect
Generally the modern judicial trend is to uphold any tax as valid if it
What is congress’s spending power?
Congress has the power to lay and collect taxes and to pay the debts and provide for the common defense and general welfare of the united states
Can Congress require states to comply with specified conditions in order for qualify for federal funds?
Yes
As under its spending power
How much Congress exercise their taxing and spending power?
Within the general welfare of the United States
When can congress 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 relates to the federal program
4) state is not required to undertake unconstitutional action; and
5) the amount in question is not so great as to be considered coercive to the state’s acceptance
What is the investigatory power by congress?
Power to conduct investigations incident to its legislative power
What is congress’s property power?
Power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the united states
What is the power of emminent domain?
The power to take property
Remember that private property shall not be taken without just compensat
What is congress’s admiralty and maritime power?
Complete and plenary power to fix and determine the maritime laws throughout the country
What is congress’s bankruptcy power?
To establish uniform laws on the subject of bankruptcies throughout the united states
What is Congress’s postal power?
Congress may estblish post offices and post roads
Define
Copyright and Patent Power
Congress may promote the progress of science and useful arts by securing for limited times ot authors and inventors the exclusive right to their respective writings and discoveries
Define
Speech and Debate Clause
Senators and representatives for any speech or debate in either house shall not be questioned by any other place
Protects legislators and their aides against criminal or civil proceedin
What are the civil war amendments?
Congress has the power to enforce:
1) thirteenth amendment (banning slavery)
2) fourteenth amendment (prohibiting states from violating protections regarding due process, equal protection, and privileges and immunities; and
3) fifteenth amendment (prohibiting states from discriminating in voting rights)
How much congress validly enforce the fourteenth or fifteenth amendments?
1) state governments have engaged in widespread violations of the amendment; and
2) legisltaive remedy is congruent with and prorportional to the violations
What is required for removal of federal district judges?
Impeachment proceedings
Define
Veto Power
Once congress has passed legislation and presented it to the president, Pres has 10 days to veto it. If he doesn’t then the proposed legislation becomes law
Can congress override a veto?
Yes, by a two thirds vote of both the senate and the house of representatives
When is a treaty self-executing?
When it takes effect without the necessity of any further action by congress beyond consent or ratification
When is a treaty not self-executing?
When it requires congress to pass legislation to implement its provisions
What does it mean for a treaty to be the supreme law of the land?
Judges of every state shall be bound thereby (self-executing treaties are considered the supreme law of the land)
When does a legislative veto occur?
When congress enacts a law containing a provision that congress can change the law without a new congressional vote or presidential signature
