Separation of Powers Flashcards
For a federal law to be constitutional:
congressional power justifies it
+
no rights violation
For a state law to be constitutional:
there is no violation of a constitutional right
Substantively, Congress has three sources of power to legislate:
- Enumerated powers
- Enabling Clauses
- Necessary and Proper Clause
When does Congress have federal police power or power to promote general welfare?
Not generally
Enumberated Powers of Congress
- Commerce
- Taxing
- Spending
The Enabling Clauses of Congress
Congress has power to enforce 13th, 14th, and 15th Amendments
The Necessary and Proper Clause allows Congress for
If Congress is pursuing some end, it has a choice of means to pursue that end (what is necessary)
Necessary and Proper Clause by itself
generally not enough, needs to be combined with another power
Commerce Power allows congress to regulate
- Channels of interstate commerce (highways, waterways)
- Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes)
- Activities that “substantially Affect interstate commerce”
How does commerce power rely upon the subjective intent of congress?
It does not, if it’s objective it passes
Cumulative Effects Doctrine States
Look at the cumulative effect of all actions of those similarly situated to see if there is substantial affect
What does commerce power not allow congress to regulate
2
- cannot use to regulate intrastate non-economic activity
- cannot overcome state sovereign immunity
When can congress regulate non-economic activity through commerce clause?
When the regulation is the result of a comprehensive scheme.
If Congress is regulating a private business, where is their power coming from?
Commerce Power
When is a tax valid?
3
If the answer is yes to any one of these ?’s
- Does the tax raise revenue?
- If the tax was intended to raise revenue
- Is it being used as a regulatory device?
When does Congress have the power to spend?
Anything remotely related to the general welfare of the people
Congress may place a condition on receipt of federal funds by a state if:
(5)
- Spending serves general welfare
- condition is unambiguous
- condition relates to federal program spending
- State is not required to break constitution
- There cannot be coercion (no bright line rule)
What is the key inquiry for Congress’ spending power?
Is the condition related to the spending?
War and defense power of Congress in time of peace
4
- Congress has power to declare war
- Congress has the power to raise and maintain Army (air force)
- Congress has the power to raise and maintain a Navy
- Congress can raise a militia
- Establish military courts for US service members and enemy
What are Congress war and defense powers in time of war?
- Declare a Draft
- Impose price controls
- Exclusion: Confine/Exclude civilians from an area
Congress’ power over a citizen or non-citizen suspected of terrorisim detained inside the US/Territories
They are entitled due process rights
Congress’ immigration and naturalization power
Congress can control
Congress’ investigatory power allows it to
Investigate anything related to any of it’s law making functions
What can congress not do with investigatory power?
Limit rights
Congress’ property power
Allows it to regulate property
Congress’ power of eminent domain
Can take property
Speech and Debate Clause prohibits
Punishing a senator said by any member of congress on the floor of the house or senate
13th amendment bans
slavery
14th amendment bans
States from violating
- due process
- equal protection
- privileges and immunities
15th amendment bans
discrimination in voting based solely upon race
Limitations on Congress ability enforce 13-15th amendment
3
- Can only enforce 14th and 15th against the states
- Congress has to show there is a problem
- Does it go to far beyond what the amendment forbids: The remedy has to be congruent and proportional preventing a violation of 13-15th amendment
If there is valid 14th or 15th Amendment legislation, Congress can only
regulate states
How can a congress create an agency?
Gives the agency some intelligible principle to guide the agency
-generally satisfied
The power of president as Chief Executive
- Enforcement of Laws
- Appointment Power
- Removal Power
How are high level officials appointed?
- President Appoints
2. Senate Confirms
Inferior officers appointment can be assigned to
- President
- Courts
- Heads of executive departments
By default, president appoitns, senate confirms
Who is an inferior officer?
Someone who has a superior
Limits on presidents removal power?
4
- President can remove executive officials at will and without cause
- If Congress sets a term, can only be removed for cause.
- Judicial or quasi judicial officials can only be removed for cause
- Special prosecutor investigating the president cannot remove
Can congress remove an official?
No
How long does President have to sign a bill from congress
Once signed, president has 10 days to sign
If the president does not sign a bill within 10 days, what happens
If not signed, then by default treat as if signed
If not signed and the congressional term ends before the date to sign, then pocket veto
If the president vetoes a bill, what can congress do?
What about a pocket veto?
Need 2/3 majority vote in house and senate
pocket never goes back
Validity of a line-item veto
is invalid because it needs
bicameralism + presentment
Bicameralism
presented to both houses
Legislative veto occurs when? Effect?
A law is passed that allows modification after the president signs it without further signature
- Invalid
Limits on President’s Pardon Power
- Only extends to offenses against U.S. (≠ state law, ≠ civil claims)
- Cannot undo an impeachment and restore someone to office.
Executive Absolute Privilege applies to
National Security Secretes
Executive Privilege presumed when?
Any sort of confidential communications
President’s power when congress has not declared war?
He can respond to attacks but not initiate wars
When does the President’s military power trump Congress?
Military tactical decisions
The president’s power to make treaties must be
Ratified by 2/3 vote senate
If treaties and federal law conflict?
The one that is later prevails
If treaties and state law conflict?
The treaty wins
President’s power to enter into executive agreement
Has no check by congress
If executive agreement and federal statute conflict, who wins?
Federal statute
If executive agreement and state law conflicts, who wins?
Executive agreement
What can a president do with an executive agreement
Settle claims with foreign governments
If Congressional Limits on the Executive, when is it valid
If the law is valid, Congress wins
Who has the sole power to impeach the president? How?
House of representatives? By majority vote
Who has the sole power to conduct a presidential impeachment trial? How?
Senate? 2/3 vote
Congress can impeach who?
Any federal official
What can get you impeached
3
- treason
- bribery
- other high crimes and misdemeanors (anything congress says)
Appeal from Congress’ impeachment
there is none
What is the effect of impeachment?
removal from office
When does the congressional power to regulate for the general welfare.
Never
How can Congress affect the U.S. Supreme Court’s jurisdiction?
They can expand or restrict the number and types of lower court decisions which the court may hear.
A state mandating that all persons wishing to practice a professional must be schooled in the state and have lived in the state, will likely be held
In violation of the commerce clause
When should a court allow a State tax against the commerce clause?
(4)
- the tax is applied to an activity with a substantial nexus with the taxing state;
- the tax is fairly apportioned;
- the tax does not discriminate against interstate commerce; and,
- the tax is fairly related to the services provided by the state
Bright-line Rule for Congressional Appointment of members of an agency or commission with administrative powers
It cannot appoint
