Separation of Powers

Question 1

For a federal law to be constitutional:

Answer 1

congressional power justifies it
+
no rights violation

Question 2

For a state law to be constitutional:

Answer 2

there is no violation of a constitutional right

Question 3

Substantively, Congress has three sources of power to legislate:

Answer 3

1. Enumerated powers
2. Enabling Clauses
3. Necessary and Proper Clause

Question 4

When does Congress have federal police power or power to promote general welfare?

Answer 4

Not generally

Question 5

Enumberated Powers of Congress

Answer 5

1. Commerce
2. Taxing
3. Spending

Question 6

The Enabling Clauses of Congress

Answer 6

Congress has power to enforce 13th, 14th, and 15th Amendments

Question 7

The Necessary and Proper Clause allows Congress for

Answer 7

If Congress is pursuing some end, it has a choice of means to pursue that end (what is necessary)

Question 8

Necessary and Proper Clause by itself

Answer 8

generally not enough, needs to be combined with another power

Question 9

Commerce Power allows congress to regulate

Answer 9

1. Channels of interstate commerce (highways, waterways)
2. Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes)
3. Activities that “substantially Affect interstate commerce”

Question 10

How does commerce power rely upon the subjective intent of congress?

Answer 10

It does not, if it’s objective it passes

Question 11

Cumulative Effects Doctrine States

Answer 11

Look at the cumulative effect of all actions of those similarly situated to see if there is substantial affect

Question 12

What does commerce power not allow congress to regulate

2

Answer 12

1. cannot use to regulate intrastate non-economic activity
2. cannot overcome state sovereign immunity

Question 13

When can congress regulate non-economic activity through commerce clause?

Answer 13

When the regulation is the result of a comprehensive scheme.

Question 14

If Congress is regulating a private business, where is their power coming from?

Answer 14

Commerce Power

Question 15

When is a tax valid?

3

Answer 15

If the answer is yes to any one of these ?’s

1. Does the tax raise revenue?
2. If the tax was intended to raise revenue
3. Is it being used as a regulatory device?

Question 16

When does Congress have the power to spend?

Answer 16

Anything remotely related to the general welfare of the people

Question 17

Congress may place a condition on receipt of federal funds by a state if:
(5)

Answer 17

1. Spending serves general welfare
2. condition is unambiguous
3. condition relates to federal program spending
4. State is not required to break constitution
5. There cannot be coercion (no bright line rule)

Question 18

What is the key inquiry for Congress’ spending power?

Answer 18

Is the condition related to the spending?

Question 19

War and defense power of Congress in time of peace

4

Answer 19

1. Congress has power to declare war
2. Congress has the power to raise and maintain Army (air force)
3. Congress has the power to raise and maintain a Navy
4. Congress can raise a militia
5. Establish military courts for US service members and enemy

Question 20

What are Congress war and defense powers in time of war?

Answer 20

1. Declare a Draft
2. Impose price controls
3. Exclusion: Confine/Exclude civilians from an area

Question 21

Congress’ power over a citizen or non-citizen suspected of terrorisim detained inside the US/Territories

Answer 21

They are entitled due process rights

Question 22

Congress’ immigration and naturalization power

Answer 22

Congress can control

Question 23

Congress’ investigatory power allows it to

Answer 23

Investigate anything related to any of it’s law making functions

Question 24

What can congress not do with investigatory power?

Answer 24

Limit rights

Question 25

Congress’ property power

Answer 25

Allows it to regulate property

Question 26

Congress’ power of eminent domain

Answer 26

Can take property

Question 27

Speech and Debate Clause prohibits

Answer 27

Punishing a senator said by any member of congress on the floor of the house or senate

Question 28

13th amendment bans

Answer 28

slavery

Question 29

14th amendment bans

Answer 29

States from violating

1. due process
2. equal protection
3. privileges and immunities

Question 30

15th amendment bans

Answer 30

discrimination in voting based solely upon race

Question 31

Limitations on Congress ability enforce 13-15th amendment

3

Answer 31

1. Can only enforce 14th and 15th against the states
2. Congress has to show there is a problem
3. 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

Question 32

If there is valid 14th or 15th Amendment legislation, Congress can only

Answer 32

regulate states

Question 33

How can a congress create an agency?

Answer 33

Gives the agency some intelligible principle to guide the agency
-generally satisfied

Question 34

The power of president as Chief Executive

Answer 34

1. Enforcement of Laws
2. Appointment Power
3. Removal Power

Question 35

How are high level officials appointed?

Answer 35

1. President Appoints

2. Senate Confirms

Question 36

Inferior officers appointment can be assigned to

Answer 36

1. President
2. Courts
3. Heads of executive departments

By default, president appoitns, senate confirms

Question 37

Who is an inferior officer?

Answer 37

Someone who has a superior

Question 38

Limits on presidents removal power?

4

Answer 38

1. President can remove executive officials at will and without cause
2. If Congress sets a term, can only be removed for cause.
3. Judicial or quasi judicial officials can only be removed for cause
4. Special prosecutor investigating the president cannot remove

Question 39

Can congress remove an official?

Answer 39

No

Question 40

How long does President have to sign a bill from congress

Answer 40

Once signed, president has 10 days to sign

Question 41

If the president does not sign a bill within 10 days, what happens

Answer 41

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

Question 42

If the president vetoes a bill, what can congress do?

What about a pocket veto?

Answer 42

Need 2/3 majority vote in house and senate

pocket never goes back

Question 43

Validity of a line-item veto

Answer 43

is invalid because it needs

bicameralism + presentment

Question 44

Bicameralism

Answer 44

presented to both houses

Question 45

Legislative veto occurs when? Effect?

Answer 45

A law is passed that allows modification after the president signs it without further signature

• Invalid

Question 46

Limits on President’s Pardon Power

Answer 46

1. Only extends to offenses against U.S. (≠ state law, ≠ civil claims)
2. Cannot undo an impeachment and restore someone to office.

Question 47

Executive Absolute Privilege applies to

Answer 47

National Security Secretes

Question 48

Executive Privilege presumed when?

Answer 48

Any sort of confidential communications

Question 49

President’s power when congress has not declared war?

Answer 49

He can respond to attacks but not initiate wars

Question 50

When does the President’s military power trump Congress?

Answer 50

Military tactical decisions

Question 51

The president’s power to make treaties must be

Answer 51

Ratified by 2/3 vote senate

Question 52

If treaties and federal law conflict?

Answer 52

The one that is later prevails

Question 53

If treaties and state law conflict?

Answer 53

The treaty wins

Question 54

President’s power to enter into executive agreement

Answer 54

Has no check by congress

Question 55

If executive agreement and federal statute conflict, who wins?

Answer 55

Federal statute

Question 56

If executive agreement and state law conflicts, who wins?

Answer 56

Executive agreement

Question 57

What can a president do with an executive agreement

Answer 57

Settle claims with foreign governments

Question 58

If Congressional Limits on the Executive, when is it valid

Answer 58

If the law is valid, Congress wins

Question 59

Who has the sole power to impeach the president? How?

Answer 59

House of representatives? By majority vote

Question 60

Who has the sole power to conduct a presidential impeachment trial? How?

Answer 60

Senate? 2/3 vote

Question 61

Congress can impeach who?

Answer 61

Any federal official

Question 62

What can get you impeached

3

Answer 62

1. treason
2. bribery
3. other high crimes and misdemeanors (anything congress says)

Question 63

Appeal from Congress’ impeachment

Answer 63

there is none

Question 64

What is the effect of impeachment?

Answer 64

removal from office

Question 65

When does the congressional power to regulate for the general welfare.

Answer 65

Never

Question 66

How can Congress affect the U.S. Supreme Court’s jurisdiction?

Answer 66

They can expand or restrict the number and types of lower court decisions which the court may hear.

Question 67

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

Answer 67

In violation of the commerce clause

Question 68

When should a court allow a State tax against the commerce clause?
(4)

Answer 68

1. the tax is applied to an activity with a substantial nexus with the taxing state;
2. the tax is fairly apportioned;
3. the tax does not discriminate against interstate commerce; and,
4. the tax is fairly related to the services provided by the state

Question 69

Bright-line Rule for Congressional Appointment of members of an agency or commission with administrative powers

Answer 69

It cannot appoint