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0 - J.Edits.Constitutional.Law > Separation of Powers > Flashcards

Separation of Powers Flashcards

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1
Q

What is required for a Federal law to be Constitutional?

A
  1. Legislating the area is within the rights of Congress +
  2. The law violates no Constitutional rights.
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2
Q

What is required for a state law to be Constitutional?

A

It cannot violate a Constitutional right.

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3
Q

What are Congress’ three sources of power to legislate?

A
  1. Enumerated powers;
  2. Enabling Clauses;
  3. Necessary and Proper Clause.
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4
Q

Does Congress have Federal police power or power to promote general welfare?

A

Not generally, often the wrong answer on the MBE.

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5
Q

What are the enumerated powers of Congress?

A
  1. Commercel;
  2. Taxing;
  3. Spending.
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6
Q

What is the scope of the enabling clauses of Congress?

A

The enabling clauses give Congress the power to enforce 13th, 14th, and 15th Amendments.

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7
Q

What does the Necessary and Proper Clause allow Congress to do?

A

If Congress is pursuing some end, it can choose whatever means necessary pursue that end.

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8
Q

What is the power of the Necessary and Proper Clause to legislate by itself?

A

It is generally not enough, it needs to be combined with another source of power.

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9
Q

What does the commerce power allow for Congress to regulate?

A
  1. Channels of interstate commerce (highways, waterways);
  2. Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes);
  3. Activities that “substantially effect interstate commerce.”
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10
Q

What is the Cumulative Effects Doctrine?

A

A substantial effect on interstate commerce can be found when looking at how the sum of a specific action across a market effects commerce. To analyze, look at the cumulative effect of all actions of those similarly situated to see if there is substantial effect on interstate commerce.

More Info: Cumulative Effects Doctrine

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11
Q

What does commerce power not allow Congress to regulate?

A
  1. Cannot use the power to regulate intrastate **non-economic** activity; and,
  2. Cannot use the power to overcome state sovereign immunity.
    * More Info:* Commerce Clause
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12
Q

When can Congress regulate non-economic activity through the Commerce Clause?

A

When the regulation is the result of a comprehensive scheme.

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13
Q

If Congress is regulating a private business, what is the source of their power?

A

The Commerce Power.

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14
Q

When is a tax valid?

A

If the answer is yes to any one of the following:

  1. The tax raise revenue;
  2. If the tax was intended to raise revenue; or,
  3. Is it being used as a regulatory device.
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15
Q

On what does Congress have the power to spend?

A

Anything remotely related to the general welfare of the people

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16
Q

Congress may place a condition on receipt of Federal funds by a state if what conditions are met?

A
  1. Spending serves general welfare +
  2. Condition on funds is unambiguous +
  3. Condition on funds **relates** to Federal program spending +
  4. The state is not required to break Constitution +
  5. There cannot be coercion (no bright line rule).
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17
Q

What is the key inquiry in determining the limits of Congress’ spending power?

A

Is the condition related to the spending?

More Info: Spending Power

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18
Q

What are the war and defense powers of Congress in a time of peace?

A
  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; and,
  5. Establish military courts for US service members and enemy.
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19
Q

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

A

Congress has the power to:

  1. Declare a Draft;
  2. Impose price controls;
  3. Confine/Exclude civilians from an area
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20
Q

What rights does a citizen or non-citizen suspected of terrorisim detained inside the US/Territories maintain?

A

They are entitled due process rights.

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21
Q

What is Congress’ immigration and naturalization power?

A

Congress can control the law regarding immigaration and naturalization procedures.

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22
Q

What does Congress’ investigatory power allow it to do?

A

Investigate anything related to any of its law making functions.

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23
Q

What can Congress limits with investigatory power?

A

Congress cannot limit the rights of persons under investigation.

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24
Q

What does Congress’ property power allow it to do?

A

Allows it to regulate, buy, and sell Federal property.

More Info: Property Power

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25
Q

What is Congress’ power of eminent domain?

A

Congress can take property for public use if they give just compensation.

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26
Q

What does the Speech and Debate Clause prohibit?

A

Punishing any member of Congress for words spoken on the floor of the House or Senate.

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27
Q

13th Amendment bans?

A

Slavery.

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28
Q

14th Amendment bans?

A

States from violating the following clauses:

  1. Due process;
  2. Equal protection;
  3. Privileges and immunities.
29
Q

15th Amendment bans?

A

Discrimination in voting based solely upon race.

30
Q

What are the limitations on Congress ability enforce 13-15th Amendments?

A
  1. Can only enforce 14th and 15th against the states;
  2. Congress has the burden of proving a violation; and,
  3. The remedy Congress seeks has to be congruent and proportional to preventing a violation of 13-15th Amendment
31
Q

14th or 15th Amendment legislation is only enforced against?

A

The states.

32
Q

How can a Congress create a Federal Agency?

A

By passing legislation that gives the agency some intelligible principle to guide the agency’s actions.

33
Q

What are the powers of president as Chief of the Executive Branch?

A
  1. Enforcement of Laws;
  2. Appointment Power;
  3. Removal Power.
34
Q

How are high level executive branch officials appointed?

A

Step 1. The president appoints;

Step 2. Senate Confirms.

35
Q

Who can appoint executive branch inferior officers?

A

By default, president appoints, Senate confirms. However, any of the following can appoint:

  1. The president;
  2. The courts;
  3. Heads of executive departments.
36
Q

Who is an inferior officer in the executive branch?

A

An officer who has a superior.

37
Q

What are the limits on president’s removal power?

A

The president can remove executive officials at will and without cause; unless:

  1. Congress sets a term on appointment, then they can only be removed for cause;
  2. Judicial or quasi judicial officials can only be removed for cause; or,
  3. Special prosecutor investigating the president cannot be remove.
38
Q

Can Congress remove an executive branch official?

A

No.

39
Q

How long does president have to sign a bill approved by both houses of Congress?

A

Once signed, president has 10 days to sign.

40
Q

What happens if the president does not sign a bill within 10 days after Congress’ approval?

A

If not signed, then by default treat as if signed. However, if not signed and the Congressional term ends before the date to sign, then it is treated as a pocket veto.

41
Q

If the president vetoes a bill, what can Congress do? What if the veto is a pocket veto?

A

Congress can overturn a veto with 2/3 majority vote in house and Senate; however, a pocket never goes back for another vote.

42
Q

What is the validity of a line-item veto?

A

A line-item veto (the president approves part of the bill and removes part) is invalid because it lacks:

  1. Bicameralism; and,
  2. Presentment.
43
Q

What does bicameralism require?

A

The entirety of the bill needs to be presented to both houses.

44
Q

When does a legislative veto occur and what is the effect?

A

It occurs when a law is passed that allows modification after the president signs it without additional presenment.

The effect is that the law becomes invalid for lack of presentment to the president.

45
Q

What are the limits on president’s pardon power?

A
  1. Only extends to Federal offenses against U.S. (≠state law, ≠civil claims); and,
  2. Cannot be used to undo an impeachment and restore someone to office.
46
Q

When does the executive absolute privilege apply?

A

When the subjevct matter concerns national security secrets.

47
Q

When is the executive privilege presumed?

A

When the president engages in any sort of confidential communications.

48
Q

What are the president’s war powers when Congress has not declared war?

A

The president can respond to attacks but cannot initiate wars.

49
Q

When is the President’s military authority > Congress’?

A

President has authority over military tactical decisions.

50
Q

If the president signs a treaty with another nation, what must happen before it becomes law?

A

The treaty must be ratified by a 2/3 vote of the Senate.

51
Q

If treaties and Federal law conflict, which has priority?

A

The one that was signed most recently prevails.

52
Q

If treaty and state law conflict, which has priority?

A

The treaty has priority over the sate law.

53
Q

If the president’s enters into an executive agreement, the it must be ratified by Congress how?

A

It does not need to be ratified by Congress.

54
Q

If executive agreement and Federal statute conflict, which has priority?

A

The Federal statute.

55
Q

If executive agreement and state law conflict, which has priority?

A

The executive agreement.

56
Q

What actions can a president take with an executive agreement?

A

Enter into agreements with foreign governments.

57
Q

When are Congressional limits imposed on the executive valid?

A

If the law is valid, the the limit is valid.

58
Q

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

A

The House of Representatives has the sole power to impeach by a majority vote.

59
Q

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

A

The Senate holds a presidential impeachment trial and needs 2/3 vote to remove from office.

60
Q

Congress can impeach who?

A

Any Federal official.

61
Q

What can get a federal official impeached?

A
  1. Treason;
  2. Bribery;
  3. Other high crimes and misdemeanors (anything Congress says).
62
Q

What is the appeal process for congressional impeachment?

A

There is none.

63
Q

What is the effect of impeachment?

A

Removal from office.

64
Q

When does Congress have the power to regulate for the general welfare.

A

Never, it is not a source of power for legislation.

65
Q

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

A

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

66
Q

A state mandating that all persons wishing to practice a profession must be schooled in the state and have lived in the state, will likely be held to be?

A

In violation of the commerce clause.

67
Q

When should a court allow a State tax in violation the commerce clause?

A
  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 +
  4. the tax is fairly related to the services provided by the state
68
Q

What is Congress’ power to appoint members of an agency or commission with administrative powers?

A

It cannot appoint officials to administrative offices, it can only approve nominations.

0 - J.Edits.Constitutional.Law (7 decks)

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