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T&D.Edits.ConstitutionalLaw > Separation of Powers > Flashcards

Separation of Powers Flashcards

1
Q

What is required for a federal lawto beConstitutional?

A
  1. Legislating the area is within the rights of Congress

And

  1. 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 Clause
  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 this will be the wrong answer on the MBE.

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5
Q

What are the enumerated powers of Congress?

A
  1. Commerce
  2. Taxing
  3. Spending
    * More Info:* Enumerated Powers
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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 and proper to pursue that end.

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8
Q

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

A

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

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9
Q

What does the Commerce Powerallow Congress toregulate?

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 by looking at how the sum of a specific action across a market effects commerce. To analyze an issue under this doctrine, 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 the Commerce Power NOT allow Congress to regulate?

A
  1. Cannot use the power to regulate intrastate **non-economic** activity

And

  1. 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, then a tax will be valid:

  1. The tax raises revenue
  2. The tax was intended to raise revenue

Or

  1. The tax is 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 the receipt of federal funds by a state if what conditions are met?

A
  1. Spending serves the 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 the 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 an army (air force)
  3. Congress has the power to raise and maintain a Navy
  4. Congress has the power to raise a militia
  5. Congress has the power to establish military courts for US service members and enemies
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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 laws 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 limit with its 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

It 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.

More Info: Speech and Debate Clause

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27
Q

What does the 13th Amendment ban?

A

Slavery

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28
Q

What does the 14th Amendment ban?

A

States from violating the following clauses:

  1. Due process
  2. Equal protection
  3. Privileges and Immunities
    * More Info:* 14th Amendment
29
Q

What does the 15th Amendment ban?

A

Discrimination in voting based solely upon race

More Info: 15th Amendment

30
Q

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

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

14th and 15th Amendment legislation is only enforced against what?

A

The states.

32
Q

How can 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 the 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, the President appoints these officers and the Senate confirms the appointment. 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 the President’s removal power?

A

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

  1. Congress sets a term on appointment, in which case they can only be removed for cause
  2. They are judicial or quasi judicial officials, who can only be removed for cause
  3. The official is a special prosecutor investigating the president, who cannot be removed by the President
38
Q

Can Congress remove an executive branch official?

A

No

39
Q

How long does the Presidenthave tosign a bill approved by both houses of Congress?

A

Once a bill is approved by both houses, the President has 10 days to sign.

More Info: Presentment Clause

40
Q

What happens if the President does not sign a bill within 10 days after it has recieved congressional approval?

A

If not signed within 10 days, then by default the bill is treated as if it was signed. However, if not signed and the congressional term ends before the 10 days have lapsed, then it is treated as a pocket veto.

41
Q

If the President vetoes a bill, what options are available to Congress? What if the veto is a pocket veto?

A

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

42
Q

What is the validity of a line-item veto?

A

A line-item veto, where the President approves part of the bill and removes other parks, is invalid because it lacks:

  1. Bicameralism

And

  1. Presentment
43
Q

What does bicameralism require?

A

The entirety of a bill must be presented to both houses of Congress.

More Info: Bicameralism

44
Q

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

A

A legislative veto occurs when a law is passed that allows for modification of the law after is has been signed by the President without additional presenment.

The effect of a legislative veto is that the law becomes invalid for lack of presentment to the President.

45
Q

What are the limits on the President’s pardon power?

A
  1. It only extends to federal offenses against the U.S. (≠state law, ≠civil claims)

And

  1. It cannot be used to undo an impeachment and restore someone to office
46
Q

When does executive absolute privilege apply?

A

When the subject matter at issue concerns national security secrets

47
Q

When is executive privilege presumed?

A

When the President engages in any sort of confidential communications.

48
Q

What are the President’s war powerswhen Congress hasnot declared war?

A

The President can respond to attacks but cannot initiate wars.

49
Q

When is the President’s military authority greater than that of Congress?

A

The 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 a treaties conflicts with federal law, which will take priority?

A

The one that was signed most recently prevails.

52
Q

If a treaty conflicts with a state law, which one has priority?

A

The treaty has priority over the state law.

53
Q

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

A

It does not need to be ratified by Congress.

More Info: Executive Agreement

54
Q

If an executive agreement and a federal statute conflict, which one has priority?

A

The federal statute.

55
Q

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

A

The executive agreement.

56
Q

What actions can the President take with the power to enter an executive agreement?

A

The President may enter into agreements with foreign governments.

57
Q

When are Congressional limits imposed on the executive branch valid?

A

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

58
Q

Who has the sole power to impeach the President? How is this done?

A

The House of Representatives has the sole power to impeach the President, and they may do so by a majority vote.

More Info: Impeachment

59
Q

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

A

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

60
Q

Who can Congress impeach?

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 law mandating that all persons wishing to practice a profession must be schooled in the state and have lived in the state for a set amount of time will likely be held to be in violation of what?

A

The Commerce Clause.

67
Q

When should a court allow a state taxinviolationof theCommerce Clause to stand?

A
  1. The tax is applied to an activity with a substantial nexus to the taxing state
  2. The tax is fairly apportioned
  3. The tax does not discriminate against interstate commerce

And

  1. 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.

T&D.Edits.ConstitutionalLaw (6 decks)

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