Separation of Powers Flashcards
Describe congress’ power over federal courts
Lower fed courts: congress can do what it wantsSCOTUS: congress cannot stop it from hearing issues of federal law. Congress cannot touch original jdx.Congress also cannot take something out of appellate jdx and put it into original jdx. (Marbury v. Madison)
what are the three sources that gives congress the power to legislate?
enumerated powers, enabling clauses, N&P clause
What are Congress’ enumerated powers?
collect taxes, spend money for the general welfare, to borrow $ on the credit of the US, to regulate commerce with foreign nations and among the several state, to declare war, and to raise and support the army, navy and militia (Art I Sec 8)
what does the enabling clause allow congress to do?
the enabling clauses of the 13 14 15 amendments give Congress the power to enforce those amendments by “appropriate legislation”
N&P Clause
gives congress the power to pass laws that are N&P to enforce the enumerated powers, and all other powers vested by the US Constitution in the gov’t of the US or any dept or officer thereof (Art I Sec 8)
Name the three mediums by which Congress can regulate commerce
Channels of interstate commerce, instrumentalities of interstate commerce and activities that SUBSTANTIALLY AFFECT interstate commerce
What are the two doctrines under the “Substantial affects” test?
Affectation doctrine and the cumulative effect doctrine
What is the affectation doctrine?
Congress has the power to regulate any economic activity, whether carried on in one state or many, that has a substantial effect upon interstate commerce (Nat’l Labor Relations v. Jones and Laughlin Steel)
What is the cumulative effect doctrine?
it expanded the affectation doctrine; even if the activity is small and only has a tiny effect on their own, if the cumulative effect of those activities have an effect on IC, congress can regulate it (Wickard v. Filburn, the wheat case).
What is needed for congress to validly use the commerce clause under the “substantial effects” test?
- the regulated activity is economic in nature, and2. that the regulated activity (when taken cumulatively throughout the nation) has a substantial effect on IC
Describe Congress’ taxing power
Art I Sec 8: Congress has the power to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and general welfare
when will a tax be upheld as a valid exercise of the taxing power?
It is a valid exercise of the taxing power as long as it fits within one of these three categories:Objective Test: it, in fact, raises revenueSubjective Test: it was intended to raise revenueRegulatory test: as long as congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes
Spending Power
Congress’ power to tax and spend must be exercised for the general welfare of the US. By exercising its spending power, Congress can require states to comply with specified conditions in order to qualify for federal funds.
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 unambiguous3. the condition relates to the federal program;4. the state is not required to undertake unconstitutional action;5. the amount in question is not so great as to be considered coercive to the state’s acceptance
what are Congress’ war and defense powers?
- declare war2. raise and support armies3. provide and maintain a navy4. organize, arm, discipline and call forth a militiathe war power confers upon congress very broad authority to initiate whatever measures it deems necessary to provide for the national defense in peacetime as well as in wartime.
what powers does congress have during wartime?
In the name of national security, congress can:1. enact a military draft2. control prices and wages3. confine citizens in designated areas
Congress Investigatory Power
Congress can use the N&P clause to conduct investigations incident to its legislative power. This power is broad and may extend to any matter related to its legitimate law making power. It cannot override individual’s constitutional rights.
property power
congress has the power to dispose of an make all needful rules and regs respecting the territory or other property belonging to the US. (Art IV Sec 3). If dealing with a fed territory, congress has the power to regulate it and it has a general legislative power. Congress can pass any law it wants for DC, even though it will not apply to the rest of the country.
Power of Eminent Domain
congress has the right to take private property to serve a public purpose. The takings clause requires just compensation for the taken property.
what are the civil war amendments?
13 - bans slavery14 - prohibits states from violating the DP, EP rights of the people, and privileges and immunities of citizens of the US15 - prohibits states from discriminating in voting rights
How can Congress enforce the 14th and 15th amendments?
Congress must show:1. that state governments have engaged in widespread violations of the amendment; and2. the legislative remedy is “CONGRUENT WITH AND PROPORTIONAL TO” the violations
How can congress enforce the 13th?
13th applies to both individuals and states, as opposed to just states (like the 14 and 15). Congress must show that this law has been violated. Congress can use its enforcement power to regulate private individuals. The fed law has to be congruent and proportionate to the violation.
Delegation of power
Congress can creat3e an agency and give that agency some legislative power that will have the force of law.
what are the president’s powers as chief executive?
enforcement of laws, appointment powers, removal power, veto power, pardon power, executive privilege
what is POTUS power as commander-in-chief?
military powers: POTUS has the power to deploy forces without a formal declaration of war in response to an attack upon the US; he also has the power to seize private property during wartime unless Congress denies him that power
what are POTUS powers re international affairs?
treaty power and executive agreements
POTUS - Enforcement of laws
POTUS can enforce laws, but he cannot create them
POTUS - Appointment power
Art II gives POTUS, with the advice and consent of congress, to nominate and appoint all ambassadors and cabinet members. Thus, POTUS has the exclusive power to nominate high-level officials such as cabinet members, ambassadors and heads of agencies. Senate has power to reject these or confirm.
Congress Appointment Power
Congress can delegate the appointment of inferior officers to: the president, courts, head of department offices (an inferior is anyone who has a superior).
POTUS - Removal Power: who can he remove
executive officials, federal judges1. Executive officials with fixed terms: must have good cause to remove2. Federal Judges: cannot be removed during “good behavior”; formal impeachment proceedings are required for removal. 3. Officials performing quasi-judicial functions: can remove with just cause
POTUS Veto Power
POTUS has 10 days from when congress passes legislation to act upon it. Unless he vetoes it, the law is good law.
How can Congress override a POTUS veto?
by 2/3 vote of both the senate and house
POTUS Pocket Veto
POTUS can pocket veto a bill passed within 10 days of the end of the congressional terms by not signing it
POTUS - line-item veto
these are unconstitutional; POTUS has to approve or veto the entire law and cannot reject only portions of it.
How can POTUS gain the power to create legislation?
Congress can enact legislation that delegates rulemaking power to an executive or administrative agency in some designated subject area, otherwise POTUS can only exercise those powers expressly or impliedly granted by the US Const.
POTUS - Pardon Power
POTUS may grant pardons only for violations of federal crimes. He may not undo impeachments. For state crimes, violator must receive clemency from the governor.
POTUS - Executive Privilege
Absolute Privilege: not to disclose info relating to military, diplomatic, or sensitive national security secrets.Presumptively Privileged: other confidential communications b/w the president and his advisors are presumptively privileged. it is overcome when confidential communications are subpoenaed as E in a crim trial.
POTUS - Treaty Power
POTUS has the power to make treaties with the consent of the Senate. Senate must ratify the treaty by 2/3 vote. Treaties have the same effect as federal law. However, when a treaty and federal statute conflict on the issue in question, the last-in-time rule applies. Treaties will supersede contradictory state law. Order of Operation:Con Law > Last-in-Time (Fed law or Treaty) > Treaty > state law
POTUS - Executive Agreements with other nations
POTUS has power to enter into exec agreements with foreign nations; such agreements prevail over inconsistent state law. These need not be ratified by Congress.Order of OperationCon Law > Conflicting Fed law > Executive Agreement > State Law
Congressional Limits on the Executive
if congress is acting within its constitutional powers, it can block the president. Congress can enact laws and the President has to abide by them.
Impeachment Power
POTUS, VP and all civil officers of thee US shall be removed from office on impeachment for, and conviction or, treason, bribery or other high crimes and misdemeanors (Art I Sec 4).1. The House has the sole power to impeach2. Senate has the sole power to try impeachments. A 2/3 vote in the Senate is required for conviction
What tools are available to Congress to limit the Executive?
impeachment power, legislative power, investigative power, appropriations power
Appropriations Power
where Congress by legislative act explicitly directs the president to spend appropriated money, the president has no power to impound (refuse to spend or delay spending).
Presidential limits on Congress
Veto, pardon
Judicial limits on Congress and the President
the only thing a court can do is to hold a federal law or action of the president unconstitutional. Courts cannot enforce these judgments. This requires cooperation.
