Separation of Powers

Question 1

Interstate commerce

Answer 1

Congress has power to regulate

• Channels of interstate commerce
• Instrumentalities of interstate commerce; and
• Activities that substantially affects interstate commerce

Question 2

What is the substantial effects test?

Answer 2

To validly exercise its commerce clause power under the substantial effects test, Congress must show:

1. that the regulated activity is economic in nature; and
2. that the regulated activity - when taken in the aggregate - has a substantial effect on interstate commerce

Question 3

Can Congress regulate non-economic activity under the commerce clause?

Answer 3

Congress’s power under Commerce Clause to regulate intrastate activity that is non-economic is ltd by principles of federalism.
To prevent judicial invalidation Congress needs to set forth facts establishing connection btw the activity and a substantial economic effect on interstate commerce

Question 4

What does 10th amend provide?

Answer 4

Prevents Congress from interfering with state’s law-making processess
Congress may not commandeer the legislative processes of the states by directly compelling them to enact and enforce fed regulatory program

Question 5

What are the war and defense powers of Congress?

Answer 5

Congress power to declare war, raise and support armies, provide and maintain a navy, make rules for governing and regulating the land and naval forces, and provide for the organizing of a militia

• has power to provide for the national defense in both war and peacetime
• has power to establish military cts and tribunals

Question 6

What authority does President have over National Guard?

Answer 6

President has authority to order units of National Guard into fed svc without consent of governor of respective state

Question 7

What is Congress’s taxing power?

Answer 7

Congress shall have power to lay and collect taxies, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the US

Question 8

When will tax by Congress be upheld?

Answer 8

1. If tax raises revenue; or

2. If it was intended to raise revenue

Question 9

When can Congress place a condition on receipt of fed funds?

Answer 9

1. Spending serves the general welfare
2. Condition is unambiguous
3. Condition relates to fed program
4. State is not rqd to undertake unconstitutional action; and
5. Amount in question is not so great as to be considered coercive to the state’s acceptance

Question 10

Does Congress have the power to investigate?

Answer 10

No, but Necessary and Proper Clause allows Congress broad authority to conduct investigations incident to its power to legislate

• Investogatory power may extend to any matter within a legitimate legislative sphere
• can hold witness in contempt for failing to appear for testimony or refusing to answer questions but witnesses are entitled to presence of counsel and privilege against self-incrimination

Question 11

What must Congress show to validly enforce 14th or 14th amend?

Answer 11

1. State gvt engaged in widespread violations of Amend; and

2. Legislative remedy is congruent with and proportional to the violations

Question 12

What is President’s veto power?

Answer 12

President can veto any bill passed by Congress.
- Once bill is presented, he has 10 days to act on it.
- President can veto bill by sending it back to house where bill originated with comments
- Congress can override veto by 2/3 vote in each house
If President signs bill - it becomes law
If does nothing and Congress is in session, bill becomes law. If Congress is not in session, dn become law bc President can’t send it back to them

Question 13

What is the scope of the presidential power?

Answer 13

It varies with the degree of congressional authorization

1. With express/implied authorization of Congress, authority is at highest – action presumed to be valid
2. When Congress has not spoken, authority is diminished – action is invalid if it interferes with operations or power of another branch of gvt
3. When Congress has spoken to contrary, authority is at lowest – action is likely invalid

Question 14

What is the President’s power wrt treaties?

Answer 14

Has exclusive power to negotiate treaties but require 2/3 vote of Senate:

• Ratified treaty is supreme law of land as long as dn conflict with Constitution and takes precedent over any inconsistent state law.
• Has same authority as act of Congress. Should it conflict, the most recent act controls.
• Conflict with the Constitution is resolved in favor of Constitution

Question 15

What is the President’s power wrt executive agreements

Answer 15

Negotiated by President

• dn rq Senate approval
• conflicting fed statutes and treaties take precedent over executive agreements
• executive agreements take precedent over conflicting state law

Question 16

Who is protected by speech and debate clause?

Answer 16

Protects senators, congressmen, and their aides from crim/civil proceedings for legislative acts.
Members of Congress can be liable based on defamation for issuing press releases or newsletters that injure reputation
Only insulates members of Congress only for acts that occur in regular course of legislative process

Question 17

Appointment power

Answer 17

President has exclusive power to nominate high-level officials such as cabinet members. Senate has power to confirm/reject nominees
Congress can delegate appointment of inferior officers of President - judiciary or heads of depts

Question 18

Delegation and legislative power

Answer 18

Congress is vested with all legislative powers. It can’t delegate that power to any other branch of gvt (Nondelegation doctrine). But can delegate power to administrative agencies as long as there are intelligible principles to guide the delegate

Question 19

Does the president have absolute immunity?

Answer 19

President has absolute immunity from civil damages for official acts

• No immunity for acts done prior to taking office
• Has executive privilege not to reveal privileged communications with presidential advisors. Privilege can be outweighed by demonstrated need in a criminal prosecution

Question 20

Do judges have absolute immunity?

Answer 20

Judges have absolute immunity for all judicial acts

• including grave procedural errors and malicious acts as long as they have juris
• May be held liable for non judicial activities