Separation of Powers Flashcards
Congress enumerated powers are…
- tax and spend
- borrow money on credit
- regulate commerce w/ foreign nations and between states
- declare war
- raise and support the armed forces
Congress’s implied powers under the necessary & proper clause is…
- the power to make all laws necessary and proper or carrying into execution the foregoing powers
What gives congress the power to enforce the 13th, 14th, & 15th amendments?
The enabling clauses of those legislations
Under the Commerce power Congress can regulate…
1- channels of interstate commerce
2- instrumentalities of interstate commerce
3- activities that substantially affect interstate commerce
***includes the affectation doctrine (economic activities) & cumulative effects doctrine
To use its commerce clause power under the substantial effects test, congress must show..
1- activity is economic in nature
2- that the regulated act taken cumulatively has a substantial effect on interstate commerce
***can be used to uphold laws aimed at barring racial discrimination in activities connected w/ interstate commerce
10th Amendment
- prevents congress from interfering with a state’s lawmaking processes by directly compelling them to enact or enforce a federal regulatory program
When should a congressional act purporting to be a tax be held valid?
1- (objective test) If it raises revenue
2- (subjective test) if it was intended to raise revenue
***in general, any tax is valid if it has a revenue-raising measure
Can congress use taxes to regulate activity?
Yes, as a necessary and proper means so long has congress has the power to regulate the activity taxed.
Congress’s spending power must be exercised for…
the general welfare of the USA
Congress can require states to comply with specified conditions for qualify for federal funds if:
1- the spendings serves the general welfare
2- the condition is unambiguous
3- the condition relates to the federal program
4- the state isnt required to take unconstitutional action
5- the money isnt coercive
Under the War & Defense Powers, Congress may…
1- declare war
2- raise and support armies
3- provide and maintain a navy
4- organize and discipline a militia
***congress may establish military courts and tribunals
What are Congress’s investigatory powers?
Through the necessary and proper clause, congress may conduct investigations incident to its legislative powers
Congress’s power of eminent domain
- power of eminent domain is implied , but is limited by the 5th amendments due process and must include just compensation.
Congress & Enforcement of the Civil War amendments
13th amendment- banning slavery (state action OR private individual)
14th amendment- prohibits states from violating protections relating to DPC, EP, & PI (requires state action)
15th amendment- prohibits states from discriminating in voting rights (requires state action)
President’s Appointment Power…
Article II allows the president with the advice and consent of the senate, to appoint all ambassadors, public ministers & consuls, judges an other appointments
***congress may not appoint members to any agency or commission with admin powers
Congress can delegate the appointment of inferior officer to
1- the president
2- the judiciary
3- heads of departments
President’s Removal Powers
- The president can remove any cabinet member without cause
2. The president must have cause to remove executive officers with fixed terms and officer in a quasi-judicial function
Congressional Legislation & Presidential Power
- President can only exercise powers expressly or impliedly granted by the constitution
- If congress validly exercises a power that overrides the president, Congress prevails
Presidents impeachment Powers
- president may grant reprieves and pardons for offenses against the USA; not impeachment.
Executive Privilege
- communications between the president and his advisors are privileged UNLESS they are subpoenaed as evidence in a criminal trial
President’s Military Powers
- The president can deploy military forces w/o a formal declaration of war in response to an attack upon the USA
- can seize private property during war time unless Congress denies him the power
- Pres cannot declare war
President’s Treaty Power
- Pres can make treaties w/ foreign nations with the advice and consent of the senate
President’s Executive Agreement Powers
President’s executive agreements don’t need to be ratified by the senate and prevail over inconsistent state laws, but fail against statutes
Impeachment
- The house the sole power to impeach
2. The senate has the sole power to try impeachments
Are legislative vetoes constitutional?
No, they violate the requirements of bicameralism and presentment
Congress’s appropriation Power over the president
If congress passes a law requiring the president to spend appropriated money, , the president must comply.
Pyramid of Power in US Law
US constitution > Treaties & Fed. Statutes > Executive Orders & Agreements > State Constitutions > State Laws & Ordinances
