Separation Of Powers Flashcards
What is the separation of powers doctrine?
The separation of powers doctrine, is inherent in the structure of the Constitution and ensures that the executive, legislative and judicial branches of government remain separate and distinct in order to provide a system of checks and balances.
What are Congress’ limits on Executive Powers?
- Impeachment
- Appropriation
- Legislative Veto
What is Congress’ impeachment power?
Under Art. II, Sec 4, the “president, vp and all civil officers of the U.S. shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
The House of Representatives determines what constitutes high crimes and misdemeanors and may impeach by a majority vote.
Then, the Senate tries and convicts with a two-thirds vote.
house/majority–>senate/2/3rds
What is Congress’ appropriations power?
If Congress explicitly mandates an expenditure of funds, the President CANNOT ‘impound’ those funds (such as by refusing to spend them or delaying spending).
The president is permitted to exercise spending discretion only when the authorizing legislation allows.
NOTE: separation of powers questions often center on the president trying to impound funds appropriated by Congress. Remember that if Congress fails to mandate that the funds are to be spent, then then impoundment is not a separation of powers violation.
What is the legislative veto?
It is unconstitutional for Congress to attempt a ‘legislative veto’ of an executive action. In other words, by retaining direct control over the actions of an executive agency, rather that going through the proper channels of passing a bill.
A legislative veto of a decision by the attorney general, for instance, was found unconstitutional because bicameralism and presentment require all new law to go through both houses and be presented to the president for approval. A two-house legislative veto would be equally unconstitutional.
To what extent can Congress delegate their legislative power?
Congress is vesting by Art I with ‘all legislative power,’ so it MAY NOT delegate its powers to any other branch of government.
HOWEVER, delegation of SOME of congress’ authority to the executive branch so that it may establish administrative law/regulations is consistently held to be constitutional so long as Congress specifies an ‘intelligible principle’ to guide the delegation.
SO: the IRS can be given power to collect taxes
NEARLY ALL delegations have been found to pass the ‘intelligible standard’ test.
SO: an administrative agency could set ‘just and reasonable rates’.
What Congressional powers CANNOT be delegated?
While the ‘intelligible priciple’ test is very easy for congress to pass, and therefore many areas of law have been delegated to the executive branch, Congress MAY NOT delegate the power of impeachment or the power to declare war.
Can Congress establish the right to bring an action when the SC has definitely rejected the right?
No, under the separation of powers doctrine, Congress may not reinstate the right to bring an action.
When is a just immune from civil liability?
A judge is absolutely immune from civil liability for damages resulting from her judicial acts, including grave procedural error and acts done maliciously or in excess or authority unless there is a clear absence of all jurisdiction.
However, the judge is not immune to lawsuits regarding non-judicial activities such as hiring and firing court employees.
Prosecutors are subject to similar immunity rules. However, court officers who perform ministerial duties, such as court reporters, are entitled to only qualified, not absolute immunity.
When can a damage claim be brought against a state and federal official personally?
Under Section 1983, a damage claim can be brought against a state official personally for a violation of constitutional rights. The Supreme Court has also recognized that a similar claim can be brought against federal officials.
When is the legislative branch immune civil or criminal liability?
The Speech and Debate Clause of Art. 1 of the Constitution protects members of Congress from civil and criminal liability for statements and conduct made in the REGULAR COURSE OF THE LEGISLATIVE SESSION, including a speech given on the floor of Congress, committee hearings and reports. Aides are also protected if the activities in question would have been protected if a member of Congress were doing so.
Does the Speech and Debate Clause apply to sate legislators?
The Speech and debate clause does NOT apply to state legislators, but under the principles of federalism, state legislators are immune from liability for actions within the sphere of legislative activity.
When does the Speech and Debate Clause not protect against prosecution of Members of Congress?
The speech and debate clause does not foreclose prosecution of a crime, including the taking of bribes, when the crime does not require proof of legislative acts or inquiring into the motive behind those acts.
The speech and debate clause also does not apply to speeches made outside of Congress, or to the ‘re-publication’ or repeating, of a defamatory statement originally made in congress.
When does Executive privilege apply in general?
Executive privilege is a privilege with respect to disclosure of confidential information by the executive branch to the judiciary or Congress. The privilege and the more narrow presidential privilege, which applies to communications made in the performance of a president’s responsibilities to shape policies and make decisions, have been recognized by the Supreme Court. The presidential privilege survives an individual’s tenure in office, but the privilege is not absolute.
When must presidential communications be made available in a criminal case?
Presidential communications must be made available in a criminal case if the prosecution demonstrates a need for the information. A judge may examine the communications in camera to determine whether the communications fall within the privilege.
