Seperation Of Powers Flashcards
May one body delegate powers to another branch or entity in that branch?
Under the Constitution, Congress can delegate its powers to an entity within the executive branch through a statute as long as it gives that entity sufficient guidance on how to exercise that power.
The executive branch does not have the power to regulate commerce.
Must one branch spend funds approximately that have been designated for another branch?
Yes. If the statue is a valid exercise of power.
Which amendment is used to invalidate literacy requirements?
Equal protection
What are the president’s powers?
Under Article II, Section 2, the President is empowered “with the advice and consent of the Senate” to appoint “all ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for . . . but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” Although Congress may appoint its own officers to carry on internal legislative tasks (i.e., its staff), it may not appoint members of a body with administrative or enforcement powers; such persons are “officers of the United States” and must, pursuant to Article II, Section 2, be appointed by the President with senatorial confirmation unless Congress has vested their appointment in the President alone, in federal courts, or in heads of departments. Buckley v. Valeo, 424 U.S. 1 (1976).
The Constitution grants Congress a number of specific powers, many of which are enumerated in Article I, Section 8. It also grants Congress auxiliary power under the Necessary and Proper Clause. This Clause gives Congress the power to make all laws necessary and proper (i.e., appropriate) for carrying into execution any power granted to any branch of the federal government. As long as the law is rationally related to a constitutionally-specified objective and not expressly prohibited by another provision of the Constitution, it will be upheld.
Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations and among the several states, and with the Indian tribes.” Commerce is defined as “every species of commercial intercourse . . . which concerns more states than one,” including virtually every form of activity involving or affecting two or more states. Gibbons v. Ogden, 22 U.S. 1 (1824).
Whether The Fourteenth Amendment includes state action?
The Fourteenth Amendment prohibits states (not the federal government or private persons) from depriving any person of life, liberty, or property without due process and equal protection of the law. The Fourteenth Amendment applies only if there is action by a state or local government, government officer, or private individual whose behavior meets the requirements for state action.
“State action” also exists whenever a state affirmatively facilitates, encourages, or authorizes acts of discrimination by its citizens. However, there must be some sort of affirmative act by the state approving the private action; it is not enough that the state permits the conduct to occur. It is not enough that the state has provided partial funding, accreditation, or regulation of a private university to render the university’s conduct state action. See Regents of Univ. of Cal. v. Bakke, 438 US 265 (1978) (noting that the “Court has never held that the mere receipt of federal or state funds is sufficient to make the recipient a federal or state actor”); Norwood v. Harrison, 413 U. S. 455 (1973) (finding that a private school that receives state funding will be considered a state actor if “tangible financial aid” along with a “significant tendency to facilitate, reinforce, and support private discrimination”).
MBE Tip: For the actions of a private entity to satsify the “state action” requirement, the state must be “significantly involved” in the private entity. Merely granting a license or providing essential services is insufficient.
B is correct. The court should grant the motion to dismiss because the protections afforded by the Fourteenth Amendment apply only to conduct that is attributable to the state. Because the professor was discharged by a private university and not by a state actor, and the state was not significantly involved in the private university, nor did it take an affirmative act approving of the firing of the professor, the Fourteenth Amendment does not apply.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the court should grant the motion to dismiss, it is not because of the protections afforded by the First and Fourteenth Amendments, neither of which apply to the university’s decision to discharge the professor. As explained above, the university’s action does not amount to state action, which is necessary for the Fourteenth Amendment to apply.
C is incorrect. The accreditation and partial funding of the university by the state are insufficient to constitute state action because that requires the state to affirmatively facilitate, encourage, or authorize the discrimination. The state must be significantly involved and take an affirmative act to support the private entity’s action, which was not the case here. The Court has held that the accreditation, regulation, and partial funding of a university by the state does not render the university’s conduct state action.
D is incorrect. This is a misstatement of the law. There is no provision of the Constitution creating a cause of action against a state-accredited institution that restricts freedom of speech as a condition of employment. As explained above, state accreditation of an institution and partial state funding do not constitute sufficient involvement by the state to render the institution’s conduct state action. Therefore, the protections afforded by the Fourteenth Amendment do not apply to the university’s discharge of the professor.
When may the president pardon?
Article II, Section 2, Clause 1 states that the President shall have the power to grant pardons except in cases of impeachment. That power is not qualified in any way, and for Congress to attempt to qualify the power is unconstitutional.
What is sovereign immunity?
Sovereign immunity is the principle that the state or federal government cannot be sued for damages. That is unlikely to be a consideration in drafting legislation on private land use.
A is incorrect. The invalidation of restrictions is an impairment of property rights, which might require compensation.
B is incorrect. Those restrictions are also contracts, and their legislative invalidation could be an unconstitutional impairment of contract.
D is incorrect. Zoning is an exercise of the state’s police powers.
Whether Congress can regulate for the general welfare?
If the activity is an economic or commercial activity, Congress can regulate intrastate activity if, in aggregate, it substantially affects interstate commerce. Therefore, the strongest argument in support of the statute regulating the wholesale and retail purchase of fuels and power is that the domestic purchases or sales of these products, in aggregate, impact either interstate or foreign commerce, and therefore can be regulated by Congress.
A is incorrect. While Congress can spend to promote the general welfare, it cannot regulate for the general welfare.
B is incorrect. The statute would also cover intrastate sales.
C is incorrect. Congress cannot regulate intrastate sales if there is no rational basis on which Congress could conclude that the activity, in aggregate, substantially affects interstate commerce.
What is the commerce clause and the dormant commerce clause?
The Commerce Clause grants Congress the power to regulate commerce among the states, and that power also creates a limitation on each state’s ability to pass laws that affect interstate commerce. That limit is called the Dormant Commerce Clause. Under it, states cannot pass regulations of local aspects of interstate commerce unless they do not discriminate against out-of-state parties to benefit local economic interests and are not unduly burdensome.
When a state regulation does not discriminate, but merely burdens interstate commerce, it may be upheld based on a case-by-case balancing of the legitimate state interest versus the burden on interstate commerce. See, e.g., South Carolina State Highway Department v. Barnwell Bros., Inc., 303 U.S. 177 (1938) (state law controlling weight and width of trucks on its highways was not unconstitutional under the Dormant Commerce Clause).
C is correct. The state’s poultry fee does not discriminate against out-of-state commerce because it applies only to in-state farming and processing operations, which means the court will first determine whether it burdens interstate commerce at all. The facts do not indicate such a burden because the poultry fee applies only to intrastate commerce and does not regulate activities that occur outside its borders. Even if the fee did burden interstate commerce, however, the court would apply a balancing test measuring the legitimate state interest versus the burden on interstate commerce. There is no indication that the fee would fail that balancing test because the burden, if any, does not outweigh the significant state interests of protecting its citizens (and their food supply) from a potentially fatal cross-species virus. Thus, the fee is permissible under the Dormant Commerce Clause.
A is incorrect. This fee, in the aggregate, might sufficiently affect interstate commerce to trigger the Dormant Commerce Clause. However, that alone does not make it unconstitutional. As explained above, even if scrutinized under the Dormant Commerce Clause’s limitations, the question indicates that the fee is constitutional.
B is incorrect. The facts offered do not establish that this fee places an undue burden on interstate commerce. Even if interpreted to constitute an undue burden, however, the poultry fee is likely still constitutional when balanced against the state’s significant interest in protecting its citizens (and their food supply) from a potentially fatal virus.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. It is incorrect that a state’s laws based on its police power trump the Dormant Commerce Clause’s limitations. The Supremacy Clause prohibits state laws that violate federal constitutional limits. And, even though the fee is not outside the reach of the Dormant Commerce Clause, it is constitutional even under that analysis, as described above.
What is Congress spending power?
Congress’s spending power is plenary, and Congress can choose how it spends its money so long as that choice can reasonably be said to serve the general welfare and not violate any prohibition in the Constitution.
