The separation of powers - Congress power, Commerce Clause, Spending, Executive power

Question 1

May Congress exercise powers other than those specifically enumerated in Article I of the Constitution?

Answer 1

Yes. In addition to Congress’s enumerated powers, Congress also has implied powers. Moreover, several amendments to the Constitution provide Congress with enforcement powers for the amendments’ substantive provisions.

Question 2

What express limits does the Constitution place on Congress’s powers?

Answer 2

The Constitution specifically prohibits Congress from:
* suspending the writ of habeas corpus, except in cases of rebellion, invasion, or when public safety requires it;
* passing laws that take effect retroactively, otherwise known as ex post facto laws;
* drawing money from the treasury unless an appropriation is made by law;
* preferring commerce or revenue from one state’s ports over another’s; and
* issuing titles of nobility.
The Tenth Amendment is also a type of limitation on Congress’s power; it reserves for the states and the people those powers not specifically granted to the federal government or expressly denied to the states.

Question 3

What implied power does the Necessary and Proper Clause in the U.S. Constitution give to Congress?

Answer 3

The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress the implied power to take any actions that are necessary and proper to carry out any express constitutional powers. The Necessary and Proper Clause cannot authorize congressional action on its own and must always be combined with another power. If Congress legislates at the outer limits of its express powers, the U.S. Supreme Court will often rely on the Necessary and Proper Clause as a basis for sustaining the constitutionality of the statute.
The Court has interpreted the Necessary and Proper Clause broadly to allow Congress to exercise a variety of non-enumerated powers, such as setting a federal minimum wage (implied by the enumerated power to regulate interstate commerce) and criminalizing mail fraud (implied by the enumerated power to establish post offices).
U.S. Const. art. I, § 1, cl. 18; United States v. Comstock, 560 U.S. 126 (2010); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

Question 4

How have courts interpreted Congress’s implied powers under the Necessary and Proper Clause?

Answer 4

The U.S. Supreme Court has held that the Necessary and Proper Clause authorizes Congress to exercise any incidental or implied powers that are useful or essential to the exercise of its enumerated powers or any other power granted to the federal government, as long as the ends and means of exercising those powers are constitutional. U.S. Const. art. I § 8, cl. 18; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

Question 5

May the Necessary and Proper Clause serve as the sole basis for an exercise of congressional power?

Answer 5

No. The Necessary and Proper Clause does not authorize congressional action on its own. The clause must be combined with another power to serve as a source of authority for any congressional act.
U.S. Const. art. I § 8, cl. 18; McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

Question 6

What powers does Congress have under the Commerce Clause?

Answer 6

The Commerce Clause grants Congress the power to regulate commerce:
* with foreign nations (also known as foreign commerce),
* among the several states (also known as interstate commerce), and
* with the Indian tribes (also known as Indian commerce).
The most important power granted by this clause is the power to regulate interstate commerce.

Question 7

What is interstate commercial activity?

Answer 7

Interstate commercial activity is any conduct carried on for business purposes that crosses state lines. Interstate commercial activity includes the use of the channels or instrumentalities of interstate commerce. Congress has authority to regulate interstate commercial activity pursuant to its Commerce Clause powers. U.S. Const. art. I, § 8, cl. 3; Gibbons v. Ogden, 22 U.S. 1 (1824).

Question 8

What are the channels of interstate commerce?

Answer 8

The channels of interstate commerce are the means or conduits that allow for the movement of goods, people, or communications between states. Channels of interstate commerce include railroads, highways, waterways, airspace, phone lines, and the Internet. The Commerce Clause gives Congress the authority to U.S. Const. art. I, § 8, cl. 3; Gibbons v. Ogden, 22 U.S. 1 (1824). regulate channels of interstate commerce.

Question 9

What are the instrumentalities of interstate commerce?

Answer 9

The instrumentalities of interstate commerce are those instruments used to carry out commerce between states. Instrumentalities of interstate commerce include trains, planes, boats, and other vehicles. Congress may regulate instrumentalities of interstate commerce pursuant to its authority under the Commerce Clause. U.S. Const. art. I, § 8, cl. 3; Gibbons v. Ogden, 22 U.S. 1 (1824).

Question 10

What are the three main areas of interstate commerce that Congress can regulate under the Commerce Clause?

Answer 10

Under the Commerce Clause, the three main areas of interstate commerce that Congress can regulate are:
* the instrumentalities of interstate commerce, including trains, planes, and other vehicles;
* the channels of interstate commerce, including roads, railroads, airways, and navigable waterways; and
* economic activity that, if aggregated across the national economy, substantially affects interstate commerce.
U.S. Const. art. I, § 8; United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995); Wickard v. Filburn, 317 U.S. 111 (1942).

Question 11

What is intrastate commercial activity?

Answer 11

Intrastate commercial activity is any conduct carried out for business purposes that occurs entirely within a single state. This is in contrast to interstate commercial activity, which crosses state lines.
The Commerce Clause does not grant Congress the power to regulate intrastate commercial activity unless it has a substantial economic effect on interstate commerce.

Question 12

May Congress regulate some intrastate commercial activity?

Answer 12

Yes. Congress may regulate some intrastate commercial activity. Although the Commerce Clause specifically grants Congress the power to regulate interstate commerce, not intrastate commerce, Congress may also regulate any intrastate commercial activity that has a substantial economic effect on interstate commerce.

Question 13

What are the bases of Congress’s power to regulate wholly intrastate commerce?

Answer 13

Congress can regulate wholly intrastate commercial activity if:
* the activity is within the stream of commerce, as opposed to outside the stream of commerce, or
* the activity has a close, substantial relationship with interstate commerce, as opposed to a remote relationship with interstate commerce.
The U.S. Supreme Court has built upon these analytical frameworks in formulating its modern approach to evaluating Commerce Clause challenges to federal statutes.
U.S. Const. art. I, § 8, cl. 3; Shreveport Rate Cases, 234 U.S. 342 (1914);

Question 14

What is the stream-of-commerce theory of Congress’s commerce power?

Answer 14

The stream-of-commerce theory of Congress’s commerce power assumes that any activity in the chain of events that leads to or follows from trade or business dealings crossing state lines is subject to congressional commerce power.

Intrastate activity therefore becomes part of the current or stream of commerce—and subject to Congressional regulation—if, at some point in the commercial lifespan of a good or service, the good or service crosses state lines.

Question 15

Under what circumstances will a court find that intrastate commercial activity has a substantial effect on interstate commerce?

Answer 15

The Supreme Court has not quantified what constitutes a substantial effect on commerce. However, the Court generally will uphold the regulation of intrastate commercial activity that either has or might have some identifiable effect on interstate commerce.
Ostensibly, the substantial-effects doctrine only applies to economic activity. However, the Court has defined economic activity broadly to include both commercial transactions and the non-commercial production and consumption of commodities. The Court has held that gun possession in school zones and violence against women are not economic activity because the only way to connect those activities to interstate commerce is through a lengthy, speculative chain of causes and effects. Absent such an attenuated connection to commerce, the courts are likely to uphold the regulation of virtually any intrastate commercial activity. Gonzales v. Raich, 545 U.S. 1 (2005) (upholding regulation of personal-use medical marijuana); United States v. Morrison, 529 U.S. 598 (2000) (violence against women is noneconomic activity that cannot be regulated under the Commerce Clause); United States v. Lopez, 514 U.S. 549 (1995) (gun possession in school zones is noneconomic activity).

Question 16

Under what circumstances does wholly intrastate commercial activity have a close and substantial relationship with interstate commerce?

Answer 16

Wholly intrastate commercial activity has a close and substantial relationship with interstate commerce when control of the intrastate activity is essential or appropriate to the security, efficiency, and maintenance of conditions under which interstate commerce is conducted.
A close and substantial relationship exists when governing the interstate commerce would necessarily require governing the intrastate commercial activity because the two are so related. U.S. Const. art. I, § 8, cl. 3; Shreveport Rate Cases, 234 U.S. 342 (1914).

Question 17

For purposes of the Commerce Clause, what is the aggregation principle?

Answer 17

The aggregation principle is a standard that courts use to evaluate whether intrastate commercial activity has a substantial economic effect on interstate commerce. Under the aggregation principle, a court may evaluate not only the effect of one individual’s action, but also the cumulative effect of similar actions within the entire class of regulated conduct.
Even if the single individual’s actions would not have a substantial effect on interstate commerce, Congress may regulate the activity if the activity, in the aggregate, does have a substantial effect on interstate commerce.
U.S. Const. art. I, § 8, cl. 3; Wickard v. Filburn, 317 U.S. 111 (1942).

Question 18

Concerned about the large numbers of states legalizing the recreational use of marijuana, Congress enacted a new criminal law that imposed a tough criminal sentence on anyone who grew marijuana. A glaucoma patient found that smoking marijuana relieved the symptoms of his disease. Federal agents raided the patient’s home. The agents seized and destroyed two large marijuana plants on the patient’s patio. The government indicted the patient for violating the federal ban on growing marijuana. The patient argued that Congress cannot regulate growing marijuana for personal, non-commercial use, especially because there was no legal, national market for marijuana.
Is the patient correct?

Answer 18

No. The patient is incorrect. The law is a valid exercise of Congress’s Commerce Clause power. Under the Commerce Clause, Congress can regulate any economic activity that, if aggregated across the national economy, substantially affects interstate commerce.
Here, it is irrelevant that the patient grew the marijuana for personal use and did not intend to sell marijuana to others. If the production of all marijuana for personal use across the national economy is considered together, the aggregated production substantially affects both the availability and the price of marijuana. Thus, despite the absence of a legal national market for marijuana, producing personal marijuana is an economic activity that substantially affects interstate commerce. Congress can regulate marijuana plants grown exclusively for non-commercial, personal use under the Commerce Clause. Thus, the patient is incorrect.
Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Morrison, 525 U.S. 598 (2000); Wickard v. Filburn, 317 U.S. 111 (1942).

Question 19

Under what circumstances may Congress use its commerce power to regulate intrastate commercial activity that has no substantial effect on interstate commerce?

Answer 19

Congress may use its commerce power to regulate intrastate commercial activity that has no substantial effect on interstate commerce itself if the activity is an essential part of a larger regulation of economic activity, in which the regulatory scheme would be undercut unless the intrastate activity were regulated. U.S. Const. art. I, § 8, cl. 3; Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Lopez, 514 U.S. 549 (1995).

Question 20

What is rational basis review?

Answer 20

Rational basis review is a standard of judicial review in which the court upholds legislation if it is rationally related to a legitimate government interest.

Question 21

What standard of review does a district court use when a claimant raises a Commerce-Clause challenge to a federal statute regulating wholly intrastate activity?

Answer 21

A district court uses a rational basis standard of review when a claimant raises a Commerce-Clause challenge to a federal statute regulating wholly intrastate activity. In evaluating a Commerce Clause challenge to a federal statute regulating wholly intrastate activity, the district court asks whether Congress had a rational basis for concluding that the regulated activity has a substantial effect on interstate commerce.

A rational basis exists if it was reasonable for Congress to conclude that the regulated activity had a significant effect on interstate commerce. If the court concludes that Congress’s judgment on the substantial effects of the intrastate activity was reasonable, then the court will uphold the statute if the regulatory means Congress chose in the statute are reasonably adapted to the statute’s end or goal.

Question 22

For purposes of the Commerce Clause, what is economic activity?

Answer 22

Economic activity is any activity related to the production, distribution, and consumption of commodities. The U.S. Supreme Court derived this definition from the dictionary meaning of economics.

This definition is expansive, but it does have limits. Activities with no connection whatsoever to the production or consumption of goods or services are noneconomic. Although the Court has stated that it applies the same rational basis review regardless of how the activity is classified, in practice, it has proven much more difficult for statutes regulating noneconomic activities to withstand constitutional challenge.U.S. Const. art. I, § 8, cl. 3; Gonzales v. Raich, 545 U.S. 1 (2005). See also United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison (2000).

Question 23

Does the U.S. Supreme Court use the same standard of review to evaluate economic and noneconomic activity?

Answer 23

Yes. The U.S. Supreme Court has stated that it applies the same rational basis standard of review to statutes regulating noneconomic activity as it does to statutes regulating economic activity. U.S. Const. art. I, § 8, cl. 3; Gonzales v. Raich, 545 U.S. 1, 25-26 (2005);United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison (2000);

Question 24

Under what circumstances may Congress regulate wholly intrastate noneconomic activities under its commerce power?

Answer 24

Congress may regulate wholly intrastate noneconomic activity under its commerce power if the activity has a substantial effect on interstate commerce or is an essential part of a larger scheme regulating economic activity.

In practice, the U.S. Supreme Court has not upheld a statute regulating noneconomic activity against a Commerce Clause challenge. In those cases, the Court has concluded that the connection between the regulated activity and the substantial effect on commerce is too tenuous and the regulation would intrude on the state’s power to regulate local matters. U.S. Const. art. I, § 8, cl. 3; United States v. Lopez, 514 U.S. 549 (1995).

Question 25

May Congress use its power to regulate interstate commerce to require individuals to enter a given market?

Answer 25

No. Congress may not use its power to regulate interstate commerce to require individuals to enter a given market. In other words, Congress may not use its commerce powers to force individuals to purchase a good or service that they would not have purchased otherwise.

The Commerce Clause grants Congress the power to regulate interstate commerce, not to create commerce. The power to regulate commerce presupposes the existence of commerce to be regulated. NFIB v. Sebelius, 567 U.S. 519 (2012).

Question 26

What two main powers does Congress have under the Taxing and Spending Clause?

Answer 26

**We only covered spending in class:
The Taxing and Spending Clause, sometimes called the General Welfare Clause, grants Congress the power to:

lay and collect taxes and pay debts and provide for the general welfare of the United States.
The power to tax is specifically enumerated in the clause. The power to spend money is implied in the authority to pay debts and provide for the general welfare.

Question 27

What limits does the Constitution impose on how Congress may spend any revenue it collects?

Answer 27

Congress is free to spend as it sees fit, so long as it provides some public benefit. The spending power gives Congress broad discretion to spend federal revenue. Congress’s discretion is limited only by the requirement of providing for the general welfare, and the U.S. Supreme Court generally gives substantial deference to Congress on the issue of whether an instance of federal spending advances or promotes the general welfare.

Under the Necessary and Proper Clause, Congress can pass laws that are necessary and proper to exercise its spending power. This means that Congress can use any rational means to safeguard the integrity of federal-spending programs. South Dakota v. Dole, 483 U.S. 203 (1987).

Question 28

May Congress use its spending power to encourage states to adopt desired regulatory schemes?

Answer 28

Yes. Congress may use its spending power to influence the states and encourage them to adopt desired regulatory schemes by placing conditions on the states’ receipt of federal funds. Though permissible, those conditions must be reasonably related to the purpose of the spending. South Dakota v. Dole, 483 U.S. 203 (1987).

Question 29

Can Congress put conditions on a state’s receipt of federal funding?

Answer 29

Yes. Congress can put conditions on a state’s receipt of federal funding if Congress meets the following four constitutional requirements:

1. the exercise of Congress’s spending power must promote the general welfare;
2. the conditions attached to the federal funding must be clearly stated and non-coercive, so that a state’s participation in the program is both knowing and voluntary;
3. a nexus must exist between the federal interest in the program and the condition imposed by Congress; and
4. the condition imposed by Congress must be constitutional.

National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012); South Dakota v. Dole, 483 U.S. 203 (1987).

Question 30

What enumerated powers does Congress possess with respect to war, defense, and foreign affairs?

Answer 30

The Constitution enumerates a variety congressional powers related to war, defense, and foreign affairs. Congress has the authority to:

–declare war under the War Powers Clause (sometimes called the Declare War Clause);
–raise and support the army and the navy;
–create a code to govern the conduct of the members of the federal military under the Make Rules Clause; and
–organize, arm, and call forth the militia to execute laws and repel invasions under the Militia Clauses.

U.S. Const. art. I § 8, cls. 11, 12, 13, 14, 15, 16.

Question 31

Has the U.S. Supreme Court interpreted Congress’s war powers broadly?

Answer 31

Yes. The U.S. Supreme Court has interpreted the War Powers Clause broadly. The Court has concluded that the war powers vested in congress allow Congress to enact any legislation that is relevant to the war power, such as supporting ongoing war efforts or remedying the direct or indirect consequences of a war that has already ended.Ex Parte Milligan, 71 U.S. 2 (1866).

Question 32

May Congress establish military courts and tribunals?

Answer 32

Yes. Congress may establish military courts and tribunals. Congress may also authorize military trials under its war powers. The military courts and tribunals Congress establishes may have jurisdiction over members of the United States military or enemy militaries and combatants. However, military courts and tribunals cannot have jurisdiction over civilians. Ex Parte Milligan, 71 U.S. 2 (1866).

Question 33

What are the Reconstruction Amendments?

Answer 33

The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution are known as the Reconstruction Amendments. The amendments were enacted following the Civil War and designed to guarantee the rights of former slaves. Specifically:

**the Thirteenth amendment bans slavery,
**the Fourteenth Amendment guarantees the rights of citizenship, due process, and equal protection under the law, and
**the Fifteenth Amendment prohibits race-based voting discrimination.

For purposes of modern jurisprudence, the Fourteenth Amendment is the most significant.

Question 34

What powers do the Reconstruction Amendments grant Congress?

Answer 34

The Reconstruction Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) give Congress express powers to enforce their substantive provisions by appropriate legislation. These provisions expand Congress’s powers beyond those enumerated in Article I and are commonly referred to as Congress’s enforcement powers.

Although other amendments since the Reconstruction Amendments have granted enforcement authority to Congress, the Thirteenth Amendment was the first to include this type of provision.

Question 35

Which constitutional amendments grant Congress enforcement powers?

Answer 35

Constitutional amendments providing Congress with enforcement powers include:

The Thirteenth Amendment,
The Fourteenth Amendment,
The Fifteenth Amendment,
The Nineteenth Amendment
The Twenty-Third Amendment,
The Twenty-Fourth Amendment, and
The Twenty-Sixth Amendment

Question 36

For purposes of the Thirteenth Amendment, what are the badges and incidents of slavery?

Answer 36

Congress has defined the badges and incidents of slavery to include restraints on fundamental rights and racial discrimination regarding the right to sell, possess, and transfer property.

The Thirteenth Amendment bans slavery and involuntary servitude within the United States. The Enabling Clause of the Thirteenth Amendment authorizes Congress to enforce this provision by appropriate legislation. Congress may also define and prohibit the badges and incidents of slavery under this amendment.

Question 37

What rights does the Fourteenth Amendment guarantee?

Answer 37

The Fourteenth Amendment guarantees that anyone born or naturalized in the United States, and subject to its jurisdiction, is a citizen of the United States and of the state where he or she resides. The amendment provides that no state will:

**abridge the privileges or immunities of citizenship,
**deprive anyone of life, liberty, or property without due process of law, or
deny anyone equal protection under the law.
**The Fourteenth Amendment also vests Congress with enforcement authority to pass laws to remedy violations of those rights.

Question 38

Under its power to enforce the Fourteenth Amendment, can Congress pass a law governing the actions of private individuals or businesses?

Answer 38

No. Under its power to enforce the Fourteenth Amendment, Congress cannot pass a law governing the actions of private, non-governmental individuals or businesses. In contrast to the Thirteenth Amendment, which includes the power to regulate government or private actors, the Fourteenth Amendment applies only to state actors.

Thus, Congress can only use its power to enforce the Fourteenth Amendment to govern state actions. However, there are situations in which a private actor’s action can be considered a state action and subject to the Fourteenth Amendment.United States v. Morrison, 529 U.S. 598 (2000); The Civil Rights Cases, 109 U.S. 3 (1883).

Question 39

May Congress use its enforcement powers under the Fourteenth Amendment to regulate federal actors?

Answer 39

No. Congress may not regulate federal actors using its Fourteenth Amendment enforcement powers. The Fourteenth Amendment’s guarantees apply only to state actors. This means that the amendment’s enforcement powers permit Congress to regulate state governments, not federal actors.

The federal government must still provide equal protection and due process under the law, but its actions in this regard are governed by the Fifth Amendment instead of the Fourteenth Amendment.

Question 40

Are there any limits to how Congress may fashion remedies for violations of the Fourteenth Amendment under its enforcement powers?

Answer 40

Yes. Congressional legislative remedies for violations of Fourteenth Amendment must use appropriate means plainly adapted to the end of enforcing the Fourteenth Amendment.

Legislative remedies that are congruent and proportional to the targeted violation are appropriate. In drafting statutes designed to remedy Fourteenth Amendment violations, Congress must be relatively precise in tailoring the means it employs to the injury it seeks to prevent. U.S. Const. amend. XIV; Tennessee v. Lane, 541 U.S. 509 (2004); Katzenbach v. Morgan, 384 U.S. 641 (1966).

Question 41

What rights does the Fifteenth Amendment guarantee?

Answer 41

The Fifteenth Amendment prohibits the federal and state governments from abridging voting rights on the basis of:

*race,
*color, or
*previous condition of servitude.

The purpose of this amendment was to guarantee former slaves the right to vote following the Civil War.

Question 42

In the context of constitutional law, what is the police power?

Answer 42

In the context of constitutional law, the police power is the general governmental power to regulate private conduct for the protection of the health, safety and well-being of the citizens.

Question 43

What powers pertaining to money does the Constitution vest in Congress?

Answer 43

Congress may constitutionally:

*borrow money on the United States’ credit,
*establish uniform laws for bankruptcies,
*coin money and regulate its value, and
*punish counterfeiting of currency and other securities.

Pursuant to the Necessary and Proper Clause, Congress may also exercise authority to give effect to these enumerated powers, such as by forming a national bank. U.S. Const. art. I § 8, cls. 2, 4, 5, 6.

Question 44

What powers pertaining to immigration does the Constitution vest in Congress?

Answer 44

The Constitution authorizes Congress to establish a uniform system of naturalization. Congress has broad powers to regulate immigration and nationalization and to define the conditions under which people become U.S. citizens.

Question 45

Does Congress have any expressly enumerated powers over the federal judiciary?

Answer 45

Yes. The Constitution vests Congress with the authority to create inferior courts. In one of its first acts, Congress created the system of inferior courts that made up the federal judiciary in the Judiciary Act of 1789. Congress has amended the law over time to create new courts, reorganize the structure, or make changes to those courts’ jurisdictions.

Question 46

What are the constitutional sources of the president’s power?

Answer 46

Article II of the Constitution sets forth the framework for the executive branch of the federal government and describes the bases of the president’s power. Article II, in the Vesting Clause, vests executive power in the president. Executive power is the power to enforce the laws. Some of the president’s powers are traced impliedly to the Vesting Clause. Others, such as the president’s authority as Commander in Chief, are derived expressly from more specific provisions of Article II. U.S. Const. art. II, § 1 cl. 1.

Question 47

Is presidential power at its broadest when Congress expressly or impliedly authorizes an action?

Answer 47

Yes. Presidential power is broadest when Congress expressly or impliedly authorizes the action. If Congress is silent and the president acts without a congressional grant or denial of authority, the president must rely on his own independent powers. In this so-called zone of twilight, both the president and Congress may have concurrent authority, and the distribution of power is uncertain. Presidential power is lowest when the president acts contrary to Congress’s express or implied will. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring)

Question 48

What authority does the Take Care Clause vest in the president?

Answer 48

The Take Care Clause requires the president to “take care that the laws be faithfully executed.” Under this clause, the president is responsible for enforcing federal law. To do so, the president may issue executive orders that have the force of law.

Question 49

The president of the United States wanted to initiate a criminal prosecution against an individual who appeared to have violated federal drug laws.

Can the president direct the attorney general of the United States to initiate a criminal prosecution?

Answer 49

Yes. The president can direct the attorney general of the United States to initiate a criminal prosecution. The Take Care Clause of the U.S. Constitution gives the president of the United States the power and obligation to ensure that federal laws are enforced. The president’s authority to direct criminal investigations and criminal prosecutions lies at the core of the power to make sure that the laws are being enforced.

Here, the president directed the attorney general to prosecute an individual who appeared to violate federal drug laws. The Take Care Clause gives the president the power to enforce federal law by directing criminal prosecutions or criminal investigations. Thus, the president can direct the attorney general to initiate a criminal prosecution. United States v. Armstrong, 517 U.S. 456 (1996); Morrison v. Olson, 487 U.S. 654 (1988).

Question 50

May the president create law?

Answer 50

No. The president may not create law. The Take Care Clause vests the president with the power to execute federal law, but the president has no authority to create federal law.

Question 51

Malware threatened to cripple the operation of cell-phone networks. To avoid damage to the national economy, the president of the United States issued an executive order that nationalized the operation of cell-phone networks. No federal statute authorized the president to take such action. The owners of the cell-phone networks sued to block the implementation of the executive order, arguing that the president did not have the authority to issue it.

Did the president have the authority to issue this executive order?

Answer 51

No. The president did not have the authority to issue this executive order. The Take Care Clause of the U.S. Constitution requires the president to faithfully execute the laws, which includes issuing executive orders. The president’s power to issue executive orders is limited to executing laws and does not extend to creating them. Lawmaking power is vested in the legislative branch.

Here, while the president has the constitutional authority to execute or enforce federal statutes under the Take Care Clause, this executive order did not enforce a federal statute. There was no federal statute authorizing the nationalization of the nation’s cell-phone networks. This order did not execute any other law. Rather, this order created a new law, which is a legislative power. Thus, the president did not have the authority to issue this executive order. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Question 52

Does the president have the power to decline to prosecute offenses against the United States?

Answer 52

Yes. The president and other executive branch officials, like United States attorneys, have the power to decline to prosecute offenses against the United States. This is true even if a grand jury votes to indict a particular defendant.

Federal courts have reasoned that the ultimate authority for executing the laws falls to the executive branch, and a judicial organ such as a grand jury cannot limit the authority vested by the Constitution in the president to faithfully execute the laws of the United States. United States v. Cox, 342 F.2d 167 (5th Cir. 1965).

Question 53

What is an executive order?

Answer 53

Executive orders are signed, written, and published directives that have the force of law. In exercising his powers under the Take Care Clause, the president may issue executive orders to manage aspects of the federal government. The president may issue executive orders only for the purpose of carrying out authority granted by the Constitution or Congress, not to create law.

Question 54

By what authority may the president issue an executive order?

Answer 54

An executive order having the force of law must be issued pursuant to:

*a constitutional grant of power or
*a federal statute or other congressional action that expressly or implicitly authorizes the president to take the action specified in the executive order.

Executive orders lacking the necessary support are unconstitutional because they do not execute federal law, which is all that the Take Care Clause empowers the president to do. Dames & Moore v. Regan, 453 U.S. 654 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Question 55

What powers does the Commander-in-Chief clause grant the president?

Answer 55

The Commander-in-Chief Clause names the president as the commander in chief of:

*the Army;
*the Navy; and,
*the state militias, when they are serving the United States.

Question 56

Do the president’s commander-in-chief powers include the power to create military tribunals that adjudicate charges against foreign nationals involved in military operations?

Answer 56

Yes. The president’s commander-in-chief powers include the power to create military tribunals that adjudicate charges against foreign nationals involved in military operations. If the president creates a military tribunal, the tribunal must provide defendants with fundamentally fair procedures that comply with baseline notions of due process of law. Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Ex parte Quirin, 317 U.S. 1 (1942).

Question 57

Does the president have the power to declare war?

Answer 57

No. The president does not have the power to declare war. Congress has the sole authority to declare war. However, the president may command the armed forces to defend the United States and initiate or engage in hostilities with foreign nations.

Question 58

Do the president’s commander-in-chief powers include the power to deploy U.S. military forces to engage in emergency tactical operations without first seeking approval from Congress?

Answer 58

Yes. As commander in chief, the president can deploy the armed forces on a tactical basis to meet military, national-security, and foreign-affairs emergencies absent congressional approval. The federal courts will not review the legality, wisdom, or propriety of presidential deployments of armed forces abroad to defend national interests.

The president’s power to make tactical decisions regarding armed forces deployments does not include the power to declare war. Only Congress has the power to declare war. Johnson v. Eisentrager, 339 U.S. 763 (1950); Ex parte Milligan, 72 U.S. (2 Wall.) 2 (1866).

Question 59

Congress was concerned about the increasing cost of military operations abroad. To address this budgetary concern, Congress enacted a law that required the president of the United States to seek and obtain the affirmative consent of both houses of Congress before deploying more than 100 members of the U.S. armed forces abroad for any reason.

Is this limitation on the president’s commander-in-chief authority to deploy armed forces constitutional?

Answer 59

No. The limitation is an unconstitutional limitation on the president’s commander-in-chief powers. As commander in chief, the president has the power to make all tactical decisions regarding the use of the armed forces. This includes the power to deploy as many members of the armed forces as needed to secure military, national security, and foreign affairs interests. Congress cannot pass a law that limits the president’s constitutional authority as commander in chief.

Here, the law restricts the number of deployed troops to 100 and requires congressional approval. This law restricts the president’s authority as commander in chief to deploy troops as necessary to secure national interests. Thus, the law is unconstitutional. Ex parte Milligan, 71 U.S. (4 Wall) 2 (1866).

Question 60

What is a writ of habeas corpus?

Answer 60

A writ of habeas corpus is a judicial order that a detained party be brought before a judge for one of several purposes, including to inquire about and provide legal justification for his detention, testify, or face criminal prosecution. A writ of habeus corpus allows a petitioner or otherwise detained individual to seek release from unlawful detainment.

Question 61

Under what circumstances may the president suspend the writ of habeas corpus in his role as commander in chief?

Answer 61

The president, acting with congressional authorization, may suspend the writ of habeas corpus only under the circumstances defined in the Suspension Clause: when cases of rebellion or public safety require it. The Suspension Clause applies to citizen and non-citizen detainees held in the United States and in Guantanamo Bay.

Absent a valid suspension, neither the president nor Congress may deprive individuals protected by the Suspension Clause of the right to petition for a writ of habeas corpus without providing an adequate substitute. Boumediene v. Bush, 553 U.S. 723 (2008).

Question 62

In his role as commander in chief, may the president detain citizens indefinitely without due process?

Answer 62

No. Even if the president has statutory authorization for the detention, the president may not detain U.S. citizens indefinitely without providing them due process. A citizen’s due-process rights include the right to notice of the factual basis for his or her detention and a fair opportunity to rebut that factual basis before a neutral arbiter. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

Question 63

What powers does the president have with respect to foreign affairs?

Answer 63

The president is the head of government for purposes of dealings with foreign governments. As the sole organ, the president generally has significant authority and broad discretion over issues of foreign policy and relations with foreign nations. Pursuant to Article II of the Constitution, the president is the representative of the United States in foreign affairs and has the power to:

*appoint ambassadors and foreign ministers, with the advice and consent of the Senate, and
*receive ambassadors and other foreign diplomats.

Implied in this power is the right to refuse to receive foreign ambassadors. This means that the president effectively has the authority to determine whether or not to recognize a foreign government, which is critically important under international law.

Question 64

The president of the United States decided to recognize a new foreign government. However, both houses of Congress expressly objected to recognizing the new government.

Does the president have the constitutional authority to recognize this new foreign government?

Answer 64

Yes. The president has the constitutional authority to recognize a new foreign government even if both houses of Congress expressly object to the recognition. Article II of the U.S. Constitution gives the president the authority to conduct foreign relations. Under this authority, the recognition of a foreign government is a power that belongs to the president alone.

Here, it does not matter that both houses of Congress objected to the recognition of the new government. Under Article II, the president has the power to conduct foreign relations. The president’s recognition of the new foreign government is all that is necessary for the recognition to be valid and binding. Thus, the president has the constitutional authority to recognize a new foreign government despite Congress’s objection. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015);

Question 65

What procedures does the Constitution define for the appointment of officials?

Answer 65

The Appointments Clause grants the president the power to nominate and, with the advice and consent of the Senate, appoint:

*ambassadors,
*other public ministers and consuls,
*the U.S. Supreme Court justices, and
*other principal officers of the United States.

Congress may vest the appointment of other U.S. officers whose appointment is not otherwise expressly provided for in the Constitution in the president alone, the courts, or the heads of departments.

Question 66

Does Congress have the constitutional authority to appoint principal officers of the United States?

Answer 66

No. Congress does not have the constitutional authority to appoint principal officers of the United States. Under the Appointments Clause of the U.S. Constitution, the power to appoint principal officers of the United States belongs exclusively to the president, with the advice and consent of the Senate. However, Congress does have the authority to decide whether to give the power to appoint inferior officers to either:

*the president of the United States,
*the heads of departments, or
*the courts of law.

Congress cannot give appointment authority to anyone outside these categories.

Question 67

May Congress require the administrative agencies acting under delegated executive power to make reports to Congress on their uses of delegated authority?

Answer 67

Yes. Congress may require the administrative agencies acting under delegated executive power to make reports to Congress on their uses of delegated authority.

Congress cannot direct or control the executive branch’s exercise of its exclusive power to ensure faithful execution of the laws. However, Congress may require the executive branch to report to Congress on its use of its delegated authority. Congress may also condition the executive branch’s exercise of its own authority on first reporting to Congress and then waiting for a certain period of time before acting. Clinton v. City of New York, 524 U.S. 417 (1998); Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

Question 68

Congress enacted a review statute that required federal administrative agencies, including all cabinet departments, to report major rules to Congress at least 60 days before the effective date of the new regulations. The statute also provided for expedited consideration of a resolution of disapproval for these regulations enacted by both houses and presented to the president.

Does the statute’s reporting requirement violate the separation-of-powers requirements in the U.S. Constitution?

Answer 68

No. The statute’s reporting requirement does not violate the separation of powers. Congress cannot direct or control the executive branch’s exercise of its exclusive power to ensure faithful execution of the laws. However, Congress can require the executive branch to report to Congress on its use of its delegated authority. Congress can also condition the executive branch’s exercise of its own authority on first reporting to Congress and then waiting for a certain period of time before acting.

Here, the statute does not direct nor control executive regulations. The reporting requirement merely conditions the executive branch’s exercise of its authority on giving Congress an opportunity review the regulations while there is still time to legislate to disapprove them. Thus, the reporting requirement does not violate the separation of powers.
Clinton v. City of New York, 524 U.S. 417 (1998); Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

Question 69

May Congress act to limit the president’s actions during wartime?

Answer 69

Yes. Congress may act to limit the president’s authority during wartime. Because presidential exercise of power in wartime can mean that both the president and Congress have concurrent authority, the federal courts must sometimes determine the constitutional distribution of power.

The War Powers Resolution is another law designed to check the president’s exercise of war powers. The act forbids the president from sending troops into action without congressional approval, unless the United States is attacked. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Question 70

What is impeachment?

Answer 70

Impeachment is the process by which the House of Representatives initiates removal of officials for treason, bribery, and high crimes and misdemeanors. The Constitution vests the impeachment power in the House. The House debates the grounds for impeachment and then passes a resolution of impeachment. The House may also impeach federal judges for misconduct. The Constitution vests the authority to try impeachments in the Senate. Thus, after the House passes a resolution of impeachment, the Senate will conduct a trial. Generally, the vice president presides, but the chief justice of the U.S. Supreme Court presides if the president is impeached. The Senate may convict with a two-thirds vote.

To date, two presidents have been impeached (Andrew Johnson and William Clinton), but neither was convicted and removed. President Richard Nixon resigned with impeachment proceedings imminent.

Question 71

What are the three grounds that Congress can use to impeach an executive official?

Answer 71

Generally, Congress can use the impeachment power to remove executive officials for:

*treason,
*bribery, or
*other high crimes and misdemeanors.

Congress may also impeach judicial officials (e.g., federal judges) for misconduct.

Question 72

For what offenses may federal officials be impeached?

Answer 72

Officials may be impeached for treason, bribery, and high crimes and misdemeanors. The language of the Constitution deliberately keeps the definition of impeachable offenses open, allowing the process to remain sufficiently flexible to deal with unforeseen circumstances.

Question 73

What penalties may the Senate impose on an impeached official?

Answer 73

The Constitution limits impeachment penalties to removal from office and disqualification from holding office in the future. An impeached official may still be subject to criminal and civil liability for the conduct that gave rise to impeachment proceedings. Nixon v. United States, 506 U.S. 224 (1993).

Question 74

May Congress’s impeachment and conviction of a federal official be reviewed in federal court?

Answer 74

No. Congress’s impeachment and conviction of a federal official is not reviewable by federal courts. Congress’s impeachment power is broad, and a conviction by the Senate following the constitutionally prescribed procedures may not be reviewed in federal court. The U.S. Supreme Court has concluded that lawsuits challenging impeachments present nonjusticiable political questions. Nixon v. United States, 506 U.S. 224 (1993).

Question 75

Must Congress present legislation to the president for signature before the bill becomes law?

Answer 75

Yes. Congress must present legislation to the president for signature before it becomes law. Article I’s Presentment Clause provides that Congress must present to the president any bill passed by the House of Representatives and the Senate. The president may then sign the bill into law, veto the bill by returning it to Congress without a signature, or do nothing.

Question 76

What options does the president have when Congress presents him with a bill?

Answer 76

Upon being presented with a bill, the president may:

*sign the bill into law,
*veto the bill by returning it to Congress without a signature, or
*do nothing.
I
f the president fails to return a bill within 10 days of presentment, the bill automatically becomes law. However, if the bill cannot be returned because Congress adjourns before 10 days have passed, then the bill may not become law without the president’s signature. Thus, if the president withholds signature on a bill within 10 days of Congress’s adjournment, the bill cannot become law. This is also known as a pocket veto.

Question 77

Congress enacted a bill and promptly adjourned for a month. The president of the United States neither signed nor vetoed the bill. Ten business days passed and the president still did not sign or veto the bill.

Is the bill now a law?

Answer 77

No. The bill is not a law. The president pocket vetoed the bill. The Presentment Clause of the U.S. Constitution states that Congress must present bills to the president before the bill becomes a law. While Congress is in session, an unsigned bill will automatically become a law if the president does not veto it within 10 days (not counting Sundays) by returning an unsigned copy to Congress. However, if Congress adjourns before the end of the 10-day period, the president cannot return an unsigned bill to Congress to veto it. The bill is automatically vetoed if the president does not sign or veto it within 10 days (not counting Sundays). This is called a pocket veto.

Here, Congress adjourned before the end of the 10-day period. Because the president did nothing within the 10-day period, the bill was pocket vetoed. Thus, the bill is not a law.

Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

Question 78

May the president of the United States strike a single proposed item from a bill before signing the rest of the bill into law?

Answer 78

No. The president may not strike a single proposed item from a bill before signing the rest of the bill into law. This action—striking part of a bill before signing the rest of the bill—is called a line-item veto.

A line-item veto changes or amends the bill, and the president does not have the power to amend validly enacted bills. This power belongs to the legislative branch. Thus, a presidential line-item veto violates the separation of powers and is unconstitutional. In addition, Congress may not authorize the president to exercise line-item vetoes. Clinton v. City of New York, 524 U.S. 417 (1998).

Question 79

What is a legislative veto?

Answer 79

A legislative veto is a resolution passed by one or both houses of Congress that nullifies or cancels an administrative action taken by the executive branch. Under current law, Congress may not use a legislative veto to overrule agency action.

The U.S. Supreme Court has held that the legislative veto is unconstitutional for violating the separation of powers. Because legislative vetoes are not signed or otherwise presented to the president, they violate the Presentment Clause. When a legislative veto is exercised by only one house of Congress, this violates the bicameralism requirement, which is the requirement that the president and both houses of Congress approve any bills that become law. Accordingly, Congress may not exercise a legislative veto to effectively prevent executive action. INS v. Chadha, 462 U.S. 919 (1983)

Question 80

Can Congress enact a statute delegating regulatory or policy-making authority to one of the other branches?

Answer 80

Yes. Congress can enact a statute delegating regulatory or policy-making authority to other branches. Congress cannot delegate its legislative authority to another branch under the nondelegation doctrine. However, Congress has broad authority to delegate quasi-legislative or policy-making authority to the other branches if the statute includes an intelligible principle to guide the exercise of the delegated authority.

If there is a principle limiting the other branch’s discretion, then Congress has not truly delegated its legislative authority. Rather, Congress has only enlisted help from the other branch to execute Congress’s legislative authority. Open-ended limits on the scope of the delegated discretion usually satisfy the intelligible-principle requirement, such as stating a general purpose or giving a list of factors that the other branch must consider. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

Question 81

Congress enacted a statute that gave an executive-branch agency the sole power to establish standards of professional conduct for attorneys. These standards would become the laws governing civil liability for attorney misconduct. The statute did not provide any guidance about what the standards should have been. Instead, the statute transferred that authority to the executive-branch agency. The statute said that the standards would become law once they were published in the Federal Register. The executive-branch agency adopted standards of professional conduct. The standards were published in the Federal Register and became the law governing attorney conduct. An attorney objected to the standards and argued that the Vesting Clause of the Constitution prohibited Congress from transferring its legislative lawmaking power to an executive-branch agency.

Is the lawyer correct?

Answer 81

Yes. The lawyer is correct. Under the nondelegation doctrine, Congress cannot transfer its power to exercise legislative power. Congress can delegate quasi-legislative or policy-making authority to the other branches if the delegation is guided by an intelligible principle. If there is an intelligible principle limiting the other branch’s discretion, then Congress has not truly delegated its legislative authority. Rather, Congress has only enlisted help from another branch to execute Congress’s authority.

Here, the statute gives the executive-branch agency the legislative power to make professional responsibility laws. This statute does not contain any intelligible principle to guide the agency nor provide limits on the agency’s discretion. This statute is an impermissible delegation of full legislative power that violates the nondelegation doctrine. Thus, the lawyer is correct. Carter v. Carter Coal Company, 298 U.S. 238 (1936).

Question 82

The president of the United States wanted to promote electrically powered vehicles. The president asked Congress to give him the authority to impose and adjust a temporary federal tax on the sale of all new, non-electric vehicles in the United States. The president argued that he could be more flexible and respond more quickly to market changes than Congress. If the tax looked like it would hurt too many jobs, then the president could decrease or eliminate it quickly. Congress agreed and enacted a statute that gave the president the authority to set a federal tax on new, non-electric vehicles at a rate between 5 and 10 percent. The statute also listed factors that the president must consider when choosing a rate, such as the probable impact on jobs. Several car manufacturers sued, claiming that the statute violated the nondelegation doctrine.

Are the manufacturers correct?

Answer 82

No. The manufacturers are incorrect. The nondelegation doctrine states that Congress cannot delegate its legislative powers to another branch. Congress can delegate quasi-legislative authority to another branch if the statute contains an intelligible principle to guide the exercise of the authority. Broad guidance is usually sufficient, such as stating a general purpose or a giving list of factors. As a result, Congress has broad discretion to delegate policy-making power to the executive branch.

Here, the law set clear boundaries on the president’s discretion to choose a tax rate and listed factors that the president must consider when setting the rate. Because Congress put meaningful limits on the president’s power to set the tax rate, the law has a sufficient intelligible principle. This law does not violate the nondelegation doctrine. Thus, the manufacturers are incorrect.

Question 83

What is executive immunity?

Answer 83

Executive immunity is the protection from personal liability enjoyed by the president and other executive officials. The president enjoys absolute immunity from civil suits for any action within the outer perimeter of his official duties taken while in office. Subordinate executive officials generally have qualified immunity for lawsuits related to actions taken while in office that do not violate clearly established statutory or constitutional rights.

Each branch of the federal government has certain privileges and immunities under federal law that prevent the other branches from improperly interfering with the exercise of its respective executive, legislative, or judicial power. Executive immunity ensures that members of the executive branch may freely enforce and execute the law. Clinton v. Jones, 520 U.S. 681 (1997); Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Question 84

What type of executive immunity does the president enjoy?

Answer 84

The president has absolute immunity from civil suits for any action within the outer perimeter of his official duties taken while in office.

The president may not have similar immunity from criminal prosecution. The president likewise does not have immunity for acts undertaken before he entered office, even if he is sued for those acts while in office. Clinton v. Jones, 520 U.S. 681 (1997); Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Question 85

A member of the armed forces was killed during active duty while engaged in a conflict overseas. The member’s family believed that the president of the United States recklessly engaged the member’s unit in that particular conflict. The family wanted to sue the president for wrongful death.

Can the president of the United States be sued for the wrongful death of a member of the armed forces killed while on active duty?

Answer 85

No. The president of the United States cannot be sued for the wrongful death of a member of the armed forces killed while on active duty. The president enjoys absolute immunity from being held liable for damages predicated on or arising from the president’s official acts.

Here, the president’s actions relating to engaging armed forces overseas are official acts. Therefore, the president is immune from being sued for the wrongful death of a member of the armed forces killed while on active duty. Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Question 86

What type of executive immunity do executive-branch officials subordinate to the president enjoy?

Answer 86

Subordinate executive officials generally have qualified immunity. Qualified immunity protects officials from lawsuits related to actions taken while in office that do not violate clearly established statutory or constitutional rights. Officials with qualified immunity may still be liable for certain torts, omissions, or other activities. Clinton v. Jones, 520 U.S. 681 (1997); Nixon v. Fitzgerald, 457 U.S. 731 (1982).

Question 87

May the president withhold confidential information during judicial or legislative proceedings?

Answer 87

Yes. The president has a qualified privilege to withhold confidential information during court proceedings or to refrain from producing information to Congress if the necessity of protecting the confidentiality of internal communications outweighs countervailing considerations. Because the privilege is qualified, information deemed confidential may be produced for inspection by a judge in his chambers (also known as in camera inspection) to determine whether some or all the documents should be produced.

Although a claim of executive privilege to protect specific national security or diplomatic secrets or to safeguard certain executive communications from exposure during a civil trial might be upheld, a generalized claim of confidentiality will not outweigh the compelling public interest in securing evidence for a criminal trial. United States v. Nixon, 418 U.S. 683 (1974).

Question 88

What is the source of the president’s qualified privilege to withhold confidential information during judicial or legislative proceedings?

Answer 88

The president’s qualified privilege is derived from the Constitution. The qualified privilege flows from the nature of the president’s enumerated powers and relates to the effective discharge of those powers. Because the U.S. Supreme Court has concluded that the privilege is a constitutional one, not one based in the common law, Congress cannot limit the privilege through legislation. United States v. Nixon, 418 U.S. 683 (1974).