(15) Constitutional Law: Separation of Powers

Question 1

Supreme Court Judicial Review Powers

Answer 1

The Supreme Court has the final say in interpreting the constitution and may review the act of another branch of the government (this includes state acts) and declare it unconstitutional if not in conformity with the constitution and laws of the US.

Question 2

Supreme Court Original Jurisdiction

Answer 2

The supreme court has original jurisdiction over cases invovling foreign dipolmats and states.

Question 3

Can Congress modify the Supreme Courts original jurisdiction?

Answer 3

NO, congress cannot change the Supreme Courts original jurisdiction.

Question 4

Supremacy Clause and the Supreme Court

Answer 4

Under the Supremacy Clause the Supreme Court may review state actions to ensure conformity with the constitution and laws of the US.

Question 5

Powers of Congress

Overview

Answer 5

Congress has the power to Legislate which is to make laws. This includes the following powers:

1) Legislative Power
2) Commerce Power
3) Taxing Power
4) Spending Power
5) War and Defense Powers
6) Civil War Amendments (13th,14th and 15th)
7) Delegation of Power
8) Powers over the Lower Federal Courts

Additional Powers: (a) Property Powers; (b) Postal Power; (c) Naturalization; (d) Aliens; (e) D.C.; (f) Elections; (g) Impeachment Power; (h) Appropriations Power; (i) Other matters.

Question 6

Legislative Powers

Powers of Congress / Overview

Answer 6

Congress has the power to pass laws without violating constitutional rights through their:
a. Enumerated Powers
b. Enabling Clauses
c. Necessary and Proper Clause

Question 7

Powers of Congress

Enumerated Powers

Legislative Powers

Answer 7

Article I, Section 1 vests all legislative powers of the federal government in Congress.

Question 8

Powers of Congress

Enabiling Clauses

Legislative Powers

Answer 8

Congress may enforce Civil War Amendments (13th 14th and 15th) by appropriate legislation.

Question 9

Powers of Congress

Necessary and Proper Clause

Legislative Powers

Answer 9

Congress may enact any legislation necessary and proper to execute any enumerated power.

Ex. Congress doens’t have the power to investigate but the necessary and proper clause allows Congress broad authority to conduct investigations incident to its power to legislate.

Question 10

Commerce Clause

Powers of Congress

Answer 10

The constitution grants congress the authority to regulate commerce between the states (interstate commerce), foreign nations and Indian tribes.

Question 11

What may Congress regulate through the Commerce Clause?

Powers of Congress

Answer 11

Congress may regulate (1) the channels of interstate commerce; (2) the people and instrumentalities that work and travel in interstate commerce; AND (3) economic or commercial activities that have a substantial effect on interstate commerce.Congress may regulate (1) the channels of interstate commerce; (2) the people and instrumentalities that work and travel in interstate commerce; AND (3) economic or commercial activities that have a substantial effect on interstate commerce.

Question 12

Intrastate Activities

Commerce Clause

Powers of Congress

Answer 12

Congress may regulate economic intrastate activities if (1) there is a rational basis; (2) to conclude that the cumulative national impact of the economic activities (aggregation); (3) have a substantial effect on interstate commerce.

This only applies to economic activities

Question 13

Commerce Clause - Intrastate Activities

Can congress regulate non-economic intrastate activities?

Powers of Congress

Answer 13

YES, if the non-economic activity has a substantial ECONOMIC effect on interstate commerce.

Non-economic activity incldues possession of a handgun.

**This is different from economic activity in that the substantial effect there does not need to be economic on interstate commerce, whereas here it does.

Question 14

Taxing Powers

Powers of Congress

Answer 14

Congress has the power to lay and collect taxes for any public purpose (the general welfare).

Question 15

Taxing Powers:

When will a tax by Congress be upheld?

Powers of Congress

Answer 15

A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.

(i.e., it raises revenue or it was intended to raise revenue - even if it doesn’t)

Question 16

Taxing Powers:

Must a tax by Congress be geographically uniform?

Powers of Congress

Answer 16

YES, the tax must be geographically uniform.

Question 17

Taxing Powers:

What sources of income can Congress collect taxes from?

Powers of Congress

Answer 17

Congress has the power to collect taxes on income derived from any source.

Question 18

Spending Powers

Powers of Congress

Answer 18

Congress has the power to spend for the common defense and general welfare of the U.S. The power is interpreted broadly and allows Congress to attach conditions on States receiving federal funds upon compliance with federal directives (allowing congress to regulate activities they do not otherwise have the power to).

Question 19

Spending Powers

When can Congress place conditions on a State recieving Federal funds?

Powers of Congress

Answer 19

Congress must satisfy 5 conditions when placing conditions on states receiving federal funds: (1) spending is for general welfare; (2) condition is imposed unambiguously; (3) the condition is related to a federal interest; (4) the condition cannot induce activities which are unconstitutional; AND (5) the condition cannot be so coercive as to turn pressure into compulsion (Compulsion is when the states have no real option but to acquiesce).

Question 20

Delegation of Powers

Powers of Congress

Answer 20

Congress can create executive agencies and give the agencies legislative power, if there is some “intelligible principle” that guides the agency.

ex. FDA

Question 21

Delegation of Powers:

Are the actions of the agencies created by congress supreme over inconsistent state law?

Powers of Congress

Answer 21

YES, these agencies actions will prevail over inconsistent state laws.

Question 22

Delegation of Powers:

Non-Delegation Doctrine

Powers of Congress

Answer 22

Certain powers are not delegable by Congress such as the power of impeachment and the power to declare war.

Question 23

War and Defense Powers

Powers of Congress

Answer 23

Congress has the power to declare war, raise and support armies, provide and maintain a navy and make rules for organizing and regulating military land.

Question 24

War and Defense Powers:

During War Congress can?

Powers of Congress

Answer 24

During war, Congress may institute a draft and initiate wage, price and rent control of the civilian economy.

Question 25

War and Defense Powers:

Who controls the national guard?

Powers of Congress

Answer 25

The national guard is under the control of Congress and States.

Question 26

Civil War Amendments

Powers of Congress

Answer 26

The 13th, 14th, and 15th Amendments contain a provision authorizing Congress to pass appropriate legislation to enforce the civil rights guaranteed by those amendments.
a. 13th amendment – Bans slavery
b. 14th Amendment – Equal Protection and Due Process
c. 15th Amendment – Voting (cannot deny a person the right to vote based on race, color, or previous condition of servitude)

Question 27

Civil War Amendments:

How can Congress enforce the civil war amendments?

Powers of Congress

Answer 27

The legislative remedy must be “congruent and proportional to” the violation.

Congress can overcome state sovereign immunity from the 11th amendment and authorize money damages.

Question 28

Civil War Amendments

Who can Congress enforce the civil war amendments against?

Powes of Congress

Answer 28

Congress can only regulate states, not private individuals under the 14th and 15th Amendments.

However Congress can regulate individuals and states under the 13th Amendment.

Question 29

Civil War Amendments:

When can Congress enforce the civil war amendments?

Powers of Congress

Answer 29

State governments must have engaged in widespread violations of the Amendment.

Question 30

Property Power

Powers of Congress

Answer 30

Congress has the power to dispose of and make all needful rules and regulations respecting territory owned by the U.S. Under the 5th amendment Congress may only take private property for public use with just compensation.

Question 31

Postal Power

Powers of Congress

Answer 31

Congress has the exclusive power to establish post offices and post roads.

Question 32

Naturalization

Powers of Congress

Answer 32

Congress has the exclusive authority over naturalization and establishing a uniform rule of naturalization.

Question 33

Aliens

Powers of Congress

Answer 33

Congress has plenary power over aliens. Aliens have no right to enter the U.S. but the 5th amendment states aliens may not be removed from the U.S. until after they receive notice and a removal hearing.

aka: Aliens are entitled to due process

Question 34

D.C.

Powers of Congress

Answer 34

Congress has supreme authority over Washington, D.C. and may legislate freely with regard to D.C. law.

Question 35

Elections Clause

Powers of Congress

Answer 35

The time, place and manner, of holding elections for senators and representatives is determined by the State however Congress may alter such regulations.

Question 36

Impeachment Power

Powers of Congress

Answer 36

The House has the sole power to impeach and the Senate has the power to convict by a 2/3rd vote.

Question 37

Impeachment Power:

What are the Impeachment Offences?

Powers of Congress

Answer 37

Treason, bribery, and other high crimes and misdemeanors

Question 38

Appropriations Power

Powers of Congress

Answer 38

The president cannot refuse/delay spending appropriated authorized funds that Congress explicitly directs the President to spend by legislative act.

Doesnt matter if there is a good reason to do so.

Question 39

What are the requirements required for Congress to pass legislation to monitor a federal agency? (This includes regulating the agencies funding)

Answer 39

The legislative action must be voted on by both houses of Congress (House and Senate) as well as be presented to the President. This is the same requirements for a bill to become a law.

Question 40

Hint: $ & IP

Other General Powers of Congress

Powers of Congress

Answer 40

Congress has power over bankruptcies, maritime matters, coining of money, fixing weights and measures, and patents and copyrights.

Question 41

Executive Powers

Powers of the President / Overview

Answer 41

1. Enforcement Power
2. Appointment Power
3. Removal Power
4. Veto Power
5. Pardon Power
6. Military Powers
7. Treaty Powers
8. Executive Agreements Power
9. International Affairs

Question 42

Enforcement Powers

Executive Powers (Powers of the President)

Answer 42

The President has the power to enforce (NOT create) federal laws and manage the executive branch.

Question 43

Enforcement Powers

Are the Presidents actions valid when Congress has spoken to the contrary on the action?

Executive Powers (Powers of the President)

Answer 43

NO, When congress has spoken to the contrary of the president’s action then the action is invalid.

Question 44

Enforcement Powers:

Are the Presidents actions valid, if Congress is silent on the actions?

Executive Powers (Powers of the President)

Answer 44

When a president acts but Congress has been silent on the action, the action is valid unless the action interferes with the operation of power of another branch the action is invalid.

Question 45

Enforcement Powers:

Are the Presidents actions valid, if Congress has implied authorization?

Executive Powers (Powers of the President)

Answer 45

YES, When a president acts with the express or implied authorization of Congress the action is presumed valid.

Question 46

Appointment Power

Executive Powers (Powers of the President)

Answer 46

The president may appoint, with the consent and advice of the Senate all officers of the U.S.

Question 47

Appointment Power

Who is considered an “officer of the US” that the President can appoint with the consent and advice of the Senate?

Executive Powers (Powers of the President)

Answer 47

This includes ambassadors, public ministers, Supreme Court Justices, Federal court judges and other officers of the U.S.

Question 48

Appointment Power:

Can the President appoint inferiror officials without Senates approval?

Executive Powers (Powers of the President)

Answer 48

Congress may delegate appointment of inferior officials to the President (judiciary or head of an executive department) without the need for the Senates approval.

Question 49

Appointment Power:

Who are Inferior Officials?

Executive Powers (Powers of the President)

Answer 49

Inferior officials are those supervised by Senate-confirmed appointees.

Aka: anyone who has a superior

Question 50

Removal Power

Executive Powers (Powers of the President)

Answer 50

The President may remove executive officers and agency members without cause or Senates approval.

The President must have cause to remove executive officers with fixed terms and officers who perform judicial or quasi judicial functions (ex. member of the Federal Trade Commission).

Ex of executive officer - a cabinent member.

Question 51

Removal Power:

How can a Federal Judge be removed from office?

Executive Powers (Powers of the President)

Answer 51

A president cannot remove a Federal Judge, they can only be removed by impeachment.

Question 52

Veto Power

Executive Powers (Powers of the President)

Answer 52

President may veto any bill presented to him by Congress. Congress may override the veto by a 2/3rd vote.

Question 53

Veto Power:

Can the president issue a line-item veto? [Where they cancel certain provisions of the bill but not the entire bill]

Executive Powers (Powers of the President)

Answer 53

NO, a President cannot issue a line-item veto.

Question 54

Pardon Power

Executive Powers (Powers of the President)

Answer 54

The president may pardon federal crimes except in cases of impeachment (since impeachment is not a criminal conviction).

Note: A president is impeached through a 2/3rd vote from the Senate.

Question 55

Military Power

Executive Powers (Powers of the President)

Answer 55

The President is the commander in chief of the military and has the power to control and deploy troops.

Note: If congress hasnt declared war, then the Presidents powers are limited.

Question 56

Treaty Power

Executive Powers (Powers of the President)

Answer 56

The President has the power to negotiate treaties although a treaty cannot be ratified without a 2/3rd vote of the Senate.

Question 57

Treaty Power:

Does a Treaty override Federal and State law?

Executive Powers (Powers of the President)

Answer 57

Federal Law – treaties have the same status as Federal law and override earlier created Federal law.

State Law – treaties take precedence over any conflicting State Law.

Question 58

Executive Agreement Power

Executive Powers (Powers of the President)

Answer 58

The President has the power to negotiate and enter into executive agreements with foreign nations (ex. Reciprocal trade agreements) and these do not require a 2/3rd Senate vote.

Question 59

Executive Agreement Power:

Does an Executive Agreement override Federal Law, State Law and Treaties?

Executive Powers (Powers of the President)

Answer 59

Conflicting federal statutes and treaties will override executive agreements but executive agreements override conflicting state law.

Question 60

International Affairs

Executive Powers (Powers of the President)

Answer 60

The President represents the U.S. internationally and has the power to appoint and receive ambassadors as well as recognize foreign governments.