Executive and Interbranch Relationships

Question 1

General Pres. Powers

Answer 1

i. Has the power to enforce the law, not to make it or break it
1. The power to enforce is greatest when authorized by statute
ii. Generally, the President’s powers are subject to control by statute.
Pardon, Veto, Appointment and Removal

Question 2

Veto

Answer 2

1. The President has 10 days to veto legislation. He can veto for any reason or no reason, but cannot veto specific items in the legislation and accept others. Overriding a veto requires a 2/3 majority vote of each house.

Question 3

Pardon

Answer 3

The President can pardon or commute punishment for all fed. offenses. (Governors have a similar power for state crimes.) This power can’t be limited by Congress.

Question 4

Appointment and Removal of Executive Officers

Answer 4

1. Only the President (or his appointees) can hire or fire executive officers. Some senior officers (cabinet officers, ambassadors, Fed. judges) require the advice and consent of the Senate. The Senate has a power of rejection. The Senate’s approval power does not translate into a power of appointment.
   a. executive officers= Anyone who takes action on behalf of the U.S.
   b. Just as Congress cannot hire or fire an executive officer, it cannot give executive power to anyone it can hire or fire.

Question 5

Foreign Affairs

Answer 5

i. Commander in Chief: The President has control over military decisions, although Congress has exclusive power to declare war
ii. Treaties and Executive Agreements

Question 6

Treaty

Answer 6

1. are negotiated by the President, but require approval by a 2/3 vote of the Senate. Once a treaty is ratified (approved), it has the same authority as a statute.

Question 7

Executive Agreement

Answer 7

are presidential negotiations not submitted for approval by the Senate. They can be authorized, precluded, or overridden by statute, but they take precedence over conflicting state laws. They do not have the binding status of a treaty.

Question 8

Impeachment

Answer 8

1. : Applies to executive officers
   a. An accusation of high crimes or misdemeanors requiring a majority vote of the House of Representatives.
   b. Trial in the Senate
   c. Conviction requires a two-thirds vote of the Senate.
   d. The remedy is removal from office. No other penalty applies.

Question 9

Impoundment

Answer 9

a. If statute gives the Pres. discretion to spend or withhold funds, he may do so.
b. But, when a statute unambiguously requires that funds be spent, the President cannot refuse to do so. There is no power to impound funds.

Question 10

Legislative Veto

Answer 10

a. Happens when Congress passes a law reserving to itself the right to disapprove future executive actions by simple resolution
b. If Congress wants to override future executive actions, it must change the law so that the President has an opportunity to veto the new legislation).
c. Congress cannot evade the President’s guaranteed veto opportunity by passing a law saying that in the future it plans to govern by resolution.

Question 11

Legislative delegation

Answer 11

1. Congress can delegate its power to administrative agencies, so long as there are intelligible standards governing the exercise of that delegated power.
2. Not a demanding test – almost all delegations of legislative powers are upheld.

Question 12

Presidential immunity

Answer 12

a. Has absolute immunity for official acts
b. Has no immunity for acts done prior to taking office
c. Has an executive privilege not to reveal confidential communications with presidential advisers, but that privilege can be outweighed by a specifically demonstrated need in a criminal prosecution (Nixon)

Question 13

Judicial immunity

Answer 13

a. Judges have absolute immunity for all judicial acts, but may be liable for non-judicial activities.

Question 14

Legislative Immunity

Answer 14

a. United States Senators and Representatives (not state legislators) are protected by the Speech and Debate Clause.
b. Senators and Congressmen and their aides cannot be prosecuted or punished in relation to their official acts.
c. The official acts of a Fed. legislator cannot be introduced into evidence.

Question 15

Federal and State power

Answer 15

i. Even though Fed. powers are superior, most Fed. powers are concurrent with those of the states. (On most topics, both Congress and the states have regulatory powers. If there is a conflict, Congress wins.)
ii. Some powers are exclusively Fed.. They include the power over foreign relations and the power to coin money.

Question 16

Intergov’t immunity

Answer 16

i. The Fed. gov. is generally immune from direct state regulation or taxation. However, states can tax indirectly, such as taxing the income of Fed. employees.
ii. States arent immune from direct Fed. regulation (for example: pollution regulations, employment laws, etc.).
iii. State laws cannot shield state officers from Fed. liability.
1. Exception: the anti-commandeering principle covered in Chapter 3. States cannot be forced to implement Fed. programs. The Fed. gov. can always use the spending power to bribe states to comply.

Question 17

Privilege and immunities of state citizenship under IV

Answer 17

1. Technically, a subject of individual rights, but functionally belongs here because of its similarity to the next subject (Dormant Commerce Clause).
2. Forbids serious discrimination against out of state individuals, absent substantial justification.
   a. Does not protect out-of-state corporations
   b. “Serious discrimination” typically involves employment.
3. Rule: There can be no legal requirement of residency for private employment. States cannot require that you live/reside in the state to work in the state. However, public employment can require residency requirements.
   a. Ex. of unacceptable private employment requirements: Admission to the bar; other occupational licenses.
   b. Ex. of public employment: A city hiring only city residents or requiring a certain percentage of city residents on city construction projects.
4. Non-serious discrimination: States can discriminate with regard to recreational opportunities, such as hunting licenses or state park access.

Question 18

Dormant Commerce Clause

Answer 18

• Rule: In the absence of Fed. regulation, state regulation of commerce is valid so long as:
o 1)There is no discrimination against out-of-state interests;
o 2)The regulation does not unduly burden interstate commerce; and
o 3)The regulation does not apply to wholly extraterritorial activity.
1. No discrimination against out-of-state interests
a. Ex.: taxing the out-of-state interest at a higher rate or forbidding sale only of out-of-state products; requiring that manufacturing be performed in-state; limiting privately owned landfills to in-state garbage.

Question 19

Exception to Dormant Clause

Answer 19

i. State as Market Participant—When a state is buying or selling goods or services, it can choose to deal with only in-state persons.
1. Ex: sale of cement produced by state-owned plant only to in- state purchasers; garbage stored in state-owned landfill limited to in-state garbage; law requiring 50% local workforce on state-financed construction projects.
ii. Subsidies—A state can always choose to subsidize only its own citizens (for example, welfare benefits or in-state college tuition).
iii. Fed. Approval (tested frequently)—Remember, the Dormant Commerce Clause applies only in the absence of Fed. action. If Congress authorizes or consents state regulation of commerce, nothing the state does will violate the Commerce Clause, even if it discriminates against out-of- state interests.

Question 20

burdens on interstate commerce

Answer 20

a. Non-discriminatory state regulation of commerce is almost always upheld.
b. Only when it is so outrageously costly relative to the benefits of the regulation is a non- discriminatory state regulation struck down as an undue burden on interstate commerce.
c. This is a balancing test, but non-discriminatory regulations are rarely struck down.

Question 21

Regulation of extra judicial territory

Answer 21

A state may not regulate conduct occurring wholly beyond its borders.

Question 22

State taxes on interstate commerce

Answer 22

Discriminatory taxation will be struck down unless Congress consents and non- discriminatory taxation will be upheld unless it is unduly burdensome.

i. two requirements are met:
1. Must be a substantial nexus between the taxing state and the property or activity to be taxed
2. Must be a fair apportionment of tax liability among states

Question 23

State Tax on commdities

Answer 23

a. are the goods that move from state to state.
i. States tax all commodities within their borders on a specified date (called tax day), but not goods that are merely in transit – the commodities have to come to rest in the state.
ii. Rule: Pay the full tax to every state where goods are stopped for a Business purpose on tax day. No taxes are due where they are merely passing through

Question 24

State Tax on Instrumentalities

Answer 24

a. Instrumentalities are the transportation equipment that moves commodities (railroads, trucks, airplanes, etc.)
i. •Each state in which an instrumentality is used can tax the value of that instrumentality.

Question 25

Preemption

Answer 25

i. Fed. law preempts (overrides) inconsistent state law.
ii. State law not preempted bc it addresses the same subject matter as a fed. statute.
iii. Preempting the Field: When Congress determines that there should be no state law of any sort in a particular field, then any state law in that area is inconsistent with the Fed. statute and is preempted. This is rare.

Question 26

Full Faith and Credit Clause

Answer 26

i. States don’t have to follow other states’ laws, but they do have to give full faith and credit to judgment rendered by other states’ courts, so long as the rendering court had jurisdiction to render a final judgment on the merits.