Kaplan pgs 94-106 Separation Of Powers

Question 1

What are the major powers of Congress?

Answer 1

• Legislative
• commerce
• taxing
• spending
• war and defence
• investigatory power
• property power
• power of eminent domain
• Admiralty
  – Bankruptcy power
  – postal power
  – copyright and patent power
  – speech and debate clause
  – Civil War amendments

Question 2

What are the major legislative powers that Congress has?

Answer 2

Enumerated powers, the necessary and proper clause, and the enabling clauses of the 13th, 14th, and 15th amendments

Question 3

What is involved in the necessary and proper clause as a legislative power for Congress?

Answer 3

This is an implied power to make all laws that are necessary and proper to carry into execution congress’ enumerated powers, and all other powers that are vested by the constitution in the government of the United States

Question 4

What do the enabling classes of the 13th, 14th, and 15th amendments allow Congress to do?

Answer 4

Enforce these amendments by appropriate legislation

Question 5

What are the three major things that Congress can regulate under the commerce power?

Answer 5

• channels of interstate commerce: highways, waterways, air traffic
  – instrumentalities of interstate commerce: cars, trucks, ships, airplanes
  – activities that substantially affect interstate commerce

Question 6

What is the affectation doctrine under the commerce power of Congress?

Answer 6

Congress has the power to regulate any economic activity, whether done in one state or many that has a substantial effect either directly or indirectly on interstate commerce

Question 7

What is the cumulative effect doctrine under the commerce power of Congress?

Answer 7

The federal commerce power is allowed to regulate things like the amount of wheat a farmer can grow on his own land for his own consumption, because this activity together with that of other growers has a substantial cumulative effect on interstate commerce

Question 8

Under the third prong of the commerce clause for things that Congress can regulate that allows activities that “substantially affect“ interstate commerce, what are the two doctrines that apply?

Answer 8

– Affectation doctrine: Congress can regulate any economic activity that has a substantial effect on interstate commerce
– cumulative effect doctrine: Congress can regulate any activity that when taken together with other similar activity has a cumulative substantial effect on interstate commerce

Question 9

To validly exercise its commerce clause power under the “substantial effects“ test, what are the two things that Congress must show?

Answer 9

– That the regulated activity is economic in nature, and

– that the activity when taken cumulatively throughout the nation has a substantial effect on interstate commerce

Question 10

What congressional power has been used to uphold laws that bar racial discrimination in activities connected with interstate commerce?

Answer 10

The commerce clause

Question 11

Under the commerce clause, Congress can prohibit racial discrimination in private restaurants if what?

Answer 11

A substantial portion of the food consumed in the restaurant travelled in interstate commerce

Question 12

Under the commerce clause, the court upheld federal laws that prohibit extortionate credit transactions like loansharking on what grounds?

Answer 12

By saying that these transactions provide a major source of revenue to organized crime, and organized crime has an adverse effect on interstate commerce

Question 13

What is a very weak limitation that is placed on the commerce clause?

Answer 13

The 10th amendment.

• It prevents Congress from interfering with a state’s law-making processes. So it is invalid if a federal law requires a state to pass legislation for something like the disposal of radioactive waste generated within its borders.
• it also prevents Congress from commandeering state executive officials to act as administrators of federal programs

Question 14

What amendment gives Congress the power to collect taxes that are derived from any source?

Answer 14

The 16th

Question 15

Under the taxing power, if Congress does not have the power to regulate an activity that it taxes, will the tax be upheld even if it has a substantial regulatory effect?

Answer 15

Yes, if the tax has a dominant intent to raise revenue and in fact raises revenue

Question 16

What is the modern judicial trend regarding something that Congress tries to tax?

Answer 16

It is upheld if it in fact does raise revenue

Question 17

What is the spending power?

Answer 17

Congress has the power to lay and collect taxes to pay the debts and provide for the common defence and welfare of the United States

Question 18

What is the general welfare clause under the spending power?

Answer 18

This is a limitation on Congress’ taxing and spending that says that their power to tax and spend must be exercised for the general welfare

Question 19

Can congress use the spending power to require states to comply with specified conditions in order for them to qualify for federal funds?

Answer 19

Yes, for example Congress conditioned further grants of highway funds on the resignation of a state highway administrator

Question 20

Congress can place a condition on the receipt of federal funds by a state if what?

Answer 20

• the spending serves the general welfare
  – the condition is unambiguous
  – the condition relates to a federal program
  – the state is not required to undertake unconstitutional action
  – the amount is not so great that it is considered coercive

Question 21

What are the war and defense powers that are given to Congress?

Answer 21

The power to:
– declare war
– raise and support armies
– provide and maintain a navy
– organize, arm, discipline, and call forth a militia

Question 22

The war power gives Congress what type of authority to initiate protective measures?

Answer 22

Very broad authority to initiate whatever measures it deems necessary to provide for the national defense

Question 23

Congress has very broad authority to initiate whatever measures are necessary to provide for the national defense, and this gives them power to do what major things?

Answer 23

• Have a military draft
• initiate wage/price/rent controls on the civilian economy during wartime
• exclude civilians from certain restricted areas during wartime
  – Establish military courts

Question 24

How do military courts work?

Answer 24

They are not article 3 courts, so the accused in court marshal proceedings is not entitled to the same procedural safeguards that are set forth in the Bill of Rights. Things like the right to a jury trial or a grand jury indictment. Instead the accused is safeguarded by the procedures provided in the uniform code of military justice

Question 25

Under the uniform code of military justice, where do military courts have jurisdiction?

Answer 25

• Over offences committed by servicepeople on a military post, or in an area under military control. Jurisdiction is determined by the status of the individual as an armed service member
  – also over current members of the Armed Forces, even while on leave and for non-service matters

Question 26

If a civilian court is available, can a military court be used?

Answer 26

No. Military courts are denied jurisdiction over civilians and their dependents if a civil court is available

Question 27

Do civilian courts have a general power of review over court-martial proceedings?

Answer 27

No

Question 28

What is involved in Congress’ investigatory Power?

Answer 28

Congress does not have an express constitutional power to investigate, but the necessary and proper clause allows Congress to do investigation incident to its legislative power

Question 29

What does Congress’ investigatory power extend to?

Answer 29

Any matter within a legitimate legislative sphere.

Question 30

If a witness fails to appear after being summoned before a congressional committee or fails to answer a question posed by that committee, what are the two options that Congress has?

Answer 30

– Cite the witness for contempt

– refer the matter to the US attorney general for prosecution

Question 31

What are defences that a witness can raise with regard to Congress’ investigatory power?

Answer 31

– Privilege against self-incrimination
– lack of due process
– interference with first amendment rights to privacy or freedom of association

Question 32

What is Congress’ property power?

Answer 32

Congress has the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States

Question 33

What is a good exam tip for when eminent domain is brought up?

Answer 33

Always do an analysis under the takings clause

Question 34

What kind of power does Congress have under admiralty and Maritime power?

Answer 34

Complete and plenary power to fix and determine the maritime laws

Question 35

What is Congress’ bankruptcy Power?

Answer 35

Congress has the power to establish uniform laws on the subject of bankruptcy

Question 36

What is Congress’ postal power?

Answer 36

Congress can establish post offices and post roads

Question 37

What is involved in Congress’ copyright and patent power?

Answer 37

Congress may promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Question 38

What is included in the speech and debate clause?

Answer 38

This protects legislators and their aids against criminal or civil proceedings for legislative acts. But members of Congress can be liable for defamation for issuing press releases or newsletters that injure reputation.

This insulates members of Congress for acts that occur in the regular course of the legislative process, but it doesn’t bar prosecution for things like taking a bribe to influence legislation

Question 39

What do the Civil War amendments give Congress the power to do?

Answer 39

Enforce the 13th, 14th, and 15th amendments

• 13th: bans slavery
  – 14: stop the states from violating protections for due process, equal protection, or privileges and immunities
  – 15th: stops the states from discriminating in voting rights

Question 40

The executive power is vested in who to do what?

Answer 40

The president to execute the laws. The president has very few enumerated powers that are expressly granted, most of his powers are implied.

Question 41

Does the president have the power to make laws?

Answer 41

No, only to execute them

Question 42

What is involved in the appointment power?

Answer 42

The president has the power, with the advice and consent of the Senate, to nominate and appoint:
– ambassadors
– public ministers
– consuls
– judges of the Supreme Court
– and other officers

Question 43

The presidential appointment power is a limitation on what?

Answer 43

Congressional appointment power. Congress can appoint officials to its legislative committees, but it cannot appoint members to any agency that has administrative powers

Question 44

The president has the exclusive power to nominate high-level officials and cabinet members, as well as ambassadors and heads of agencies. What body has the power to confirm or reject these nominees?

Answer 44

Senate

Question 45

Congress has the power to delegate the appointment of inferior officers, including special prosecutors to whom?

Answer 45

• the president
  – the judiciary
  – heads of departments

Question 46

What is involved in the removal power of the executive?

Answer 46

– The constitution is silent about this, but it is agreed that the president can remove any executive appointee [like an ambassador or cabinet minister] without cause.
- the president must have cause [good reasons] to remove executive officers that have fixed terms or those performing judicial or quasi-judicial functions
– Congress has no power to remove an executive officer
– federal judges cannot be removed by either Congress or the president during good behavior. A formal impeachment proceeding is required to remove them

Question 47

Once Congress has passed legislation and presented it to the president, how many days does the president have to act on it?

Answer 47

10 days. Unless he vetoes it within that 10 day period, the legislation becomes law

Question 48

What is a pocket veto?

Answer 48

The president can do this for a bill that is passed within 10 days of the end of the congressional term by simply not signing it.

Usually the president has 10 days to sign or veto legislation, but if he does nothing then the legislation becomes law within 10 days. In the case of a pocket veto because there is less than 10 days to the end of the congressional term, the expiration of the term happens before the ten-day period and thus legislation does not become law

Question 49

How can Congress override a presidential veto?

Answer 49

If they have a 2/3 vote of both the Senate and the house of representatives

Question 50

Why have line item vetoes been held unconstitutional?

Answer 50

Because they give the president the power to cancel particular provisions of new legislation, which is essentially a grant of power to the president to amend a statute. Amendments are only valid when Congress enacts a new statute followed by a presidential signature. This is why line-item vetoes are unconstitutional

Question 51

What is the interplay between Congress’ power and the president‘s power?

Answer 51

The president can exercise only powers that are expressly or implied be granted to him in the constitution, or by an act of Congress. If Congress exercises one of its powers and overrides the president, then Congress prevails over the president.

I.e.: the president can’t seize a factory to prevent a strike during wartime if Congress opposes this action

Question 52

What is Congress’ power with regard to delegating rulemaking power?

Answer 52

Congress can enact legislation that delegates rule making power to an executive or administrative agency in a designated subject area, like securities law, labour law, or environmental law. This creates a very big exception to the rule that the executive branch cannot make law

Question 53

Congress has the power to delegate the authority to make rules to the executive branch as long as what?

Answer 53

Congress provides an intelligible principle to guide the executive branch

Question 54

What is involved in executive privilege?

Answer 54

• the president has an absolute privilege to refuse to disclose information relating to military, diplomatic, or sensitive national security secrets
  – other confidential communications between the president and his advisers are presumptively privileged. This can be overcome when companies or communications are subpoenaed as evidence in a criminal trial

Question 55

What is involved in the obligation to report for the executive?

Answer 55

The president shall from time to time give to Congress information of the state of the union and recommend such measures as he shall judge necessary and expedient

Question 56

What is involved in the faithful execution clause for the executive?

Answer 56

The Constitution requires that the president take care that the laws be faithfully executed. This puts a duty on the president and the executive branch to enforce the laws even when the president disagrees with their purpose. Courts have construed this as vesting the executive branch with substantial discretion for choosing when and how to prosecute cases

Question 57

What is the president the commander-in-chief of?

Answer 57

The army and navy and the militia of the several states

Question 58

What are the president’s military powers?

Answer 58

He has the power to deployed military forces without a formal declaration of war in response to an attack on the United States.

He also has the power to seize private property during wartime unless Congress denies him that power

He does not have the power to declare war

Question 59

Does the president have the power to commit troops to repel a sudden attack on the United States?

Answer 59

Yes. It is unclear if he has power to commit forces without congressional approval to aid a US ally that is under attack as well as whether he can order a preemptive strike in anticipation of an enemy attack

Question 60

How are treaties treated if they conflict with state law at or if they conflict with federal law?

Answer 60

– state law: the treaty takes precedence over any conflicting state law regardless of whether the treaty preceded or followed the enactment of the state law
– federal: time determines the controlling authority. The last in time prevails

Question 61

If the president enters into an executive agreement or compact with a foreign nation that is inconsistent with state law or Fed law, which prevails?

Answer 61

• State law: The executive agreement prevails

- Federal law: the federal statute prevails

Question 62

Who has the sole responsibility for executive agreements?

Answer 62

The president

Question 63

Do executive agreements need to be ratified by Congress?

Answer 63

No

Question 64

If a treaty conflicts with the constitution, a federal law, or a state law, what happens?

Answer 64

– Constitution: constitution prevails
– federal law: last in time prevails
– state law: treaty prevails

Question 65

If an executive agreement conflicts with the constitution, federal law, or state law, what happens?

Answer 65

– Constitution: constitution prevails
– federal law: the conflicting federal statute prevails
– state law: executive agreement prevails

Question 66

What are congressional limits on the executive regarding foreign affairs?

Answer 66

If Congress is acting within its constitutional powers, it can block the president from acting

Question 67

What are the kinds of things that the president, vice president, or civil officers of the United States can be impeached for?

Answer 67

Conviction of treason, bribery, or other high crimes and misdemeanours

Question 68

Who has the sole impeachment power?

Answer 68

The House of Representatives, while the Senate has the sole power to try impeachments. A 2/3 vote in the Senate is required for conviction

Question 69

Why is a legislative veto considered to be unconstitutional?

Answer 69

This occurs when Congress enacted a law that has a provision that says that Congress can change the law without a new congressional vote or presidential signature. The Supreme Court said this is unconstitutional because a legislative veto violates bicameralism and presentment

Question 70

Congress has often delegated to the executive branch the authority to make rules that have the power of law. What are some agencies that have this Rulemaking Power?

Answer 70

– The department of health
– education
– welfare
– the EPA
– the nuclear regulatory commission

Question 71

What is involved in the appropriations Power?

Answer 71

When Congress by legislative act explicitly directs the president to spend appropriated money, the president has no power to impound these funds. This means he cannot refuse to spend them or delay spending them

Question 72

What is the pyramid of Power regarding US law?

Answer 72

- US Constitution
– treaties and federal statutes
– executive orders and agreements
– state constitution
– state law and ordinances