ConLaw - Separation of Powers Flashcards
Powers of Congress
Can Congress tax and spend/appropriate?
Congress has the power to tax, and most taxes will be upheld if:
(1) They bear some reasonable relationship to revenue production for general welfare; OR
(2) Congress has the power to regulate the activity taxed.
a) Spending Power. Congress may spend to “provide for the common defense and general welfare.”
So if you see “general welfare” we are talking about the power to tax/spend; it sounds so ubiquitous and like a good answer choice, so make sure if you choose this answer choice (eg, because important to the general welfare) it has to do with tax/spending by Congress
Note: Spending may be for any public purpose (do not confuse this with a general police power – Congress has NO general police power).
Powers of Congress
What is the commerce power?
Anything about manufacturing, marketing, transportation of, etc. of “widgets”
Official language=channels of interstate commerce, instrumentalities/persons/things in interestate commerce, OR activities that have substantial effect on IC
Congress can pass any law regarding regulation of business, BOTH domestic and foreign
This is among its broadest powers
When on question and not sure what F’s are about, look for anything to do with business/widgets, and this is likely related to commerce clause.
When Congress attempts to regulate intrastate activity under the activities that have substantial effect on IC prong, the Court will uphold the regulation if:
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence):
(1) The regulation is of economic or commercial activity (e.g., growing wheat or medicinal marijuana even for personal consumption); AND
(2) The court can conceive of a rational basis on which Congress could conclude that the activity in aggregate substantially affects interstate commerce.
However, if the regulated intrastate activity is noneconomic and noncommercial (e.g., possessing a gun in a school zone or gender-motivated violence), the Court generally will not aggregate the effects and the regulation will be upheld only if Congress can show a direct substantial economic effect on interstate commerce, which it generally will not be able to do.
Powers of Congress
Who had the power to declare war?
Congress.
They have war power to declare war and do anything for general defense of country.
Powers of Congress
What is foreign affairs power?
Congress has the foreign affairs power
Tip: when question involves foreign countries and When in doubt, choose Congress, unless has to do with treaties, which is executive
Powers of Congress
Who has power over aliens?
Congress
Powers of Congress
Who has power to coin money?
Only Congress.
Powers of Congress
Who has power over federal property/land?
Federal parks/property, Washington DC, federal monuments, etc, Congress has exclusive power
Powers of Congress
Can Congress delgate their powers?
less than 1%
Yes, Legislative power may generally be delegated to the executive or judicial branch provided that:
(1) Intelligible standards are set to guide the delegation; AND
(2) The power is NOT uniquely confined to Congress (e.g., power to declare war).
When Congress delegates authority to another branch, may Congress require the agency to report to it?
Yes, nothing wrong with Congress requiring an agency to report to due to its power under the necessary and proper clause. But may not overturn an executive action, except by enacting a statute.
May Congress overturn an executive action? If so, how?
Yes, by enacting a statute.
That is, by (1) having both Houses vote to pass the statute, and (2) presenting the statute for the President’s signature or veto.
Powers of Congress
What is the necessary and proper clause?
This is usually a teaser/distracter and not the correct choice
Only applicable to executing one of their enumerated powers (tax, spend, declare war, etc.). So in question, make sure if you choose this as correct answer, it’s because the question is linking it to one of Congress’ powers.
NOTE. If a fact pattern creates a scenario where Congress passes a new law; you MUST discuss which enumerated power(s) gives them the ability to make that law (e.g., taxing power, spending power, commerce power, etc.).
What is Congress’ 13, 14, 15th amendment enforcement power?
Each of the 13th, 14th, and 15th Amendments (ban on slavery, equal protection and due process, and voting rights) contain a provision that authorizes Congress to pass** “appropriate legislation” to enforce the civil rights guaranteed by those Amendments.**
Executive (Presidential) Powers
What is the veto power?
Congress passes law; President can veto.
Note: Neither congress nor SC can veto, only the president
What is the procedure for vetoes?
Can prez go through and line item veto certain portions?
Procedure. Upon presentment of a bill, the President has 10 days to act. If the president signs the bill, it becomes law. If the President does nothing, the bill becomes law without the President’s signature so long as Congress is still in session at the end of the 10-day period. If the President vetoes the bill by sending it back with objections, Congress may override the veto and enact the bill into law by a two-thirds vote in each house.
No. Line Item Veto. The President may NOT exercise a line item veto (refusing part of a bill and approving the rest).
Executive (Presidential) Powers
What is the appointment power?
President has power to appoint ambassadors, justices/judges, and high cabinet positions with the advice and consent of Senate
President only one that can appoint those with executive/regulatory power, such as heads of cabinets
Congress, however, has the power to appoint commission/committee/panel members (as long as don’t have regulatory/executive power)
In these situations, both president and Congress can appoint members.
Executive (Presidential) Powers
Does president have removal power?
Yes, may remove any executive appointee without cause and without Senate approval, except in cases of federal judges (federal judges may only be removed by impeachment)
Executive (Presidential) Powers
What is the pardon power?
President has absolute pardon power, but only as to federal offenses and does not apply to impeachment situations
Prez can also reprieve federal offenses
Executive (Presidential) Powers
What is the president’s military power?
Does this include declarations of war?
As commander-in-chief, the president is the top authority over the military. (eg, can order troops to go from here to there; can seize property with military)
No, president does not have power to declare war.
Executive (Presidential) Powers
What is the treaty power?
President has the power to negotiate/enter into/sign treaties.
Note: once signed, treaty may onliy be ratified with concurrence of two-thirds of the Senate
Watch for hypo where treaty conflicts with federal law. “President enters into treaty with country’s law, which prevails?” The last-in-time prevails. If treaty passed last, this prevails over federal law, and vise versa.
Executive (Presidential) Powers
What is the removal power?
President has exclusive power to remove people from office?
Executive (Presidential) Powers
Executive order v Executive agreement
Executive ORDER = domestic
Executive AGREEMENT = foreign
Executive agreements include trade agreements
President can order both, but they cannot override/conflict with federal law (this would abrogate Congressional power).
Look out for hypothetical: Pres can declare this “cody g day” but CANNOT order it a national holiday and make everything shut down on that day (that’s a congressional power)
How do courts assess the scope of presidential powers?
Generally, courts will look at whether Congress has authorized president to act or spoken on the matter, and decide accordingly.
In order to determine whether the President’s actions are within the scope of his constitutional power, the court must consider the degree of congressional authorization the President is acting with:
(1) When the president is acting with the express or implied authorization of Congress, presidential authority is at its highest, and the action is strongly presumed to be valid.
(2) When Congress has not spoken, presidential authority is diminished, and the action is invalid if it interferes with the operations or power of another branch of government.
(3) When Congress has spoken to the contrary, presidential authority is at its lowest, and the action is likely invalid.
