Constitutional Law - Separation of Powers

Question 1

What are the enumerated and implied legislative powers vested in Congress?

Answer 1

1. Constitution grants Congress a number of specific powers enumerated in Article I, Section 8
2. Constitution grants Congress auxiliary power under (1) the Necessary and Proper Clause, (2) investigatory power to secure information as a basis for potential legislation and (3) admiralty power to legislate in maritime matters

Question 2

Is the law Within Congress’s implied powers?

Answer 2

1. Necessary and Proper Clause grants Congress the power to make all laws necessary and proper for carrying into execution any power granted to any branch of the federal government. For example, Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated powers to tax, borrow money, regulate commerce (McCulloch v. Maryland)
2. Investigatory Power: Power to investigate to secure information as a basis for potential legislation or other official action such as impeachment is a well-established implied power
3. Although congressional power to legislate in maritime matters is not expressed in the Constitution, the Supreme Court has implied it from the exclusive jurisdiction given the federal courts in this field by Article III, §2, supported by the Necessary and Proper Clause of Article I, §8

Question 3

Is the law Within Congress’s enumerated powers?

Answer 3

1. Taxing Powers: Congress has the power to lay and collect taxes, imposts, and excises, but they must be uniform throughout the US (Art. I, §8)
2. Spending Powers: Congress may spend to “provide for the common defence and general welfare” (Art. I, §8)
3. Commerce Powers: Congress is empowered to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (Art. I, §8, Clause 3)
4. War and Related Powers: Congress has the power to declare war, raise and support armies, provide for and maintain a navy, make rules for the government and regulation of the armed forces, and organize, arm, discipline, and call up the militia (Art. I, §8)
5. Property Powers: Congress has the power to to acquire and dispose of property of all kinds (Art. I, §3)
6. Postal Powers: Congress is empowered “to establish post offices and post roads” (Art. I, §8, Clause 7)
7. Powers Over Citizenship: Congress is empowered “to establish a uniform rule of naturalization” and has broad powers to exclude aliens (Art. I, §8, Clause 4)
   9.

Question 4

Does Congress have federal police powers?

Answer 4

Congress has no general police power such as the power to legislate for the health, welfare and morals of the citizens

Question 5

Can Congress delegate its legislative powers?

Answer 5

Subject to limitations, Congress has broad discretion to (1) delegate its legislative power to executive officers or administrative agencies (A.L.A. Schechter Poultry Corp) and (2) even delegation of rulemaking power to the courts has been upheld (Mistretta v. United States)

Question 6

What limitation applies to the delegation of legislative powers?

Answer 6

1. Power Cannot Be Uniquely Confined to Congress: To be delegable, the power must not be uniquely confined to Congress
2. Clear Standard: Delegation will be upheld only if it includes intelligible standards for the delegate to follow
3. Claims of Broad Delegation on Major Questions: Supreme Court has indicated that claims that Congress delegated broad power to adopt regulations having wide-sweeping economic and political significance will not automatically be upheld
4. Separation of Powers Limitations: While Congress has broad power to delegate, the separation of powers doctrine restricts Congress from keeping certain controls over certain delegates
5. Important Liberty Interests: If the delegate interferes with the exercise of a fundamental liberty or right, the burden falls upon the delegate to show that she has the power to prevent the exercise of the right, and her decision was in furtherance of that particular policy
6. Criminal vs. Civil Punishment: Legislature may delegate its authority to enact regulations, the violation of which are crimes, but prosecution for such violations must be left to the executive and judicial branches (United States v. Grimaud)

Question 7

Do federal legislators enjoy immunity?

Answer 7

Conduct of federal legislators that occurs in the regular course of the legislative process and the motivation behind that conduct are immune from prosecution pursuant to Speech or Debate Clause (Art. I, §6)

Question 8

What are the executive powers vested in the President?

Answer 8

Entire “executive power” is vested in the President by Article II, §1 of Constitution. Various executive functions may be and are delegated within the “executive branch” by (1) the President or (2) by Congress

Question 9

What are the executive powers over domestic matters?

Answer 9

1. Appointment and Removal of Officers: President is empowered to appoint officers with the advice and consent of the Senate (Art. II, §2). As to removal of appointees, the Constitution is silent except for ensuring tenure of all Article III judges “during good behaviour”
2. Pardons: President is empowered by Article II, §2, “to grant reprieves and pardons for offenses against the US except in cases of impeachment”
3. Veto Power: President has 10 days (excepting Sundays) to exercise his veto power unless the veto is overridden by two-thirds vote of each house (Art I, §7)
4. Best guide for determining the validity of presidential actions regarding internal affairs can be based on Justice Jackson’s opinion in Youngstown Sheet & Tube v. Sawyer

Question 10

What are the executive powers over external affairs?

Answer 10

1. War: Although lacking the power to declare or initiate a “formal” war, the President has extensive military powers including (1) acting militarily under his power as commander in chief of the armed forces under Article II, §2, in actual hostilities against the US without a congressional declaration of war and (2) establishment of military governments in occupied territories, including military tribunals
2. Foreign Relations: President has power (1) to appoint and receive ambassadors, (2) make treaties with the advice and consent of the Senate, and (3) to enter into executive agreements

Question 11

Does the President enjoy executive privilege?

Answer 11

Executive privilege extends to documents and conversations but must yield if court decides information needed in criminal case

Question 12

Who are subject to impeachment?

Answer 12

(1) President, (2) vice president, and (3) all U.S. civil officers may be impeached for treason, bribery, high crimes, and misdemeanours by majority vote of the House. Impeached persons are tried by Senate and conviction requires two-thirds vote of Senate