Separation of Powers Flashcards
(45 cards)
What is an enumerated power?
A power explicitly given to Congress by US Const
TIP: congressional powers are other wise “implied” under Necessary and Proper Clause
May Congress impose a tax on an area w/in its enumerated regulatory powers?
YES
If congress has the authority to regulate a subject being affected by a tax, it is valid under the Necessary and Prop Clause
What is the scope of Congress’s spending power?
Congress may spend only to provide for the common defense and general welfare of the US
TIP: although Congress may spend in a way that provides for the common welfare, it does NOT have blanket authority to legislate or regulate for the general welfare
What are the 2 ways for Congress to impose a valid taxing measure?
Congress may impose a taxing measure if it either:
- has a primary purpose of raising revenue; OR
- is reasonably related to a valid regulatory power
TIP: courts may examine whether the tax does, in fact, raise revenue and whether the language and effect of the tax itself supports the intent to raise revenue
What are the four war and defense powers held by Congress
Congress has the power to:
- declare war
- raise and support armies
- provide for and maintain a navy; AND
- organize, arm, and nationalize state militia
TIP: these powers provide congress w/ broad authority during wartime
Is there a federal “police power”?
NO.
There is no federal police power and such authority is generally reserved to the states
TIP: this rule has M.I.L.D. exceptions: military, Indian reservations, federal lands, and DC
What are the 3 exceptions to the Speech and Debate Clause?
The Speech and Debate Clause does NOT protect legislators who:
- accept bribes;
- make speeches outside Congress; OR
- re-publish defamatory statements outside of Congress
TIP: This immunity does not extend to state legislators who are prosecuted for violating federal law
What is the scope of Congress’s powers over citizenship?
Congress has plenary (FULL) power over admitting, excluding, and deporting aliens
TIP: however, Congress may NOT take citizenship away from a citizen born or naturalized in the US
What is the purpose of the Speech and Debate Clause?
Federal legislators are both civilly and criminally immune for their actions during the regular course of the legislative process, regardless of motive
TIP: immunity extends to aids who commit acts which, if the legislator had performed them, would have been covered by immunity
What is a legislative veto?
Occurs when Congress repeals an action taken by the Prez or other executive agency
TIP: legislative vetoes are unconstitutional because they violate both bicameralism principles and presentment (giving the bill to prez to sign or veto)
What is the purpose of Article II of COnst?
defines the scope of the executive powers of the president
Article I purpose?
Congress’s legislative powers
What are the 5 main executive powers of the President?
Include:
- act as Commander-in-Chief
- appoint and remove important government positions
- veto an act of COngress
- negotiate treaties; AND
- grant pardons for federal crimes
What is executive privilege?
Permits the President to keep certain information and communications confidential, particularly those involving issues of national security
TIP: this privilege is NOT absolute and is subject to exceptions, such as important government interests in criminal cases
What is executive immunity?
Means the president is shielded from civil liability for any actions taken while acting in an official capacity
TIP: the president is NOT shielded from liability for actions taken prior to taking office
Who is subject to impeachment?
All civil US officers, including president
May Congress tax and regulate state and local governments?
YES.
When Congress properly exercises its taxing and regulatory powers over private entities, those taxes may also apply to state and local governments
TIP: the 10th amendment limits Congress’s authority to regulate states purely in the public arena
May states impose taxes or regulations on federal government activity?
NO.
Congress has the authority over state taxation or regulation of any federal activities or property
TIP: there are exceptions where, if Congress has NOT spoken, states may tax and regulate federal property or activities (eg, income taxes)
When may Congress NOT regulate purely intrastate commerce?
Congress may NOT regulate purely intrastate activity if the activity is NON-commercial, unless it can show a direct, substantial economic effect on interstate commerce
TIP: when the activity is non-commercial, Congress is unlikely to meet this standard
What is the scope of Congress’s commerce powers under Article I?
The Commerce Clause gives Congress plenary power “to regulate commerce among the several states,” as well as with foreign nations and Indian tribes
TIP: this has been interpreted to include “every species of commercial intercourse… which concerns more states than one” including essentially every activating involving two or more states
What is the legal standard for a “substantial economic effect” on interstate commerce?
A “substantial economic effect” exists where there is any conceivable rational basis to fin that the activity, in the aggregate, may substantially affect interstate commerce
For example, farmers growing corn for personal use, when take together, gives rise to a substantial economic effect on interstate commerce
TIP: the substantial economic effect does not need to come from the regulated activity alone, but that activity in conjunction with other activities
May Congress compel states to pass regulatory or legislative action?
NO.
The federal government may not compel states to pass certain regulations or laws
TIP: this is one of the limits imposed on the federal government by the 10th Amendment, to ensure that states retain their autonomy under the doctrine of “implied powers”
What is the purpose of the Property Clause?
Gives Congress the exclusive power to tax and regulate the property, employees, or accesss to federal property
TIP: states may not tax or regulate federal property, employees or access accept in limited contexts
What is the scope of congressional power to regulate the sale of alcohol?
Congress has the exclusive and supreme power over NON-local alcohol sales, including out-of-state and foreign transactions
TIP: Congress may also indirectly regulate alcohol distribution by imposing conditions on the receipt of federal funds
