Separation of Powers

Question 1

What is required for a Federal law to be Constitutional?

Answer 1

1. Legislating the area is within the rights of Congress +
2. The law violates no Constitutional rights.

Question 2

What is required for a state law to be Constitutional?

Answer 2

It cannot violate a Constitutional right.

Question 3

What are Congress’ three sources of power to legislate?

Answer 3

1. Enumerated powers;
2. Enabling Clauses;
3. Necessary and Proper Clause.

Question 4

Does Congress have Federal police power or power to promote general welfare?

Answer 4

Not generally, often the wrong answer on the MBE.

Question 5

What are the enumerated powers of Congress?

Answer 5

1. Commercel;
2. Taxing;
3. Spending.

Question 6

What is the scope of the enabling clauses of Congress?

Answer 6

The enabling clauses give Congress the power to enforce 13th, 14th, and 15th Amendments.

Question 7

What does the Necessary and Proper Clause allow Congress to do?

Answer 7

If Congress is pursuing some end, it can choose whatever means necessary pursue that end.

Question 8

What is the power of the Necessary and Proper Clause to legislate by itself?

Answer 8

It is generally not enough, it needs to be combined with another source of power.

Question 9

What does the commerce power allow for Congress to regulate?

Answer 9

1. Channels of interstate commerce (highways, waterways);
2. Instrumentalities of Interstate Commerce (cars, ships, trucks, airplanes);
3. Activities that “substantially effect interstate commerce.”

Question 10

What is the Cumulative Effects Doctrine?

Answer 10

A substantial effect on interstate commerce can be found when looking at how the sum of a specific action across a market effects commerce. To analyze, look at the cumulative effect of all actions of those similarly situated to see if there is substantial effect on interstate commerce.

More Info: Cumulative Effects Doctrine

Question 11

What does commerce power not allow Congress to regulate?

Answer 11

1. Cannot use the power to regulate intrastate **non-economic** activity; and,
2. Cannot use the power to overcome state sovereign immunity.
   * More Info:* Commerce Clause

Question 12

When can Congress regulate non-economic activity through the Commerce Clause?

Answer 12

When the regulation is the result of a comprehensive scheme.

Question 13

If Congress is regulating a private business, what is the source of their power?

Answer 13

The Commerce Power.

Question 14

When is a tax valid?

Answer 14

If the answer is yes to any one of the following:

1. The tax raise revenue;
2. If the tax was intended to raise revenue; or,
3. Is it being used as a regulatory device.

Question 15

On what does Congress have the power to spend?

Answer 15

Anything remotely related to the general welfare of the people

Question 16

Congress may place a condition on receipt of Federal funds by a state if what conditions are met?

Answer 16

1. Spending serves general welfare +
2. Condition on funds is unambiguous +
3. Condition on funds **relates** to Federal program spending +
4. The state is not required to break Constitution +
5. There cannot be coercion (no bright line rule).

Question 17

What is the key inquiry in determining the limits of Congress’ spending power?

Answer 17

Is the condition related to the spending?

More Info: Spending Power

Question 18

What are the war and defense powers of Congress in a time of peace?

Answer 18

1. Congress has power to declare war;
2. Congress has the power to raise and maintain Army (air force);
3. Congress has the power to raise and maintain a Navy;
4. Congress can raise a militia; and,
5. Establish military courts for US service members and enemy.

Question 19

What are Congress war and defense powers in a time of war?

Answer 19

Congress has the power to:

1. Declare a Draft;
2. Impose price controls;
3. Confine/Exclude civilians from an area

Question 20

What rights does a citizen or non-citizen suspected of terrorisim detained inside the US/Territories maintain?

Answer 20

They are entitled due process rights.

Question 21

What is Congress’ immigration and naturalization power?

Answer 21

Congress can control the law regarding immigaration and naturalization procedures.

Question 22

What does Congress’ investigatory power allow it to do?

Answer 22

Investigate anything related to any of its law making functions.

Question 23

What can Congress limits with investigatory power?

Answer 23

Congress cannot limit the rights of persons under investigation.

Question 24

What does Congress’ property power allow it to do?

Answer 24

Allows it to regulate, buy, and sell Federal property.

More Info: Property Power

Question 25

What is Congress' power of **eminent domain**?

Answer 25

Congress can take property for public use if they give just compensation.

Question 26

What does the **Speech and Debate Clause** prohibit?

Answer 26

Punishing any member of Congress for words spoken on the floor of the House or Senate.

Question 27

**13**th Amendment bans?

Answer 27

Slavery.

Question 28

**14**th Amendment bans?

Answer 28

States from violating the following clauses: 1. Due process; 2. Equal protection; 3. Privileges and immunities.

Question 29

**15**th Amendment bans?

Answer 29

Discrimination in voting based solely upon race.

Question 30

What are the **limitations** on Congress ability **enforce 13-15**th Amendments?

Answer 30

1. Can only enforce 14th and 15th against the states; 2. Congress has the burden of proving a violation; and, 3. The remedy Congress seeks has to be congruent and proportional to preventing a violation of 13-15th Amendment

Question 31

**14**th or **15**th Amendment legislation is only enforced against?

Answer 31

The states.

Question 32

How can a Congress **create** a **Federal Agency**?

Answer 32

By passing legislation that gives the agency some intelligible principle to guide the agency's actions.

Question 33

What are the **powers** of president as **Chief of the Executive Branch**?

Answer 33

1. Enforcement of Laws; 2. Appointment Power; 3. Removal Power.

Question 34

How are **high level** executive branch officials **appointed**?

Answer 34

Step 1. The president appoints; Step 2. Senate Confirms.

Question 35

**Who** can **appoint** executive branch **inferior officers**?

Answer 35

By default, president appoints, Senate confirms. However, any of the following can appoint: 1. The president; 2. The courts; 3. Heads of executive departments.

Question 36

Who is an **inferior officer** in the executive branch?

Answer 36

An officer who has a superior.

Question 37

What are the **limits** on president's **removal power**?

Answer 37

The president can remove executive officials at will and without cause; unless: 1. Congress sets a term on appointment, then they can only be removed for cause; 2. Judicial or quasi judicial officials can only be removed for cause; or, 3. Special prosecutor investigating the president cannot be remove.

Question 38

Can **Congress** **remove** an executive branch **official**?

Answer 38

No.

Question 39

How long does **president** have to **sign a bill approved** by both houses of Congress?

Answer 39

Once signed, president has **10 days** to sign.

Question 40

What happens if the **president does not sign a bill within 10 days** after Congress' approval?

Answer 40

If not signed, then by default treat as if signed. However, if not signed and the Congressional term ends before the date to sign, then it is treated as a pocket veto.

Question 41

If the president **vetoes a bill**, what can Congress do? What if the veto is a **pocket veto**?

Answer 41

Congress can overturn a veto with **2/3 majority vote** in house and Senate; however, a pocket never goes back for another vote.

Question 42

What is the validity of a **line-item veto**?

Answer 42

A line-item veto (the president approves part of the bill and removes part) is invalid because it lacks: 1. Bicameralism; and, 2. Presentment.

Question 43

What does **bicameralism** require?

Answer 43

The entirety of the bill needs to be presented to both houses.

Question 44

When does a **legislative veto** occur and what is the effect?

Answer 44

It occurs when a law is passed that allows modification after the president signs it without additional presenment. The effect is that the law becomes invalid for lack of presentment to the president.

Question 45

What are the **limits** on president's **pardon power**?

Answer 45

1. Only extends to Federal offenses against U.S. (≠state law, ≠civil claims); and, 2. Cannot be used to undo an impeachment and restore someone to office.

Question 46

When does the **executive absolute privilege** apply?

Answer 46

When the subjevct matter concerns national security secrets.

Question 47

When is the **executive privilege presumed**?

Answer 47

When the president engages in any sort of confidential communications.

Question 48

What are the **president's war powers** when Congress has **not declared war**?

Answer 48

The president can respond to attacks but cannot initiate wars.

Question 49

When is the **President's military authority** \> Congress'?

Answer 49

President has authority over military **tactical** decisions.

Question 50

If the president signs a **treaty** with another nation, what must happen before it becomes law?

Answer 50

The treaty must be ratified by a **2/3** vote of the **Senate**.

Question 51

If **treaties** and **Federal law conflict**, which has priority?

Answer 51

The one that was signed most recently prevails.

Question 52

If **treaty** and **state law conflict**, which has priority?

Answer 52

The treaty has priority over the sate law.

Question 53

If the president's enters into an **executive agreement**, the it must be **ratified** by Congress how?

Answer 53

It does not need to be ratified by Congress.

Question 54

If **executive agreement** and Federal **statute conflict**, which has priority?

Answer 54

The Federal statute.

Question 55

If **executive agreement** and **state law conflict**, which has priority?

Answer 55

The executive agreement.

Question 56

What **actions** can a president take with an **executive agreement**?

Answer 56

Enter into agreements with foreign governments.

Question 57

When are Congressional **limits** imposed on the **executive** valid?

Answer 57

If the law is valid, the the limit is valid.

Question 58

**Who** has the sole power to **impeach the president**? How?

Answer 58

The House of Representatives has the sole power to impeach by a majority vote.

Question 59

Who has the sole power to conduct a **presidential impeachment trial**? How?

Answer 59

The Senate holds a presidential impeachment trial and needs 2/3 vote to remove from office.

Question 60

Congress can **impeach** who?

Answer 60

Any Federal official.

Question 61

What can get a federal official **impeached**?

Answer 61

1. Treason; 2. Bribery; 3. Other high crimes and misdemeanors (anything Congress says).

Question 62

What is the **appeal** process for congressional **impeachment**?

Answer 62

There is none.

Question 63

What is the **effect** of **impeachment**?

Answer 63

Removal from office.

Question 64

When does Congress have the **power to regulate for the general welfare**.

Answer 64

Never, it is not a source of power for legislation.

Question 65

How can Congress **alter** the **U.S. Supreme Court's** jurisdiction?

Answer 65

Congress can expand or restrict the number and types of lower court decisions which the court may hear.

Question 66

A state mandating that all persons wishing to practice a **profession** must be **schooled in the state** and have lived in the state, will likely be held to be?

Answer 66

In violation of the commerce clause.

Question 67

When should a court **allow** a **State tax** in **violation** the **commerce clause**?

Answer 67

1. the tax is applied to an activity with a substantial nexus with the taxing state + 2. the tax is fairly apportioned + 3. the tax does not discriminate against interstate commerce + 4. the tax is fairly related to the services provided by the state

Question 68

What is **Congress**' power to **appoint members** of an **agency** or commission with administrative powers?

Answer 68

It cannot appoint officials to administrative offices, it can only approve nominations.