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Flashcards in Separation of Powers Deck (20):

What powers does Congress have?

1. Enumerated powers
2. Enabling Clauses
3. Necessary and proper clause


what is the commerce power?

Congress can regulate:
1. channels of interstate commerce;
2. instrumentalities of interstate commerce; and
3. Activities that substantially affect interstate commerce.

To have substantial affects (affectation doctrine), the regulated activity must be economic in nature and have substantial affects on interstate commerce.

The cumulative effect doctrine is where an intrastate activity would have a substantial effect if they were put all together.

Congress cannot use the commerce power to regulate intrastate non-economic activity. However, Congress can touch it if it is part of a comprehensive scheme that is about interstate commerce.


What is the taxing power?

Congress has the power to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare.

It is a tax if:
1. it raises revenue (objective test);
2. it was intended to raise revenue (subjective test); or
3. Congress has the power to regulate the activity taxed (regulatory test).


What is the spending power?

Congress has the pay the debts and provide for the common defense and general welfare.

Under this power, Congress may place a condition on the receipt of federal funds by a state if:
1. the spending serves the general welfare;
2. the condition is unambiguous;
3. the condition relates to the federal program;
4. the state is not required to undertake unconstitutional action; and
5. the amount in question is not so great as to be considered coercive.


What is the war and defense power?

Congress may:
1. declare war;
2. raise and support Armies;
3. provide and maintain a navy; and
4. organize, arm, discipline, and call forth a militia.

This is a broad authority to initiate whatever measures it deems necessary to provide for the national defense, in peacetime or wartime.


What is the investigatory power?

The Necessary and Proper Clause permits Congress to conduct investigations incident to its legislative power.

This is a broad power and may extend to any matter within a legitimate legislative sphere.

Congress has the power to call a witness and compel testimony subject to the privilege against self-incrimination, due process clause and first amendment.


What is the property power?

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


What is the power of eminent domain?

Although the Constitution does not expressly give Congress the power of eminent domain, the power to take property is implied in aid of the other powers granted to the federal government.

It must be taken for public use and for just compensation.


What is the admiralty and maritime power?

The Necessary and Proper Clause gives Congress complete and plenary power to fix and determine the maritime laws throughout the country.


What is the bankruptcy power?

Congress has the power to establish uniform laws on the subject of bankruptcies.


What is the postal power?

Congress may establish post offices and post roads.


What is the copyright and patent power?

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.


What is the speech and debate power?

This clause protects members from punishment either civilly or criminally for legislative acts.


What are the Civil War Amendments?

Congress has the power to enforce:
1. the 13th Amendment, banning slavery for both private individuals and states;
2. the 14th Amendment, prohibiting states from violating protections regarding due process, equal protection, and privileges and immunities and
3. the 15th Amendment, prohibiting states from discriminating in voting rights with respect to race.

To validly enforce, Congress must show that:
1. state governments have engaged in widespread violations of the amendment; and
2. the legislative remedy is congruent with and proportional to the violations.

Through these, Congress can overcome sovereign immunity.


What is the delegation of power?

Congress can create an executive agency and give the agency legislative power over state laws.

The power must have some intelligible principle that guides the agency.


What are the roles of the executive?

1. Chief executive;
2. Commander-in-chief; and
3. International affairs.


What are the executive powers?

1. Appointment power - Art. II gives the president the power with advice and consent of the Senate to nominate and appoint all ambassadors, other public ministers and consuls, judges, and all other officers. Congress can delegate the appointment of inferior officers to: the president, judiciary, or heads of departments.

2. Removal power - For executive officials, the president can remove without cause. For executive officials for fixed terms/quasi-judicial, the president can remove only for cause. For federal judges, the president cannot remove, only impeach.

3. Veto power - The president has 10 days to sign or veto a bill. Unless he vetoes in 10 days, it automatically becomes law. A pocket veto is when the bill is sent within 10 days of the end of the session. Congress can override a veto with two-thirds vote.

4. Pardon power - The president can pardon only for crimes against the United States. Cannot for state crimes or civil cases or impeachment.

5. Executive privilege - The president has an absolute privilege to refuse to disclose information relating to military, diplomatic, or sensitive national security secrets.

6. Military powers - The president has the power to wage war, including repelling attack or responding to it. He is charged with tactical decisions, but Congress can make laws otherwise.

7. Treaty powers - The president has the power to make treaties with the consent of the Senate. Treaties have the same status as federal law.

8. Executive agreements - The president has the power to enter into executive agreements and compacts with foreign nations. They prevail over inconsistent state law, not over federal law.


What are the congressional limits on the executive?

1. Foreign affairs - If Congress is acting within its congressional powers, Congress may block the president from acting.

2. Impeachment power - Congress can remove the president from office through impeachment. The House has the power to impeach. The Senate has the power to try impeachments.

3. Legislative veto - Congress may not change a provision in a law without bicameralism and presentment/signature.

4. Investigative power - Congress can conduct investigations.

5. Delegation to Executive

6. Appropriations power - Where Congress has expressly directed the President to spend money, the president cannot impound the funds.


What are presidential limits on Congress?

Every act of Congress must be approved and signed by the president, or if not signed, must be passed by two-thirds vote.

Pardon power can be used to pardon those who violate a law that the president disagrees with.


What are the judicial limits on Congress and the executive?

The judiciary is the ultimate arbiter of cases whose disposition depends upon construction of the Constitution, an act of Congress, or a federal treaty.