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Flashcards in Separation of Powers Deck (38)
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1
Q

What are the sources of Congressional power in the Constitution?

A
  1. Enumerated powers (Article I, Section 8)
  2. Implied Powers
    • Necessary and Proper Clause (Article I, Section 8)
    • Taxing and Spending Power (Article I, Section 8, Clause 1)
    • Commerce Clause (Article I, Section 8, Clause 3)
2
Q

Does Congress have federal police power to promote the general welfare of the states?

A

No, will almost always be the wrong answer on the MBE.

3
Q

Define

Necessary and Proper Clause

A

Allows Congress to enact any legislation necessary to carry out its enumerated powers

⚠️ Not an independent source of power, only to be used in conjunction with an express Congressional power. Never pick this as a free-standing power of Congress on the MBE.

4
Q

What does the Commerce Clause give Congress the authority to regulate?

A

Two broad categories:

  1. Interstate commerce:
    • Channels (highways, waterways);
    • Instrumentalities (cars, ships, trucks, airplanes);
    • Articles moving in interstate commerce; and
    • Activities that substantially affect interstate commerce
  2. Intrastate commerce:
    • Economic activities: must substantially affect commercial activity in the aggregate
    • Non-economic activities: must substantially and directly affect commercial activity (higher burden)

More info: Commerce Clause

5
Q

What does commerce mean?

A

The word is not explicitly defined in the Constitution, but has generally come to mean the majority of activities between two states (e.g. TV, radio, traffic, crops, marijuana, etc).

15 U.S.C. §1127 defines commerce as the “the exchanging, buying, or selling of things having economic value between two or more entities, for example goods, services, and money.”

6
Q

What is Congress’s tax power?

A

General Welfare Clause gives Congress the power to lay and collect taxes (on income from any source), as well as duties, imposts, and excises, for any public purpose. (Article I, Section 8).

Government has no burden to show compelling purpose for the tax.

7
Q

What is the only requirement for a general tax to be valid?

A

Must raise revenue

8
Q

Can Congress regulate via its taxing power?

A

Yes, a tax can be used to achieve a regulatory purpose as long as the tax is reasonably related to raising revenue (low burden).

9
Q

Define

indirect tax

A

Tax that is paid by a consumer to a business or intermediary, who then pays the tax to the government (e.g. import duties, sales tax, cigarette tax)

10
Q

What is required for an indirect tax to be valid?

A

must be geographically uniform in every state in which it exists

⚠️ Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist

11
Q

What is required for direct tax to be valid?

A

Must be evenly apportioned among the states according to population

12
Q

Define

Export Taxation Clause

A

Prohibits Congress from taxing goods exported to foreign countries

13
Q

What is Congress’s spending power under Article I, Section 8?

A

Power to “pay the debts and provide for the common defense and general welfare of the United States”

14
Q

Can Congress regulate via its spending power (i.e. place conditions on funding)?

A

Yes, but the conditions:

  1. Must be related to the general welfare;
  2. Expressly stated; and
  3. Not going to coerce the states into unconstitutional behavior
15
Q

Can Congress pass laws under the General Welfare Clause that are not related to taxing or spending?

A

No; Congress only has the power to promote the general welfare via its taxing and spending power

16
Q

Can Congress increase tarrifs on imports?

A

Yes, via its power to regulate international commerce in Article I, Section 8

17
Q

What are Congress’s war and defense powers?

A
  1. Declare war;
  2. Raise and maintain armies, navy, and a militia; and
  3. Establish military courts and rules governing military

⭐️ Extremely broad power: allows Congress to take whatever action is necessary to provide for the national defense

18
Q

Can Congress enact rent control measures on civilians during wartime or the post-war period?

A

Yes, pursuant to war powers under Article I, Section 8

19
Q

When does Congress have the power to authorize the President to call National Guard?

A

To execute federal laws; suppress insurrections; or repel invasions

20
Q

Can Congress authorize the President to call the National Guard in domestic and non-emergency situations?

A

Yes

21
Q

Does Congressional authorization of the National Guard require approval of the state governor?

A

No, and the governor cannot veto Congressional authorization

22
Q

What is Congress’s plenary power over aliens?

A

Power to admit or exclude aliens for any reason from entering the country

⭐️ Since this is a sovereign power, federal alienage classifications will likely be upheld as long as they aren’t arbitrary

23
Q

What are Congress’s naturalization powers?

A

Can establish “uniform rule of naturalization” under Article 1, Section 8, Clause 4

24
Q

Can Congress take away a citizen’s citizenship without their consent?

A

No, unless citizen either:

  • Obtained citizenship through fraud;
  • Refused to testify before Congress; or
  • Was a member of a subversive organization within five years of becoming a citizen
25
Q

Define

Enclave Clause

A

Gives Congress police and regulatory powers over the District of Columbia (Article I, Section 8, Clause 17)

26
Q

What is Congress’s investigatory power?

A

Power to investigate anything in a “legitimate legislative sphere” via the Necessary and Proper Clause

27
Q

What is Congress’s property power?

A

Power to regulate, buy, and sell federal property

28
Q

What is the Speech or Debate Clause?

A

Provides immunity to members of Congress and their Congressional aides for actions related to their legislative duties

29
Q

What are the Enabling Clauses in the 13th, 14th, and 15th Amendments?

A

Gives Congress the power to enforce the 13th, 14th, and 15th Amendments via “appropriate legislation”

30
Q

What does the 13th Amendment ban and how can Congress enforce it?

A

Slavery.

Congress can enact legislation to prohibit discrimination by either the government or private actors that has “badges or incidents of slavery”

⭐️ This is one of only two amendments that apply to behavior by private individuals (the other is that private indivudals also may not restrict freedom of movement among the states)

31
Q

What is the 14th Amendment?

A

Prohibits the states from violating the Due Process Clause and Equal Protection Clause

32
Q

How can Congress enforce the 14th Amendment?

A

Congress has the power to override 11th Amendment state immunity and pass laws enforcing due process and equal protection as long as:

  1. Congress shows historical and widespread discrimination by the state; and
  2. Law is “congruent and proportional” to remedying discrimination
33
Q

What is the 15th Amendment?

A

Prohibits states and the federal government from denying voting rights based on “race, color, or previous condition of servitude”

34
Q

Define

legislative veto

A

Allows Congress to nullify an Executive Branch action. Ruled unconstitutional by INS v. Chadha (1983).

Ex. In INS, Congress used a legislative veto to invalidate a deportation authorized by the Attorney General.

35
Q

What is the 10th Amendment?

A

Holds that powers not delegated to the federal government, nor prohibited to the states, are reserved to the states.

Prohibits Congress from forcing states to enact federal regulatory programs (Anti-Comandeering Doctrine)

36
Q

Define

Anti-commandeering doctrine

A

Prohibits the federal government from “commandeering” state and local governments to enact and enforce federal regulatory programs (e.g. cannot require local officers to perform background checks for guns, see Printz v. U.S.)

37
Q

Can Congress delegate its powers to other branches?

A

Yes, Congress has broad authority to delegate regulatory powers to the executive branch or private agencies as long as Congress specifies an “intelligible principle” on which to base regulations. Very low bar, almost always upheld.

⚠️ Note: Congress cannot delegate its war or impeachment powers

38
Q

Can Congress pass employment anti-discrimination laws pursuant to its powers under the Commerce Clause?

A

Yes