The Separation of Powers Flashcards
(14 cards)
The Powers of Congress
Taxing Power
Congress has the power to tax if rationally related to raising revenue and has the power to spend for the general welfare. Congress can tax to regulate or prohibit behavior so long as it raises revenue, but it cannot tax something Congress cannot regulate directly, cannot tax reports, and cannot tax violations of a state liquor law.
The Powers of Congress
Spending Power
Congress may spend to “provide for the common defense and general welfare.” This spending may be for any public purpose—not merely the accomplishment of other enumerated powers. However, nonspending regulations are not authorized. Remember that the Bill of Rights still applies to this power; i.e., the federal government could not condition welfare payments on an agreement not to criticize government policies.
Note that Congress can use its spending power to “regulate” areas, even where it otherwise has no power to regulate the area, by requiring entities that accept government money to act in a certain manner (i.e., attaching “strings” to government grants).
The Powers of Congress
The Commerce Clause
The Commerce Clause covers (and allows Congress to regulate) channels (commercial goods), instrumentalities (trains, cars, roads, Internet), and intrastate activity with a substantial effect on Interstate Commerce, in which Congress must have a rational basis to conclude that the aggregation or class of activities in which the activity is included would have a substantial effect on interstate commerce. In other words, if the activity could have a “substantial effect” on the “class” of activities and therefore come within the scope of Congress’ power to regulate interstate commerce, the aggregation principle has taken effect.
Article I, §8 states, “The Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
States regulate the commerce within their own state lines. And remember, Congress can regulate economic things that not only move across state lines, but pretty much anything that has a “substantial effect” on interstate commerce.
Congress CANNOT regulate: non-economic activity, something that has “no secondary market,” purely local matters which involve no economic activity, or other things like bringing guns to school and gender-based violent crimes.
The Powers of Congress
War, Defense, and Foreign Affairs Powers
Congress has the power to declare war and the power to maintain the army/navy and the power to provide for military discipline of US military personnel. Congress can provide for military trial of enemy combatants and enemy civilians, but Congress cannot provide for military trial of US citizens who are civilians.
The Powers of Congress
Power To Enforce the 13th, 14th, and 15th Amendments
Under the 13A, Congress has broad power to legislate against racial discrimination, whether public or private, and the key is that the 13A can regulate private discrimination, “vestiges of slavery.” Under the 14A, Congress has the power to remedy violations of individual rights by the government, but only as those rights have been defined by the courts. Under the 15A, Congress has the power to ensure there is no racial discrimination in voting.
For the 14A, to be properly remedial, legislation must have “congruence” and “proportionality.”
The Powers of Congress
Other Powers
Congress has the power to deny or confirm presidential appointments. Admiral and maritime powers, property power, investigatory power, postal power, copyright and patent power, power to coin money, power to impeach, and the power to delegate powers.
Commandeering?
The Powers of the President
As Chief Executive, Including the “Take Care” Clause
The President, as the chief executive officer of the U.S. government, has authority to direct the actions of federal executive agencies, so long as the President’s directives are not inconsistent with an act of Congress.
The Powers of the President
As Commander In Chief
The President is Commander In Chief, meaning he may take military actions without Congress. He may not declare war though; only Congress can do that.
BARBRI: The President may act militarily under his power as commander in chief of the armed forces and militia (when federalized), under Article II, Section 2, in actual hostilities against the United States without a congressional declaration of war. But Congress may limit the President under its power to enact a military appropriation every two years. (A military appropriation may not be for more than two years.)
The Powers of the President
Treaty and Foreign Affairs Powers
The President’s foreign powers consist of the power to act as Commander in Chief, negotiate treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate, and enter into executive agreements with foreign nations without approval of the Senate. The power to recognize foreign states lies exclusively with the president.
The President’s power to represent and act for the United States in day-to-day foreign relations is paramount. He has the power to appoint and receive ambassadors and make treaties (with the advice and consent of the Senate), and to enter into executive agreements. His power is broad even as to foreign affairs that require congressional consent.
The Powers of the President
Appointment and Removal Of Officials
The President has the power to appoint federal judges, ambassadors, and other principal officers of the United States, with the advice and consent of the Senate. The President may also remove executive officials without cause, at will, unless Congress limits removal for “good cause.”
Federal Interbreach Relationships
Congressional Limits on the Executive
To prevent the abuse of power, the executive, legislative, and judicial functions of government are separated and none of the three branches of government has unfettered power in its own sphere. Article 1 establishes the Legislative Branch, which consists of Congress, which is responsible for creating laws. Article 2 establishes the Executive Branch, which consist of the President, who approve and carries out the laws. Article 3 of establishes the Judicial Branch, which consists of the United States Supreme Court.
Federal Interbreach Relationships
The Presentment Requirement and the President’s Power to Veto to or Withhold Action
Congress may legislate only if there is bicameralism, passage by both the House and the Senate, and presentment, giving the bill to the president to sign or veto. The President can veto a law (but this can be overridden by a 2/3 majority vote by Congress). A line item veto (crossing out certain portions of the bill that the President does not approve of) is not permitted.
Federal Interbreach Relationships
Nondelegation Doctrine
As a general rule, the nondelegation doctrine prohibits the Legislative Branch from delegating its lawmaking responsibilities to administrative agencies. Congress can, however, provide agencies with regulatory guidelines if it provides them with an intelligible principle to base their regulations on.
Federal Interbreach Relationships
Executive, Legislative, and Judicial Immunities
The President is absolutely immune from civil suits for damages for any official acts as President (but not purely for personal or pre-presidential acts).
