Constitutional Law - Separation Of Powers

Front 1

For law to be constitutional:

Back 1

Federal law:
1. must come from a congressional power
2. no violation of some right

State law:
1. no violation of some right

Front 2

Congress has 3 sourcesof power to legislate

Back 2

1. Enumerated powers
--commerce, taxing, and spending

2. Enabling Clauses (13th - 15th Amendments)
--Congress may enforce this amendment by appropriate legislation

3. Necessary and Proper Clause
--Congress has the power to enact laws that are necessary and proper to carry into effect its other powers – “choice of means”
(If see this by itself, usually a wrong answer)

Front 3

Commerce Power

Back 3

Can regulate:
1. channels
2. instrumentalities

Front 4

Substantial Effect vs Cumulative Effect
(Commerce Power)

Back 4

Substantial Effect Test:
--Commerce causing substantial affect on interstate commerce in the aggregate

Limits:
1. Cannot use to regulate intrastate non-economic activity (Exception: comprehensive scheme)
--voluntary exchanges likely economic

2. commerce power cannot overcome state sovereign immunity

Cumulative Effect Test:
--If Congress regulates intrastate activity, look at the total of all similar actions for substantial affect

Front 5

Taxing Power

Back 5

16th Amendment

Congress can impose and collect taxes to pay debts spent for general welfare.

Three categories that get upheld:
1. if tax objectively raises revenue (objective)
2. if tax actually raises revenue (subjective)
3. regulatory taxing can be used to regulate behavior if Congress empowered to regulate

Front 6

Spending Power

Back 6

Article I, section 8, clause 1

Congress has the power to spend for the general welfare of the public.

Congress may place a condition on receipt of federal funds by a state if:
1. spending must serve general welfare
2. condition is unambiguous
3. ** must be related to the federal program
4. not an unconstitutional condition
5. cannot be coercive

Front 7

War and Defense Power

Back 7

Article I, section 8

4 powers of Congress:
1. declare war*
2. raise and support an army
3. can maintain a navy
4. can organize, call out, and maintain a militia (draft)
5. establish military courts

During war time:
1. draft
2. price controls (war and peacetime)
3. civilian exclusion--can confine citizens and exclude them from areas

Both citizens and non-citizens within the US or its territories get due process (include Guantanamo)

Front 8

Immigration and Naturalization

Back 8

Exists

Front 9

Investigatory Power

Back 9

Scope: any matter legislated by Congress

Can do:
--things necessary to facilitate investigation

Cannot:
--override rights (ex: 5th Amendment right to remain silent)

Front 10

Property Power

Back 10

Congress can regulate and dispose of federal property

When regulating territories, Congress is not limited to enumerated powers so can pass laws in those federal possessions.

Front 11

Power of Eminent Domain

Back 11

Implied (not enumerated)

Congress can take private property but must pay just compensation.

Front 12

Admiralty and Maritime Power

Back 12

The Necessary and Proper Clause lets Congress fix and determine maritime laws.

Front 13

Bankruptcy Power

Back 13

Congress has the power “to establish uniform laws on the subject of bankruptcies throughout the United States.”

Front 14

Postal Power

Back 14

Congress can establish post offices

Front 15

Copyright and Patent Power

Back 15

Give authors and inventors exclusive rights to their stuff

Front 16

Speech and Debate Clause*

Back 16

Deals with the protection of Congress.

Cannot punish legislator for anything said during debate on the house floor.

Front 17

Civil War Amendments

Back 17

Congress has enforcement power to enforce these amendments:
13th: slavery banned

14th: prohibits states from violating your due process, equal protection, and privileges and immunities (rational basis)

15th: bans race discrimination in voting

People CAN get money damages if violated (overcomes 11th Amendment - sovereignty)

Front 18

Enforcing Civil War Amendments

Back 18

1. only states, not private individuals (Exception: 13th Amendment says no person shall own slaves)

2. Congress has to show states are violating these laws

3. Congruent and proportional - remedy cannot go beyond what the amendment prohibited

Front 19

Delegation Power

Back 19

Agencies: Congress can create an agency and give it power to make rules with the force of law

Limit: need an intelligible principle guiding agency

Front 20

President's Powers
(Executive Powers)

Back 20

1. enforcing laws

2. appointment power - appoints with advice and consent of Senate or where delegation by Congress for inferior officers (anyone with superior)

3. Removal power -
a. executive officials: can remove "at-will"
b. federal judges: cannot remove
c. Congress cannot require approval to remove nor can it give itself the power to remove
d. Exception: special prosecutor investigating the President

Front 21

Veto Power
(Executive Power)

Back 21

Process: President has 10 days to sign or veto
--if does not act, treat as signed
--Exception: pocket veto (president gets bill and Congressional term expires before 10-day period is over--bill dies and cannot be overridden.

Congressional override: majority vote in House and Senate.

Line-item veto: unconstitutional

Legislative veto: unconstitutional

Front 22

Pardon Power
(Executive Power)

Back 22

President may grant pardons. Two limits:
1. only extends to offenses against the US
-- So not state law crimes or civil liability to any individual

2. cannot undo impeachment

Front 23

Executive Privilege

Back 23

Two types:
1. absolute privilege (re: national security secrets)

2. presumptive privilege (other confidential
communications between President and advisors)--rebuttable

Front 24

Commander-in-Chief
(Executive Powers)

Back 24

Military powers

President cannot unilaterally declare war.

President can:
--respond to attacks; or
--if Congress and President differ in opinion, President's word prevails only in battlefield tactical decisions

Front 25

International Affairs
(Executive Powers)

Back 25

Two types:
1. treaty
2. executive agreements

Front 26

Treaty
(International affairs - Executive Powers)

Back 26

President + Senate makes treaties.

Need 2/3 Senate vote.

Equal to federal statute.

Conflicts:
--Treaty prevails over earlier federal law.
--Treaty always trumps state law

Front 27

Executive Agreement
(International affairs - Executive Powers)

Back 27

President can enter into executive agreements with foreign nations

Does not be ratified by the Senate.

Conflicts:
--Federal law trumps executive agreement.
--Executive agreements trump state law

Front 28

Congressional Limits on Executive

Back 28

1. If Congress is acting within its powers, Congress wins and can block the President from acting (President is not above the law)

2. Impeachment: Congress can remove President, federal judges, and federal officials from office
--House: indictment (majority)
--Senate: trial (2/3 vote conviction)

3 things can get you impeached:
1. treason
2. bribery
3. other high crimes and misdemeanors - anything Congress says (no appeal because it is a political question

3. Appropriation Power
--When Congress is specific about how the President should spend the money they give him, President cannot refuse or delay spending.

Front 29

Presidential Limits on Congress

Back 29

1. veto power

2. pardon power

Front 30

Judicial Limits on Congress and President

Back 30

1. decide cases

2. strike down laws

3. can enjoin executive action