Pmbr Conlaw - Separation Of Powers

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Legislative Powers:

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Doctrine of Enumerated Powers: Only that authority which K confers upon. Powers not delegated to fed are retained by the states through X.

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Legislative Powers: State Police Power

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X is the home of the police power. Strong basis of power. One of two strong sources to uphold state legislation.

Can Health, Safety, Welfare, Morals, or aesthetics interest.

Look for rational basis language.

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Legislative Powers: Congress's express powers, necessary and proper clause

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Express powers are numerous, including commerce, tax and spend, war powers.

Also, necessary and proper: Not an independent source of power, so not a stand-alone answer. If in right answer, carries into execution other ennumerated powers.

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Legislative Powers: Enumerated Powers: Commerce Clause

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Plenary (second to none)

Can regulate any person or thing traveling from state to state. All you need to know are

1. Affectation doctrine: from Jones v. Loughlin Steel: Congress may regulate any activity with "substantial economic effect" on the stream of interstate commerce. By appropriate legislation, congress legislates as to non-commercial social welfare, civil rights, healthcare with substantial economic effect.

Cumulative Impact Doctrine - Even an entirely intrastate activity has a cumulative interstate commerce

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Legislative Powers: Enumerated Powers: Commerce Clause - Limitations on Affectation Doctrine:

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Lopez: Fed law making it fed crime for ind. to knowingly possess firearm in school zone. Xourt said went beyond commerce power - link between possession and interstate commerce was "too tenous." Jurisdictional hook would be required, didn't find one.

Cumulative Impact - Even an entirely intrastate activity has a cumulative interstate commerce.

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Legislative Powers: X

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"Powers not delegated to Fed are reserved to States."

Garcia - Fed Statute establishing Minimum wage and overtime provisions applying to all businesses of a certain size, state objected. Court struck down challenge, court found X not invalidated.

BUT X is a correct answer, strong source of power

New York vs. US - Congress passes law saying NY must pass legislation to arrange for disposal of waste created in its borders, otherwise take title to it. Rule: Congress may not commandeer the states to enforce a federal regulatory program. Court finds X does prevent congress from interfering with a state's lawmaking processes.

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Legislative Powers: Enumerated Powers: Taxing and Spending

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Federal Tax is valid if the "dominant intent" is fiscal. So, if it raises revenue, its ok.

Spending Power - OK for congress to make grants conditional upon something like the resignation of a state official, because Congress can regulate indirectly through appropriation where it cannot legislate directly.

General Welfare Clause - Not empowering clause, rather a limitation on taxing and spending power.

Look out for "Appropriations" term- Derive from taxing and spending power.

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Legislative Powers: Enumerated Powers: Delegation

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Congress can delegate its power to executive agencies, cabinet members, executive officers, and even the judiciary.

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Legislative Powers: Enumerated Powers: Delegation - Legislative Veto

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Congress cannot subsequently withdraw delegated power.

eg - congress passes law delegating to the sec. of st. the power to prohibit the importation of goods from japan, but included a provision by which congress can withdraw that delegation by 2/3 vote. This is unconsitutional, "legislative Veto

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Executive Powers: Art II - Power and Duty to Execute

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1. Power and obligation to faithfully execute the laws. Where congress appropriates x dollars to a law, president must faithfully execute it.

ex. pres cannot impose any limitations on currently enacted legislated expenditure.

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Executive Powers: Art II - Appointment

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2. Appointment Power - Can appoint purely execute officers (cabinet, ambassadors), court justices (with senate confirm), officers of the US (agency officers, administrative powers). Senate cannot establish an admin. agency and reserve the right to select members. Only the pres has this power. But congress can delegate the apointment of inferior officers, ie speical prosecutors, but can delegate this power to the judiciary, or the president.

3. Removal - May only remove purely exec. officials, but not justices or admin. officials, unless showing of good cause. Congress has no such power.

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Executive Powers: Art II - Legislative

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May veto leg., but veto overriden by 2/3 vote of congress

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Executive Powers: Art II - Pardon

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May pardon any offenses against the US, federal crimes only, not state crimes.

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Executive Powers: Art II - Executive Privilege

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Absolute as to military or diplomatic secrets, papers, convos, otherwise merely a qualified privilege, must yield to important gov't interest.

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Executive Powers: Art II - Immunity

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Absolute immunity to civil suit for money damages for actions while in office.

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Executive Powers: Art II - CIC

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Broad emergency powers, may deploy troops pports in occupied areas, even before the outbreak of war. Check and balance, cong. declares ware, raises and supports troops.

Pres has authority to deploy state militia to active fed. duty.

Implied power - may declare an end to war.

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Executive Powers: Art II - Foreign Affairs

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Pres. powers in foreign affairs are not "plenary,", but shared with congress.

#1 source of pres. power at foreign affairs is commander in chief. Then, treaty power, then congressional authorization: delegation by congress of its commerce power to the president.

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Heirarchy of Laws

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Heirarachy of laws (for conflict

1. Constitution (prevails over all

2. Treaty/Act of Congress (conflict between these two, most recent in time prevails)

3. Executive Agreement or Order
-Agreements are Informal means by which the pres may conduct day to day economic and business transactions with foreign countries, unlike a treaty, exec. agreement need not be ratified by the senate
-Order - domestic policy.

4. State Law

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Interbranch Checks and Balances:

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Congress>Pres. - Impeachment Power for high crimes- House has sole power, Senate has sole power to try the impeachment.

Congress>Pres. - Investigative Power - Can investigate any area over which it has jurisdiction, failure to comply can result in punishment such as contempt.

Speech and Debate - absolute immunity to members and their aids as to anything said while on the floor of either house. Does not apply to things said elsewhere, or to newsletters or press releases