Executive Power
What Is justice jacksons 3 categories from youngstown
1. congress authorizes (implicity or expressly)
2. congress is silent
3. Congress says no (for the pres to win he must have a constitutional power that says he can do X)
What are the two sub issues under article 1 for congress to delegate their power to another branch?
1. intelligible principal --> low standard aka a goal.
2. major question doctrine --> must be clear.
What is the takeaway from marbury v madison?
the court is the supreme interpreter of the constitution.
What is federalism?
the relationship between the states and the federal government
What is preemption and the 4 types?
state and federal law regulate the same conduct.
1. expressed: direct from statute
2. direct conflict: impossibility to comply with both
3. field: federal law so comprehensive that it occupies the whole field
4. obstacle: impledes a purpose of federal law
When can a president settle claims in foreign affairs via executive orders?
1. where the settlement of claims is necessary for the resolution of a major policy dispute between the US and another country
2. congress consents (quietly) (narrow)
How can congress make a law?
1. bicameralism (goes through both houses)
2. presentment (presented to the president for signature/veto)
What are the limits of what the court can hear?
1. is it textually demostrable that its decision belongs to a different branch?
2. lack of judicially discoverable standard for resolving it
What are the state law and federal law challenges?
state: preemption, dormant commerce clause, and orivileges and immunitiies clause
federal: enumerated powers, clear statement rule, anti-commanderring, and state sovereign immunity.
what are the 3 types of (DCC) discrimination
1. facial
2. disguised
3. undue burden
If the president is exercising a joint power without congress will she lose?
yes, possibly. Its a joint power for a reason.
Under article 2 sec 2, the president gets to appoint officers with the advice and consent of the senate. What are the 2 exceptions?
1. congress can pass a statute allowing the president, courts, or heads of departments appoint inferior officers
2. recess appointments (aka congress is our of session)
What is the lujan test for standing?
1. suffered an injury (actual/imminent)
2. causation: causally traceable to the challenged action and not the result of something else
3. repressibility: the decision would redress the injury
What are the 3 test under the commerce clause?
1. substantial effect test
2. aggregate basis test
3. rational basis test
What are the 2 types of restrictions of free speech?
content based --> what is being said. this is subject to strict scrutiny
content neutral:
When does a president have or not have immunity? (bonus if you can name the cases for each-100 pts)
(civil) officials acts during office --> absolute immunity (fitzgerald)
(criminal) official acts during office --> absolute immunity when president has exclusive power (trump)
(civil) Unofficial acts -->not immume (jones)
(criminal) unofficial acts --> not immume (probs) (trump)
1. can congress remove officers?
2. can congress limit a presidents removal power?
1. only by impeachment
2. yes, for inferior officers, and for boards
What is mootness and ripeness?
mootness: cannot be something that isnt an issue anymore
ripeness: cannot be something that isnt an issue yet
How do you distinguish a tax from a penalty?
tax: burden, mens rea, agency, intent (BAMI)
-- must raise revenue for something but can have secondary effects
Penalty: so high that the state would have no other choice but to follow it. Gun to the head (NFIB)
What are the exceptions to free spech?
1. obscenity
2. fighting words
3. defamation
4. hostile audiences
5. incitement
When does is a president required to produce documents for a trial/hearing?
the courts do a balancing test.
What counts as a superior officer?
they have specific duties, subject o removal, and limited tenure
Describe your favorite judicial powers case
(yay)
What are the limits of congressional spending?
1. must be for the general welfare?
2. connot violate another constituional provision
3. unambigous
4. funding and conditions must be reasonable
5. can encourage states to accept but cannot be coercive (like this is your only option)
1. insults that don't contain meaningful ideas AND
2. are likely to provoke violence