Legislative powers
What are legislative and line item vetos? Are they constitutional?
Legislative veto: when congress attempts to overturn or pass an executive action without bicameralism (passage by house and senate) or presentment (giving bill to the president to sign or veto the bill)
Line item veto: when a president attempts to veto part of the bill while signing the rest of the law
Both are unconstitutional
Does the president have personal authority to perform duties of other officers?
- Conflicting views, seems like predominate view is that president cannot perform/reform duties of other officers
- President may direct how officer’s duties are performed (AG Taney, Jewels opinion)
Whats a direct tax vs indirect tax? What are the requirements for each?
Direct
- must be apportioned
- must be uniformed
- EX. Poll taxes, real property taxes
Indirect
- must be uniform
- EX. excises, imposts and duties
What are the types of preemption
1. Express
2. Implied
2a. Field - fed takes over all of that field
2b. Conflict- fed and state laws in conflict
2bi. Impossible- not possible
2bii. Obstacle- most contested
How do courts determine if it is a political issue, not judicial?
Textual Assignment to another branch
Absence of Judicially manageable standard
When can congress delegate its power?
When there's a clear intelligible principle (by a legislative act) to which delegee is directed to conform
Gundy dissent:
- Congress makes the policy decisions about regulating private conduct but authorizes another branch to fill up the details
- Congress prescribes the rule governing private conduct but makes the application of the rule depend on executive fact-finding
- Congress may assign the executive and judicial branch with certain non-legislative responsibilities
When does the president need congressional authorization for war? What are his powers during war?
- Congressional authorization unless responding to sudden attack (comes from text)
- President is the Commander in Chief; Congressional authorization required only for military actions with significant “nature, scope, and duration” (Libya opinion)
POWERS
- Command of Military Forces
- Power to Confiscate enemy property
- Power to detain enemy combatants, including citizens
How do you determine if a person is an officer of the US or an inferior officer?
Officer of the US
-must have a continuing position (Lucia)
- Exercise significant authority pursuant to the laws of the US (Buckey)
Inferior
Two tests
1. Morrison
- Subject to removal by a higher executive office;
- Empowered to perform only certain limited duties
- Can only act within the scope of the jurisdiction that has been granted by higher executive official
- No ongoing responsibilities that extend beyond the accomplishment of the mission / what they are appointed for
2. Edmond
- Must have a superior other than the president
How does the necessary and proper clause play into legislative action? What are the factors in determining if Congress is exceeding the power of NPC?
- Congress can build out powers from enumerated powers that are “necessary and proper” to federal goals
- provide means for Congress to carry out Constitutionally permissible ends [ends are the constitutional provisions] for Congress
“broad authority” under the N&P Clause;
“modest addition” to past statutes;
“reasonabl[e]” extension of existing civil-commitment statutes;
“proper accounting for state interests”;
links with enumerated powers are “not too attenuated.”
Can the President or Congress ask the courts for advise on a law?
NO!!!!! (cases and controversies requirement) The court is not supposed to advise the president or legislature. There also must be adverse parties and a case and controversy to be heard by the court
When is a congressional subpoena valid? WB for president?
Valid subpoena: must serve a “valid legislative purpose” / “concern a subject on which legislation may be had”
Presidential subpoena: (1) asserted legislative purpose; (2) no broader than necessary; (3) evidence offered to justify the subpoena; and (4) burdens imposed on the President.
Can the president/execs choose which laws to enforce?
- Cannot just ignore a widely adopted policy or statute
- Enforcement of a law (or the decision not to) on a case-by-case basis is within executive authority
- The executive is allowed to prioritize enforcing certain cases over others based on general priority standards
How does impossibility preemption differ from obstacle preemption?
Impossibility: Compliance with both federal law and state regulation is a physical impossibility
Obstacle: State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress
What can congress regulate under the Commerce Clause? (post-Lopez framework)
- Regulation of “the use of the channels of interstate commerce”
- Regulation of “instrumentalities of interstate commerce” / “things or persons in interstate commerce”
- Regulation of activities that “substantially affect” interstate commerce
- Limited to “economic activity” / “essential part of a large regulation of economic activity”
What are the three elements of standing?
- A concrete and particularized injury (“injury in fact”)
- That is fairly traceable to the challenged conduct (causation), and
- Is likely to be redressed by a favorable judicial decision (redressability)
How does the president get funding for programs or positions?
Through congressional appropriation (power of the purse)
- Congress enacts a statute appropriating money from the treasury for a certain purpose
- need to appropriate authorization and funding
Where does the President's recognition power come from?
Reception Clause (receiving ambassadors)
What does the dormant commerce clause bar?
Bars states from
1. Discriminating against out-of-state commerce
2. Imposing burdens on interstate commerce that are “clearly excessive” in relation to the law’s “legitimate local purposes”
What can and can't the federal gov't compel state gov't to do?
Can
- Can obligate state courts to adjudicate federal-law claims and issues (Testa v. Katt)
Can't
- Cannot compel state legislative action (New York)
- Cannot compel state executive action (Printz)
- Cannot prohibit state legislation (Murphy)
The National AIDS Prevention and Control Act is a new, comprehensive federal statute that was enacted to deal with the public health crisis caused by HIV/AIDS. Congress and the President were concerned that inconsistent lower court rulings with respect to the constitutionality, interpretation, and application of the statute might adversely affect or delay its enforcement and, thereby, jeopardize the public health. As a result, they included a provision in the statute providing that all legal challenges concerning those matters may be initiated only by filing suit directly in the United States Supreme Court.
The provision authorizing direct review of the constitutionality, interpretation, or application of this statute only in the United States Supreme Court is
unconstitutional, because it is inconsistent with the specification in Article Ill of the original jurisdiction of the United States Supreme Court.
Can Congress appoint officers? What type? When can Congress remove officers?
APPOINTING
Congress approves officers of the US (President appoints) and can appoint inferior officers
Two inferior officer tests to determine if Congress can constitutionally appoint them:
Morrison
- removability
- limited duties
- limited jurisdiction
- limited tenure
Edmond/Arthrex
- must have a superior other than the president
REMOVING
Congress can remove officers through impeachment (can remove other congress members through expulsion for conduct during time in office, but congress members are not considered officers)
- Power to impeach President, VP, and all other civil officers for bribery, treason or other high crimes and misdemeanors.
What type of officer can the President appoint and when? When can he remove officers/what type?
APPOINTMENT
President can appoint “officers of the US”:
- Presidential nomination → Senate confirmation → presidential appointment
Two part test to "officer of US"
1. Continuing position
2. Exercise significant authority pursuant to the laws of the US
- Heads of departments (inferior officer) can be appointed by the President alone
Recess appointments OK for all vacant offices during a true recess (whether intra-session or inter-session)
REMOVAL
The president has sole power to remove executive officers at will, with TWO EXCEPTIONS:
1. Multimember expert agencies that do not wield substantial executive power (Humphrey's Executor v. US)
2. Inferior officers with limited duties and no policymaking/administrative functions (Morrison v. Olson)
- Congress can create a statute limiting removal to good cause
Does congress need a motive to implement a tax?
the primary motive must be revenue
- can be an incidental motive but if acts like a penalty = unconstitutional
What can congress spend money on?
the common defense and general welfare
Conditional grants to states are OK BUT it MUST BE:
- for the general welfare
- unambiguous
- germane to the funding’s purpose
- not independently unconstitutional
Suppose the EPA issues new regulations regarding greenhouse gas emissions that environmental groups feel are more permissive than applicable statutes allow. These groups feel the new regulations will unlawfully allow additional emissions that will incrementally contribute to global warming, with destructive effects for all humanity.
Will these groups or their members be able to sue in federal court to challenge the regulations?
No, to be able to sue the party must have standing. Three part test: Injury in fact, causation, redressibility. The party is lacking causation or injury in fact.