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Commerce Clause
Congress can regulate the channels, instrumentalities, and any behavior that has a substantial effect on interstate commerce.
Substantial Effect: rational basis for concluding activity, in aggregate, would affect interstate commerce
Noneconomic Local Activity: no aggregation. Possessing gun by school + gender motivated violence noneconomic.
Taxing Clause
OK if rationally related to raising money + tax applied uniformly. May be imposed for any purpose except a tax on exports.
Spending Clause
May spend for any public purpose under the General Welfare Clause. Can incentivize behavior via funding conditions, but beware of commandeering.
Necessary & Proper Clause
May enact legislation necessary + proper to execute enumerated power (not used on its own).
Civil War Amendments
13A: abolishes slavery + involuntary servitude
14A: Due Process + Equal Protection
15A: cannot deny right to vote based on race (Voting Rights Act)
Other Congressional Powers
War
Establish post office
Non-citizens and naturalization process
Federal elections
But no national policing power
Veto
President has 10 days to sign or veto (but no line-item vetoing)
2/3s supermajority to overrule veto
Legislative Veto: Congress can’t reserve for itself the right to veto legislation
Appointment
Principal: President appoints all significant officers (w/ Senate approval)
Ambassador, Justice, Cabinet, Heads of Agencies
Inferior: can be appointed by department head, President, or federal courts if Congress so chooses. Congress creates offices, never officers.
ALJ, independent counsel, non-chief agency managers
Removal
Congress can create agency and protect head of agency from removal by President only if:
Nonpartisan multimember agency with no executive power
Lacks policymaking or administrative authority
Congress cannot enact multilayer protection: protecting officer under the supervision of another protected officer.
Impeachment
House impeaches by majority. Senate convicts by supermajority. Chief Justice presides.
Impoundment
If President fails to spend money when Congress has mandated allocation in a specific way.
Nondelegation Principle
Congress must provide intelligible principle to guide agency when delegating powers to it.
Policy it seeks to advance
Agency carrying out policy
Scope of agency’s authority
Immunities (Presidential & Legislative)
Executive Immunity: civil liability for official acts, but not for acts in private capacity or before becoming President
Executive Privilege: confidential info can be outweighed by demonstrated need
Judicial Immunity: for all judicial acts
Speech + Debate Clause: legislative immunity for federal legislators in course of regular legislative process
Does not apply to state legislators
Presidential Powers
Commander in Chief: but can’t declare war (Congress)
Chief Diplomat: executive agreements (non-binding, no approval required) + treaties (become law if ratified by supermajority)