Congressional & Executive Powers

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

1. 13A: abolishes slavery + involuntary servitude

2. 14A: Due Process + Equal Protection

3. 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:

1. Nonpartisan multimember agency with no executive power

2. 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.

1. Policy it seeks to advance

2. Agency carrying out policy

3. 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

1. Commander in Chief: but can’t declare war (Congress)

2. Chief Diplomat: executive agreements (non-binding, no approval required) + treaties (become law if ratified by supermajority)