Constitutional Law Foundations 2 - Legislative & Executive Power

Congress operates under limited powers, as defined by the Constitution. State governments can act unless there's a constitutional prohibition, while Congress needs explicit or implied permission to act.
Expressed Powers: Powers explicitly stated in the Constitution, such as declaring war, establishing a postal system, and regulating commerce.
Implied Powers: Powers not explicitly stated but considered necessary to execute expressed powers. Example: The power to govern US territories implies the power to acquire territory.

Allows Congress to enact laws necessary and proper for executing any power granted to any branch of the federal government.
The law must be rational and not explicitly forbidden.
Requires an underlying enumerated power to be valid.
Example: While the Constitution grants Congress the power to coin, borrow, and tax money, the creation of a national bank is an implied power under the Necessary and Proper Clause to manage these financial functions.

Congress has the power to tax and spend to promote the general welfare.
While Congress lacks broad police power, it can use spending measures for almost any purpose not explicitly forbidden by the Constitution.
Congress can attach conditions to federal funds given to encourage certain behaviors.

Congress can regulate:
- Channels of interstate commerce (e.g., highways, waterways, telephone lines, the Internet).
- Instrumentalities of interstate commerce (e.g., planes, trains, automobiles).
- Activities that substantially affect interstate commerce.
For activities with a substantial effect, the aggregate effect of everyone doing the activity can be considered if the activity is commercial or economic.
Example: In the 1930s, Congress regulated how much wheat farmers could grow for home consumption, arguing that the aggregate effect of many farmers growing their own wheat could impact the interstate wheat market.

The President is the Commander in Chief of US forces and can deploy troops without a declaration of war.
Congress can use its power over finances to check the President.
Conflicts (e.g., Korean and Afghanistan conflicts) did not involve a declaration of war by Congress.
Treaties: The President can enter into treaties with the advice and consent of two-thirds of the Senate. Treaties are the supreme law of the land but cannot violate the Constitution. If there's a conflict between a treaty and federal law, the most recent one prevails.
Executive Agreements: The President can enter into executive agreements with foreign countries without Senate consent. These agreements are also the supreme law of the land but cannot conflict with treaties or federal laws.

Take Care Clause: Mandates that the President execute the laws.
***The President can appoint ambassadors, Supreme Court justices, and officers of the United States, but Congress can allow the President, the courts, or the heads of departments to appoint inferior officers. Congress cannot give itself this power.

The President can remove high-level, purely executive officers (cabinet members) at will.
Congress can place some limits on the appointment and removal of lower-level officers (worker bees).
Congress cannot give itself the power to remove an executive officer, except through impeachment.

A bill must be passed by Congress and signed by the President to become law.
If the President vetoes a bill, it can still become law if approved by at least two-thirds of each house of Congress.

If the President doesn't act within ten days of receiving a bill:
- It automatically becomes law if Congress is in session.
- It's automatically vetoed (pocket veto) if Congress isn't in session.
There's no line-item veto power.

When the President issues an order with the express or implied consent of Congress, it's likely to be upheld.
When the President issues an order against the express will of Congress, it's likely to be found invalid.
When the President issues an order and Congress is silent on the matter, it's likely to be upheld unless it usurps another branch's powers or prevents another branch from doing its job.

The President must take care to faithfully execute the laws and cannot refuse to spend funds in the manner Congress has expressly mandated.

A majority of the House must call for an impeachment trial.
The Senate hears the case, and the President can be removed from office if at least two-thirds of senators vote for removal.

Presidential documents and conversations are presumptively privileged, but the privilege can be set aside for reasons such as national security or to serve the needs of the criminal justice system.
The President has absolute immunity from civil liability for any action taken while President if it falls within the President's official duties.