1.2 Key features of the US Constitution Flashcards
4
Describe Federalism
- System of ‘shared sovereignty’
- Federal and state governments have their own areas of powers
- Ensures that states’ rights are entrenched to account for differing cultures
- Limits both federal and state government
4
Where can federalism be seen in the constitution
- 10th amendment protects states’ rights
- Role of SC as arbiter between state and federal government
- Need for state approval in amendment process
- Equal representation of states in Senate
3
Describe an example of federalism working today
- Article I provides states the power to control how elections are ran
- 2021, 19 states passed laws to restrict voting laws
- 25 states passed laws to expand voting rights
3
Describe an example of federalism failing today
- Obergefell v Hodges (2015) effectively legalised same-sex marriage in all states
- This is despite 13 states ruling it illegal prior to the ruling
- SC rulings overly binding
4
Describe the separation of powers in the US constitution
- Division of power between 3 branches of government
- Each hold one article in Constitution
- Power exercised independently by each branch
- ‘inelligibility clause’
3
Describe the ‘inelligibility clause’
- Found in Article 1
- Forbids a person holding office in more than one branch at a time
- Prevents any one individual from gaining too much power
1
Describe an example of the separation of powers working today
- 2021, Kamala Harris gave up CA senate seat to take up VP role
2
Describe an example of the separation of powers not working today
- Paris Agreement of Climate change has not been put before Senate despite important consequences
- Climate policy largely left up to Presidents
4
Describe checks and balances
- The power of one branch of government to directly prevent the action of another
- All branches can do this
- Enforces limited government
- In practice, there are few ‘separate’ powers that can be exercised independently
1
Where are checks and balances found in the US Constitution
- Enumerated powers of each branch outlined in Article 1, 2, 3
7
List the checks by Congress on the President
- Write legislation
- Veto override
- Power of the purse
- Declare War
- Impeachment of President
- Ratify treaties (Senate only)
- Ratify appointments (Senate only)
2
Describe Congress writing legislation (Congress checks President)
- President’s State of Union Address outlines legislative agenda
- Congress can amend, delay or reject legislation proposed by the President
1
Give an example of how Congress checks the President by writing legislation
- Congress continually refused to fund Trump’s plans for a border wall
2
Describe veto override (Congress checks President)
- Congress can override presidential veto by 2/3 supermajority in both houses
- Supermajority difficult to achieve due to large bipartisan support required
2
Give examples of veto override
- Obama’s final veto of the Justice Against Sponsors of Terorism Act 2016 overridden - allowed continuation of longstanding civil lawsuit by families of 9/11 victims against Saudi government
- Trump’s veto on National Defence Authorisation Act (regarding defence budget) overriden with 81-13 majority in Senate
3
Describe the power of the purse (Congress checks President)
- Congress has sole right to raise taxes and spend
- Prevents President spending without consent of elected representatives
- ‘appropriation bills’
2
Give an example of power of the purse
- Trump proposed cutting Environemntal Protection Agency (EPA) budget by 1/3
- House Republicans proposed cutting budget by only 6%, despite being of same party
3
Describe ‘appropriation bills’
- bills dealing with tax and spending should originate in the House (Article 1)
- Failure to pass appropriation bills can lead to government shutdowns
- Consolidated Appropriations Act 2022, $1.5trn package with significant spending by Ukraine, passed with hours until deadline
1
Describe a limit to appropriation bills
- Senate holds right to amend and must approve these bills
4
Describe the declaration of war (Congress checks President)
- Congress the only branch that can declare war on another nation
- Less relevant today - war not declared
- Congress is now asked to authorise use of troops through AUMFs
- AUMF following 9/11 used by every subsequent president until 2021 repeal
AUMF - Authorisation for Use of Military Force
3
Describe impeachment powers (Congress checks President)
- House brings forward charges of impeachment against individual
- Simple majority required in House
- Formal trial in Senate and 2/3 supermajority needed for removal
2
Describe the ratification of treaties (Congress checks President)
- Treaties require 2/3 majority in Senate for ratification
- Senate may choose to not vote on a treaty
1
Give an example of the Senate ratifying a treaty
- START (Strategic Arms Reduction Treaty) 2010 passed Senate by 71-26
2
Describe the ratification of appointments (Congress checks President)
- Applies to most Presidential appointments: federal courts, federal government departments, ambassadors
- Senate can shape nominations through its advice
2
Give examples of the Senate approving/rejecting cabinet appointments
- Biden withdrew nomination of Neera Tanden for director of Budget Office after past tweets caused bipartisan opposition
- Trump’s education secretary nomination, Betsy DeVos, secured approval due to tie-breaking vote of Mike Pence following 50-50 tie
4
List the checks by Congress on the SC
- Impeachment of justices
- Propose a contitutional amendment
- Creation of lower courts
- Ratify juidicial appointments (Senate only)
3
Describe the impeachment of judges (Congress checks SC)
- Same process as impeaching President
- Only one SC judge has other been impeached (in 1805)
- Federal court judges can be impeached e.g. Thomas Porteus (District Court) found guilty of bribery and making false statements in 2010
1
Describe the proposal of a constitutional amendment (Congress checks SC)
- Can effectively overturn SC ‘unconstitutional’ ruling
3
Describe the creation of lower courts (Congress checks SC)
- Congress has power to create lower courts
- Holds power to regulate SC’s role in hearing appeals from lower courts
- At its extreme is known as ‘jurisdiction stripping’ wherby Congress regulates what cases SC actually hears for political purposes
2
Give an example of jurisdiction stripping
- Military Commissions Act 2006 aimed to remove SC the power to hear cases from Guantanmo Bay detainees
- SC deemed Act unconstitutional in Bourmediene v Bush
2
Describe the ratification of judicial appointments (Congress checks SC)
- Senate can approve/shape presidential nomination to SC
- President will choose member that reflects personal ideology - leads to huge impact on SC
3
Describe the case of Merrick Garland
- Obama nominated moderate liberal Merrick Garland in 2016 to fill vacant SC seat
- Senate did not ratify appointment and blocked his hearings at Senate Judiciary Committee
- Seat vacant until Trump conservative candidate Neil Gorsuch approved in 2017
3
List the checks by the President on Congress
- Suggest legislation
- Sign/veto legislation
- Commander in Chief of Armed Forces
5
Describe the Presidential suggestion of legislation (President checks Congress)
- President directly elected (Elec College nonwithstanding) with highest turnouts - most legitimacy
- Campaign on policy platform
- President has no direct legislative powers
- President has right to address Congress at State of Union to suggest legilsative programme
- e.g. Biden: Build Back Better Act 2021 - $3.5trn package for climate change and social policy
3
Describe the signing and veto of legislation (President checks Congress)
- Trump used veto 10 times, Obama 12 times
- Threat of veto can force Congress to amend/drop bill
- 75% of veto threats by Bush and Obama led to threatened legislation not passing
4
Describe the Commander in Chief (President checks Congress)
- Congress has sole power to declare war
- But president decides stationing and movement of troops and use of military weapons
- 2020, Trump ordered air strike on Baghdad Airport to assasinate Qasem Soleimani without congressional approval
- Yet President may garner congressional approval to give legitimacy to actions (e.g. Obama - AUMF Syria)
2
List the checks by the President on SC
- power of pardon
- nomination of judicial appointments
3
Describe the power of pardon (President checks SC)
- President can excuse individual for federal crime
- e.g. 2017, Obama commuted (reduce) sentence of Chelsea Manning who had served 7 years for stealing state secrets
- e.g. 2021, Trump commuted sentence of Steve Bannon, a key advisor to 2016 campaign
1
Describe the nomination of judicial appointments (President checks SC)
- President shapes SC through nominations
1
List the checks by the SC
- Judicial review
3
Describe judicial review (SC checks Congress/President)
- SC can declare both Congress/Presidential actions unconstitutional
- Nulifies actions/legislation
- Boumediene v Bush (2008)
3
Describe Boumediene v Bush (2008)
- Ruled Military Commissions Act unconstitutional
- Allowed Guantanamo Bay detainees to challenge detention in US Courts
- Effectively checked President and Congress at once
3 - (4) (3) (3)
Describe the argument that checks and balances are effective
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Enables separation of powers
- ultimate check of judicial review after Congress and Presidential stages
- e.g. Boumediene v Bush (2008)
- prevents effective dictatorship, esp when one party controls both branches
- ensures no branch holds disproportionate power
-
Ensures broad support
- extensive checks through committee system
- Over 90% of bills ‘die’ in the committee stage
- bipartisanship and compromise needed to advance bill
-
Improves policy delivery
- President has to work with Congress to pass legislation (e.g. Obama/Trump on healthcare)
- policy design has input from various sources
- prevents President passing populist legislation to win electoral support
3 - (2) (3) (4)
Describe the argument that checks and balances are not effective
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Fail to ensure separation of powers
- partisanship over signifcant issues (e.g. abortion)
- SC becomes quasi-political
-
Checks and balances cease when one party is in power
- e.g. Democrats - Obamacare
- limited checks by Congress
- one party will dominate committee system
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Criticism of policy delivery
- liberals argue too many checks and balances leads to gridlock
- hard to update legislation e.g. gun laws
- conservatives argue limited checks and balances leads to expansion of federal govt
- comes at expense of SC/Congress e.g. Build Back Better
2
Describe bipartisanship
- Election cycle and appts for each branch make it diifcult for one party to simultaneously control all branches
- Some powers of Congress and amendment process require supermajorities, prompting parties to cooperate
4
Give an example of bipartisanship working today
- Bipartisan Safer Communities Act (gun contron laws)
- Introduced by Marco Rubio (Rep - Senate)
- modified by amendment of Chris Murphy (Dem - Senate)
- sigend into law by Biden (Dem)
2
Give 2 examples of bipartisanship not working today
- Senate Republicans blocked further aid to Ukraine, proposed by President Biden, as part of border security dispute
- Second impeachment trial of Trump saw Senate convict him as ‘guilty’ of inciting insurrection by 57-43, yet fall 10 short of required supermajority
3
Describe limited government
- Limited through ‘checks and balances’ and ‘separation of powers’
- US Bill of Rights protects citizens’ rights
- 10th amendment protects state rights
3
Give an example of limited government working today
- Trump v Vance (2020)
- SC struck down presidential immunity
- Stated Trump did not have absolute immunity from subpoenas directed at his private papers
2
Give an example of limited government not working today
- Biden issued eviction moratorium to initiate 60-day ban on evictions during COVID-19 Pandemic
- despite knowing SC would strike it down
