2nd HALF OF FINAL EXAM

Question 1

If Congress has neither authorized particular
action by the President, nor forbidden it, what
do the opinions in Youngstown say about
when is he allowed to act? What light can an
analogy to states’ power to make war shed on
this issue?

Answer 1

Black, president can’t act without
authorization. Frankfurter & Jackson, more
complicated if Congress is silent, but don’t
need to resolve, because LMRA forbids
action. Under I/10/3, states can act if “actually
invaded, or in such imminent danger as will
not admit of delay,” which makes some sense
as a standard for executive action too.

Question 2

a

Answer 2

a

Question 3

Explain the context of this quotation: “The
word ‘direct’ implies that the activity or
condition involved or blamed shall operate
proximately—not mediately, remotely, or
collaterally—to produce the effect. It connotes
the absence of an efficient intervening agency
or condition.”

Answer 3

Carter explaining why manufacturing isn’t
“directly” related to commerce. Abandoned a
year later in Jones & Laughlin.

Question 4

Explain the context of this quotation: “[O]nce
Congress makes its choice in enacting
legislation, its participation ends.” How could
this idea be used to supply an alternative
rationale for Myers?

Answer 4

From Bowsher, saying Comptroller General
can’t have executive power since he’s subject to
Congress. Myers said the Senate can’t reserve
a veto on presidential removal, but relied on
presidential removal in general; it could have
used the no-self-delegation idea in Bowsher.

Question 5

A

Answer 5

A

Question 6

When can Congress prohibit private action
under the Thirteenth Amendment? What
about under the Fourteenth Amendment?

Answer 6

For 13A, Jones says if it’s part of “civil
freedom,” Congress can protect; includes at
least private racial discrimination in sale of real
estate. For 14A, Guest says private conspiracy
with public officials can be punished, and
maybe private conspiracies directed at public
officials, but Morrison says regulation of purely

private violence isn’t congruent & proportional
to actual 14A violations by state.

Question 7

Explain the context of this quotation and one
possible response: “In some cases, then, the
Constitution must be looked into by the
judges. And if they can open it at all, what
parts are they forbidden to read, or to obey?”

Answer 7

Marbury; political question doctrine seems to

contradict it, e.g., IV/4 & Baker.

Question 8

What does the Constitution say about states’
power to make war? How is the President’s
power to make war analogous to it, according
to the concurrences and dissent in
Youngstown?

Answer 8

I/10/3: “No State shall, without the Consent of
Congress … engage in War, unless actually
invaded, or in such imminent Danger as will
not admit of delay.” The Jackson &
Frankfurter concurrences and Vinson dissent
in Youngstown similarly would allow the
president to respond to emergencies (i.e.,
“such imminent danger as will not admit of
delay”), but disagree about whether the
situation was such an emergency.

Question 9

How does Boerne affect our interpretation of

South Carolina?

Answer 9

Boerne makes clear that the approval of the
imposition of disparate-impact rules in
South Carolina was based on the record of 15A-nullifying discriminatory purposes; without
such a record of targeting religion, Congress
can’t impose disparate-impact test of RFRA.

Question 10

Explain the context of this quotation: “[I]f we
were to accept the Government’s arguments, we
are hard pressed to posit any activity by an
individual that Congress is without power to
regulate.” Does the Supreme Court agree with
this position today?

Answer 10

Lopez. Not overruled.

Question 11

Name three things that states are clearly not
allowed to do constitutionally but that the
federal government clearly is allowed to do.

Answer 11

Decide when war is appropriate in non-
emergency situations (I/10/3 v. I/8/10-17),

impair obligation of K (I/10/1 v. I/8/4), duties
on commerce (I/10/3 v. I/8/3), coin money
(I/10/1 v. I/8/5), treaties (II/2/2 v. I/10/1), letters
of marque & reprisal (I/8/11 v. I/10/1).

Question 12

How did the Court’s position on what sort of
power is exercised by independent agencies
change between 1935 and 2010?

Answer 12

In Humphrey’s Executor in 1935, the Court
says it is quasi-legislative and quasi-judicial, but
Free Enterprise Fund in 2010 says it’s

executive, because the President’s II/3 take-
care power encompasses it.

Question 13

How has the Court’s attitude toward the type
of power independent agencies exercise
changed between 1935 to 2010?

Answer 13

In 1935, Humphrey’s Executor said it was
quasi-legislative and quasi-judicial, but in 2010,
FEF said it was executive.

Question 14

How do the different opinions in Youngstown
differ on the significance of congressional
silence?

Answer 14

Black for the Court says the president doesn’t
have any legislative power, so congressional
silence is the same as saying no. Jackson’s
category 2, however, says congressional silence
is a zone of twilight. Frankfurter and the
dissent also say congressional silence isn’t the
same as saying no.

Question 15

What does Morrison say about the congruent-
and-proportional standard in relation to the difference between the Thirteenth and
Fourteenth Amendments?

Answer 15

It says that the regulation of private actions
can’t be congruent and proportional to actions by states, which is important because 14A has
a state action requirement but 13A doesn’t.

Question 16

What does a comparison of Article I section 9
and Article I section 10 tell us about the
meaning of passive voice in the Constitution?

Answer 16

Because I/10 says “no State shall” with respect
to the same things that I/9 says shouldn’t
happen at all, the passive voice without a
subject refers only to the federal government.

Question 17

What is the context of the idea that “one does
not regulate commerce that does not exist by
compelling its existence”? Would the Court
have agreed in 1942?

Answer 17

Joint opinion in NFIB. Wickard says
“stimulation” of commerce OK, though, which
is in some tension.

Question 18

In what three areas did the Court’s approach

change dramatically between 1936 and 1937?

Answer 18

Spending (Butler to Seward Machine), SDP
(Morehead to West Coast Hotel), commerce
power (Carter Coal to Jones & Laughlin).

Question 19

Why would it have been awkward for Marshall
to rely on section 25 of the Judiciary Act of
1789 in supporting his reasoning in Marbury?

Answer 19

Because he was striking down an application of

section 13 of the same act.

Question 20

What question did the government answer

particularly poorly in Lopez?

Answer 20

“If Congress can do this, what can’t it do?”

Question 21

How did Madison and Hamilton disagree
about the spending power? Who won the
debate, according to the Supreme Court?

Answer 21

Madison said it could only be used in aid of
one of the other powers, but Hamilton didn’t.
Butler said Hamilton was right.

Question 22

What do the Morrison v. Olson majority,
Justice White’s Chadha dissent, Justice
Breyer’s FEF dissent, and Justice Frankfurter
and Jackson concurrences and Chief Justice
Vinson’s dissent in Youngstown all have in
common?

Answer 22

Separation-of-powers functionalism.

Question 23

What are two examples of clauses whose

interpretation poses political questions?

Answer 23

IV/4 & I/3/6.

Question 24

What limits were placed on Humphrey’s

Executor by the U.S. Supreme Court in 2010

Answer 24

Only one layer of insulation (FEF)

Question 25

Under Prigg, who can be involved with the

recapture of runaway slaves?

Answer 25

Federal officials and slaveowners can be
involved; state officials can’t interfere, but
don’t have to be involved.

Question 26

Explain the context of this statement:
“[S]hould congress, under the pretext of
executing its powers, pass laws for the
accomplishment of objects not entrusted to the
government, it would become the painful duty
of this tribunal [to strike it down].” Did the
Court take this rule seriously in 1918 and
1941?

Answer 26

From McCulloch. The Court took it seriously

in Hammer, but not Darby.

Question 27

Why does it matter whether an official’s
powers are “central to the functioning of the
executive branch”? Would the Court have
agreed in 1935?

Answer 27

Morrison standard for removability. Court
would not have agreed in Humphrey’s
Executor, in which standard was instead

whether power was quasi-legislative and quasi-
judicial.

Question 28

What did the court say in 1966 and in 2000
about the power of Congress to punish private
conduct under the Fourteenth Amendment?

Answer 28

In Guest in 1966, the court allowed
prosecution of private co-conspirators with
public actors, and 6 judges suggested private
conspiracy to cause unconstitutional state
action would fall under Congressional power.
In Morrison in 2000, the court said prohibiting
purely private conduct was not congruent and
proportional to banning unconstitutional state
action.

Question 29

How did the Court’s approach to the Fifteenth
Amendment enforcement power change
between 1966 and 2013? Did the Court
discuss the impact of intervening precedent
about the enforcement power of the
Fourteenth Amendment?

Answer 29

In South Carolina, the Court upheld the
preclearance requirement of the Voting Rights
Act, but in Shelby County, the Court struck
down its extension, because the data was too
old. The Court didn’t discuss Boerne.

Question 30

Does the Constitution ban individuals from
holding offices in both the executive and
judicial branches of the federal government at
the same time? What about the legislative and
executive branches? What about the legislative
and judicial branches?

Answer 30

No—Marshall did it. I/6/2 says no to other two.

Question 31

What case from 1983 offers a new rationale

for the result in a case from 1926?

Answer 31

Chadha, offering no-self-delegation rationale
for Myers, where Senate reserved removal
veto.

Question 32

Name four clauses of the Constitution that
offer counterexamples to the claim that it is
always “the province and duty of the judicial
department to say what the law is.”

Answer 32

I/2/5, I/3/6, II/4 and IV/4: political questions
under impeachment and republican-guarantee
clauses.

Question 33

What two overruled cases seem best to
encapsulate Justice Thomas’s approach to
federal power?

Answer 33

Hammer and Carter Coal, as shown in his

Lopez & Morrison concurrences.

Question 34

What question did the government answer

particularly poorly in NFIB?

Answer 34

Is there anything the federal government can’t

do, and why?

Question 35

What cases from 1974 and 1983 are in tension

with respect to presidential power?

Answer 35

Nixon relies on the president’s delegation of
power to congressional leaders to tell him
whether Jaworski could be fired, but Chadha
strikes down a legislative veto.

Question 36

What case from 1935 is in tension with cases

from 1986, 1988, and 2010?

Answer 36

Humphrey’s Executor. Contradicts definition
of executive power in Bowsher (1986);
contradicts Morrison (1988), which allows
even purely executive officers to be shielded
from removal; contradicts FEF (2010), which
says independent agencies exercise executive
power.

Question 37

How does political question doctrine cause
trouble for the arguments for judicial review in
Marbury?

Answer 37

The Court’s arguments (all 5 of them) are all-
or-nothing, but political questions, e.g., what counts as a republican form of government
and what procedures are proper for impeachments, are exceptions to judicial
review.

Question 38

How is Free Enterprise Fund “Humphrey’s

Executor squared”?

Answer 38

It strikes down a system with two layers of
tenure protection between the president and
executive officials—one between the President
and the SEC, and one between the SEC and
the PCAOB. Humphrey’s Executor upholds
one layer of tenure protection between the
president and the FTC.

Question 39

How is the concept of “a workable

government” relevant to the holding in Nixon?

Answer 39

It determines the extent of executive privilege.

Question 40

What problem might be raised for Nixon’s
analysis of the countermanding objection
based on a later-decided case?

Answer 40

Chadha (and Bowsher) say Congress can’t give
itself (or a part of itself) executive power, so
congressional-officer veto over removal of
special prosecutor, which Nixon gave it in the
special-prosecutor regulation, not
constitutional.

Question 41

In light of other cases, what did the Court
implicitly—but not explicitly—conclude in 1966
and 2013 about what is “congruent and
proportional” in the context of the Fifteenth
Amendment?

Answer 41

Having a record of 15A/1 violations makes
pre-clearance requirement C&P (South
Carolina), but if the data are old, it’s not
(Shelby County).

Question 42

How do labor-regulation cases from 1937

involve both rights and powers?

Answer 42

West Coast Hotel says no right not to have
women’s-only minimum wage; Jones &
Laughlin says federal power to regulate labor
with NLRA.

Question 43

What differences are there between the vesting
clauses of Articles I, II, and III, and what does
this suggest about the power of the President?

Answer 43

Congress is given legislative powers “herein
granted” in I/1/1. Judiciary is given “judicial
power” generically in III/1, but then that

power is defined in III/2/1. President is given
“executive power” generically in II/1/1, but
unlike Article III, that power is never defined.
Suggests that the president has a reservoir of
power outside the specific grants given
elsewhere.

Question 44

What problems do Article IV, section 4 and
Article I, section 3, clause 6 raise for
Marbury’s arguments for judicial review?

Answer 44

What counts as a “republican form of
government” or an impeachment “trial” have
been considered political questions, but
Marbury argues that unconstitutional laws or
acts are always subject to judicial declaration as
void, which isn’t so in political questions.

Question 45

What two different inferences could be drawn
for the President’s power to act without
congressional authorization in the case of
emergencies from the power of states to do the
same?

Answer 45

I/10/3 says states have emergency power to
make war. Could reflect background
assumption that that’s what executives can do,
or could say Constitution recognized
emergency power in one instance, but not any
others.

Question 46

What cases from 1952 and 2010 feature
individual judges who joined majority opinions
while (it seems) not agreeing with everything in
those opinions?

Answer 46

Youngstown, where Jackson & Frankfurter’s
concurrences contradict Black’s majority
opinion, and McDonald, where the Court
used tradition and Glucksberg to analyze
incorporation, but Justice Kennedy refused to
use Glucksberg in Obergefell just 5 years later.