3.1: The US Constitution and federalism Flashcards

Question

Evaluate the effectiveness of the key principles of the Constitution?

Answer 1

EFFECTIVENESS OF THE KEY PRINCIPLES OF THE CONSTITUTION 1. Limited Government - The inclusion of separation of powers as well as checks and balances. - 10th amendment giving states powers. - The Bill of Rights guaranteeing citizens' rights. - EXAMPLE. Texas v US (2016), an executive order by President Obama regarding illegal immigrants (Deferred Action for Parents of Americans - DAPA) was struck down by the Supreme Court. Congress failed to pass the immigration reform bill demonstrates the Obama administrations inability to make law without Congress/other branches of Gov. - EXAMPLE. However, both Trump (Syria) and Obama (Libya) launched airstrikes without congressional approval. 2. Separation of powers - Articles I, II, III outline the individual powers of each branch of gov. - The 'ineligibility clause' of Article I, meaning a person can only serve in one branch of gov. at a given time. - EXAMPLE. President Obama, VP Biden and Hillary Clinton all had to leave their seats in the Senate to take up roles in the executive branch in 2009. - EXAMPLE. In 2017 Jeff Sessions gave up his Senate seat to join the executive branch as Attorney General. - EXAMPLE. However, Obama's Joint Comprehensive Plan of Action 2015 (The Iran Nuclear deal) limiting Iran's nuclear capabilities in return for the lifting of sanctions. Yet he did not label it as a 'treaty' so did not require approval from the US Senate. 3. Checks and balances - Numerous powers within Articles I, II, III provide checks and balances. - Not just provision of checks, but also by the denial of certain powers, such that the president can propose legislation, but cannot amend legislation (line-item veto), which would allow the rejection of certain lines of a bill. - EXAMPLE. 2017 Trump attempted to introduce his own healthcare bill, but despite having a Republican majority in both houses of Congress it failed to pass. - EXAMPLE. However, President Obama included the USA in the Iran Nuclear Deal 2015 (JCPOA) and Paris Climate Accord 2015 without asking for Senate approval. 4. Bipartisanship - Requirements for supermajorities in the amendment process, impeachment process and veto override process. - Staggered election cycle can allow branches to be dominated by different parties. - EXAMPLE. The 'Gang of Eight' in the Senate was a bipartisan group of 4 Democrat and 4 Republican senators who spoke to create the bipartisan bill 'Border Security, Economic Opportunity and Immigration Modernisation Act 2013' which passed the Senate. - EXAMPLE. However, the Bipartisanship immigration bill passed in the Senate but was blocked by the Republican speaker of the House of Representatives who refused for it to even be debated. 5. Federalism - The 10th Amendment protects state rights. - The role of the Supreme Court as the arbiter between federal and state government. - The need for state approval in the amendment process. - Equal representation of the states in the Senate. - EXAMPLE. Marijuana remains illegal at the federal level under the 'Controlled Substances Act 1970' yet 9 state gov. legalised recreational use and 13 more have decriminalised it. - EXAMPLE. However, Supreme Court rulings are binding on states too as in 'Obergefell v Hodges 2015', gay marriage was effectively legalised in all states, including 13 where it had been illegal prior to the ruling.

Answer 2

FAILED AMENDMENTS 1. Proposals passed by Congress but failed to achieve ratification through state support - EXAMPLE. The Equal Rights Amendment 1972 (deadline 1982). Would have provided equality of rights by the federal or state governments on account of sex. - EXAMPLE. District of Columbia Voting Rights Amendment 1978 (deadline 1985) would have given the District of Columbia full representation in Congress as if it were a state, as well as the ability to participate in the amendment process. 2. Proposals voted on in Congress that did not receive a 2/3 majority in each chamber - EXAMPLE. The Flag Protection Amendment 2006. Would make it illegal to desecrate the US flag. Yet in 1990 the Supreme Court overturned the Flag Protection Act in US v Eichman on the basis of the 1st amendment (freedom of expression). The constitutional amendment process was passed in the House 6 times up to 2006 but failed to gain enough votes in the Senate. - EXAMPLE. The Federal Marriage Amendment (2006) defines marriage as between a man and a woman, yet failed in both the House and Senate. Central to George Bush 2004 presidential elections with John Kerry arguing that individual states should decide. 3. Proposals introduced in Congress, but not voted on by either chamber - EXAMPLE. Right to Vote amendment (2013) to prevent restrictions on voting (end felony voting restrictions and protect voting rights after Shelby County v Holder (2013) which overturned sections of the Voting Rights Act 1965 which make it vulnerable to loopholes. - EXAMPLE. Saving American Democracy amendment (2011) by Bernie Sanders to overturn Citizens United v FEC ruling of 2010 which removed financial regulations of elections.

Answer 3

DIVIDED GOVERNMENT - A political circumstance in which at least one if either the presidency, the House of Representatives or the Senate is held by the opposition party. - Increased partisanship and spilt Congress since the 1960's often leading to gridlock. UNIFIED GOVERNMENT - A political circumstance in which both chambers of Congress and the Presidency are controlled by the same party. - In these instances, both executive and legislature are more likely to work together (which could undermine the principles of limited gov). - More likely to be unified in times of national crisis, to allow President to exercise greater political control (9/11, Hurricane Katrina 2005, 2007 Recession) - can undermine the checks and balances principle.

Answer 4

GRIDLOCK - A situation in which both the President and Congress have difficulty in exercising their powers, meaning little can be achieved.

Answer 5

POWERS 1. Federal Government Powers - To declare war (security). - To make treaties. - To coin money. - To establish a military. - To regulate interstate (interstate commerce clause) and foreign commerce (foreign policy) in Article 1, section 8. - To make all laws 'necessary and proper' to achieve their constitutional powers. 2. CONCURRENT Powers (both) - To make constitutional amendments. - To levy taxes. - To establish courts. 3. State Powers - To establish local gov. - To regulate elections. - To maintain a militia. - To ASSUME POWERS NOT LISTED IN THE CONSTITUTION (10th Amendment), regulating schools, professional licenses and intrastate commerce.

Answer 6

FEDERALISM THROUGH TIME 1. Dual Federalism (1790s - 1930s) - States and federal gov. were co-equal and had distinct areas of power. - States undertook most governing, supported by numerous Supreme Court rulings. 2. Cooperative Federalism (1930s - 1960s) - Federal gov. was seen as superior to states with greater cooperation overpowers that were traditionally directed and administered by states alone, with Roosevelt's 'New Deal'. - (TURNING POINT) This power was assumed and expanded upon the Wall Street Crash 1929 and economic depression that followed into WW2 and the Cold War. 3. New Federalism (1970s - 2000s) - Nixon's calls for 'New Federalism', respective Republican presidents and Clinton looked to return power to states. - This made federal and state govs. interdependent upon one another.

Answer 7

FEDERAL-STATE RELATIONS EXAMPLE - Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans (DAPA) - Obama's immigration reform failed in Congress as legislation so he resorted to passing an executive order with DACA and DAPA (granted illegal immigrants, and their parents, a guarantee of exemption from deportation) which was later reversed by the Supreme Court in Texas v US 2016 by 4-4 court and Trump. - Yet States have defied changes by federal gov. with Sanctuary Cities (limit cooperation with federal immigration enforcement agencies - California passed the State Senate Bill 54). - Trump threatened to withhold federal funds from sanctuary cities, yet was deemed unconstitutional by federal courts, with the city of Chicago suing Trump over withholding police funding.

Answer 8

DEVELOPMENT of STATE POWER - EXAMPLE. Gonzales v Oregon (2006). Allowed state-sponsored euthanasia, in defiance of the US Attorney General Alberto Gonzales. - EXAMPLE. Medicaid Waiver 2006 in Massachusetts allowed Governor Mitt Romney to introduce a universal health insurance program. DEVELOPMENT of FEDERAL POWER - EXAMPLE. USA PATRIOT Act 2001. Expanded the rights of federal gov. to detain people and collect information on them. - EXAMPLE. Medicare Prescription Drug Modernisation Act 2003. Expansions of medicare, including prescription drug benefits, cost $400 billion. - EXAMPLE. Homeland Security. Addition of an entirely new cabinet department. - EXAMPLE. No Child Left Behind 2002. Allowed for uniform school testing. - EXAMPLE. Gonzales v Raich 2005, Supreme Court interprets the legalisation of marijuana in California as a federal responsibility, as the interstate commerce clause allowed the federal gov. to regulate California as it would impact the supply and demand of the drug across the US, affecting interstate commerce (Marijuana is a criminal offence in other states - up to 6 years in prison in Florida). - EXAMPLE. Gratz v. Bollinger 2003 deemed the University of Michigan's affirmative action-based admissions programme to be unconstitutional.

Answer 9

DEVELOPMENT of STATE POWER - EXAMPLE. Patient Protection and Affordable Care Act 2010 (PPACA). Known as Obamacare included power over the provision of medical insurances run by the states themselves. - EXAMPLE. Texas v US 2016. Supreme Court struck down Obama's DAPA executive order due to the cost to states. - EXAMPLE. The Cole memo 2013. The justice department said it would not enforce federal restrictions on marijuana where states had legalised it (unless in circumstances where it involved gang violence or guns). - EXAMPLE. Race to the Top initiative 2009 created $4.3 billion worth of grants that states could compete for, but money was awarded to states which met 20 educational goals set by federal gov. DEVELOPMENT of FEDERAL POWER - EXAMPLE. PPACA (Obamacare) 2010. Expanded insurance and gave more individual rights. - EXAMPLE. Arizona v US 2012. Overturned Arizona's SB1070 law which increased state law enforcement power to enforce immigration laws. - EXAMPLE. Obergefell v Hodges 2015. The Supreme Court effectively legalised gay marriage nationally. - EXAMPLE. Obama attempted to place restrictions in states by threatening to withhold federal education funding discriminatory practice was present following the North Carolina transgender bathrooms issue, with 14 states having restrictive transgender bathroom laws at the end of his administration (Jan 2017).

Answer 10

DEVELOPMENT of STATE POWER - EXAMPLE. Carpenter v US 2018. The Supreme Court found that federal gov. must obtain a warrant for a citizens mobile phone location records. - EXAMPLE. Executive Order minimising the economic burden of the PPACA, aimed at reversing Obamacare and giving states more control. - EXAMPLE. Trump lifted all attempts at federal regulations on transgender bathrooms, not being opposed to trans rights, but believed it was a states' rights issue. DEVELOPMENT of FEDERAL POWER - EXAMPLE. The Session memo 2018. New attorney General Sessions rescinded the Cole memo, saying law enforcement would enforce national marijuana prohibitions. - EXAMPLE. Executive Order stripping federal grants from 'Sanctuary Cities' (later unconstitutional).

Answer 11

STATE RETENTION OF SOVEREIGNTY 1. Citizens Rights - In addition to rights protected in the Constitution, the rights of citizens vary widely between states. - EXAMPLE. Alaska allows citizens to get a learner's permit at age 14, while Massachusetts you have to be 16. Alongside inconsistencies with abortion, euthanasia, gun control and marijuana. - 10th amendment states that any powers not reserved for the federal gov. should be considered a state power: - EXAMPLE. Printz v US 1997, the Supreme Court overturned the Brady Act Requirement that state officials must perform background checks on those wishing to purchase a gun (10th amendment meant that this was a state, not a federal, policy). 2. Criminal Punishment - The death penalty is distinct in different states. 30 states allow the death penalty, with different methods such as death by Gas Chamber being a secondary method in California as of 2020. - In Florida, Iowa and Kentucky, a convicted felon does not necessarily regain the right to vote upon release from prison. 3. Electoral regulation (democracy) - Article I allows states to run their own elections. - Has resulted in variations in electoral practice (leading to the 2000 presidential election controversy). - In 2020, you can vote through: paper ballot, paper ballot and electronic voting, mail ballot or electronic voting alone. - EXAMPLE. States that use electronic voting can do so without a paper trail, with controversy with the Department for Homeland Security with 21 states having systems targeted by hackers in the 2016 election. - State Govs. can set boundaries for districts for voting, leading to court cases of gerrymandering (the manipulation of constituency boundaries to give a party political advantage). 4. Taxes - On top of being taxed federally, citizens are taxed by their state on multiple levels, such as sales tax, income tax and property tax. - Income tax varies from 0% in 7 states to 13% in California. 5. Law - States can try to overturn federal mandates, such as Shelby v Holder 2013 federal law was overturned when parts of the Voting Rights Act 1965 were deemed unconstitutional - giving states greater freedom in electoral law. Yet has meant that states can create laws which undermine the opportunity for poor or racial-minority voters to participate. - Interstate Commerce Clause implies that states are free to regulate their own internal business policy as well as the 2nd amendment prevents federal govs. from imposing gun regulations on the states. - EXAMPLE. US v Lopez 1995, the Federally opposed Gun-Free School Zones Act 1990 was halted by Texas as the Court ruled that the commerce clause did not allow Congress to ban possessions of a gun near a school because gun possession by itself is not an economic activity that affects interstate commerce. - EXAMPLE. Anti-affirmative action initiatives have been enacted in 9 states (Oklahoma in 2012), with the 2014 Supreme Court ruling (Schuette v. Coalition to Defend Affirmative Action 2014) that bans were legal and constitutional.

Answer 12

STATE LOSS OF SOVEREIGNTY 1. Citizens Rights - Certain rights have been determined, such as federal drinking age is 21, and the Supreme Court case of Obergefell v Hodges 2015 effectively legalising same-sex marriage in every state. 2. Criminal Punishment - The supreme court has put numerous restrictions on the use of the death penalty while upholding capital punishment generally. - EXAMPLE. Kennedy v Louisiana 2008, Panetti v Quarterman 2007, Roper v Simmons 2005 all limit the use of the death penalty as passed through the final court of appeal (the Supreme Court) it can challenge state courts. 3. Electoral Regulation (democracy) - Federal laws, and constitutional amendments, have extended voting rights at a national level, lowering the voting age and extending voting rights regardless of sex and colour (Voting Rights Act of 1965). - Campaign finance laws and regulations are set at a federal level. 4. Taxes - Not only do citizens pay federal income tax (16th amendment), but states are also reliant on grants from the federal gov. when their own finances run low (resources adhere to policy requirements imposed by the federal gov) or in response to unexpected circumstance. - EXAMPLE. Hurricane Katrina 2005, the federal gov. spent more than $100 billion on recovery efforts, which would have been 50% of Louisiana's annual GDP. - EXAMPLE. The Fiscal 2020 budget proposal sees Trump slash EPA (Environmental Protection Agency) budget by 31% has meant that states cannot meet required federal environmental regulations with insufficient funds. 5. Law - Federal gov passes laws that force states to comply (known as Federal Mandates) in the form of Acts of Congress which impose national standards on the states. - An increasing number of federal mandates since President Roosevelt's new deal (1930) which create policy and financial restrictions on the states. - EXAMPLE. NFIB v Sebelius 2012, follows the Affordable Care Act 2010, Obama's policy that required everyone to have health insurance by 2014, and challenge yet upheld by the Robert's court as the individual mandate to buy health insurance as a constitutional exercise of Congress's taxing power. In another perspective, Obamacare limited state choice in health care as all states are required to set up health exchanges (or federal health exchanges) in which they can purchase health insurance. - EXAMPLE. Clean Air Act 1970 authorised the development of comprehensive federal regulations to limit emissions from state sources.

Answer 13

DEMOCRACY LIMITED IN THE CONSTITUTION 1. Origins - Founding fathers were sceptical of democracy, perhaps due to their privilege of being white, educated, wealthy men, some of whom were slave owners and had a mistrust of popular democracy which would threaten this way of life in 1787. 2. The Electoral College - An indirect method of election for the president, the direct influence of the public was limited and could be overturned by electors. 3. An originally appointed Senate - This chamber was to be appointed by the State Governments, yet important when the individual powers of the Senate are taken into account, giving this once unelected branch considerable influence. 4. Equal representation for the States - While having two senators per state served to ensure that small states could not be ignored, it meant that larger populations were underrepresented in the Senate. 5. The 3/5ths compromise - With the number of Congressmen being allocated on the population, large slave-owning states were keen for slaves to be counted, but only valued as 3/5th of a person. 6. The Role of Supermajorities - Meant to ensure a simple majority could not be tyrannous over the minority, yet allow either complete ignorance of smaller minority views or for a small minority to stall major constitutional processes.

Answer 14

LIBERAL DEMOCRACY - EXAMPLE. Bill of Rights ensures that individual rights are upheld in Snyder v Phelps 2011, the right to free speech at the Westboro' Baptist Church was upheld by the Supreme Court. - The power and independence of the Supreme Court protect rights, justices have the power to overrule both elected branches without fear for their jobs. - Checks and balances serve to ensure a limited gov, both Trump and Obama failing to achieve goals in Congress such as gun control, immigration or the repeal and replacement of Obamacare. REPRESENTATIVE DEMOCRACY - All appropriations bills must begin in the House of Representatives which is the most responsive house due to a 2-year electoral cycle and therefore most directly representative of its constituents. - The House of Representatives ensures proportionality in representation, with largest states having the most. - Amendments have extended the number of eligible voters in the USA, ensuring an increasing number of Americans can be represented. - The Senate is now elected, ensuring a greater degree of popular sovereignty. - Amendments to the Constitution cannot be made without the approval of the states, each of which is valued equally.

Answer 15

LIBERAL DEMOCRACY - Checks and balances can serve to limit gov. to such an extent that it ceases to be effective. Gov. shutdowns are becoming increasingly common with over 15 since 1981 which has made policy-making difficult as partisanship has polarised. - The Electoral College undermines the principles of 'free and fair' elections, with the loser of the popular vote winning the presidential elections twice in the last 5 elections. - EXAMPLE. Not all rights are effectively protected. Minority rights have been challenged in Shelby v Holder in 2013 and the existence of Guantánamo Bay poses significant questions over the effectiveness of rights protection. REPRESENTATIVE DEMOCRACY - The Supreme Court holds vast amounts of power to interpret the US Constitution and overrule the elected branches but is misrepresented of the general population in the Senate and unaccountable as the justices are not elected, this has prevented the government from carrying out policy. - The Senate represents the USA by state rather than population, meaning smaller populations are overrepresented. - The requirement at numerous points in the Constitution for a supermajority allows for the tyranny of the minority (the ability for the minority to exercise power in own interests over the majority), especially in the amendment process. - EXAMPLE. Puerto Rico is not represented in the US as they can not vote for Congress or the president, but can vote in presidential primaries (similar with other territories such as the US Virgin Islands).

Answer 16

CONSTITUTION REMAINING STRONG - The vagueness of aspects has allowed for interpretative amendments by the Supreme Court, helping to ensure the relevance of the Constitution today being reactive to changing climates. - As it is codified, it means that it is difficult to change and provides clarity about the rights of citizens which is enforced by the Supreme Court. - The Constitution outlines and separates powers of each branch, with checks and balances and short election cycles ensuring that govs. work in the interests of people represented. EXAMPLE. Despite Trump's pledge to 'build a wall' has struggled to gain finance for his policy despite unified gov (Republicans holding the Presidency and Congress) yet Congressmen act in line with constituencies over party. - Amendment process works and allows the flexibility of the Constitution while preventing frequent knee-jerk changes (however the USA Patriot Act passed 45 days after 9/11).

Answer 17

CONSTITUTION BECOMING WEAK - Vagueness has allowed broader interpretations, such as Article II paving for the hypergrowth of the executive branch. In areas where the Constitution is specific, it has prevented adaption (powers of Congress). - The codification of the Constitution has led to outdated aspects remaining enforced and the potential to create gridlock in government through checks and balances. - The framework can create gridlock in case of divided gov, and lack of scrutiny during times of unified gov (perhaps ineffective). EXAMPLE. The January 2018 gov shutdown happened when 1 party controlled both executive and legislature branch of gov, with no federal gov or federally run departments for 2 days. In 1995 it lasted 21 days. - The amendment process has proven difficult, preventing necessary amendments while allowing for mistaken amendments to be made.