Const Themes and SoP

Question 1

Const are made by govt ___

Answer 1

to provide a framework for govt

Question 2

Marbury says the Consti allows ___

Answer 2

courts to decide what is and isn’t lawful

Question 3

Consti recognizes the ____ of the people

Answer 3

sovereignty

Question 4

The Consti is the ____ of the land

Answer 4

supreme

Question 5

Five differences Consti and Articles

Answer 5

(1)Articles no leg power (2) Articles treaty among states that retained their own power (3) Constitution based on popular sovereignty (4) Amending articles required every state leg (5) No power to levy taxes

Question 6

The Consti allows more exec power than ____

Answer 6

any one state but less than King

Question 7

Fed 40 says the Articles were a treaty and once one state ___

Answer 7

breached, all breached

Question 8

Fed 43 argues that requiring all state leg to ratify would ___

Answer 8

subject whole to whims of one

Question 9

The Consti is fundamentally a compromise between a ____

Answer 9

powerful national govt, and one of enumerated powers

Question 10

Why did some think BoR unnecessary?

Answer 10

enumerated powers not gen leg grant + could imply more govt powers than intendedWhy

Question 11

Why for BoR?

Answer 11

Most enumerated ambiguous and inevitably have some implied power

Question 12

Jefferson response to dead hand problem

Answer 12

each gen should redo Consti

Question 13

Why is national govt important to Const (not just federal)

Answer 13

national identity as unifier

Question 14

Alternative to Jefferson response to dead hand problem

Answer 14

each gen consented to Const, if want its institutions bound by its limits, also if nation not just group of people can bind next gen

Question 15

6 broad themes of Consti

Answer 15

(1) it is written (2) Republic (3) SoP (4) Federalism (5) Individual Rights (6) Imperfection

Question 16

MadisonFed 39 view of Republican Consti

Answer 16

mixed national-fed govt deriving power from people but administered by electeds

Question 17

Why does Madison think the founding is national?

Answer 17

ratification by state reps

Question 18

Why does Madison think the operation of powers is federal?

Answer 18

some powers left to the states

Question 19

Madison thinks that the fact that the power comes from the people is ___

Answer 19

national

Question 20

Why is amending Const mix of national and federal?

Answer 20

requires more than majority but less than unanimous

Question 21

Ham clear tripartite division of powers

Answer 21

leg=will, exec=force, jud=judgment

Question 22

SoP means that each branch limits ___

Answer 22

power of the others

Question 23

The presidential veto is arguably ___

Answer 23

legislative

Question 24

Ham argues could say SoP is ___ so not in tension with checks/balances

Answer 24

grant of powers with exceptions

Question 25

There has been a ____ to protect individual rights

Answer 25

steady expansion of national power

Question 26

What is the expansion of national rights to protect individuals?

Answer 26

BoR protect from national govt –> Reconstruction protect from states –> 16/17 expand national

Question 27

McCulloch says Consti not ___

Answer 27

a legal code

Question 28

The Consti ____ justice, it ___

Answer 28

define, leaves us to seek it in myriad of ways

Question 29

Youngstown issue

Answer 29

Pres claims inherent power regardless of any Cong. authorization

Question 30

Black Youngstown majority

Answer 30

Pres no inherent power to exercise in public interest

Question 31

Black says power to issue exec order must come from ___

Answer 31

Consti or Cong.

Question 32

Why in Youngstown black no power from Cong?

Answer 32

no act

Question 33

Why in Youngstown black no power from Const?

Answer 33

CiC doesn’t extend to seizing domestic property for war, this is leg

Question 34

Black argues that there is no ___

Answer 34

presidential prerogative power

Question 35

Jackson concurs because ___

Answer 35

founders omitted emergency powers for a reason (Cong. could give if they wanted to_ (Weimar)

Question 36

Jackson ___ the admin state

Answer 36

lays the groundwork

Question 37

What are Jackson’s three zones

Answer 37

at max (exec pursant to express/implied authorization of Cong), Twilight (absence of cong grant or denial) at lowest (exec act incompatible with will of Cong)

Question 38

Jackson says seizure in third zone ___

Answer 38

because Cong. didn’t leave it open

Question 39

Why does zone of Twilight matter for admin state?

Answer 39

most of it not authorized by Cong

Question 40

In the Twilight zone the President can only rely on ___ but there may be __

Answer 40

independent powers, zone of concurrent authority where distribution uncertain

Question 41

Jackson is saying that Cong indifference may sometimes ___

Answer 41

practically invite independent presidential responsibility

Question 42

If action is unconstitutional at max then ___

Answer 42

fed govt as whole lacks power

Question 43

Jackson textualist argument

Answer 43

Const no express provision for emergency grant of extraordinary power + if Exec power grants “all he is capable of” why have list

Question 44

Analysis Qs for SoP problem

Answer 44

(1) did Const/Cong expressly authorize the Pres (2) What type of power and where located in Const (3) Is it transferrable or nondelegable (4) Has Cong. transferred

Question 45

Ham five problems with Jackson

Answer 45

(1) allows shuffling unlike discrete functions (fed 78) (2) Pres either has or doesn’t have Cong. authorization (3) where does it end (Mistretta, scalia dissent) (4) not needed for functionalism (Gundy, Gorsuch dissent) (5) doesn’t matter public perception or precedent –> judicial duty to follow law where it leads

Question 46

Gorsuch would say maybe some things ___ but Ham would say __

Answer 46

less important can be delegated, subjective and not based on Consti

Question 47

Gorsuch would also suggest making a rule and then having ___

Answer 47

application depend on exec fact finding