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US Politics > Constitution and federalism key debates > Flashcards

Constitution and federalism key debates Flashcards

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1
Q

What are some of the important features of the US constitution?

A

Codification
Entrenched
Limited government
Blend of specificity and vagueness
Enumerated v implied powers
Reserved powers
Concurrent powers
Bill of rights

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2
Q

Example of the supremacy clause in action?

A

In Hollingsworth V Perry, it was ruled in 2013 that the law in California which tried to ban same sex marriage was unconstitutional by federal law and therefore was overturned

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3
Q

Which court case clarified the Supremacy clause?

A

Marbury V Madison 1803

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3
Q

What are some of the important clauses in the constitution and what do they say?

A

Supremacy clause - federal law over rules state law - it’s supreme
Necessary and proper clause - ‘the elastic cause’ granting congress the power to make all laws deemed necessary to carry out government duties - allows for many of the implied powers and has allowed for the expansion of the power of the federal government (caused controversy)

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4
Q

Which court case shows the elastic clause/ necessary and proper clause in use?

A

McCulloch V Maryland - congress has the power to create a national bank, despite this not being an enumerated power

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5
Q

What is an implied power of the judiciary?

A

Judicial review

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6
Q

What was the significance of Marbury V Madison?

A

The power of the court is not enumerated but was ‘found in this case’. This was the first time the Supreme Court had declared state law unconstitutional

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7
Q

Some examples of concurrent powers?

A

-Collecting taxes
-Building roads
-Maintaining courts
- Making constitutional amendments

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8
Q

What is an example of the constitution having a large amount of grey area?

A

The federal state banned the use of marijuana, but it’s legal in 38 states for medical use and 24 states for recreational use, essentially because the federal government cannot be bothered to enforce the law

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9
Q

What are some examples of amendments to the US constitution?

A

13th amendment - abolition of slavery
15th amendment - right to vote not denied by race
19th amendment - women’s right to vote

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10
Q

How many amendments have been given to the states to ratify and how many have been successful?

A

33 have been given to the states and 27 have been ratified

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11
Q

What’s an example of an amendment passing simply because of the mood of the time?

A

The 18th amendment banning the sale and consumption of alcohol. It was then overturned by the 21st amendment

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12
Q

Example of interpretative amendments by the Supreme Court?

A

Roe V Wade being overturned in 2022 by the case of Dobbs v Jackson Women’s Health Organization.
After Roe V Wade 1973, abortion was legal in the first trimester and limited there after, because the states being able to rule on abortion would infringe their right to privacy.
However the 2022 ruling changed the power to rule on the right to abortion from the federal government to the states, meaning individual states can now ban abortion. This was voted for by 5 judges to 3.
21 states now ban or restrict abortion earlier than it was restricted by Roe V Wade

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13
Q

What are the benefits of making it difficult to amend the constitution?

A
  • protects the constitution from an over powerful executive
  • protects states and upholds federalism
  • requires broad support
  • prevents ill-thought out amendments
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14
Q

What are the disadvantages of making it difficult to amend the constitution?

A
  • difficult to amend outdated provisions or to incorporate new ideas
  • goes against majoritarian democracy - 13/50 states have to block an amendment to stop it
  • empowers the court to make interpretative amendments
  • states with small populations have too much influence
  • mistakes are still made
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15
Q

What are some examples of well thought out new amendments failing to pass?

A
  • changing the electoral college
    -equal rights amendment (for men and women)- this was passed by congress in 1972 but failed by one state to have support of the required number of states
    -balanced budget amendment
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16
Q

What are the four core principles of the constitution?

A
  • separation of powers
  • checks and balances
  • federalism
  • bipartisanship
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17
Q

What’s an example of someone not being able to be in more than one branch of government as set out by the separation of powers?

A

In 2020, Kamala Harris was the elected VP so had to step down as a Senator

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18
Q

What are the exceptions to the separation of powers?

A
  • VP is president of the senate and has the casting vote in case of a tie
  • President’s power of pardon is judicial
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19
Q

Congress’ checks on the president?

A
  • amend, block or reject legislation recommended by the president
  • override presidents veto
  • senate has the right to ratify treaties
  • declare war
  • reject a budget submitted by the president
  • senate must approve the appointments of judges
    Investigate the executive branch and can impeach presidents
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20
Q

When did Congress block legislation?

A

2017, Trump tried to repeal Obamacare

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21
Q

When is congress especially effective at blocking proposed legislation of the president?

What makes bipartisan ship harder?

A

Divided government

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22
Q

Example of Congress overriding president veto?

A

Congress overrode Obama’s veto against the Justices Against Sponsors of Terrorism Act 2016

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23
Q

How effective is congress in overturning the presidential veto? How effective does this make the president?

A

Lacks effectiveness - Since 1789 the President has vetoed 2500 bills and congress has overridden les than 5%
This means that the President’s veto is a very effective power as they essentially have the final say on legislation

24
Q

Example of congress rejecting a budget submitted by the president?
This can also be used as an example of when bipartisanship has failed

A

2018 Trump - the democratic majority in the house disagreed with Trump’s funding on border security. This led to a 35 day federal government shutdown - the longest in history

25
Q

When was the last time congress declared war?

A

1941- entering the second world war

26
Q

When did Congress refuse to ratify a treaty?

A

1999 they rejected the Comprehensive Test Ban Treaty

27
Q

Why is the Senate’s power to ratify treaties becoming weaker?

A

The president can bypass the senate using executive agreements e.g. Obama’s Joint Comprehensive Plan of Action - nuclear deal with Iran

28
Q

Example of Senate rejecting judicial appointment by the President?

A

1987 the Senate rejected Regan’s nomination of Robert Bork

29
Q

Which president’s have been impeached?

A

Johnson, Clinton, Trump and Biden by the HOR - they were all acquitted by the senate?

30
Q

What are the judiciary’s checks on the executive?

A

Can declare the executive’s actions as unconstitutional via judicial review

31
Q

Example of judiciary declaring the president’s actions as unconstitutional?

A

2014 National Labour Relations Board V Noel Canning - Obama acted unconstitutionally in making appointments to the National Labour relations Board without Senate approval

32
Q

What are the executives checks over the legislature?

A
  • president can veto legislation
  • president can use executive agreements
  • can propose legislation
    -makes the appointments to federal posts
  • negotiates treaties
33
Q

Example of a president vetoing a bill?

A

Trump vetoed the Iran War Powers regulation, which would have limited the ability of the President to wage war against Iran

34
Q

Why is the executive power of signing executive orders (which limits Congress’ check of ratifying) not that strong?

A

They are easily undone by subsequent presidents: Trump backed out of JPOCA and the Paris Accord

35
Q

What are the judiciary’s checks on congress?

A

Can declare acts of congress to be unconstitutional

36
Q

What are two examples of laws made by congress which the judiciary have deemed unconstitutional?

A

-Fletcher v Peck
- US v Windsor - declared the Defence of Marriage Act 1996 unconstitutional

37
Q

What are the checks over the judiciary by the other branches?

A

-Congress can propose constitutional amendments (although relatively weak argument)
-Congress possesses the power of impeachment, trial and removal
-The presidential pardon overturns the rulings of the judiciary

38
Q

How many members of the judiciary have been impeached by congress?

A

Eight

39
Q

What’s an example of Congress overturning the ruling of the supreme court?

A

The 16th amendment grants congress the power to levy income tax, which the Supreme Court previously deemed unconstitutional

40
Q

What is the argument that divided government is more effective?

A

Greater scrutiny

41
Q

What is the argument divided government is ineffective?

A

Less bipartisanship so compromise is more difficult and less laws are passed

42
Q

What’s an example of the increasing lack of bipartisanship creating ineffective government?

A

The 98th congress and 116th had the exact same situation in terms of divided government. While the 98th congress passed 667 laws, the 116th passed only 344

43
Q

What are the arguments that the states retain autonomy over the federal government?

A

-Laws vary across states
- Control over healthcare since Obamacare
-Electoral practices vary widely
-Illegal immigration - sanctuary cities
- Autonomy over the handling of national crises
- Supreme court rulings support states

44
Q

What’s an example of laws varying across states?

A

-Abortion
-Marijuana
- criminal punishment - the death penalty is legal in 29 states and has been abolished in 21 states

45
Q

How has the state power over illegal immigration been threatened in recent years? How was it upheld?

This is also an example of punitive federalism.

A

In 2017, Trump issued an executive order which proposed Sanctuary cities would be at risk of losing federal grants.

However in 2018, US department of Justice sued California over it’s sanctuary city, but further rulings went in favour of California

46
Q

What’s an example of states having power over national crises?

A

Each state governor had control over Covid-19 measures - 32 governors issued their own state of emergency before the national state of emergency was announced by Trump.
Trump then wanted to lift lockdown measures because it was harming the economy but he had no such power to do so

47
Q

What’s some examples of supreme court rulings going in favour of the states?

A
  1. National Federation of Independent Business V Sebelius - struck down the enforcement of states having to participate in Medicaid
  2. United States v Texas - struck down Obama’s executive order to implement immigration reform
48
Q

What are the arguments that the federal government is challenging state autonomy?

A
  • taxation and federal funding
    -healthcare - all citizens pay a federal tax
  • federal government encroachment on state issues and during national crises
    -Supreme court rulings in favour of the federal government
49
Q

What’s an example of the states being reliant on federal funding?

A

After the stock market crash of 2008, Congress passed the American Recovery and Reinvestment Act 2009, which provided $787bn of federal economic stimulus

49
Q

How has the federal government become more powerful over healthcare?

A

While NFIB v Sebelius ruled in favour of states, all but 14 have now expanded the programme

50
Q

What’s an example of the national government encroaching on state issues?

A

Education: The No Child Left Behind Act enforcing that states must test children annually

51
Q

What’s two examples of the national government encroaching on state powers during national crises?

A
  • Response to Hurricane Katrina - $120bn of economic relief aid
  • CARES Act 2020 was a $2.2tn economic relief package
52
Q

When did the Supreme Court rule in favour of the government?

A

Upheld the Affordable Care Act
Oberfell V Hodges

53
Q

What was the case of Oberfell V Hodges 2015, showing judges power of interpretative amendments ?

A

The court ruled that the 14th amendment guarantees same sex couples to marry making it legal in all states

54
Q

What are two examples showing the constitution protects rights?

A
  • The right to bear arms has been unable to be changed
  • 15th amendment and 19th amendment furthering the right to vote for black people and women (although arguably it was the Voting Rights Act 1965 and Board of Education of Topeka 1954 which truly desegregated black people)
55
Q

What are some examples of the constitution not upholding rights?

A
  • death of George Floyd
  • Overturning of Roe V Wade
56
Q

What are the four things to consider when evaluating the constitution?

A

Separation of powers (and relationship between federal and state gov as well as presidential power)
Difficult to amend
Protection of rights
Vagueness

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