Ham Themes

Question 1

What is the fundamental nature of power?

Answer 1

trying to get away with getting more while doing less

Question 2

The admin state is trying to escape ____ through ___

Answer 2

constitutional pathways, extralegal methods

Question 3

How does Constitution handle justice?

Answer 3

doesn’t define it, leaves us to seek in myriad of ways

Question 4

What are two fundamental differing views on the nature of the Consti?

Answer 4

fear of injustice (hard edge protections and limits that can’t be adjusted in response to public opinion) OR hope of greater justice (malleable protections)

Question 5

What are the three modes of governance Ham identifies?

Answer 5

Leg, Admin, Conditions

Question 6

What is Ham’s fundamental take on rights?

Answer 6

less is more

Question 7

Ham thinks that as rights expand __

Answer 7

they bump into practical realities that restrict rights

Question 8

Mathews makes due process ___

Answer 8

flexible contextual standard

Question 9

Why are rights turned interests more easily curtailed?

Answer 9

subject to compelling govt interest

Question 10

How does Goldberg restrict rights?

Answer 10

say right to hearing before deprived of benefits but untenable to have jury trial everytime so not what you get

Question 11

what happens to the balancing test in Hamdi?

Answer 11

now applies to constraints not just benefits

Question 12

What are powers restricting rights?

Answer 12

compelling govt interest, public right, police power

Question 13

Case about admin state as public right

Answer 13

Atlas Roofing

Question 14

Mathews turns rights into ____

Answer 14

interests rather than limits on govt

Question 15

How does Madison letter to Jefferson characterize purpose of BoR

Answer 15

for people to internalize rights as norms

Question 16

When court says rights are contingent on compelling govt interest ___

Answer 16

people will come to accept it and further weaken rights (Korematsu)

Question 17

How has freedom of religion been watered down?

Answer 17

freedom from constraints (prohibition on discrim) –> freedom to benefit equally from govt/from law (now subject to govt interest)

Question 18

How has freedom speech been watered down?

Answer 18

freedom from ex ante constraints _–> freedom from ex post punishment so opens space for govt to limit ex post and then ex ante

Question 19

What are the solutions to watering down rights?

Answer 19

Don’t make new rights OR distinguish between old and new

Question 20

Problems with distinguishing between old vs new rights

Answer 20

would have to be candid about judicial activism, progressive judges couldn’t expand rights as much as they wish

Question 21

How does Const structure protect liberty?

Answer 21

authority to act + affirmative prohibitions (BoR)

Question 22

How does Const authority to act protect liberty?

Answer 22

enumerated, SoP, certain rights (jury, due process)

Question 23

Sebelius Scalia dissent about structure

Answer 23

structure most important to Framers because did it first

Question 24

structure most important to Framers because did it first (who said)

Answer 24

Sebelius, Scalia dissent

Question 25

Structure itself is ___

Answer 25

protection

Question 26

Morrison Scalia dissent says

Answer 26

SoP to protect individual freedom

Question 27

How does Section 230 erode structural protection?

Answer 27

effectively regulates what is said online by cutting off recourse to those affected

Question 28

Legal realist view of law

Answer 28

law is what is says it is, might makes right

Question 29

Positivist view of law

Answer 29

command of the sovereign

Question 30

Ham view of law

Answer 30

obligations (more than coercion) bound to because of consent

Question 31

Because of Stuart monarchs, Framers drafted Const wary of ___ and ___

Answer 31

absolute power, extralegal pathways

Question 32

Why only bound by laws passed by Leg and adjudications of Ct?

Answer 32

what we consented to with Consti

Question 33

4 main ways admin state harms civil liberties

Answer 33

(1) violate due process by extrajudicial (2) violate right to jury (only in courts) (3) violate independent adjudicator (4) interfere with federalism/state law

Question 34

How does admin state interfere with federalism

Answer 34

Supremacy Clause - only Fed laws made in pursuance of Const trump state laws

Question 35

Admin state is bad for the ___ so can't afford not to get rid of it

Answer 35

economy (too much regulation)

Question 36

3 ways admin state bad for democracy

Answer 36

laws made by unaccountable knowledge class that is homogenous, no sympathy for regional differences, dilute right to vote

Question 37

Admin state rose in response to ___

Answer 37

greater democratization

Question 38

Arguments for admin state

Answer 38

(1) practicality (2) need expert judges (3) ALJ unbiased (4) more judges dilute elite status (5) if exec power merely to execute laws then any action taken by Pres with Cong. authorization is exec power even binding rules

Question 39

Response to practicality of admin state

Answer 39

Cong. gridlock mostly political, even if slower okay because most regulation long term

Question 40

Response to need for expert judges

Answer 40

expertise not worth much

Question 41

Response to ALJ unbiased

Answer 41

decisions non binding and reviewable by agency heads

Question 42

Response to exercising exec power

Answer 42

strange to make quintessential leg action into exec, would require all agency officials with rule making power to be put under Pres control

Question 43

Solutions to Admin Threat (4)

Answer 43

Stop fictionalizing (call it admin power not law), replace ALJ with real judges, Judges do duty (bigger caseload + non-deference), Pres should order agencies to send rules to Cong. for adoption

Question 44

Locke role of Consti

Answer 44

without govt all equally free, govt can only get power over you with consent

Question 45

What were early state consti?

Answer 45

charters from Crown (not the people)

Question 46

Early state consti introduced ___

Answer 46

federalism and SoP

Question 47

Perquimans case result

Answer 47

hold judicial act unconsti (not just error) because gave law retrospective effect

Question 48

Perquimans case is an example of following ___

Answer 48

the law where it leads at high costs

Question 49

Quock Walker is an example of following ___ because Mass Const

Answer 49

law where it leads and popular, all men born equal and free

Question 50

Nondelegation doctrine is justified by ___

Answer 50

fiction of intelligble principle

Question 51

Why does Ham think delegation is bad?

Answer 51

Leg Vest Clause, evade structure of govt chosen by the people

Question 52

Ham thinks NP and CC doctrine mean ___

Answer 52

fed govt no longer one of enumerated powers

Question 53

Ham thinks exec power is ___

Answer 53

lawful force of the nation

Question 54

Atlas Roofing defines admin state as ___

Answer 54

public right trumping private right of jury

Question 55

three views of Exec power

Answer 55

(1) all govt by nature certain powers (2) useful powers can be implied by Consti (3) Consti says what we need