Key features of the US constitution Flashcards
What are the four fundamental ideas at the heart of the constitutional?
Checks and balances, federalism, bipartisanship and the separation of powers
What is the separation of powers?
A way of distributing power between the three branches of government in a way that they can act independently and interdependently. With three co-equal powers checking up on and working alongside one another
What was the separation of powers created to avoid?
Tyranny
What does the ineligibility clause of Article I state?
That no one can be a member of more than one branch of government at any given time
Give an example of the ineligibility clause in action?
When Kamala Harris had to resign from the senate after becoming VP
Why is the term separation of powers a misnomer?
Because it is the institutions, rather than the powers that are separate, with the different branches actually sharing powers. For instance, in order for an Act to become and remain law, all three branches of government must be in agreement
Why is not necessarily a disadvantage that the three branches of government must cooperate in order for politics to operate?
Because even though this makes things frustratingly difficult for political actors, this is exactly what the Founding Fathers wanted, in order to prevent an accumulation of power in one branch, which could easily turn to tyranny
Explain how the legislature had to give approval to Obamacare
After a year of trying, both houses of Congress passed the bill in identical forms
Explain how the executive had to give approval to Obamacare
For the bill to become law, Obama had to sign it into law. The rest of the executive then had to make sure that its provisions were carried out
Explain how the judiciary had to give approval to Obamacare
Some opponents accused Obamacare of being unconstitutional. The SC had to hear the debate from lawyers and then ruled in support of Obamacare two years after it passed
What are the two key exceptions to the rule of the separation of powers?
- The VP is a member of the executive and legislature. They are part of the senate, and although they do not represent a state, they lead the senate and cast the deciding vote in a tie
- The president’s power of pardon is judicial rather than executive, making it a constitutional anomaly
Define checks and balances
A system of government that gives each branch the means to partially control the power exercised by the other branches
What is the idea behind checks and balances?
It gives each branch of government the power to resist encroachment on its own powers and maintain democratic government
See checks and balances deck in Mr Drew’ class!!
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List the checks on the powers of the president
- Congress can amend block or reject legislation proposed by the president
- Congress can override a president’s veto with a two thirds majority in both houses
- Congress has the power of purse and can reject a budget submitted by the president
- Congress has the power to declare war, which acts as a check on the president’s commander in chief position
- While the president has the power to negotiate treaties with other countries, they must be ratified by the president
- The president has the power to appoint federal judges and members of the cabinet, but these must be ratified by the senate
- Congress has the power to investigate the executive branch
- Congress can initiate impeachment proceedings against members of the executive
- The SC can use judicial review to declare executive actions unconstitutional
Give an example of Congress blocking legislation
In 2017, when Trump promised to repeal and replace Obamacare
When can Congress be especially effective at stopping legislation?
During periods of divided government
Give an example of Congress overriding a president’s veto
This happened in 2016 when Obama vetoed the Justice Against Sponsors of Terrorism Act
Why is it difficult for congress to override a veto in practise?
The need for a supermajority necessitates bipartisan support, which means members of a party must vote against their own president to do this
Give a statistic to indicate how hard it is to override a veto
The president has vetoed more than 2,500 bills and congress has overriden less than 5% of these
Why is passing a budget more difficult now?
Because we live in an era of hyper-partisanship, making it near impossible to come to a compromise during periods of divided government
Explain the difficulty behind the 2018 budget
The D majority in the house disagreed with Trump’s funding measure for border security. This led to a 35 day government shutdown, the longest in history
When was the last time Congress formally declared war?
In 1941, when the USA joined WWII
Look at drew’s stuff on foreign policy to determine whether this is an effective check or not
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How can president’s bypass the need for ratification of treaties?
By signing executive agreements
Give an example of the senate refusing to ratify a treaty?
In 1999, with the Comprehensive Test Ban Treaty
What is needed to ratify executive and judicial appointments made by the president?
A simple majority in the senate
Give an example of when the senate has rejected an appointment
In 1987, when they rejected Reagan’s nomination for the SC, Robert Bork
Why are appointments not actually rejected by the senate?
Because the threat of rejection is just as powerful, and used more frequently
Give an example of the threat of rejection being enough to thwart an appointment
Andrew Puzder, Trump’s choice for secretary of labour in 2017, withdrew following concerns from republican senators over his personal background and business record
Give an example of how Congress can investigate the executive
Senior members of the executive have to appear at congressional committee hearings
How do impeachment proceedings work?
The senate has the sole power to try over all impeachments, the VP will lead this process as head of the senate unless the president is being impeached, in which case the chief justice of the US will preside
What happened during the Clinton (1998) and Trump impeachment proceedings (2019 and 2021)?
They were impeached by the house but acquitted by the senate
Give an example of judicial review acting as a check on the executive
In the 2014 national labour relations board vs noel canning case, the SC ruled that Obama had acted unconstitutionally by making appointments to the national labour relations board without the senate’s approval
List some of the checks on congress
- The president can veto legislation. This is a blunt check that gives the president the final say on legislation, given how difficult it is to override a veto
- The president can use executive agreements to get around the need for senate ratification
- The SC can use judicial review to declare Acts of Congress unconstitutional
When will the president use their veto?
For bills they strongly dislike
Give an example of a president vetoing legislation they did not like
Trump vetoed the Iran War Powers regulation in 2020, as it would have limited his ability to wage war with Iran
Give an example of a president using an executive agreement to get around senate ratification
Obama with the Joint Comprehensive Plan of Action
What is the downside to executive agreements?
They can be easily undone by subsequent presidents
Give an example of executive agreements being quickly revoked by subsequent presidents
- Trump did this with Obama’s JCPOA
- Obama used an executive agreement to join the Paris Accord, Trump revoked this and Biden reinstated it
When was the first instance of the SC declaring a state law unconstitutional?
Fletcher vs Peck in 1810
What can the SC use judicial review to do to the constitution?
Make interpretative amendments that change its meaning
Give a recent example of the SC declaring a state law unconstitutional
In the 2013 case of US vs Windsor, which declared the 1996 Defence of Marriage Act unconstitutional
List the checks on the power of the judiciary
- Congress can propose constitutional amendments to overturn SC decisions
- Congress can impeach members of the judiciary found guilty of misconduct
- The presidential pardon can overturn decisions of the judiciary
Why is the idea that congress can propose constitutional amendments not that much of a check on the judiciary?
Because constitutional provisions are entrenched and therefore extremely difficult to amend
Give the only example of where congress has successfully brought about a constitutional amendment to reverse an SC decision
The SC ruled federal income to be unconstitutional in 1896, so Congress proposed the 16th amendment, which would give it the right to raise income tax. This was ratified and became operational in 1913
How many members of the judiciary have been successfully impeached?
8
Why has the use of the presidential pardon become increasingly controversial?
Due to complaints that it is being abused
Define bipartisanship
Close cooperation between the two major political parties to achieve political goals. It is especially crucial in the US system of government
Why is bipartisanship important in the US system?
Because of the separation of powers and the checks and balances the different parties can impose upon each other
What did the founding fathers want to encourage when creating the constitution?
A spirit of bipartisanship and cooperation between the president and congress
Give an example of a recent reform that was passed due to bipartisanship
Bush manages to pass his education reforms due to working with key congressional Ds, like senator edward kennedy
What happens if bipartisanship goes missing?
Gridlock
Give some statistics that indicate how divided government has become the norm
The 52 years to 2021 saw 36 years of divided government. For 24 years the presidency has controlled neither house. For only 15 years there was unified government
Give a statistic to indicate how divided government has not always been the norm
In the 48 years between 1921 and 1969 there was only 10 years of divided government
Does divided government make government more or less effective?
There are arguements on both sides
Make the arguement that divided government is more effective
- Bills and treaties are scrutinised more carefully
- Nominees will be scrutinised more closely in the appointment process
Give some facts that suggest that scrutiny suffers during periods of unified government
- The senate hasn’t rejected the treaty of a president from its own party since 1935
- Only twice has Congress overriden a veto by the president of its own party
Why has bipartisanship become much more difficult?
Because of party polarisation and the massive ideological gulf between the two main parties
Give a statistic to indicate how partisanship is now much more common
The 98th and 116th Congress has exactly the same political composition, but the earlier one (1983) passed 667 laws and the later one (2019) passed 334 laws
What is the only time where bipartisanship prevails in the modern era?
During times of crisis
Give an example of bipartisanship prevailing due to crisis?
When the Trump Administration manages to pass the CARES Act in 2020 due to COVID
Define federalism
This is where political power is divided between national government and state governments, with each having their own areas of substantive jurisdiction
What is limited government?
The idea that the scope of the federal government is limited to that which is necessary for the common good of the people, leaving rights and freedoms as untouched as possible while maintaining an orderly society
What did federalism act as a middle ground between for the founding fathers?
The disunity of the articles of confederation and the over centralisation under British rule
What is unusual about federalism as a key feature of the constitution?
Because it is not explicitly mentioned in the constitution
How did the 10th amendment aid federalism?
It reserved all remaining powers (those that had not been enumerated to the federal government) to the states and to the people
Who is the umpire in disagreements between state and federal government?
The SC
How does the constitution divide sovereignty?
Between federal and state governments, giving them distinct and concurrent powers
Who is the idea of the separation of powers heavily influenced by?
John Locke
What is the idea of the separation of powers?
The idea that no one branch of government should have too much power and that the three branches of government should be totally separate
What is in place to bring about the separation of powers?
Several checks and balances to ensure that this is the case
Give an example of the separation of powers in action?
Obama and Biden had go give up their seats in the senate to become president and VP in 2009
What are checks and balances?
Powers given to the branches of government to check the power of the other branches of government and the decisions and actions they take
What will checks and balances often be?
Exclusive powers of one branch
What do checks and balances ensure?
That no branch of government acts with unchecked power, preventing too much power lying with one branch - helping to avoid a despotic government
Make the case that the separation of powers and checks and balances are effective
- Executive orders can be nullified by congress, as congressional laws hold more weight than executive orders
- The SC is able to strike down laws as unconstitutional, and its ability to do this has not been changed or hindered
- Recent attempts by the executive to change the structure of the SC to aid the passage of legislation have been blocked by congress
- The president is unable to fire judges, and few have been impeached
Make the case that checks and balances and the separation of powers are not effective
- The president is the de facto leader of their party, and so has power over their legislative agenda
- The process of separation of powers means legislation is slow to pass, if at all, with congressional gridlock common
- Increased use of executive orders have bypassed the legislative process through congress, concentrating power in the hands of the president
- The nature of the appointment process for the judicial branch limits the separation of powers…
- The president can appoint judges for political gain
- If one party has a senate majority, they can deny a nomination, or refuse to hold confirmation hearings
- Judges with political views may not properly check the actions of an executive they support
Give an example of a senate majority refusing to hold confirmation hearings?
Senate majority leader Mitch McConnell refused to do this for Obama’s nomination in 2016, Merrick Garland
What does the constitution not mention anywhere within it?
Political parties
What constitutional requirements need cooperation between political parties?
The need for supermajorities to pass amendments or overrule a presidential veto, as it is very rare for one group or ideology to have such a large majority
How does the separation of powers necessitate parties?
Because it provides an imperitive for different groups to work together, as this is the only way laws can be passed, enforced and upheld
Give some historical examples bipartisanship that suggest it is effective
- The two parties worked together in the 1960s under Democrat LBJ and in the 1980s under Republican Reagan
- In 2010, ‘don’t ask, don’t tell’ was repealed by a bill sponsored by a group of Rs and Ds, and supported by a group of Rs who voted with the Ds
Make the case that bipartisanship is not effective
- The need for bipartisanship has caused many problems during periods of divided government
- As political parties have become more polarised in recent years it has become much more difficult to reach compromise agreements meaning much less legislation has been passed and the government has sometimes temporarily shutdown
- This ‘political evil’ was feared by John Adams
Why is the idea of limited government part of the constitution?
Because it is one of the key principles of a liberal democracy and was important to the FF who believed that too much power in the hands of one person/group was dangerous
What were the separation of powers and the system of checks and balances put in place to do?
Limit the power of the federal government
What does the codification and entrenchment of the constitution prevent?
The government imposing their will on its citizens
How did the BoR limit the power of the federal government?
By protecting the rights of the individual and the states
Make the case that limited government is effective
- The SC has often struck down legislation on the grounds that it infringes upon the rights of citizens as set out in the BoR
- Checks and balances and the separation of power have often prevented or diluted social reforms by the Ds that would expand the powers of the federal government
Make the case that limited government is not effective
- Conservatives and libertarians argue that the government has gotten too big as it has expanded its role in economic and social policy
- They want to limit the government’s role in these areas, especially welfare programmes
- Many also argue that the federal government has grown too large and has more power over the states than the FF intended
What did James Madison say when advocating for checks and balances to prevent tyranny?
‘Ambition must be made to counteract ambition’
