Leg Power

Question 1

Only the Leg Vesting clause says ___

Answer 1

all leg powers herein granted shall be vested

Question 2

If not herein granted then ___

Answer 2

left to the states

Question 3

All in the leg vesting clause means ___

Answer 3

implies no leg power outside of Cong.

Question 4

There is ____ expressly forbidding delegation

Answer 4

no clause

Question 5

Schecter says Cong ___

Answer 5

can’t delegate the leg power it has (vesting clause)

Question 6

Why no IP in Schecter?

Answer 6

gave unfettered authority to approve codes of competition

Question 7

What case does IP come from

Answer 7

Mistretta

Question 8

What is an IP

Answer 8

idea to guide agency in execution + standard by which agency conduct can be judged

Question 9

Gundy says Courts can infer IP ___

Answer 9

from the context

Question 10

Kagan in Gundy says if ___

Answer 10

unconstitutional most of govt is unconstitutional

Question 11

Under current doctrine, Cong can’t delegate but it can __

Answer 11

enlist help of other branches to fill in the details

Question 12

According to Ham, IP is ___ and a big reason __

Answer 12

fiction, why admin state uncon

Question 13

Court has only found nondelegation __

Answer 13

twice

Question 14

Ham says the IP in Gundy was ___

Answer 14

intelligible/nonexistent

Question 15

Gundy facts

Answer 15

AG given authority to prescribe rules for sex offender registry

Question 16

Gorsuch Gundy dissent says AG given power to ___

Answer 16

write own criminal code

Question 17

In Gundy, the standard seems to be __

Answer 17

anything that Cong says is a guiding principle is one

Question 18

Gorsuch says that sex offenders are unpopular but if ___

Answer 18

laws restrict liberty for one group then what does it mean for the next

Question 19

Ham thinks that nondelegation is really ___/___

Answer 19

divestiture/rulemaking

Question 20

Normally if something can be delegated it can be undelegated but if Cong. “undelegates” has to ___

Answer 20

go through process of bicam/presentment (with possibility of veto)

Question 21

Congress is not really delegating because it is ___

Answer 21

permanently alienating the power from itself

Question 22

How does delegation undermine democracy

Answer 22

Cong gives power to unelected admin

Question 23

Gundy Gorsuch says respecting SoP does not ___

Answer 23

foreclose any substantive outcomes

Question 24

Gundy Gorsuch says that SoP wouldn’t ___ but Ham disagrees

Answer 24

foreclose admin state

Question 25

Madison in the Post Roads Debate says that delegating powers will ___

Answer 25

blend powers together and eventually no separation at all

Question 26

Fed 47 says can be no liberty when ___

Answer 26

exec and leg powers united in one body

Question 27

Ham says post offices don’t provide support for delegation because ___

Answer 27

instruction for govt officials, not binding on general population

Question 28

Ham thinks what if FDA ______ instead of admin?

Answer 28

scientists made recommendations to Cong

Question 29

Potential solutions for delegation

Answer 29

general vs. detail (but maybe care most about detail), important vs. unimportant, leg vs non-leg (no duty to follow)

Question 30

Problem with dividing delegation on leg vs. no leg

Answer 30

maybe even if no consequences still controls people’s behavior

Question 31

The Post Roads are not inherently ___ but ___

Answer 31

leg, power is granted to Cong

Question 32

Pushback to post roads not inherently leg

Answer 32

maybe rule requiring consent of governed inherently leg

Question 33

Arguments for delegating roads

Answer 33

not delegating just executing leg will, impossible for Cong to do and be experts on everything, grant can be for limited years, lack of info for Cong

Question 34

arguments against delegating roads

Answer 34

Cong granted Leg power because accountable to people –> postmaster not, power vested from people to Cong which it cannot delegate

Question 35

Gundy Gorsuch dissent lawmaking difficult by design to ___

Answer 35

ensure deliberation, ensure fair notice of law, ensure law broad popular support

Question 36

Chadha and Clinton are attempting to ___

Answer 36

create new pathways for existing Constitutionally authorized institutions (more clearly uncon then new for new institutions)

Question 37

Chadha and Clinton are ___ vs. ___ debates

Answer 37

form, function

Question 38

Chadha holding

Answer 38

One house veto uncon because outside bicam/presentment procedures

Question 39

Why is Chadha veto legislative

Answer 39

altered legal rights, duties and relationships of people outside the leg branch

Question 40

Chadha Powell concurrence

Answer 40

maybe not all leg vetos uncon but finding one person not meeting criteria form of judicial power

Question 41

Chadha White dissent

Answer 41

One House veto needed check on increasing admin power

Question 42

White says Framers didn’t image extent of delegation so ___

Answer 42

couldn’t imagine leg veto (originialist)

Question 43

White says Consti chartered with the ____ without losing sight of ___

Answer 43

flexibility to respond to contemporary needs, fundamental democratic principles

Question 44

White says his dissent in spirit with __

Answer 44

Jackson youngstown concurrence

Question 45

Ham says if leg veto was allowed ___

Answer 45

Cong could slice and dice powers where it sees fit

Question 46

Ham says one bad thing (admin state) ___

Answer 46

doesn’t justify another (leg veto)

Question 47

Ham says law is about ___ but there is still discretion ___

Answer 47

rigidity and form, while following basic structures

Question 48

Clinton holding

Answer 48

line item veto violates presentment

Question 49

Clinton says that Cong. can’t alter Presentment without __

Answer 49

altering Consti

Question 50

Clinton says ____ should be taken as express prohibition

Answer 50

Consti silence on unilateral Pres action that amends part of Act

Question 51

Clinton says line item veto is different from ___

Answer 51

Pres discretion to decline to spend appropriated funds (not permanent)

Question 52

Clinton Scalia says it is actually a ___ problem because ____

Answer 52

SoP, gives Pres lawmaking power

Question 53

Clinton Scalia says it is actually a new ___

Answer 53

statute because bills passed by Cong in their entirety

Question 54

The power of the purse is how __

Answer 54

the Pres is accountable to Cong

Question 55

What ultimately led to withdrawal from Vietnam

Answer 55

Cong refusing to allocate funds

Question 56

There are ____ on purse power with edge

Answer 56

no good cases

Question 57

Burwell facts

Answer 57

Obama secretary spends unappropriated funds on authorized ACA

Question 58

Burwell holding

Answer 58

Cong. standing for con claims but not statutory ones (district so non binding)

Question 59

What is non-appropriate theory in Burwell

Answer 59

standing for con claims to retain power of purse + Leg/Exec equilibrium –> justiciable injury

Question 60

What is employer mandate theory in Burwell

Answer 60

sec improperly amending ACA only affects implementation of statute not specific Con requirement so no standing

Question 61

After Burwell, it is still an open Q if ___

Answer 61

Cong. can sue exec officer for spending money not allocated to him

Question 62

Argument for why court shouldn’t intervene if haven’t used purse with edge

Answer 62

Not exhausted all political tools

Question 63

How is power of purse undermined by admin state

Answer 63

some not even dependent on Cong. funding

Question 64

examples of independently funded agencies

Answer 64

billionaries funding positions in agencies (Ham says ok if authorized), police (tickets/seizures), CFPB (decide allotment of Treasury)