Leg Power Flashcards

1
Q

Only the Leg Vesting clause says ___

A

all leg powers herein granted shall be vested

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2
Q

If not herein granted then ___

A

left to the states

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3
Q

All in the leg vesting clause means ___

A

implies no leg power outside of Cong.

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4
Q

There is ____ expressly forbidding delegation

A

no clause

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5
Q

Schecter says Cong ___

A

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

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6
Q

Why no IP in Schecter?

A

gave unfettered authority to approve codes of competition

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7
Q

What case does IP come from

A

Mistretta

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8
Q

What is an IP

A

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

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9
Q

Gundy says Courts can infer IP ___

A

from the context

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10
Q

Kagan in Gundy says if ___

A

unconstitutional most of govt is unconstitutional

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11
Q

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

A

enlist help of other branches to fill in the details

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12
Q

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

A

fiction, why admin state uncon

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13
Q

Court has only found nondelegation __

A

twice

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14
Q

Ham says the IP in Gundy was ___

A

intelligible/nonexistent

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15
Q

Gundy facts

A

AG given authority to prescribe rules for sex offender registry

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16
Q

Gorsuch Gundy dissent says AG given power to ___

A

write own criminal code

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17
Q

In Gundy, the standard seems to be __

A

anything that Cong says is a guiding principle is one

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18
Q

Gorsuch says that sex offenders are unpopular but if ___

A

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

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19
Q

Ham thinks that nondelegation is really ___/___

A

divestiture/rulemaking

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20
Q

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

A

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

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21
Q

Congress is not really delegating because it is ___

A

permanently alienating the power from itself

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22
Q

How does delegation undermine democracy

A

Cong gives power to unelected admin

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23
Q

Gundy Gorsuch says respecting SoP does not ___

A

foreclose any substantive outcomes

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24
Q

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

A

foreclose admin state

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25
Madison in the Post Roads Debate says that delegating powers will ___
blend powers together and eventually no separation at all
26
Fed 47 says can be no liberty when ___
exec and leg powers united in one body
27
Ham says post offices don't provide support for delegation because ___
instruction for govt officials, not binding on general population
28
Ham thinks what if FDA ______ instead of admin?
scientists made recommendations to Cong
29
Potential solutions for delegation
general vs. detail (but maybe care most about detail), important vs. unimportant, leg vs non-leg (no duty to follow)
30
Problem with dividing delegation on leg vs. no leg
maybe even if no consequences still controls people's behavior
31
The Post Roads are not inherently ___ but ___
leg, power is granted to Cong
32
Pushback to post roads not inherently leg
maybe rule requiring consent of governed inherently leg
33
Arguments for delegating roads
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
34
arguments against delegating roads
Cong granted Leg power because accountable to people --> postmaster not, power vested from people to Cong which it cannot delegate
35
Gundy Gorsuch dissent lawmaking difficult by design to ___
ensure deliberation, ensure fair notice of law, ensure law broad popular support
36
Chadha and Clinton are attempting to ___
create new pathways for existing Constitutionally authorized institutions (more clearly uncon then new for new institutions)
37
Chadha and Clinton are ___ vs. ___ debates
form, function
38
Chadha holding
One house veto uncon because outside bicam/presentment procedures
39
Why is Chadha veto legislative
altered legal rights, duties and relationships of people outside the leg branch
40
Chadha Powell concurrence
maybe not all leg vetos uncon but finding one person not meeting criteria form of judicial power
41
Chadha White dissent
One House veto needed check on increasing admin power
42
White says Framers didn't image extent of delegation so ___
couldn't imagine leg veto (originialist)
43
White says Consti chartered with the ____ without losing sight of ___
flexibility to respond to contemporary needs, fundamental democratic principles
44
White says his dissent in spirit with __
Jackson youngstown concurrence
45
Ham says if leg veto was allowed ___
Cong could slice and dice powers where it sees fit
46
Ham says one bad thing (admin state) ___
doesn't justify another (leg veto)
47
Ham says law is about ___ but there is still discretion ___
rigidity and form, while following basic structures
48
Clinton holding
line item veto violates presentment
49
Clinton says that Cong. can't alter Presentment without __
altering Consti
50
Clinton says ____ should be taken as express prohibition
Consti silence on unilateral Pres action that amends part of Act
51
Clinton says line item veto is different from ___
Pres discretion to decline to spend appropriated funds (not permanent)
52
Clinton Scalia says it is actually a ___ problem because ____
SoP, gives Pres lawmaking power
53
Clinton Scalia says it is actually a new ___
statute because bills passed by Cong in their entirety
54
The power of the purse is how __
the Pres is accountable to Cong
55
What ultimately led to withdrawal from Vietnam
Cong refusing to allocate funds
56
There are ____ on purse power with edge
no good cases
57
Burwell facts
Obama secretary spends unappropriated funds on authorized ACA
58
Burwell holding
Cong. standing for con claims but not statutory ones (district so non binding)
59
What is non-appropriate theory in Burwell
standing for con claims to retain power of purse + Leg/Exec equilibrium --> justiciable injury
60
What is employer mandate theory in Burwell
sec improperly amending ACA only affects implementation of statute not specific Con requirement so no standing
61
After Burwell, it is still an open Q if ___
Cong. can sue exec officer for spending money not allocated to him
62
Argument for why court shouldn't intervene if haven't used purse with edge
Not exhausted all political tools
63
How is power of purse undermined by admin state
some not even dependent on Cong. funding
64
examples of independently funded agencies
billionaries funding positions in agencies (Ham says ok if authorized), police (tickets/seizures), CFPB (decide allotment of Treasury)
65