Pg 19

Question 1

What do presidents often use instead of formal treaties?

Answer 1

International agreements or compacts with congresses’ participation

Question 2

What is a pure executive agreement?

Answer 2

These are used to quickly and privately commit the US to foreign action without involving Congress, but Congress must be notified of the agreement. These are for emergencies when the president needs to take action, and these are often given broad discretion by Congress

Question 3

What kind of limits are international agreements subject to?

Answer 3

The constitution

Question 4

If an executive agreement conflicts with a federal statute, what happens?

Answer 4

Executive agreements usually have the same status as ratified treaties, but:

• if it was entered by the president according to his constitutional authority and the order is consistent with previously enacted federal law, then the agreement is the supreme law of the land and it prevails over contrary state law.
• If the president’s authority doesn’t come from his exclusive presidential powers, then the agreement cannot override earlier enacted federal statutes

Question 5

If the president feels like he needs to act in an emergency, what usually happens?

Answer 5

Congress often acquiesces and gives the president broad discretion

Question 6

What are the three major types of executive agreements?

Answer 6

– those based on the president’s exclusive presidential power: like commander-in-chief of the Armed Forces
– those given according to authorization in a prior treaty or from prior congressional authority: like if the House and Senate delegated powers to the president
– when the president gets confirmation from both houses of an agreement he has negotiated

Question 7

What kind of things have supremacy over contrary state law?

Answer 7

Treaties and executive agreements

Question 8

Who has the war power?

Answer 8

Congress and the president share this power

Question 9

How do Congress and the president share the war power?

Answer 9

– President: is commander-in-chief of the Armed Forces and the top general. He cannot order the indefinite detention of US citizens arrested on US territory without due process of law, but he can repel an invasion, act unilaterally to preserve US neutrality, protect US citizens abroad, and act in an emergency.
– congress: has the power to declare war and maintain Armed Forces.

Question 10

What is habeas corpus?

Answer 10

A judicial determination of whether someone is being lawfully held in custody

Question 11

What is the commander in chief clause?

Answer 11

This authorizes the president to use military force when required to protect national interests, unless Congress prohibits it

Question 12

What are some ways that the president can justify authorizing military interventions abroad without congressional approval?

Answer 12

– self-defense: responding to aggression
– neutrality: necessary to use intervention in foreign countries in order to protect US nationals and property
– collective security: NATO, SEATO
– suppressing an insurrection: against the governor of a state or the US

Question 13

What is a modern trend when it comes to the president using military interventions abroad?

Answer 13

He likes to get congressional authorization to fall back on in case his power is attacked, instead of acting on his own

Question 14

What is the war Powers resolution?

Answer 14

The president needs congressional authorization to commit the Armed Forces. There must be a consultation and reporting of the president’s involvement in hostilities and termination of use of the armed forces 60 days after reporting unless there is congressional action. Congress can force the president to withdraw Armed Forces that are engaged in hostilities outside the US.

Question 15

What is the privileges and immunities clause?

Answer 15

Citizens of each state are entitled to all fundamental privileges and immunities of citizens in the several states and a state cannot deny citizens of other states these things. This prohibits state laws that abridge the privileges and immunities of US citizens without a substantial reason.

Question 16

What is the purpose of the privileges and immunities clause?

Answer 16

To foster a national union by discouraging discrimination against residents of another state because of citizenship. This created a national citizenship that consists of uniform basic rights

Question 17

What is considered to be unconstitutional under the privileges and immunities clause?

Answer 17

Laws that disadvantage people who make their homes in another state regarding:
– buying property
– making contracts
– doing business
– ingress and egress
– other fundamental rights

Question 18

Where do you often see the privileges and immunities clause come up?

Answer 18

– state or local hiring preferences
– quotas for doing business with a state
– different fees for residents and nonresidents

Question 19

Does the privileges and immunities clause guarantee any rights and privileges?

Answer 19

No, but it requires that when a state confers benefit on its own citizens, they cannot deny it to out-of-state citizens without substantial justification. This protects basic rights and essential activities that bear on the vitality of the nation as a single entity, and applies to state and local regulations

Question 20

What is the primary citizenship of people?

Answer 20

US citizenship is their primary citizenship, and their state citizenship is secondary or derivative. States have no power to restrict their citizenship to any classes or persons. You are a citizen of the United States first, and that gives you fundamental rights.

Question 21

What are concepts that are related to the privileges and immunities clause?

Answer 21

Due process, equal protection, incorporation theory

Question 22

What is “selective incorporation of the bill of rights” with regard to the privileges and immunities clause?

Answer 22

If a court says that a certain right is fundamental to the US’ system of justice, then it is incorporated into the word “ liberty“ from the due process clause of the 14th amendment and applied as against the states.

Question 23

What things are incorporated and not incorporated into the word “liberty“ from the due process clause of the 14th amendment and applied to the states?

Answer 23

INCORPORATED:
– 1st amendment: freedom of religion, press, speech, assembly, and petition
– 4th amendment: searches and seizures
– 5th amendment: double Jeopardy, privilege against self-incrimination ***except grand jury requirement for criminal prosecution
– 6th amendment: rights in criminal process
– 8th amendment: cruel and unusual punishment, excessive bail provision

NOT INCORPORATED:
- 2nd, 3rd, 5th (just the part guaranteeing criminal prosecution for a grand jury indictment)
- 7th (guarantee of jury trial in a civil case)
– 9th and 10th

***This is important for essay questions where a state actor is involved and we have to decide if the due process protects citizens against the state action or not. If a state abridges its citizens’ freedom of speech, it would be abridging the first as applied to it through the 14th. We can’t say it is violating the first, we must note its application to the state through the 14th

Question 24

What are the two privileges and immunities clauses?

Answer 24

– section 1 of the 14th amendment

– article 4, section 2

Question 25

What is involved in section 1 of the 14th amendment as a type of privileges and immunities clause?

Answer 25

This stops the individual states from making laws that abridge the privileges or immunities of citizens of the US. It just protects rights that are peculiar to being a citizen of the federal government. Each citizen carries the same privileges and immunities of the US everywhere and it preempts every state law that conflicts with it. This is a broad source for protecting the civil rights of Americans.

ONLY APPLICABLE TO STATES - not the Fed gov (must use DPC of 5th to apply to Fed gov)

Question 26

Who is considered to be a citizen of the United States?

Answer 26

Anyone born or naturalized in the United States, including former slaves

Question 27

What are privileges and immunities?

Answer 27

Not basic fundamental rights, but rights that are particularly associated with being a citizen of the United States. These rights cannot be terminated by the state or local government. This includes the right:
– to travel on the high seas or interstate
– to petition the government for redress of grievances
– to be protected from violence while in custody
– to petition Congress
– to vote in federal elections
– to enter federal lands
– to be treated equally as a citizen with moving from one state to another

Question 28

What is a unique federal right under section 1 of the 14th amendment in the privileges and immunities clause?

Answer 28

The right of a citizen of the United States to establish residency in a state and be treated in a similar way to long-time residents of the state.

I.e.: California cannot give reduced welfare benefits to new arrivals that are bona fide citizens