quiz 11 us/brazil Flashcards
How would you define the presidential regime?
Democratic form of government where HoS= President
both parliament and PR elected by universal suffrage
Coalition between PP in the government takes place before PR elections to prevent gridlock, ensure majority
PR dismissed only upon criminal charges
Strict separation of power: exec and legis are independent → PR can’t dissolve LH to provoke new elections / parliament can’t vote out members of gov.
What influences of Locke, Hobbes, and Montesquieu may be seen in the US Declaration of Independence?
a. Locke: Inalienable rights (Life, Liberty, PoH), originally property =/= Thomas Jefferson (Rich man’s country)
b. Hobbes: government derives legitimacy from the consent of the governed. Once colonies aren’t represented in HoC = no power to tax
c. Montesquieu: right to alter/abolish government from “long train of abuses and usurpation”
d. Locke and Hobbes, Security: Gov. responsible for ensuring security in their territory.
What 3 compromises enabled the adoption of the Federal Constitution, transforming the Confederation of the 13 colonies into a federation w TWO clear legal orders?
a. The Great Compromise: HoRepresentatives = proportional // Senate = equal despite population /VA vs NJ/
b. ⅗ Compromise: Every 3 out of 5 slaves would be counted. /South vs North representation/ - slave import outlawed by 1808
c. Commerce Compromise: permits Congress to tax imports =/= exports
North wanted federal control over trade = protectionists policy
South didn’t bc they didn’t want tobacco, rice, cotton ⇒ economy relied on this
Representation in the UH, LH
Does the fact that the US constitution was based on compromise influence the provisions on constitutional amendment?
YES. Rigid Amendment Process: bc the compromises were so fought hard for → rigid → no small faction can alter constitution without overarching consensus
Did the FC include a bill of rights in 1787?
Were rights not guaranteed in the early US Republic?
No. Guaranteed by each state, not on federal level. → could limit rights of people bc : the rights not included in Bill of Rights could be seen as not guaranteed
Rights were guaranteed.
Article I, Section 9: writ of habeas corpus
state constitutions
structure of government/ SoP: prevent any branch to infringe on individual rights
Is the US a semi-direct democracy at the federal level?
NO, it’s a representative democracy because
lack of legislative initiative, referendum, or recall
only participate through elections – indirect election of president through electoral college
=/= primary elections through caucuses and conventions let voters directly choose own candidates
NATIONAL SOVEREIGNTY
. Why does the actual number of federated States in the Brazilian Federation show the continuity of the structure of representation in Brazil? How many States? What were these regions called before the creation of the Federation in 1891?
How does the government of the old structure (before 1891) illustrate the actual functioning of the Brazilian Federation?
26 states and 1 federal district =27 entities in the federation → relatively autonomous in terms of education, health, taxation
→ 1889: monarchy to republic ⇒ provinces were restructured to have greater autonomy but territory remained the same
→ 1891: federalization by constitution → 22 provinces IDENTICAL ⇒ number and way they function is direct continuation
originates from deconcentrated unitary state the Brazilian Federation is CENTRALISED compared to other federations
. What is the difference between the formation of US federalism and Brazilian federalism?
a. US = allocation. 13 different colonies came together through the Articles of Confederation → Federal state with Federal Constitution
b. Brazil = dislocation. 1891 constitution after a military coup d’etat. Deconcentrated unitary to a federalized.
What article of the US Constitution provides that Federal law always prevails over federated state law?
Name one case in which the SCOTUS confirms that federated States have power to act as long as they are not denied such power by the Constitution, federal law, or by their own federated constitution.
What Amendment of the US constitution explicitly affirms this “delegated power” principle?
Supremacy clause, Article 6, par. 2 : US Federal Law takes precedence over state laws and state constitutions.
McCulloch v Maryland: Maryland attempted to tax a branch of Second Bank of the US = unconstitutional
The 10th Amendment: states have the power to act unless denied such power by a constitution or a federal law.
What amendment of the US Constitution explicitly limits federated states powers to legislate in certain areas concerning human rights? What are these areas? In one of these areas, the federal law is also limited by the 5th amendment. What is the case of the US Supreme Court which holds that federal law may not treat same-sex marriages differently than heterosexual marriages? In what case was this holding generalized, and therefore applicable to federated states?
14th Amendment limits the power of the federated states
a. Depriving a person of life, liberty, or property without due process of law (Due Process Clause)
b. Denying any person within their jurisdiction the equal protection of the laws
Areas limited by 14th amendment: Discrimination, voting rights, marriage rights, access to justice
The Due Process Clause of the 5th amendment also ensures life, liberty, property. Parallel protection at both state and federal levels.
US v Windsor. Federal law cannot treat same sex marriage differently
Obergefell v Hodges. Nationwide recognition/legalization of same sex marriage
. What article grants enumerated powers to the Federal Congress?
On top of said enumerated powers, what case of the SCOTUS held for the first time that the powers granted to Congress were not only those that were enumerated but also those that are implied?
Article I, Section 8
McCulloch v Maryland
1. Congress had the authority to establish the bank under the Necessary and Proper Clause (Article I, Section 8, Clause 18), which allows Congress to make all laws necessary and proper for executing its enumerated powers.
2. Maryland could not tax the federal bank because of the Supremacy Clause (Article VI), which establishes that federal law is supreme over state law.
Significance:
This decision established the doctrine of implied powers, allowing Congress to take actions not specifically enumerated in the Constitution if they are necessary to fulfill its enumerated powers.
Name two enumerated and two implied powers granted to the US Congress.
Enumerated:
Power to Tax (Article 1, Section 8, Clause 1)
Power to regulate commerce (Article 1, Section 8, Clause 3)
Implied: Derived from Elastic Clause
Power to establish a national bank
Power to draft citizens into military
Power to control immigration
. In what case did the SCOTUS consider that article I section 8 US grants Congress the power to regulate commerce between the federated states including navigation on state rivers and any other activity touching even indirectly commercial activities?
Gibbons v Ogden.
2 steamboat operators
Ogden had monopoly license granted by state of NY, Gibbons had federal license
Gibbons» Commerce Clause gives precedence
What are the names of the cases and what is the test that determines whether or not the Federal State may take legislation that applies to the federated states without violating the Xth amendment?
-The 10th amendment shields federal interference in core functions. “Traditional Government Function” test to determine if federal functions unconstitutionally intrude on state sovereignty. [National League of Cities v Usery 1976]
Abandoned TGF in Garcia v San Antonio Metropolitan Transit Authority. New test: Anti Commandeering principle → Test confirmed in 2012: National Federation of Independent Business v Sebelius
ACA→ federal government cannot force states to implement federal programs // Congress through mechanisms such as funding, tax, within the scope of enumerated powers
BALANCING TEST - Arizona
In the presidential regime of the US, may the president adopt autonomous decrees without a constitutional basis?
What article of the Constitution contains the rule on this question, and what is the leading case of the SCOTUS?
NO. The President’s authority to issue executive orders derive from the Constitution or a power delegated by Congress through legislation.
Article II, Section 1 and 3 vests executive power in the President and directs the president to “take care that the laws are faithfully executed”
Leading Case: Youngstown Sheet & Tube Co. v. Sawyer (1952)
Korean War, Truman → steel production for war effort → lacked congressional/constitutional authorization.
Evaluating presidential power:
a. Maximum power
b. Twilight Zone
c. Lowest Ebb
