Test 2 Flashcards
1
Q
what must judges do if cases are deemed “political questions”
A
dismiss the case
2
Q
why is the political question doctrine a thing
A
it is rule judges put on themselves to demonstrate “due respect” for other branches (the questions arising would be better answered in other parts of government)
3
Q
what is the big case that goes with the political question doctrine
A
Baker v Carr (luther v borden, calgrove v green)
4
Q
what are the facts of luther v borden
A
- some states had not written their own constitution (still used charter from colonial times)
- citizens wanted state legislature to write constitution (sued under guarantee clause)
- “the united states shall guarantee a republican form of government”
5
Q
what is the issue in luther v borden
A
can the supreme court make them have a certain form of government
6
Q
what is the holding in luther v borden
A
- supreme court did not want to be involved in “political question”
- is not up to them to decide what a republican government is
7
Q
what is malapportionment
A
when the number of voters in districts varies meaning the less number of people get more representation proportionally
8
Q
what are the facts of calgrove v green (malapportionment case)
A
- people in urban area say they are being denied a republican form of government because they get more representation in less populated areas
- sue under article 4 same as luther v borden
9
Q
what is the holding in calgrove v green
A
- dismiss due to non-justiciable political question
- follows same logic as luther v borden
10
Q
what are the facts of Baker v Carr
A
- people in memphis/nashville say they are malapportioned
- instead of suing under guarantee clause they sue under equal protection of laws
- less representation means less protection under the law
11
Q
what was the holding in Baker v Carr
A
- case is justiciable
- agree with the plaintiffs
12
Q
what was the rationale in Baker v carr
A
Sets up the rules for what a political question is
13
Q
what are the first 2 rules determining the political question doctrine
A
- textually demonstrable commitment to another branch of government
- lack of judicially manageable standards to resolve the issue
14
Q
how did Baker v Carr fit into the political question test
A
- equal protection clause does not show commitment to another branch
- justices use equal protection all the time in their decisions as a remedy
15
Q
what are the 2 steps to the impeachment process
A
- bring the articles of impeachment to the house (1/2 has to agree to impeach)
- 2/3 of the senate has to vote to remove official
16
Q
what are the facts of US v Nixon (judge not president)
A
- federal judge accused of taking bribes
- convicted of perjury (lying) for 5 years
- refused to resign so house impeaches him and vote moves to senate
- senate delegates a Subcommittee and Nixon sues because FULL senate did not try him
17
Q
what is the holding in US vs Mixon
A
- court dismisses case due to political question
- art 1 sec 2/3 says senate will have “sole authority” to deal with impeachments (also a textual commitment to another branch)
- judges should also not be the ones to review these decisions since they are impeached the most
18
Q
what is the roadmap of the constitution for article 1
A
sec 1- vests legislative power in congress
sec 2- establishes house and rules
sec 3- establishes senate and rules
19
Q
what level of agreement does the senate need for treaties
A
2/3
20
Q
where and what does the qualifications clause say
A
art 1 sec 5 “each house shall be the judge of elections, returns, and qualifications of its members”
21
Q
what are the 2 ways to interpret the qualifications clause
A
- each house is able to set additional qualifications along with the current ones
- qualifications are limited to the ones prescribed in art 1 sec 2/3
22
Q
what are the facts in Powell v Mccormick
A
- representative from new york
- congress doesn’t like him constituents do
- gets into legal difficulties and congress refused to let him take his seat even though he met requirements in constitution
23
Q
what is the issue in Powell v MCcormick
A
can congress add qualifications beyond the constitution
24
Q
what is the holding in Powell v Mccormick
A
no they cannot add more qualifications than listed in constitution
25
what is the rationale in Powell v MCCormick
- per madison members could turn democracy into oligarchy if they could set their own qualifications
- since the framers raised the expel amount to 2/3 but did not increase amount of qualifications they considered the limit already enough
26
what was the caveat with Powell v Mccormick
if they would have just expelled him instead of excluding him from congress it would have been fine
27
what is the historical context prior to US term limits v THornton
US amendment to add limits failed in 1994 so states started to attempt to limit their members of congress
28
what are the facts of US term limits v Thornton
- arkansas proposed amendment to their constitution for term limits of MOC (senators 2 terms reps 3 terms)
- thornton files suit due to unconstitutionality of it
- arkansas says Powell was abou congress not states
29
what did arkansas rely on in US term limits v THornton
- 10th amendment (powers not given to fed reserved for people)
- since they still allowed people to be written in they said it was not a qualification but a ballot regulation (art 1 sec 4 allows states to regulate time/manner of elections)
30
what was the holding in US term limits v Thornton
-states cannot add to the qualifications
- the standing qualifications are exclusive
31
what is the rationale in US term limits v Thornton
- "people should choose who they please to govern them"
- need for uniformity in qualifications among states
- court says it is an effort to dress eligibility in ballot access clothing
32
what was the court majority argument regarding reserved powers
- before the constitution was written states did not have the power to create qualifications
- since the constitution created congress the states were not giving up any of those powers of qualifications because they did not exist prior to the constitution
33
what was the court minority opinion in US term limits v Thornton
- if it doesn't say it in the constitution it belongs to the states
- since they voted on it democratically the power is reserved to the people if not to the state
34
where and what is the speech and debate clause
art 1 sec 6- senators and reps shall be privileged from arrest during their attendance at the session of congress
35
what is the history of the speech and debate clause
kilborn v thompson 1881
- extends the rule to written reports and resolution
36
what are the facts of Gravel v US (pentagon papers)
- gravel is senator who is head of committee and brings up pentagon papers to show war in Vietnam is costly
- has arrangement with beacon press to publish papers
- justice department had a grand jury subpoena his aid and publisher to figure out how they got them
- gravel said the speech/debate clause should cover his aid and not be subpoenaed
37
what is the issue in Gravel v US
is the aid covered by the speech and debate clause
38
what is the holding in Gravel v US
- yes congressional aids are necessary but only with duties that relate to LEGISLATIVE FUNCTION
- however giving the papers to the publisher was not apart of the lawmaking process therefore the subpoena is valid
39
what was the dissent in Gravel v US
justice brennan- legislatures have a duty to communicate with their constituencies which they dop daily
- the clause should have an informing function which should be covered
40
why do states have police powers
for the well-being of their citizens
41
what are 4 sources of power for congress
1. enumerated powers (art 1 sec 8 listed powers)
2. implied powers (Necessary and proper clause)
3. amendment enforcing powers (language in amendments)
4. inherent powers (powers that congress has inherently)
42
what are some examples of enumerated powers
1. coin money
2. lay and collect taxes
3. raise an army
43
what case deals with implied powers
mcculloch v maryland
44
what are 2 interpretations of necessary and proper clause
1. Jefferson view (viewed as a limitation- congress can only do something which is absolutely necessary to carry out powers listed)
2. hamilton view (viewed as an expansion- used to exercise powers beyond listed in constitution that were N&P for implementing legislative activity)
45
with regards to the national bank who wanted what between jefferson and hamilton
1. jefferson(anti bank)- said not having a bank does not mean congress cannot pay debts and collect taxes
2. hamilton(pro bank)- said having a bank would be helpful in paying debts and collecting taxes
46
what are the facts of mcculloch v maryland
- bank was recharted in 1816 after jefferson did not renew first one and was not as successful (corrupt)
-maryland decides to tax bank
- bank says they cannot do it due to supremacy clause
47
what is the issue in mcculloch v maryland
1. does congress have the right to create the bank in the first place
2. can a state tax a federal entity
48
what is the holding in mcculloch v maryland
1. congress has authority to create bank
2. maryland can not tax bank due to supremacy clause
49
what is the rationale in mcculloch v maryland
- provisions in constitution are a general grant of power (cannot include everything)
- a government entrusted with powers must have the means to complete them
- interpreting the N&P clause as a limit would not allow the government to experiment with completing their given powers (hamilton view)
- N&P is in section that grants powers not the limitations section
50
what case deals with amendment enforcing powers
south carolina v katzenbach 1966
51
what is preclearance
states that had less thank 50% black voter registration and wanted to change voting laws had to have it checked by justice department or appellate judge
52
what are the facts in south carolina v katzenbach
- deals with 15th amendment (cannot discriminate voting on race)
- congress enacts 1960s voting act which includes preclearance
- south carolina objection as infringement on state sovereignty (other states did not qualify for this check)
53
what was the holding in south carolina v katzenbach
preclearance is constitutional
54
what was the rationale in south carolina v katzenbach
1. congress found itself confronted with evil that has been going on for a while
2. congress has tried to take lesser measures to fix problem and this voting rights act made the 15th amendment effective
- lang of 15th congress has authorization to enforce "appropriate legislation" they will be the main person creating policy to enforce the first part of the amendment
55
what is the dissent in south carolina v katzenbach
justice black- panel of judges for preclearance is wrong because there is no "case or controversy"
- also says the "means" congress has chosen (preclearance) is unconstitutional (treating states differently based on voting laws)
56
what is the current status of the voting rights act
per shelby v holder 2013 the preclearance parameters had not been updated
- court held formula out of date but did not overturn act
- therefore voting rights act is not enforceable until congress updates the formula
57
what case goes with the inherent powers of congress
US vs Curtis wright export corp 1936
58
what are the facts of US vs Curtis Wright export
- congress made law that president can prevent companies from selling goods to each side of bolivian conflict
- curtis wright is an airport company and continues to sell (they are prosecuted)
59
what is the issue in US v Curtis wright export
ds congress have the ability to make this law for foreign affairs
60
what is the holding in US v curtis wright export
- congress has the authority as part of its being as a lawmaking body in a sovereign nation
61
what is the rationale in US v curtis wright export
- powers listed in constitution are for internal affairs
- fed (not only congress) has complete authority over foreign relations
- being a sovereign nation is not derived from constitution but from status as a nation
- no transfer of power over foreign relations happened between states and fed like other powers in constitution
62
what is meant by "bicameralism and presentment" and where in constitution
1. both sides of congress has to pass the bill
2. presented to president to turn into law
- article 1 section 7 (procedures on how to make laws)
63
what amendments (and how) changed how presidents were elected
12th- president and VP run on same ticket (one vote for each)
22nd- sets term limits for presidency
64
what part of the constitution deals with impeachment
article 2 section 4
65
procedures for impeachment
1/2 by house
2/3 by senate
66
what is article 2 section 3 say of the constitution
"take care clause"- the president shall take care that the laws be faithfully executed
67
since executive power is undefined in the constitution what are 2 theories regarding it
1. mere designation (taft)
- a president cannot do something that is not implied in constitution or delegated to him by congress
2. stewardship theory (roosevelt)
- as long as it is not forbidden in constitution or by congress he can do it
68
what are the cases regarding the "take care clause"
1. In re Neagle (clause interpreted as additional power)
2. Train v City or new york (imposes obligation on president to enforce law)
69
what are the facts of In Re neagle
- soap opera involving feud between US court justice (field) and former colleague on califronia supreme court (terry)
- terry kills fields friend and ends up taking case that fields is presiding over
- president harrison puts field marshal on fields to protect from terry (ends up shooting terry dead)
70
what is the issue in In Re Neagle
could the president issue an executive order to appoint the marshal without authority from congress/constitution
71
what is the holding in In Re Neagle
yes the president can appoint the marshal
72
what is the rationale in In Re Neagle
- president has a duty to protect judges of US
- adopts stewardship theory (additional source of power)
- if there are no mean to protect judges then there is no US
- president can order marshal (who he is in control of) to protect judge
73
what is the flip side of the take care clause than In Re neagle
Train v City of New york
74
what are the facts of TRain v city of new york
- water pollution act was passed over president nixon veto
- provision to give money to local governments for clean water projects
- nixon does not give money and uses it for other government issues
75
what is the holding in TRain v city of new york
- president has an obligation to carry out terms of statue
- congress did not give president a way to spend it other than he had to spend the money for this statute
76
what is a domestic power of the president
veto power
77
what are specifications of the veto power
1. they can sign or not sign the bill or veto specifically
2. if congress is in session for next 10 days congress shas ability to override veto
3. if president does nothing and congress is in session for next 10, it becomes law
4. if president does nothing and they are not in session it is vetoed
78
why was the line item veto act created
to get rid of pork barrel spending (people putting specific things to help out their district only)
79
what are the facts of clinton v city of new york (line item veto)
- clinton used line item veto to cancel money going to hospitals in new york
80
what is the issue in clinton v NY
is line item veto constitutional
81
what is holding in clinton v NY
no line item veto is unconstitutional
82
what was the rationale in clinton v NY
- violates bicameralism and presentment
- art 1 sec 7 has very specific procedures about passing law (also says president has to take the bill all or nothing
- does not consider this a veto but amendment of laws after they are passed
83
what are the 2 dissents of clinton v NY
1. scalia- presidents have been given discretion in past on how to spend money (no difference between that and allowing him to cancel an item)
2. bryer- pork barreling has been a problem and congress tried to allow president to help (creative way to solve this problem the framers could not foresee)
84
where and what is the power of appointment
art 2 sec 2
- president has the authority to appoint major administrative and judicial officials
- congress has the ability to allocate the authority of inferior positions to president, court of law, etc
85
what does the recess appointment clause
president can fill up vacancies without approval from senate when senate is in recess
86
what case deals with power of appointment
morrison v oslen
87
what are the facts of morrison v olsen
- law allowed attorney general to appoint special prosecutor to investigate executive branch
- congress created office of independent counsel and selection was done by 3 panel judge
- morrison was appointed to be the counsel and olsen claimed the position was not an "inferior officer"
88
what was the holding in morrison v olsen
counsel does not violate appointment clause meaning job is inferior officer
89
what is the rationale in Morrison v olsen
- even though counsel has powers to start investigation they can be removed by AG
- counsel is only empowered to do certain duties and holds TEMPORARY office
- congress may best appointment of inferior officers as they think proper
90
what is the dissent in morrison v olsen
- the president should have all executive power not some (this gives the presidents power to someone else)
- the president does not have full control over giving or taking away counsel only indirectly through AG
