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Constitutional Law > Test 3 > Flashcards

Test 3 Flashcards

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1
Q

what section of the constitution is the Recess Appointment clause in

A

Art 2 Sec 2

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2
Q

what is the recess appointment clause

A

allows the president to appoint officers when senate is not “in session”

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3
Q

when do the recess appointments end

A

at the end of the next session (could be 2 years)

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4
Q

what case goes with recess appointments

A

Noel canning v NLRB 2014

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5
Q

what are the facts of Noel Canning v NLRB 2014 (recess appointment)

A
  • recess appointments to national relations board by obama
  • 3/5 were filled by obama
  • Noel canning sues saying they were not made correctly
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6
Q

what is the holding in Noel canning v NLRB 2014

A
  • court holds that for recess clause to kick in senate must be in recess for more than 10 days (senate had only been in recess for 3 days)
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7
Q

where is the pardoning power clause in the constitution

A

Art 2 Sec 2

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8
Q

what are the only limitations to the pardoning power

A
  1. impeachment cases
  2. has to be federal offenses NOT STATE
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9
Q

when can a pardon happen

A
  • at any time (before an investigation all the way to sentencing)
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10
Q

what are the cases regarding pardoning power

A
  1. EX Parte Grossman 1925
  2. Murphy v Ford
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11
Q

what are the facts of EX Parte Grossman 1925 (pardoning power)

A
  • person was tried during prohibition for breaking drinking laws
  • judge held in contempt for violating court order (sentenced to 1 year 1k fine)
  • president coolidge issues pardon reducing sentence and just paying fine
  • judge says it interferes with separation of powers
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12
Q

what is the issue in EX Parte Grossman

A
  • is order of contempt under the pardon clause
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13
Q

what is the holding in EX parte grossman

A
  • yes the pardon clause covers people being held in contempt
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14
Q

what is the rationale of Ex Parte Grossman

A
  • founders thought it was wise to put president as last resort for mercy
  • king of england was able to use this same power for contempt of court orders which is what our law is based off of
  • have to trust the president will not abuse it
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15
Q

what are the facts of Murphy v Ford

A
  • Nixon retires after watergate scandal
  • ford pardons him after taking office prior to any actual conviction
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16
Q

what is the issue for Murphy v Ford (pardoning)

A

can the president pardon prior to conviction

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17
Q

what is the holding/rationale in Murphy v Ford

A
  • Yes the president can pardon prior to conviction
  • per supreme court decision in EX Parte garland the pardoning power is unlimited
  • pardon should be used to allow a
    “country to move on”
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18
Q

what amount of the senate is required to complete treaties

A

2/3

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19
Q

since a president might not have the votes to enter into a treaty through congress what might they decide to do

A

enter into an executive agreement (can be taken away by future admins)

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20
Q

what are the 2 types of domestic dispute cases in con law

A
  1. delegation cases
  2. usurpation cases
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21
Q

what are delegation cases for domestic disputes

A

when one branch delegates functions, that are assigned to it, to another branch (congress gives power to president)

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22
Q

what are usurpation cases in domestic disputes

A

when one branch tries to take the functions assigned to another branch in the constitution (president does something given to congress)

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23
Q

with regarding delegation cases why should we care if congress gives away its power

A
  • they are the elected part of government
  • if they delegate power there is no check to remove those people they give the power to
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24
Q

when has the court allowed delegations

A
  • when there is an intelligible principle
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25
Q

what does intelligible principle standard mean regarding congresses delegation of powers

A
  • congress have to give the person they are delegating to guidance on how to complete the task
  • doesn’t allow congress to be totally off the hook
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26
Q

what case sets forth the intelligible principle standard

A

Hampton vs US

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27
Q

what are the facts of Mistretta V US (delegation case)

A
  • congress was worried about inequality in federal sentencing
  • passed a sentencing reform act
  • created a commission OF JUDGES to make guidelines
  • mistretta is tried under these guidlines
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28
Q

what is the issue in mistretta v US

A

did the sentencing reform act give the commission excessive legislative authority

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29
Q

what is the holding in Mistretta v US

A

they held the sentencing guidelines were constitutional

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30
Q

what was the rationale in Mistretta v US

A

-satisfied the intelligible principle standard

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31
Q

what was the dissent in Mistretta v US

A

-scalia
- violated separation of powers since a judicial body was creating legislation
-allows congress to pass something they do not want to do onto a “commission”

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32
Q

what are the 2 cases dealing with usurpation cases

A
  1. INS v Chadha
  2. Bowsher v Synar
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33
Q

what are the facts of INS v Chadha

A
  • chadha overstayed his visa
  • statute that allowed a hearing for overstaying
  • judge allowed chadha to stay and told AG and AG told congress
    -congress objected to this (legislative veto)
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34
Q

what is the issue in INS v Chadha

A
  • can congress “second guess” and interfere with the enforcement of immigration laws
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35
Q

what is the holding on INS v Chadha

A

no congress are improperly impeding on the executive branch powers

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36
Q

what is the rationale in INS v Chadha

A
  • congress does not have control over AG he is an executive agent
  • only way they could prevent him from being deported is if they passed a law
  • bicameralism and presentment is violated when congress votes on if they should execute the law
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37
Q

what is the dissent in INS v Chadha

A
  • justice white
  • congress writes the law and this is an effective way to make sure they are implemented
  • court is being too formalistic (veto was used prior)
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38
Q

what is a legislative veto

A

the ability of congress to nullify an action from the executive branch

39
Q

what are the facts of Bowsher v Synar

A
  • congress tried to get a balanced budget and passed an act to eventually get it to 0
  • act allows OMB to offer suggestions to “comptroller general”
  • comptroller general would deicide which cuts to make and issue advice to president to issue it
  • comptroller general is a legislative agent and only fired by congress
40
Q

what is the issue in Bowsher v Synar

A

does giving this authority to their own legislative agent (comptroller general) violate separation of powers

41
Q

what is the holding in Bowsher v Synar

A

yes it does violate separation of powers giving power to the comptroller general

42
Q

what is the rationale in Bowsher v Synar

A
  • clearly the comptroller is given enforcement authority but is controlled by the legislative branch
  • executive branch has clear execution of the law
  • allows congress to keep their thumb on the execution
43
Q

what is the dissent in Bowsher v Synar

A
  • justice white
  • congress and president signed onto the law in a democratic way so it should be allowed
44
Q

what are the main aspects of the war powers act 1973

A
  1. need to give congress a warning for any action within 48 hours
  2. can only take up to 60 days and could possibly have an extension of 30 days
  3. further military action requires congressional approval
45
Q

what is the rationale in the prize cases 1863

A
  • court cites role of president as chief executive and duty to take care of laws
  • mentions statues that give him power to respond to invasion
46
Q

what are the cases dealing with hebeas corpus issues

A
  1. EX Parte Milligan
  2. EX Parte Quirin
47
Q

what are the facts of Ex Parte Milligan

A
  • milligan lives in north and tells people not to support union during civil war
  • lincoln orders to detain people who are undermining military efforts
  • suspends habeas corpus in these states even though area is not under martial law
    -milligan is tried and sentenced to death
48
Q

what is the issue in Ex parte milligan

A
  • can the president suspend habeas corpus in areas where martial law is not given
  • can the president suspend habeas corpus in general
49
Q

what is the holding in ex parte milligan

A
  • no the president cannot suspend habeas corpus
50
Q

what is the rationale in ex parte milligan

A
  • civil courts were operating (have different standards of proof)
    -milligan is an american citizen and entitled to civil rights
  • allowing the president to declare military courts would take away republican government
51
Q

what is the dissent in ex parte milligan

A
  • agreed the president cannot do this but would allow congress to suspend in the name of national security
52
Q

what is the facts of Ex parte Quirin

A

-Nazi germany had people come over to US to sabotage
- FBI arrests them and president orders them to be tried by military tribunal
- lawyers request habeas corpus and is denied by courts without full opinion

53
Q

what is the issue with Ex parte Quirin

A
  • can the nazis be tried by a military tribunal when civil courts are open
54
Q

what is the holding of EX parte quirin

A
  • court says there was congressional authorization for military tribunal as long as offense is chargeable under law of war (if it was a petty crime it would not have been chargeable)
55
Q

what is the rationale in Ex parte quirin

A
  • distinguished between lawful and unlawful citizens
  • unlike milligan they are not US citizens and are unlawful combatants
56
Q

what are lawful citizens distinguished in Ex parte quirin

A
  • people captured and detained during war and they give up names (in uniform and captured in formal war)
57
Q

what is unlawful combatants distinguished in Ex parte quirin

A
  • people that come to the country without trying to be identifiable and wanting to do harm (spies/saboteurs)
58
Q

what did congress do after 9/11

A
  • did not formally declare war
  • passed AMUF resolution to go into afghanistan
  • “president could use all necessary and appropriate force to all nations/people/orgs he determined that committed terrorist attacks or to stop future ones”
59
Q

what are the cases dealing with modern (post 9/11) habeas corpus issues

A
  1. hamdi v rumsfeld
  2. rasul v bush
  3. hamdan v rumsfeld
60
Q

what are the facts of hamdi v rumsfeld

A
  • hamdi is a US citizen caught on battlefield fighting for taliban
  • he is not charged just detained
  • father files for habeas corpus
  • government gives court paper as to why he should be detained (affidavit)
61
Q

what are the issues in hamdi v rumsfeld

A
  1. is hamdi detention authorized
  2. is hamdi entitled to a meaningful opportunity to contest the factual basis of detintion
62
Q

what is the holding in hamdi v rumsfeld

A
  1. the detention is authorized
  2. yes he can contest the detention
63
Q

what is the rationale of hamdi v rumsfeld

A
  1. authorized use of military force (given by congress through AMUF) allows the president to use “all necessary and appropriate force”
    - detention is authorized as longas conflict in afghanistan is ongoing (do not want people joining back up in battle who were detained)
  2. the affidavit was not enough
    - enemy combatant should have chance to challenge it (does not mean full trial)
64
Q

what is the dissent in hamdi v rumsfeld

A
  • a US citizen should not be detained without an act and the AMUF is a resolution
  • should be tried as a US citizen for treason
65
Q

what are the facts of rasul v bush

A
  • similar to hamdi but are not US citizens fighting for taliban
  • held at Gitmo bay and invoke habeas corpus
  • government argues they should not get habeas corpus if they never have been in US
66
Q

what is the holding of rasul v bush

A
  • US district courts have jurisdiction to consider challenges to detention of people captured abroad and placed at Gitmo bay
67
Q

what is the rationale of rasul v bush

A
  • habeas corpus extends to territory where us exercises “plenary and exclusive jurisdiction” but not “ultimate sovereignty” (another country)
68
Q

what are the facts of hamdan v rumsfeld

A
  • driver for bin laden
  • charged with conspiracy to commit terrorism and tried before military commission
  • charged with things that happened before 9/11 which cannot happen if he is being tried under “war crimes”
69
Q

wha is the court holding in hamdan v rumsfeld

A

-military commission is illegal because it violates the geneva convention and military code of justice
- president does have authority to create commissions under AMUF

70
Q

what is the military code of justice 1951

A

-statute passed by congress regarding how military and those captured should be treated

71
Q

how is the military code of justice relevant in hamdan v rumsfeld

A

court says military commission rules set forth in executive order do not conform with code of justice

72
Q

what is the geneva convetion 1949

A
  • regards treatment of prisoners of war
73
Q

how does the geneva convention apply to hamdan v rumsfeld

A
  • since afghanistan signed the convention and we are fighting in their boarders they apply in this situation
  • convention states prisoner must be present during trial and Bush executive order does not allow this
74
Q

what does boumediene v bush say

A

military commission act is unconstitutional due to congress not applying an “adequate substitution” for when they suspend habeas corpus

75
Q

what cases go with war powers

A
  1. korematsu v US
  2. youngstown sheet and tube v sawyer
76
Q

what are the facts of korematsu v US

A
  • president roosevelt issues order that requires all people of japanese heritage to have curfew
  • eventually puts them into internment camps without any inquiry into loyalty
  • korematsu is US citizen and lives in US
76
Q

what is the holding in korematsu v US

A

court finds government action of internment camps justified

76
Q

what is the rationale of korematsu v US

A
  • government was within its authority because it was justified by a national security interest
  • no need to make distinctions between loyal/disloyal
  • “need for action was great and time was short”
77
Q

what are the dissents for korematsu v US

A
  1. murphy- government should have done further investigation into if there were loyal or not
  2. jackson- race is arbitrary and cannot be chosen
    - people should be found guilty based on choices not their person
78
Q

what are the facts of youngstown sheet and tube v Sawyer

A
  • threat of steel strike during korean war
  • truman orders seizure of steel mills
  • taft-hartly act allows president to take industrial plants for certain reasons but not for LABOR DISPUTES
79
Q

what is the issue in youngstown sheet and tube v Sawyer

A
  • can the president take the mills without specific constittional or authorization from congress
80
Q

what is the holding in youngstown v Sawyer

A
  • no truman cannot take the mills
81
Q

what is the rationale between youngstown and Sawyer

A

3 part scheme for determining the constitutionality of executive actions

82
Q

what are the 3 parts when determining the constitutionality of executive actions

A
  1. president has highest authority when he is doing something under the express direction of congress
  2. “zone of twilight”- have to see if congress implied the president to do this act or at least did not reject it
  3. president has lowest authority when he does something incompatible with congress
    - president authority - congress authority
83
Q

what are the facts of dames and moore v reagan

A
  • application of youngstown scheme
  • iranians took hostage of americans
  • congress passes IEEPA to seize iranian assets
  • dames and moore were not paid for work they did in iran and sued
  • argued president could not use the assets as a “bargaining chip”
84
Q

what is the issue in dames and moore v reagan

A

does the president have the authority to use the assets of iran as a bargaining chip

85
Q

what is the holding of dames and moore v reagan

A

yes the president could use the assets as a bargaining chip

86
Q

what is the rationale in dames and moore v reagan

A
  • says we are in the “twilight zone”
  • since IEEPA exists it suggest congress knew they would use the assets as bargaining even though they did not give written consent
87
Q

what is the main thing about Trump v Hawaii

A
  • trumps travel ban was considered constitutional because the second one did not violate the establishment clause
88
Q

what has the court decided about presidential immunity prior to trump

A
  1. president cannot be sued to do a discretionary power
    2.president is immune to things done in the “outside parameters” of their official duties
  2. president can be liable for unofficial conduct
  3. president are entitled to “presumptive privilege” of confidentiality (national security) but that may be outweighed by other interest
89
Q

what are the facts of Trump v US

A
  • criminal indictment around claiming election fraud
  • communicating with AG and DOJ to make sure election was fair
  • also communicated with VP and state officials wanting them to “find votes”
    -public statements and tweets
90
Q

what is the holding in trump v US

A
  • when president is engaging in “core constitutional duties he cannot be prosecuted (talking with AG, DOJ, etc)
  • also entitled to presumptive immunity for actions falling in “outer parameter” of official duties (comms with VP and state officials)
  • court says much of trumps actions were official conduct
91
Q

what is the dissent in trump v US

A
  • sotomayer
  • presidents should not be above the law
  • federalists papers: president is liable to prosecution in course of ordinary law
  • public interest in keeping president behavior lawful outweighs interest in unobstructed executive authority

Constitutional Law (3 decks)

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