The US constitution and federalism Flashcards
evaluate the view that the US constitution is more effective at checking the power of the president than it is at checking the powers of congress
congress can amend, block or even reject items of legislation recommended by the president. - in 2017 president trump argued that he would repeal and replace Obamacare but the was blocked by congress. congress can be especially effective of frustrating the passage of legislation desired by the president during times of divided governments
however
executive orders
In his first 100 days in office, Biden signed more than 60 executive actions, 24 of which are direct reversals of Trump’s policies.
Biden has issued an average of 42 executive orders per year in office
United Government
Eg in 2016-17, Trump was a Republican and both houses were dominated by the Republicans
Allows the president to pass legislation easily without scrutiny
In 2017, Trump passed the “Tax cuts and jobs Act”. Lowered corporation tax from 35-20% and made several changes to the tax code
impeachment for example Clinton and Trump twice in 2019 and 2021
Shows that the President is more powerful as both Trump and Clinton were impeached yet remained as President as a supermajority in both the House and the Senate was not achieved
Clinton impeached due to an affair with a White House intern, Monica Lewinsky
Trump was impeached in 2019 for coercing the Ukrainian govt for intel on his opponent for the 2020 Presidential election Joe Biden. As well as this, he was impeached in 2021 for ‘incitement of insurrection’
Trump’s impeachment failed as the Senate was dominated by Republicans, and a supermajority was not reached
However, a president like Nixon proved to be dominated by Congress as he was on the verge of impeachment, but resigned
Paragraph 2:
Presidential vetoes
Formal rejection of bills passed by both houses in Congress
A supermajority is needed by both Houses in Congress to override a Presidential veto, and will be difficult in a united govt
Eg Donald Trump made eight regular vetoes where none were overturned
July 2019, Trump vetoed a series of bipartisan resolutions that aimed to block sales of weapons to Saudi Arabia, as a result to combat Iranian aggression
However, Obama during his last term had a veto overridden by Congress
In 2016, Obama vetoed the Justice Against Sponsors of Terrorism Act, which would have allowed families of the victims of the 9/11 terrorist attacks to sue to the govt of Saudi Arabia
It was overridden by Congress as it was decided that this legislation was too extreme
Congress proves to be dominant because the Republicans dominated Congress towards the end of Obama’s second term, limiting his power as President, and he was also a ‘lame duck’
Paragraph 3:
On the other hand, Congress also has a number of important constitutional powers that can restrict the president’s ability to dominate for a policy.
The Constitution provides Congress the power to declare war.
President at times, I recognise this constitutional power and am afraid to congressional authority by putting proposed attacks to a vote.
George Bush in 2003 gained congressional authority to invade Iraq.
Furthermore, legislation such as the war powers act 1975 has allowed Congress to assert control.
The power of the price provides a strong limit on the President’s ability to dominate policy.
This was very evident in 1995 Bosnia, where Clinton was forced to withdraw troops when Congress withdrew funding.
Therefore, the constitutional powers of Congress have the ability to limit an imperial president in the sense of foreign policy.
Evaluation:
This was evident with Obama’s actions in Libya in 2011 as well as strikes in Iraq and Syria in the fight against Islamic state. President George H.W. Bush deployed hundreds of thousands of U.S. troops to the Persian Gulf region before Congress had taken a vote to authorise it.
Furthermore the president’s constitutional role as head of state and chief diplomat allows the president rather than congress to conduct policy relations with other countries.
Obama was able to liaise With China, Iran and Cuba without congressional leaders.
Subsequently, the president, Due to his constitutional role, appears to be the driving Force of a policy.
Congress Was Not Consulted On U.S. Strike That Killed Iranian General.
The U.S. government justified the strike as an act of self-defense, saying that Qassem Soleimani, the leader of an elite Iranian military and intelligence unit, had been plotting attacks on Americans
Paragraph for checks on congress:
the president can veto legislation and do so for bills they dislike. presidents have the final say in legislation, whether to pass the bill or to veto it. fro example, may 2020, trump vetoed the Iran war powers regulation, which would have limited the presidents ability to wage war against Iran
2)
the president can use executive agreements, bypassing congress. used for treats to avoid ratification form senate. for example, Obama knew congress would not ratify any nuclear deal that he had negotiated with Iran. he therefore signed the joint comprehensive plan of action executive agreement with Iran.
however, executive agreements can easily be undone by subsequent presidents. president trump was able to back out of two executive agreements: JCPOA and the Paris Accord, both signed by his predecessor. president Biden in turn revoked Trumps environmental actions by rejoining the Paris Accord.
3)
Supreme Court can declare acts of congress to be unconstitutional using judicial review. Fletcher v Peck was the first instance of the Supreme court declaring a state law unconstitutional. in 2013, in the case of United States v Windsor the supreme court declared the defect of marriage act (1996) unconstitutional. by using its power of judicial review, the court can, in effect update the meaning of the constitution
states retain autonomy and sovereignty
criminal punishment - the death penalty is legal in 29 states and has been abolished in 21 states. There are also five different methods of execution.
taxes - taxes can be set at a state level. 7 states have 0% taxation, California has 13% taxation
marijuana - 11 states have legalized cannabis and is legal for medicine in 33 states.
evaluate the view that the weaknesses of the US constitution outweigh its strength and that it is no longer fit for purpose
congress can amend, block or even reject items of legislation recommended by the president. - in 2017 president trump argued that he would repeal and replace Obamacare but the was blocked by congress. congress can be especially effective of frustrating the passage of legislation desired by the president during times of divided governments
however
United Government
Eg in 2016-17, Trump was a Republican and both houses were dominated by the Republicans
Allows the president to pass legislation easily without scrutiny
In 2017, Trump passed the “Tax cuts and jobs Act”. Lowered corporation tax from 35-20% and made several changes to the tax code
impeachment for example Clinton and Trump twice in 2019 and 2021
Shows that the President is more powerful as both Trump and Clinton were impeached yet remained as President as a supermajority in both the House and the Senate was not achieved
Clinton impeached due to an affair with a White House intern, Monica Lewinsky
Trump was impeached in 2019 for coercing the Ukrainian govt for intel on his opponent for the 2020 Presidential election Joe Biden. As well as this, he was impeached in 2021 for ‘incitement of insurrection’
Trump’s impeachment failed as the Senate was dominated by Republicans, and a supermajority was not reached
However, a president like Nixon proved to be dominated by Congress as he was on the verge of impeachment, but resigned
Paragraph 2:
Presidential vetoes
Formal rejection of bills passed by both houses in Congress
A supermajority is needed by both Houses in Congress to override a Presidential veto, and will be difficult in a united govt
Eg Donald Trump made eight regular vetoes where none were overturned
July 2019, Trump vetoed a series of bipartisan resolutions that aimed to block sales of weapons to Saudi Arabia, as a result to combat Iranian aggression
However, Obama during his last term had a veto overridden by Congress
In 2016, Obama vetoed the Justice Against Sponsors of Terrorism Act, which would have allowed families of the victims of the 9/11 terrorist attacks to sue to the govt of Saudi Arabia
It was overridden by Congress as it was decided that this legislation was too extreme
Congress proves to be dominant because the Republicans dominated Congress towards the end of Obama’s second term, limiting his power as President, and he was also a ‘lame duck’
Paragraph 3:
On the other hand, Congress also has a number of important constitutional powers that can restrict the president’s ability to dominate for a policy.
The Constitution provides Congress the power to declare war.
President at times, I recognise this constitutional power and am afraid to congressional authority by putting proposed attacks to a vote.
George Bush in 2003 gained congressional authority to invade Iraq.
Furthermore, legislation such as the war powers act 1975 has allowed Congress to assert control.
The power of the price provides a strong limit on the President’s ability to dominate policy.
This was very evident in 1995 Bosnia, where Clinton was forced to withdraw troops when Congress withdrew funding.
Therefore, the constitutional powers of Congress have the ability to limit an imperial president in the sense of foreign policy.
Evaluation:
This was evident with Obama’s actions in Libya in 2011 as well as strikes in Iraq and Syria in the fight against Islamic state. President George H.W. Bush deployed hundreds of thousands of U.S. troops to the Persian Gulf region before Congress had taken a vote to authorise it.
Furthermore the president’s constitutional role as head of state and chief diplomat allows the president rather than congress to conduct policy relations with other countries.
Obama was able to liaise With China, Iran and Cuba without congressional leaders.
Subsequently, the president, Due to his constitutional role, appears to be the driving Force of a policy.
Congress Was Not Consulted On U.S. Strike That Killed Iranian General.
The U.S. government justified the strike as an act of self-defense, saying that Qassem Soleimani, the leader of an elite Iranian military and intelligence unit, had been plotting attacks on Americans
Paragraph for checks on congress:
the president can veto legislation and do so for bills they dislike. presidents have the final say in legislation, whether to pass the bill or to veto it. fro example, may 2020, trump vetoed the Iran war powers regulation, which would have limited the presidents ability to wage war against Iran
2)
the president can use executive agreements, bypassing congress. used for treats to avoid ratification form senate. for example, Obama knew congress would not ratify any nuclear deal that he had negotiated with Iran. he therefore signed the joint comprehensive plan of action executive agreement with Iran.
however, executive agreements can easily be undone by subsequent presidents. president trump was able to back out of two executive agreements: JCPOA and the Paris Accord, both signed by his predecessor. president Biden in turn revoked Trumps environmental actions by rejoining the Paris Accord.
3)
Supreme Court can declare acts of congress to be unconstitutional using judicial review. Fletcher v Peck was the first instance of the Supreme court declaring a state law unconstitutional. in 2013, in the case of United States v Windsor the supreme court declared the defect of marriage act (1996) unconstitutional. by using its power of judicial review, the court can, in effect update the meaning of the constitution
evaluate the view that the checks and balances in the US constitution are effective
Firstly, checks and balances of the Constitution as significantly ineffective as they have been effectively bypassed.
In practice, they have not restrained executive power sufficiently to prevent the reemergence of the ‘imperial presidency’.
An imperial president is able to invade checks and balances and exert a lot of power.
In terms of foreign policy, presidents can act Imperial.
Congress’ right to declare war, has not prevented presidents from committing US forces on numerous occasions e.g. there have been many wars since 1945 including the Iraq war.
President have bypassed checks by Asking for military authorisation from Congress as president bush did in 2003.
Furthermore, efforts to reassert congressional checks on from policy, such as the 1975 walls power act resolution, have failed to check the executive branch.
Obama was able to avoid the act when he initiated troops in Syria and Iraq etc.
However, the checks and balances found in the Constitution are still effective as they prevent the concentration of power in one branch of government, ensuring that the separation of powers is maintained.
Judicial review of government actions by the courts are affective at limiting unconstitutional actions of the executive branch.
The Supreme Court checked miss use of executive power by ruling in Hamdan vs Rumsford (2006) that President Bush acted illegally in establishing military tribunal is to try Guantánamo detainees without consulting Congress.
The Supreme Court ruled that this was against a constitutional right of a free trial.
Furthermore, the supreme court struck down the first two Muslim bands initiated by Trump as it went against the first amendment.
The power of judicial review allows the judiciary to act as enforcers of the Constitution and check the activities of the executive.
However, the Imperial nature of the president in foreign policy undermines the strength of the Constitutions checks on the executive.
The increasing speed and secrecy of military action today heightens the presidents role as commander in chief and significantly limit Congress’ right to declare war.
2.Furthermore, the checks and balances of the UK constitution is largely ineffective as in reality, they tend to produce ineffective government and gridlock which has been worsened by partisanship.
With growing partisanship, gridlock and government shutdown are becoming more common.
The inability of the President and Congress to agree to a budget lead to the longest government shutdown under Trump in 2019.
The Democrat controlled house refused to fund trumps campaign promise of building a wall.
The refusal to compromise, subsequently led to a government shutdown.
The excessive requirement of the Constitution to compromise in modern USA does not allow greater scrutiny of legislation, but leads to ineffective government.
Furthermore, the presence of divided Government increases the ineffective nature of the constitutions checks and balances system.
Republicans in the Senate and the house were accused of hyper partisanship as they voted against any bills Obama put forward.
In the 113th Congress voting along party lines was very much apparent with 92% unity for Democrats and 90% unity for Republicans.
Refusal to compromise causes ineffective government and the aims of the funding factors are not met.
On the other hand, checks and balances should encourage compromise and by partisanship in lawmaking between the executive and legislative at least in theory.
In 2010 in order to fulfil his campaign promised to support and promote by partisanship, Obama signed a deal to extend The bush terra tax cuts in the tax relief act.
While Obama did not agree with all aspects of the deal the president had to compromise stating ‘it’s not perfect, but the compromise is essential step in road to recovery.
Furthermore, Congress imposed new sanctions on Russia for its meddling in the 2016 presidential election.
The bill passed 98% in the Senate and 419-5 in the house in rare moment of bipartisanship.
Faced with the threat of embarrassing veto override, Trump signed the legislation into law in August 2017.
Despite this the growing presence of bipartisanship in USA politics, this is significantly undermined by partisanship and really limits the chance of compromise.
3.On the other hand, checks and balances can promote effective government by ensuring proper scrutiny of legislation, presidential appointments and trees.
The nature of the Constitution forces Congress to scrutinise legislation thoroughly.
George Bush requested a line-term veto power in 2006 however, this was not allowed by Congress.
Trump dropped his American health care act which was intended to replace ‘obamacare’ As it would not have gone through due to questions on its effectiveness.
Furthermore, the presidential nomination to the Supreme Court face high degree of scrutiny.
The Senate has rejected on unsuitable presidential nominations, such as Harriet Ms who was deemed on unqualified for the job.
The Constitution provides The Senate the ability to ‘consult and advise’ on treaties.
It has use this power to Czech president, by blocking trees.
In 2018, the Senate rejected disability treaty which Obama pushed for.
These examples show how the checks and balances of the constitution can be effective.
However, some checks and balances are rarely use or are merely use for a partisan advantage which undermines its effectiveness.
For example, no president or Supreme Court Justice has ever been removed from office through impeachment.
President Nixion following the Watergate scandal set down before impeachment and President Nixion was cleared of charges by the Senate.
In addition, the politicisation of judges has become an increasing problem with Supreme Court judges being voted in on party lines.
The nomination of Brett Kavanaugh Was extremely political and controversial with all Democrats voting against him.
Furthermore, the Republican-controlled Senate refused to hold a hearing on Obama’s nomination of Merrick Garland.
This shows the extent to which partisanship has largely contributed to growing ineffective government.
EVALUATE THE EXTENT TO WHICH THE CONSTITUTION PROTECTS FEDERALISM TODAY
The Constitution significantly protect federalism today as federalism continues to give state governments a significant degree of control.
State are able to control large aspects of their life in their states.
Steve have a great deal of power over health, education, law and order and even economic policy e.g. States act their own sales tax, with Montana having No sales tax and California having highest at $7.5.
States control is also seen in a different punishment for crime between states.
32 states have the death-penalty as a legal form of punishment with five different forms of execution.
States also control elections to Congress and primaries and caucuses by deciding when elections are run, mechanisms used in polling stations and how candidates will be chosen to elections.
However, large changes in society have seen federal government power increase significantly as power is more controlled.
National crisis have increased federal government power as national solutions are needed.
For example, the terrorist attacks in September 2001 lead President Bush to establish the Department of home and security.
The economic crisis of 2008 further increase the federal government power and cause President Obama to implement the American recovery and And reinvestment act of 2009 to invest $800 billion into the economy.
Nationally applied standards have also lead to an erosion of state power.
Bushes no child left behind act of 2001 was in recognition of the need to drastically improve the performance of schools in the worst performing states.
While eight left the management of schools in states hand, the application of nationally control standards represents a decline in state power.
The vast judicial changes and national crisis have fundamentally change the relationship between the federal government and the state.
On balance, whilst there have been shifts in the relationship between state and federal government movements in the tea party and the election of Trump indicate a growing respect for states right.
2
The Constitution strongly protect states rights as the 10th amendment has been upheld.
The 10th amendment states that only power is not reserved for the federal government should be considered a state power.
This subsequently implies that Congress only has those powers that the Constitution awards it, who other powers therefore belong to the state.
States have successfully taken a number of cases to the Supreme Court allowing them to overturn federally imposed policy.
In Printz v united states 1997, The Supreme Court overturned the Brady act requirement that states must perform background checks on those wishing to purchase a gun.
The 10th amendment meant that this was a state, not federal policy.
The Constitution has therefore allowed to supreme court to defend state power and uphold federalism.
However, in recent times the Supreme Court has back to the federal government where dispute have arisen with states.
In ACA cases, The Supreme Court has upheld federal government power.
In NFIB vs Sebelu’s the court uphelf obamas healthcare reforms.
Also in Arizona v USA 2012, the supreme court struck dien 3/4 provisions of Arizona stare law JB1070, affirmjng immigration as principallu a matter for the federal gov, not the states.
On the whole, as the Supreme Court in recent times has shown a favour for federal government power, it highlights the gradual erosion of state power.
3
On the other hand, the Constitution has largely failed to protect federalism as the 16th amendment has allowed expansion of federal government power.
The 10th amendment allowed federal income tax, which has cause the states to be increasingly reliant on the federal government for funding.
The central government provide states with approximately a quarter of the total expenditure.
In its self, this is not a restriction on state power.
There restrictions appear from the conditions imposed upon the receiver of state funding.
It states are to maintain access to the large financial funding from the federal government, they have to adhere to policy requirement imposed by the federal government.
President Obama threatening to withhold federal funding to the state of North Carolina when they refuse to comply with his policies on allowing transgender people to use public restrooms in accordance with their gender identity.
Therefore, the reliance of state on federal funding enabled by the 10th amendment has allowed federal power to increase.
However the amendment process enshrined in the Constitution protect state power.
To amend the constitution, 2/3 of Congress and 3 out of 45 states must agree.
Therefore, it is impossible to reduce the power of states without their consent.
States can also block amendments.
EVALUATE THE EXTENT TO WHICH THE US CONSTITUTION IS NO LONGER FIT FOR PURPOSE
The US Constitution is most definitely no longer fit for purpose as the amendment process is too lengthy and complex.
This makes it almost impossible to amend policies that are no longer applicable or to add policies that a majority desires.
For an amendment to be made, 2/3 of Congress and 5 out of 45 states need to support the amendment.
Unfortunately, this long process prevents necessary changes to the constitution that further protect the rights of citizens and prevented outdated concepts like the second amendment developing many terrorist actions.
For example, the equal rights Amendment would have provided equal rights by the federal or state government on the account of sex.
As this amendment did not receive 3 out of 45 state support in 1998, there is technically no equality between the sexes.
However, the lengthy process of making an amendment has usually prevented dangerous amendments to the Constitution from being passed and protecting Americans from fleeting changes in public opinion.
For an amendment to pass, a supermajority of 2/3 of Congress and three and 44 states must be achieved.
This insures that each amendment has mass public support and scrutiny.
As a result, the demanding amendment process insures that knee Jem amendments can be evaded.
America learn their lesson following the prohibition period.
The 18th Amendment banned the sale of alcohol.
Then soon afterwards, the 21st Amendment repeal the 18th amendment.
The lengthy process of amending the Constitution insures amendments are well thought through.
On balance, whilst complex process of Amendment protects keen Jem amendments, it prevents the Constitution adapting to the current political and social climate.
Outdated aspects like the second amendment and electoral college are unlikely to be removed.
2
Furthermore, it is necessary to remove the Constitution due to the increased power of the Supreme Court.
As an unelected and increasingly politicised body, the judiciary has too much power to make ‘interpretative amendments’ to the constitution through its rulings.
Recent times has seen the judiciary more politicised with appointments based on party lines opposed to merit.
The nomination of Brett Kavanagh and Neil Gursich were very partisan with all Democrats voting against them (only 5 votes for Gursich).
Judges are an elected, making them and accountable for their actions.
Justices are granted the power to make an amendment to the constitution as they can interpret the wording of constitution.
However, they have been accused of making rulings which the Constitution makes no mention of e.g. The 2013 ruling to make gay marriage constitutional has faced lots of criticism as the US Constitution arguably makes no mention of marriage.
However, the Supreme Court has done its job of changing the meaning of the Constitution to reflect changing times.
The eighth amendment has different meaning as what is cruel and unusual has changed.
What’s the death penalty is not ruled as cruel, the way capital punishment is used has changed.
There has been numerous efforts to ensure the process is not painful so it is in line with the eighth amendment.
The use of the Supreme Court interpretive power has allowed the Constitution to remain up-to-date.
On balance the nature of the Supreme Court has provided the Supreme Court too much power to make interpretive amendments to the Constitution which were not the intentions of the founding fathers.
Therefore, it is no longer fit for purpose and the Supreme Court can be described as Imperial.
3
The US Constitution is clearly no longer fit for purpose especially with the increasing prevalence of gridlock and partisanship.
This is strong evidence that America is democracy is not ruling effectively.
Government shutdown are more likely as Congress and the president is not willing to compromise.
The longest government shutdown in history ended in February 2019 as Congress was unwilling to fund Trump’s wall.
Despite allocating $1 billion for the war, Trump has declared a national emergency to receive funding for the war.
The tax cuts and jobs act was passed with all of Democrats are voting against it.
Each party holding a branch of government are unable to compromise which is against the wishes of the founding Fathers who framed the Constitution to encourage bipartisanship.
However, the Constitution arguably still works as seen by America’s success as the worlds most powerful democracy.
America also have a deep reverence for their constitution, showing that the Constitution works well.
The Constitution has worked for over 100 years and ensure key practices are upheld.
Americans know they’re a bill of rights.
