US Constitution Flashcards
What is the US Constitution?
- 7000 words
- Source of all power
- Clear structure for federalism
- Protects rights and liberties
What is limited government?
Avoid federal government gaining unlimited power through separation of powers and checks and balances.
What are the three branches of government?
President, Congress and the Supreme Court
What article ensures separation of powers?
Article 1: Ineligibility Clause - you can’t control more than one branch
What are checks and balances?
Power of one branch to counteract another
Ensures every branch can oversee another
What is bipartisanship?
2 parties working together to form a supermajority to pass legislation.
What is federalists,?
Shared sovereignty between states and central government. Aims to defend individual forces whilst keeping a central power.
What is the 1st Amendment?
Freedom of speech?
What’s the 2nd amendment?
Right to keep and bear arms
Whats the 8th amendment?
Protection against cruel and unusual punishments
Whats the 9th and 10th amendment?
Rights/powers not enumerated belong to the people or the states
Whats the 13th Amendment?
Abolishes slavery
If a constitution is codified, what is it also?
1) entrenched
2) authoritative
3) judiciable
Why is the constitution codified?
Stop groups changing Constitution for their self interest
Where is the Elastic Clause?
Article I, Section 8: Congress has the power to make all laws which shall be necessary and proper
For what purpose is the Constitution vague?
1) allows it to evolve
2) disagreement
When were implied powers first set out?
McCulloch v Maryland 1819 - Maryland tried to tax notes from the Second National Bank (set up by congress using the elastic clause). It was appealed successfully, showing Congress’ implied powers.
(e.g President wasn’t commander in Chief of the Air Force until 1947 as an air force didn’t previously exist)
What problems arose due to vagueness
1) fails to recognise political practice
2) SC becomes too powerful
3) conflict contradicts bipartisanship
When was Judicial Review established?
Marbury v Madison 1803
Problems with Judicial review?
1) Their decisions aren’t legally binding
- > Hamdan v Rumsfield 2006: Congress ignored unfair treatment of Guantanamo Bay inmates
2) rely on someone else to back up decisions
- > Brown v Board of Education 1954 - Eisonhower had to intervene in Little Rock
3) judges are unelected
What is needed to impeach a President?
- Simple majority in House starts process
- Super majority in Senate runs the trial
Why was Bill Clinton tried for impeachment, and what was the outcome?
Over sexual harassment charges by Paula Jones and denying sexual relations with Paula Lewinsky
Acquitted on charges of perjury (50-50) and obstruction of justice (45 guilty -55 not guilty)
What was the Watergate scandal?
There was a break in at the National Committee Offices in Watergate Complex, 1972
Burglars were appointed by a committee to re-elect Nixon, who claimed he wasn’t involved
Nixon resigned before he could be impeached - one of few successful impeachments
Why was Trump tried for impeachment in 2020
Trump withheld military aid to Ukraine to influence them to investigate Joe Biden.
Acquitted on charges of abuse of power (48 guilty-52 not guilty) and obstruction of Congress (47 guilty - 53 not guilty)
Why was Trump tried for impeachment in 2021?
Over insurrection on capital hill
Acquitted: 57 guilty, 43 not guilty
What is the evidence that people are no longer voting along party lines for impeachment?
Mitt Romney, a Republican, spoke publicly about how he believed Trump was guilty
How does Congress check the President through veto override?
After a President vetoes a bill, for it to be overridden, there must be super majorities in both Houses.
How many of Obama’s vetoes were overriden?
1 out of 12: does it really show the power of Congress as the main reason it was was because it was the JAST Act 2016, about 9/11
-Relatives of victims of 9/11 could sue Saudi government for their role in 9/11
Senate = 97 - 1
How many of Trump’s vetoes were overridden?
1 out of 12: doesn’t really show Power of Congress as it happens when he was a ‘lame duck’ - not the incumbent.
National Defence Authorisation Act
How does Congress check the President through power of the purse?
The fact that bills for raising money (appropriations bills) can only start in the House, and the Senate must amend it before its presented to the President?
What problems still exist with Power of the Purse?
Disagreements between Congress and the President
35 day shutdown 2018-19 as Trump wanted $5b to spend on a Wall.
There is also a possible shutdown over lifting the debt ceiling under Biden, with the $1 trillion budget.
How does Congress check the President through legislation?
Congress’ legislation does derive from the President’s state of the Union address, but the President can only ask Congress to make a bill, he himself can’t create it.
-> 2010-15: Obama asked Congress at each address for immigration reform, but to no avail.
How does Congress check the President through declarations of War?
Congress must declare War
-> has 11 times, but not since 1942
President no longer declares War, but still needs Congress’ permission through Authorisation for the Use of Military Force
-> 2013: Obama wanted to attack Syria, rejected!
How does Congress check the President through ratification of treaties?
Although treaties can be signed by the President without Congress’ permission, it only becomes entrenched if Congress first votes on it.
-> Obama: START Treaty passed by Senate in 2010, to halve the number of nuclear missiles between Russia and the USA.
How does Congress check the President through ratification of appointments?
Presidential appointments to federal courts, federal government departments and ambassadors must be ratified by the Senate.
-> Reagan initially nominated Robert Bork to replace Justice Powell, but this was rejected 58-42. The Senate then confirmed Justice Kennedy unanimously in 1988.
How does the President check Congress as Commander in Chief?
President decides stationing and movement of troops, and the use of military weapons
- > on at least 125 occasions, the president has acted without permission of Congress
- > in 1970, Nixon bombed Cambodia without notifying Congress.
- > in 2020, Trump carried out drone strikes in Iran without notifying Congress
How does the President check the Judiciary through the Power of the Pardon?
President can grant pardons to excuse a federal crime with few limitations.
2017 -> Obama gave pardon to Chelsea Manning who stole state secrets in his last week
1981 -> Pardongate of Jimmy Carter - 534 pardons
How does Congress check the Judiciary through nominations of Judicial Appointments?
President shapes Supreme Court through nominations
-> Justice Scalia dies, he was a Conservative leaning Judge. Trump nominated Justice Gorsuch, a similarly conservative judge (after Obama’s liberal nomination Merrick Garland was nominated due to the Stormond rule) to replace him.
Examples of Judicial Review?
Bourmediene v Bush 2008 - Military Commissions Act (in which detainees couldn’t challenge their detention in Guantanamo Bay couldn’t challenge their detention) was unconstitutional.
Brown v Board of Education 1954 stopped Jim Crow laws.
How does Congress check the Supreme Court through impeachment of Justices?
Same process as with impeaching Presidents.
Only ever seen one success in the Supreme Court, Justice Chase for being partisan in 1805
How does Congress check the Supreme Court through proposing a Constitutional Amendment?
By changing the constitution, the SC can be overturned.
1913: Supreme Court was overturned in its ruling that would deny Congress a federal tax through the 16th Amendment.
How does the President check Congress through executive agreements?
Presidents can sign a treaty without Congress ratifying it.
-> Withdrawal of Paris climate agreement in 2016, by Trump.
However, it must be notified that only a ratified Treaty is entrenched - hence how Biden was able to get rid of this on his first day in office.
How has federalism changed?
Before 1930s: DUAL FEDERALISM boundaries clear. domestic issues belonged to states, and foreign policy to central government
1930s-1960s: COOPERATIVE FEDERALISM state and government work together to solve problems
1980s-2001: NEW FEDERALISM more power back to states (e.g. removed federal grants to enable states to spend as they wished)
2001-2008: BUSH FEDERALISM federal interference on state issues after 9/11 (e.g. PATRIOT Act 2001)
2009: PROGRESSIVE FEDERALISM states more control as long as benchmark set (e.g. in 2015, Obama set not too harsh limits on carbon emissions, but a benchmark was set knowing some states like California would go above and beyond. He gave the states 3 years to do this)
What are the pros and cons of progressive federalism?
+states are autonomous
+avoids tyranny
-state government involving itself in federal issues
-federal government still sets a benchmark
How did Bush enhance state power?
- Left states to deal with Hurricane Katrina
- Wavered Medicare Prescription Act 2003 for Massachusetts to introduce universal health insurance
- Gonzales v Oregon 2006: Bush did fight against Oregon allowing Euthanasia, but he had to surrender.
How did Bush enhance federal power?
- State spending increased by 33%
- PATRIOT Act 2001
- No Child Left Behind Act 2002: made education a federal matter
How did Obama enhance state power?
- Texas v US 2016: Supreme Court shut down DAPA, which meant that there was a compulsory 2 year grace period for immigrants with/brought in as children, in Texas
- Obamacare 2010 ended in some states (e.g. having health insurance is no longer compulsory in states like Texas, and hasn’t participated in its 2021 expansion, and the Supreme Court has seen 3 challenges against ACA)
- Cole Memo 2013: states have their own laws on marijuana
How did Obama enhance federal power?
- Obamacare 2010: 50m Americans can access affordable health insurance
- Obergefell v Hodges 2015: gay marriage legal everywhere
- SB1070 overturned - Arizona can’t export those not carrying legal documents at request
How did Trump enhance state power?
In California v Texas 2020, 20 states are challenging the Affordable Care Act, but the SC decided the ACA wasn’t unconstitutional.
21 states issued lockdown orders
Carpenter v US 2018: federal government must have a warrant to obtain a citizen’s telephone location
Cuomo (a New York governor) told CBS News that Trump didn’t have the right to decide when states reopen in 2020
How did Trump enhance federal power?
Sessions Memo: rescinded Cole Memo. Despite this, marijuana has remained legal in 9 states.
Trump claimed he had the right to make the decision to reopen states on Twitter
Executive Order 13769: Muslim travel ban (reinforced by Hawaii v US 2018)
How did Biden enhance federal power?
Vaccines for teachers, 2021
Executive order fro all teachers to be vaccinated, 2021
How did Biden enhance state power?
Governor of Texas made an executive order AGAINST vaccine passports
How can it be argued that states remain sovereign?
Citizens rights -> rights vary between states (e.g. Oregon has euthanasia laws, Texas doesn’t)
Criminal punishment -> 30 states allow death penalty with 5 possible methods (e.g. Massachusetts don’t allow the death penalty, Utah does by firing squad). Some states (e.g. Florida) don’t allow some inmates to regain voting rights.
Electoral regulation -> variations in electoral practice. Some states use entirely electronic methods with no paper trace. State governors set boundaries (GERRYMANDERING!)
Taxes -> taxes by states varies. No state income tax in Texas, 13% level in California
How can it be argued that state sovereignty has been challenged?
Citizens rights -> government dictates some rights (e.g. Obergefell v Hodges 2015)
Criminal punishment -> SC can restrict the dearg pwnalrt (e.g. Kennedy v Louisiana 2008: prohibited death penalty for child rape when said child didn’t die)
Electoral regulation -> constitution extends voting rights and sets campaign financing laws
Taxes -> federal government sets federal tax, and states rely on federal grants when their finances are low.
Pros of the US Constitution
Supermajority stops tyranny of the majority
Bill of Rights uphold individual rights
-> Snyder V Phelps 2011: article one of the Westboro Baptist Church upheld
Supreme Court can overrule both branches (e.g. military commissions act 2008)
Amendments extend the voting rights (e.g. 19th amendment for women)
Senate and House directly elected (as of 17th amendment)
SC can interpret constitution in modern way.
Bipartisanship avoids reactionary politics (e.g. no change to gun laws)
Cons of the US Constitution
President isn’t directly elected (e.g. Trump won in 2016 despite Clinton winning by 2%). Loser of the popular vote as won in 2 of the past 6 elections
Large populations undervalued in Senate (e.g. Wyoming has 600,000 residents. California has 39 million)
Supermajorities mean that major change is easily stopped (Justice Scalia - 2% of the population can stop an amendment)
Checks and balances cause deadlock (US shutdown 2018)
Not all rights protected (Shelby v Holder meant that stricter ID laws could be passed, and were passed in states like Texas, that made it harder for minority groups like those on lower incomes to vote)
SC unelected
Interpretations are broad
