US CONSTITUTION Flashcards
1
Q
what does article one section 8 claim and list the powers claimed here
A
- necessary and proper clause / elastic clause for making laws which congress deems to be needed to be executed and implemented
- article 1 section 8 lists the powers of congress
powers:
- lay and collect taxes
- regulate commerce
- declare war
- provide and maintain a navy
- NECESSARY AND PROPER CLAUSE
2
Q
describe the nature of the US constitution
A
- codified
- all written in one document
*extremely clear - entrenched
- cannot be changed without a 2/3 supermajority because it is engrained in law
*preserves early political intentions and prevents the rise of early populist movements in making decisions - vague
- allows for a degree of interpretation, and thus modernisation of this ‘living’ document
*adaptable - contains a bill of rights
- a list of 10 amendments imposed in order to protect individual rights
3
Q
define limited government
A
- limiting the jurisdictions of the government to ensure that the government cannot encroach and violate on individual rights and the collective rights of society
- it is through the bill of rights that individual rights are protected
4
Q
give examples of bipartisanship
A
- manchin toomey reforms for gun protection
- mccain-feingold laws
- honest leadership and open government act 411-8
- emmet till anti lynching
- no child left behind
5
Q
what is the vesting clause
A
- executive orders - cannot contradict the constitution
- executive privilege - resist congressional subpoena (us v nixon)
- executive agreements (do not require senate ratification, but can be challenged in the courts and overturned by later administrations)
6
Q
what was the decision made in printz v us
A
1997
- constitution does not give congress the power to dictate state law enforcement and require them to enforce federal law
7
Q
describe checks BY congress ON the executive
A
- VETO OVERRIDE
- ie JASTA = obama supporting lawsuits against the syrian government after 9/11 and congress rejected this
- requires a 2/3 majority in both houses - NOMINATION / APPOINTMENT POWERS (cabinet + judiciary)
- congress refused to support Harriet Miers to be nominated to the SC
- launch investigations into SC candidates and test knowledge (ie Harris asking Kavanaugh about abortion knowledge)
- senate appointed thomas to the court despite the ABA giving him a low, only barely qualified rating
- appointment of pete hegeseth - FAILURE = vance had to break vote
- merrick garland appointment failed
- failed appointment of Gaetz - publicity against his actions would cause outrage = pressure forced to step down
- Clinton’s appointment of Zoe Baird who stepped down over the “nannygate affair” - RATIFY TREATIES - article II
- war powers act 1973 - congress can withdraw troops after 60 days
- 1999 - congress rejected the comprehensive test ban treaty
- JCPOA - congress imposed restrictions and established congressional review
- New start 2010 treaty between the sale of nuclear arms between the US and Russia - POWER OF IMPEACHMENT
*attempted impeachment of Trump twice and Clinton (who was then aquitted)
- ie attempted impeachment of Trump over phonecalls with Zelensky over trying to launch investigations into Biden, and over election interference in 2016 elections - POWER OF PURSE
*national emergencies act of 2019 - congress was checking president to ensure funding was not inappropriately delegated to the construction of the border wall - denied budget attempts over border security
- denied funding of over $150 million to border security - limit exec financially
- war in afghanistan - congress passed a $59 billion war funding bill, but imposed requirements on the president - MAKE LAWS WHICH LIMIT EXECUTIVE POWER
*ie the CARES Act which aimed to oversee the effectiveness of the federal government in its implementation of measures for COVID
- ensures implementation of federal policy
- congress blocked Trump’s attempt to repeal Obamacare and replace it
- 1973 war powers resolution - presidents cannot engage in foreign conflict without congressional approval — USED TO FORCE WITHDRAW OF TROOPS FROM SOMALIA IN 1994
8
Q
define implied powers and give an examples of this from each of article 1, 2 and 3
A
powers which can be interpreted and understood without being actually written in the text
article one:
- subpoena power - congress can compel people to give information and a testimony to produce documents
- “raise armies” - idea of conscription
article two:
- vesting clause
- power of vacancies and appointments
article three:
- power of judicial review and interpret what the constitution means
9
Q
describe checks BY the judiciary ON the executive
A
- DECLARE EXECUTIVE ACTIONS TO BE UNCONSTITUTIONAL
- ie hamdan v rumsfeld which exposed the bush torture programme and forced it to end - accountability
- the courts blocking Trump’s attempts to end birthright citizenship, which is embedded in the constitution
- the original order of the Trump travel ban was struck down and declared unconstitutional in Trump v Hawaii 2018
- trump attempted to rescind DACA - department of homeland security v regents of the university of california ruled that this rescinding was unconstitutional under the APA and was “arbitrary and capricious” - ISSUE RULINGS WHICH LIMIT EXECUTIVE POWER
- ie DAPA was blocked in 2015 - lack expansive executive power
- hamdan v rumsfeld blocked the bush administration torture programme
- national labour relations board v noel canning 2014 – limit executive power to declare when the senate is in recess
Trump v US 2024 - didn’t limit president
10
Q
what is a supermajority
A
- the need for over 290 votes in the house and 67 votes in the senate in order to pass legislation
- when legislation and critical constitutional provisions must get more votes than an ordinary simple majority to pass
- supermajorities can either be 3/5ths, 2/3rds or 3/4
11
Q
describe the nature of the US constitution using key words
A
- vague
- codified - explicitly written
- entrenched document (difficult to change)
12
Q
describe the 3 key intentions of the founding fathers
A
- adequate limitations on presidential power and checks and balances on the executive branch (LINK TO SUPERMAJORITY REQUIREMENTS)
- to create an adaptable and ever-progressing document (ie vagueness + flexibility)
- to promote states rights and pursue a federal structure
13
Q
how has federalism eroded and not eroded state rights over capital punishment
A
eroded:
not eroded:
- baze v rees - gave states and Kentucky the power over deciding capital punishment methods, as long as it did not violate the 4th amendment
14
Q
describe the 3 phases of US federalism
A
- dual federalism - limited role for federal government
- cooperative federalism - when state and federal government work together
- new federalism - when there are attempts to reduce federal government power and give power back to the states
15
Q
give an example of a supreme court decision which expanded federalism and state rights on voting
A
SHELBY COUNTY V HOLDER 2013
- removed preclearance barriers on southern states with a history of discriminatory voting practices
16
Q
how has federalism eroded and not eroded state rights over elections
A
eroded:
- idea of the electoral college?? more state based and lacks federal influence
not eroded:
- shelby county v holder 2013 - state power to set their own preclearance requirements, voter ID laws introduced straight away in north carolina + texas
17
Q
define prosecutorial discretion
A
when prosecutors / the executive have the latitude and ability to decide to charge and prosecute someone for a crime under federal law
18
Q
what are the:
- 19th amendment
- 16th amendment
- 13th amendment
- 14th amendment
- 15th amendment
A
19th = women should be provided with the right to vote
16th = congress has the power to collect taxes on incomes from any source
13th = abolished slavery as a routine act
14th = people should not be denied life, liberty and property
15th amendment = provided all people with enfranchisement rights and the ability to vote
19
Q
when did the US government become increasingly more expansive
A
after 9/11
- bush used this as an opportunity to unite state and federal policies and expand the role of the federal government, which would be difficult to challenge by the states
20
Q
federalism eroding and not eroding when dealing with emergencies
A
eroding:
- hurricane katrina – federal government gave $120 billion worth of aid
- 2008 - american recovery and reinvestment act - $787 million to states
- CARES act 2020 - $2.2 trillion relief package – enforce funding on individual states
not eroding:
- during COVID, 32 states issued emergencies before that of the federal government - power to dictate what is best for their state (for example, gavin newsom issued a state wide closure on businesses, but 7 states did not order and impose any measures for closure
21
Q
federalism eroding and not eroding on healthcare (inc marijuana)
A
eroding:
- gonzales v raich 2005 - congress had the power to ban growth and use of medical marijuana in states which legalised its use
- nfib v sebelius 2012 - states were forced to expand medicaid funding and provisions or would risk losing their state funding (deemed constitutionally coercive) – 14 states expanded the medicare programme to have access to funding, and enrollment increased by 34% from 2013 and 2019
not eroding:
- california was the first state to legalise the use of marijuana, with 29 other states by 1996 legalising its use - despite the controlled substances act - obama and the justice department declared they would not prosecute anyone in these states – 2012 - washington legalised its recreational marijuana use
22
Q
describe checks BY congress on the judiciary
A
- IMPEACHMENT OF JUDGES
*power to remove federal judges if they have been partaking in “high crimes and misdemeanours”
- AOC proposing an impeachment of alito and thomas due to financial involvement and not putting matters before the court - constant check
- Samuel Kent in texas - the senate was preparing for impeachment, before he resigned a year earlier than anticipated in 2009 - PROPOSE CONSTITUTIONAL AMENDMENTS TO OVERRIDE DECISIONS
- 16th amendment = caused by west coast hotel v parish which was a disagreement with congress - upheld the need for a minimum wage
- dobbs v jackson women’s health organisation - abortion law is being drafted to be overturned by congress
23
Q
what are the principles of the US constitution
A
- checks and balances
- separation of powers
- federalism
- bipartisanship
- limited government
24
Q
give explicit state and federal power
A
state:
- establish local government
- regulate elections
- keep a military
- 10th amendment powers, not given in constitution
federal:
- armed forces
- foreign treaties
- dec war
- interstate commerce and business
25
what does the 10th amendment state
- powers not delegated to the united states by the constitution are RESERVED to the states
26
essay structure for if federalism has eroded or not, and if devolution has been consistent in recent years
- legislature eroding state rights
- judiciary eroding state rights
- executive eroding state rights
27
describe and explain how the bill of rights can guarantee limited gov
1. 1st amendment - protect freedom of speech, religion, assembly - idea of having foundational rights and imposes a boundary on violating these
2. 4th amendment - protection against unreasonable searches and seizures - government has no right to enter the home
3. 10th amendment - power not given to federal government is reserved for the states -- federal government cannot encroach on limited state power and upholds federalism to ensure a split between state and federal power to enforce limit gov
4. 2nd amendment - gives people the ability and right to defend themselves against the government using guns (ie DC v Heller 2008), enforces that the government cannot violate individual rights using force
5. 8th amendment - protection from cruel and unusual punishment - equality regarding ideas of torture etc
*also 5th amendment can be added in here by enforcing the right to life, liberty and property, which reiterates the idea of enforcing the basic rights of people (enforces the need for due process in the law - prevent gov manipulation)
28
describe checks BY the executive ON the legislature, and give examples
1. VETO
- can veto legislation passed in congress (enhances their government agenda)
*Trump veto the Iranian War Powers Resolution 2020
*Trump veto the National Emergency Bill in 2019
*Trump vetoes the arms sales dissaproval resolution to the UAE, Saudi etc
*2007 = Bush vetoes a bill which would limit funding to Iraq and force a US withdrawal
29
federalism eroding and not eroding when dealing with the environment
eroding:
- 29 states filed a lawsuit against the clean power plan, arguing that it undermined the 10th amendment, because if carbon limit plans were not imposed and decided individually by the state, the environmental protection agency was given the ability to impose its own plans on the state
not eroding:
- 2015 = clean power plan was introduced after regulations were created by the environmental protection agency -- gave states the flexibility to decide their own plans for meeting carbon dioxide emission limits and how they would pursue such policies
30
give the topics to talk about when discussing federalism
- taxation
- healthcare
- education
- immigration / security
- emergency powers
31
define enumerated powers and give an examples of this from each of article 1, 2 and 3
powers which are set out and stated specifically in a text
article one:
- power to provide and maintain a navy
- power to impeach
section 8 = taxing power of congress
article two:
- power of recess appointments
- protect + defend the constitution
article three:
- "cases and controversies" clause - idea of judicial power
32
give examples of the judiciary eroding and not eroding state rights
eroding:
- NFIB v sebelius - eroding state rights under the commerce clause and enforcing states to adopt medicare provisions, despite healthcare being a state process
- dobbs v jackson - mississippi was forced to enforce an abortion ban in nearly all circumstances
- mcculloch v maryland - justices gave congress power to justify expanding laws in education, healthcare etc
- gonzales v raich 2005 - congress could ban the growth and use of marijuana in states which legalised it
not eroding:
- US v Texas - DAPA programme - unconstitutional because of the cost to states
- trump attempting to revoke funding for sanctuary cities but failing, after withholding funding was declared as unconstitutional (san francisco v trump)***
- NFIB v sebelius in 2012 -- declared that coercive measures to force people to expand medicare to obtain federal funding was unconstitutional and undermined the 10th amendment
33
what is the Bill of Rights and give some examples of amendments within the bill
- a document which aims to enhance and protect individual liberties, thereby limiting the government and its interference in rights protection
1. 1st amendment = protection of free speech, religion and assembly
2. 2nd amendment = right to bear arms
4. 4th amendment = protects against unreasonable searches and seizures
5. 10th amendment = powers not delegated to the federal government are delegated to the states and people
6. 6th amendment = those being accused in trial have the right to a quick and fair trial, with a lack of government interference
34
what are concurrent powers and give examples of these powers
- powers which belong to both the state and the federal government
examples:
- levy and collect taxes
- borrow money
- define crimes
- enforce and set punishments
- enforce amendments
35
describe checks BY the judiciary ON the legislative
1. DECLARE CONGRESSIONAL LAW TO BE UNCONSTITUTIONAL
*use of judicial review through Fletcher v Peck and Marbury v Madison
- US v Windsor - declared the DOMA to be unconstitutional
- NFIB v Sebelius - Affordable Care Act - declared forcing people to buy health insurance was unconstitutional under the commerce clause, because it was not regulating commerce
- citizens united v FEC - declared the bipartisan campaign reform act to be unconstitutional because it would limit corporate free speech + 1A rights
36
example of power of the purse NOT working
2007 iraq war and attempting to impose spending provisions against Bush
- congress passed an emergency spending bill, which involved timelines for withdrawal
- bush vetoed the bill
- congress approved funding, without withdraw timelines
37
differences between a right and a power
right = a protection that someone is entitled to from something
power = authorises a specific action to occur, gives someone the authority todo something, and which can easily be abused
38
define federalism
when there is a central government to carry out specific functions, but reserved powers given to smaller sub-governments, which cannot be altered
- a system of shared sovereignty and a balance of power between state sub-governments and the national government
39
advantages to the amendments process (3)
1. enforces majoritarian rule and populism
- idea of high supermajority requirements automatically disables radical groups from exerting influence
- amendments passed thereby reflect the political wishes of the vast majority
2. supports the structure of federalism and giving choice to states
- larger states cannot exert more influence in this process than smaller states
3. maintains a separation of powers
- no interference between executive and legislature - no executive power
40
how has federalism eroded and not eroded state rights over taxation and federal financing
eroded:
not eroded:
41
list the enumerated powers, exclusive to the federal government
- power to collect taxes
- regulate interstate commerce
- print money
- declare war
- establish an army (article I)
42
federalism eroding and not eroding when dealing with education
eroding:
- the 'race to the top' scheme introduced by obama - was a $4 billion grant given to states for if they agreed to implement a range of federal policies and make education reforms
- bush introduction of the no child left behind act - must be enforced by state governmenta
not eroding:
- educational provisions in Texas - the state legislature approved for Educational Savings Accounts which allowed parents to use public funds for private school tuition, allocating $1 billion to help over 100,000 children
- similar policies have been implemented in Oklahoma and South Carolina
43
describe checks BY the executive ON the judiciary, and give examples
1. PARDON POWER
- can grant pardons
*2016-2020 = Trump = 143 pardons
*Trump = pardoned those for the Jan 6th riots = 1600 people
*Trump pardoned sherif Joe Alpio for running concentration camps for immigrants between 2017 and 2018
*Trump also gave presidential pardons to staff = ie Michael Flynn
44
describe / list the MAIN constitutional provisions which require a supermajority
1. ratification of treaties - 2/3 senate vote - article 2 section 2
- 2010 new start treaty - arms control agreement to limit nuclear weapons (71-26)
- 2015 JCPOA (was technically an act which obtained 98-1 support - Obama threatened to veto this version)
2. overriding a presidential veto - 2/3 majority vote in house AND senate - article one, section 7
- JASTA
3. constitutional amendments - 2/3 majority in house AND senate and 3/4 state ratification
- ie ERA - any constitutional amendment (ie amendment 25 that if the president dies, the VP should assume this role)
4. presidential impeachment
- simple majority to pass articles of impeachment, 2/3 supermajority in senate to impeach (article 1 section 3)
5. presidential removal - 2/3 supermajority of house and senate (only if the VP and cabinet declare the president unable and unfit to serve)
*this means that there is a requirement for bipartisan support
45
what is the nature of the federalist system in the usa
- shared sovereignty between states and the federal government
- there are concurrent rights and reserved powers which are powers explicitly for state
- there are enumerated powers which are specific federal government powers
46
give the 4 main examples of checks and balances on the president not working (2 per branch to check)
47
give examples of specificity in the constitution
- article one section 7 --- clear standards about passing a bill in congress, its evolution to the executive, and what should occur if the bill is not passed (limits ambiguity about the law)
- article one section 2 - states that the age of a representative must be 25
- amendment 7 - any crime exceeding $20 must hold a trial by jury - clear judicial process
48
give examples of the executive eroding and not eroding state rights
eroding:
- the idea of the 'supremacy clause' is always eroded (if state law contradicts the constitution, the constitution wins)
- bush created the department of homeland security in 2002 (unite terrorism and security matters) FEDERALISM ERODING HOMELAND SEC
- jeff sessions under trump issued a memo which opposed marijuana consumption and use, claiming that it would violate federal law
- USA PATRIOT act -- would enforce cohesion over policies on terrorism matters --defence spending increased by 125% since 9/11
not eroding:
- obama not challenging the legalisation of marijuana in states - ie california legalising it in 1996, and washington in 2012
49
disadvantages to the amendments process (2)
1. tyranny of the minority
- it will only take a minority of states to block an amendment, which the majority of the population may want
(ie the Equal Rights Amendment)
- ie smaller, conservative states had the ability to block the ERA
2. disproportionality
- small states have a more amplified voice in the process, despite a smaller population
- over-representation of smaller, and more conservative states
50
federalism eroding and not eroding when dealing with gun rights
eroding:
not eroding:
- united states v lopez 1995 - gun free school zones act of 1990 was unconstitutional, because it surpassed federal power - this issue should be designated for the states
- democratic states launch a 25 hour sit in in 2016 to extend background checks and restrict rifles in order to limit access to guns
51
what is:
article one
article two
article three
article one:
- powers over congress
- "elastic clause" / "necessary and proper clause"
article two:
- presidential power (vesting clause)
article three:
- powers of the supreme court
52
give the 3 powers of judicial review
1. overturn acts of congress by determining them unconstitutional (ie mccain-feingold laws contradicted first amendment rights, in Citizens United vs FEC)
2. overturn executive actions
3. overturn state laws
53
federalism eroding and not eroding on immigration
eroding:
- arizona v united states 2012 - state immigration laws in arizona are preempted by federal law, because congress has a power to naturalise and unite laws regarding immigration (supreme court upheld that 3/5 state immigration laws were unconstitutional)
- 2015 = 31 state governors announced that they refused to co-operate with obama's plan to accept 10,000 reguees per state (refugee act 1980 gave president power to enforce this)
not eroding:
- california and other states have the power to establish sanctuary cities (trump issued an executive order trying to limit funding, judge claimed it was unconstitutional - SAN FANCISCO V TRUMP)
- trump building a mexico border wall -- judge gilliam's judgement declared that trump had overstepped his authority
54
advantages of supermajorities
1. high thresholds = prevent radicalism and prevent politically motivated laws, prevents single party dominance and radical change under one administration
2. maintains democracy - expansive presidential power is not supported (idea of limiting an imperial president) - safeguard against quick decision
3. promotes bipartisanship and co-operation -- forces compromise and more widely accepted policies
4. may protect minority interests more
5. stability and continuity -- making it more difficult to implement laws forces consistency and political stability
55
describe the characteristics of federalism
- dual sovereignty
- control of defence, law and order etc
- protection of state autonomy
- maintain state constitutional integrity
56
disadvantages of supermajorities
1. increasing partisanship in the house and senate with a lack of neutral agreement makes supermajorities and critical difficult to invoke - leads to legislative gridlock
2. empowers a minority - only a minority are needed to block critical legislation from passing - only 12 states needed to block an amendment (minority is given a substantial amount of political power) - can block policies which the majority of americans do not support
3. difficulty changing the constitution - the constitution remains entrenched and difficult to evolve and change, meaning it cannot easily adapt to modern standards
57
give examples of the legislature eroding and not eroding state rights
eroding:
- passing of the affordable care act -- forced states to expand medicare provisions in order to have access to more funding
not eroding:
- legislature passed the 10th amendment 1791
- notion of procecutorial discresion - respecting rights of states to decide on laws
58
describe the amendments process
- a proposal for an amendment will begin in congress, and sometimes through a constitutional convention
- 2/3 of each chamber in the legislature must vote to approve the introduction of an amendment
- then, 3/4 of state legislatures must approve of the amendment
*the process does not go through the white house
59
give examples of vagueness in the constitution, and what are the negative implications of this
- holding offices during good behaviour for judges in article 3, section one
- article one, section 8 - congress having the power to make the laws which are "necessary and proper"
negative implications:
- idea of manipulation of a traditional document for narrow objectives
- gives expansive power to branches (ie necessary and proper clause)
- often encourages partisanship -- giving branches this power of interpretation, means it is often used for political gain and party loyalty
- lack of clear interpretations will occasionally go to the SC - politicised body + expansive power
