Warmaking

Question 1

Constitution is clear that ___ is the way to declare war

Answer 1

declaration

Question 2

If ____ war President can decide

Answer 2

de facto

Question 3

Maybe Pres can ____ but will never happen because can always find de facto war

Answer 3

initiate war without declaration

Question 4

Madison said wording of the Declaration Clause ___

Answer 4

left Pres with power to repel sudden attacks

Question 5

Problem with no declaration needed for defensive war

Answer 5

at some point will go on the offensive, what is point of Declaration Clause

Question 6

Pres can evade Declaration Clause by ___

Answer 6

actions less than war (Korea was police power)

Question 7

Maybe the value of declaring war is that the ___

Answer 7

laws of war kick in

Question 8

Most scholars think ____ power to take nation into war

Answer 8

Cong has

Question 9

Some scholars say Declaration limited to __

Answer 9

providing formal recognition for war (triggering national and international laws)

Question 10

Some scholars think Pres has power to wage war and Cong has ___

Answer 10

power to limit with power of the purse

Question 11

Takeaway from Prize cases

Answer 11

Pres power to determine if de facto war exists

Question 12

Prize Cases facts

Answer 12

After attack Lincoln proclaimed blockade of Southern ports and if ships violate subject to seizure. Cong didn’t proclaim blockade or declare war on the Confederacy

Question 13

Prize cases holding

Answer 13

can do blockade without Congressional declaration of war

Question 14

Prize cases reasoning

Answer 14

(1) civil war never declared just becomes by accident (2) didn’t initiate war but bound to accept the challenge (3) under intl law war can exist without declaration (4) President oath to preserve and protect Consti (5) Congress acquiesced (6) Declare Clause omits de facto war

Question 15

Seems like only need Congress if want to declare war against __

Answer 15

country doing nothing

Question 16

Cong. can’t declare war on a state because __

Answer 16

(1) domestic and Pres must TK (2) don’t want to acknowledge South as sovereign

Question 17

There was _____ against Japan

Answer 17

explicit declaration of war

Question 18

Cong. ____ against Vietnam

Answer 18

didn’t explicitly declare war

Question 19

What was Lincoln’s preliminary emacipation

Answer 19

will free slaves if you don’t stop

Question 20

Lincoln invoked ___ for preliminary emancipation

Answer 20

CiC

Question 21

Preliminary emancipation wasn’t taking property because ___

Answer 21

Prize Cases say enemy property can be seized without consent

Question 22

Why does Ham think Cong couldn’t issue preliminary emancipation?

Answer 22

Cong can only take for just comp, not seize in wartime

Question 23

what was the order of retaliation

Answer 23

for every union soldier killed or enslaved one rebel would be

Question 24

Ham thinks order of retaliation may be __

Answer 24

due process violation

Question 25

Lincoln justified order of retaliation through __

Answer 25

duty of govt to protect its citizens (TK, CiC, Lawful Force)

Question 26

Lincoln also ___ suspended habeas corpus because ___

Answer 26

uniltaterally, Cong. not in session and couldn't be assembled quickly

Question 27

Hamdi facts

Answer 27

US citizen accused of fighting for Taliban detained by Navy indefinitely without trial

Question 28

Hamdi applies __

Answer 28

the Mathews test

Question 29

Hamdi holding

Answer 29

CiC can hold enemy combatants (including US citizens) but due process requires some form of hearing (informal military hearing)

Question 30

Thomas Hamdi decision

Answer 30

decision within Fed Govt wartime powers

Question 31

Thomas Hamdi reasoning

Answer 31

lack expertise to second guess, unitary exec critical for national security, exec broad powers against enemy in wartime

Question 32

Hamdi Scalia dissent 1

Answer 32

for among arms law is silent antithetical to ConstiHa

Question 33

Hamdi Scalia dissent 2

Answer 33

entitled to habeas decree requiring his release unless (1) crim proceedings promptly brought or (2) congress suspend writ of habeas

Question 34

Hamdi Scalia dissent 3

Answer 34

twists due process into hearing where citizen bears proof, testimony by hearsay rather than live witnesses, "neutral" military rather than judge/jury

Question 35

Way to detain people in time of crisis

Answer 35

adopt statute authorizing detention --> adopt statute suspending habeas corpus --> adopt indemnification statute

Question 36

It is clear that Cong can use funding to to achieve desires but less clear that they can __

Answer 36

order Pres in military affairs

Question 37

Korematsu facts

Answer 37

Japanese American man criminalized for remaining in "military are" excluding all Japanese American people

Question 38

Korematsu holding

Answer 38

exclusion order valid --> military given power by Cong

Question 39

Standard used in Korematsu

Answer 39

strict scrutiny

Question 40

Korematsu was ___ by Trump v. Hawaii

Answer 40

repudiated

Question 41

Korematsu court said not because of ___ but because ___

Answer 41

race, military deemed it necessary

Question 42

____ is almost always met in times of war

Answer 42

compelling govt interest

Question 43

Korematsu Frankfurter concurrence

Answer 43

sometimes what's unlawful in peace is lawful in war, exercise of war power granted to Cong. for safeguarding national life

Question 44

Korematsu Roberts dissent says not like Hirabayashi because ___

Answer 44

not about keeping people off streets at night OR temporary exclusion of him for his safety or community

Question 45

Roberts says Korematsu is a case where ___

Answer 45

convicting citizen to punishment for not submitting to imprisonment

Question 46

Murphy dissent thinsk K should ___

Answer 46

win under rational basis review, should be limits to military discretion especially when not martial law

Question 47

Murphy in Korematsu says no reasonable ___

Answer 47

relation to an immediate, imminent public danger evident to support this racial restriction

Question 48

Korematsu Jackson dissent says this is a ___ not a ___

Answer 48

military order, act of cong/exec order

Question 49

Jackson says that military decisions by nature ___

Answer 49

not susceptible of judicial appraisal but when one comes here shouldn't uphold it

Question 50

Ham says Korematsu demonstrates the big problem of ___

Answer 50

using balancing tests to ascertain rights

Question 51

Two step test for when conflict between individual rights and govt actions

Answer 51

Where does it come from? Does it conflict with rights?

Question 52

Whether govt action conflicts with rights depends on ___

Answer 52

level of scrutiny one would apply

Question 53

What is strict scrutiny

Answer 53

necessary to achieve compelling state interest + law narrowly tailored + use least restrictive means to achieve purpose

Question 54

What is intermediate scrutiny

Answer 54

furthers important govt purpose by means substantially related to that purpose

Question 55

What is rational basis

Answer 55

rationally related to legit govt interest whether real or hypothetical

Question 56

Under strict scrutiny, can obliterate rights whenever ___

Answer 56

public anxiety/compelling govt interest

Question 57

Ham says deference to military is like ___

Answer 57

deference to experts

Question 58

Ham says lots of ____ while balancing

Answer 58

room for bias to slip in