LAW 404 MC

The federal spending power is subject to __ limitation(s).

3

The general consensus is that presidential powers are governed by what kind of rule?

A German rule.

Which of the following is one of two parts of McCulloch's two-part rule?

Absent evidence of bad faith, the Court will not second guess congressional judgments about which means are appropriate

In a criminal case, the presidential interest in confidentiality does not outweigh the interests of the court...

Absent some particularized need for secrecy.

The modern administrative state is...

Absolutely central to modern government.

The case for granting constitutional authority to the President alone is strongest when ...

The decision is urgent.

The institutional choice in any commerce-power case is between...

The federal government and the states.

Under most Equal Protection cases, which of the following is true?

The prohibition of the Equal Protection Clause goes no further than the invidious (i.e., unjust or malicious) discrimination.

If almost everyone agrees that the Constitution is binding law, does it matter why we treat it as such?

Yes, how we interpret the constitution depends on why we treat it as binding law.

The Take Care clause imposes a(n) ----- duty and grants a(n) ----- power. (Fill in the blanks)

explicit; implied

How does a Constitution acquire legal authority?

A community must accept it as legitimate. No legal text is self-legitimating.

What type of injury must a plaintiff allege to establish Article III standing?

A concrete, particularized, and imminent injury.

The dead hand problem is ...

A powerful objection to the U.S. constitution that does not persuade most Americans

Governmental sex discrimination will only be upheld if the government provides an exceedingly persuasive justification. What does this require? (select all that apply)

An important government interest. A substantial relation between the interest and the challenged classification.

How is racial discrimination currently defined by the Court?

It's defined as any racial classification and includes laws that burden whites.

Which of the following is NOT part of the three-part rule that defines the removal power?

Any presidential removal must be made with the advice and consent of Congress.

In a hard constitutional case, what kind of arguments are key?

Arguments based on the strengths and weaknesses of different institutions.

What is one of the greatest strengths of Congress and the President working together?

Both working together ensures buy-in from the whole country, avoiding a tyranny of the majority.

Which case is the first modern Equal Protection decision?

Brown v. Board of Education

Aside from injury, what other two requirements must a plaintiff meet to establish Article III standing?

Causation and redressability.

The removal power is...

Central to the President's power to control the federal bureaucracy, and thus the President's Article II powers.

How has Citizens United influenced campaign finance reform?

Citizens United and its progeny have created a formidable obstacle to meaningful campaign finance reform.

What are the "big three" institutional choices (mark all that apply)?

Congress Separation of Powers (Congress vs. the President vs. the courts) The Executive Branch The United Nations Federalism (Federal government vs. States) Individual rights (Unelected courts vs. democratically elected institutions/officials) The Judicial Branch Supreme Potentate Andrew Coan

The more important a decision for the nation as a whole and the greater the risk of a rash and irreversible decision, the stronger the case for allocating constitutional authority to ...

Congress and the President acting jointly.

Which of the following is NOT a limitation on congressional spending power?

Congress may only use federal funds to regulate what it may otherwise regulate under the Commerce Clause.

In effect, all real-world delegations of rulemaking authority are...

Constitutional.

What is the federal government's greatest strength?

Its ability to deal with interstate spillovers.

Which of the following most accurately describes how courts determine whether congressional spending is consistent with the general welfare?

Courts defer substantially to the judgment of Congress.

Which of the following best characterizes courts' review of executive decisions of non-enforcement?

Courts review these decisions very deferentially.

What is the standard of "rational basis review"?

Courts will defer to the political process unless a challenged classification has "no rational relation" to a legitimate governmental objective.

What institutional consideration best explains why courts have made it so hard to establish a discriminatory purpose?

Courts worry that if discriminatory purposes were easy to establish, courts would be called upon too often to decide issues beyond their competence.

In what context do most federalism cases arise?

Disputes over Congress' powers under Article I of the Constitution.

What idea animates the Supreme Court's modern vigorous protection of freedom of speech?

Dissenting political minorities require strong judicial protection.

How are easy federalism cases resolved?

Easy cases are resolved by the Constitution and past Supreme Court cases.

True or False: The rule announced in Jones & Laughlin is so narrow that basically nothing qualifies as commerce.

False

True or false: seldom litigated means unimportant.

False

True or false: there is a great deal of case law on the military and foreign affairs powers of the President?

False

In individual rights cases, the institutional choice is always between which of the following?

Federal courts and the political process.

Which of the following is correct?

Federal power follows a German-style rule, because everything is forbidden unless specifically allowed.

What are some of the greatest strengths of the political process?

Its greater responsiveness to popular majorities, Its greater access to information and expertise

Are delegations of rulemaking authority treated as a delegation of legislative power or as grants of executive power?

Grants of executive power.

Debates over the spending power closely track the ___-___ divide

Hamilton-Jefferson

Because the Foreign Emoluments Clause has been seldom litigated, future cases are likely to be...

Hard, because there is less case law to guide future decisions.

Proving that government action was motivated by a discriminatory purpose is:

Hard. The Court has avoided difficult questions about multi-member institutions, permissible types of evidence, and what precisely a discriminatory purpose is by making it very hard to prove a discriminatory purpose.

What is the big question when it comes to presidential powers?

How broadly a statutory or constitutional grant of authority should be interpreted.

In removal power cases, the courts have generally favored...

Impartial expertise.

When faced with a hard federalism case, lawyers turn to...

Institutional arguments, such as those presented in Federalist 10.

What is the scope of "commerce" within the commerce power?

Intercourse, interchange, or interaction, including trade and navigation.

What is the key question in a 10th Amendment anti-commandeering principle case?

Is Congress prohibiting state action, or requiring affirmative state action?

What serious question did the Jones & Laughlin dissenters raise?

Is there any human activity beyond federal regulatory power?

What is a substantial cost of executive privilege? Mark all that apply.

It creates a temptation for the President to cover-up illegal acts. It deprives the court of essential information.

Which of the following best characterizes rational basis review?

It is a VERY deferential standard.

What is the purpose of executive privilege?

It provides crucial protection for vital relationships between the President and close advisors.

When does regulation of money trigger First Amendment concerns?

Money triggers First Amendment concerns only when it is used to facilitate speech, like when money is spent to run a political ad on television.

What is an imminent injury?

One that is certainly impending or involves a "substantial risk" of harm.

Facially neutral government action triggers heightened scrutiny only if what?

Only if the challenged government action was motivated by a discriminatory purpose.

For how long has the Supreme Court vigorously protected freedom of speech?

Only relatively recently.

What is the question of institutional choice in removal power cases?

Presidential control vs. politically isolated agencies.

Which two well-defined camps dominate Federalism?

Pro-state; Pro-national

Under the anti-commandeering principle, what does Congress remain free to do?

Prohibit states from acting in violation of federal law

Most Equal Protection challenges are analyzed under what standard of review?

Rational basis

Under the anti-commandeering principle, Congress is prohibited from doing which of the following?

Require the states to legislate or enforce federal law.

What is true of the Supreme Court's approach to most individual rights cases?

Some form of tiered scrutiny applies.

How does Article III standing relate to the question of institutional choice?

Standing criteria defines which decisions can be made by courts and which must be left to the political process.

What aspect of strict scrutiny did the government fail to prove in Citizens United?

That the prohibition of corporate spending is narrowly tailored to serve the government's compelling interest.

Select the best description of the 10th Amendment.

The 10th Amendment imposes ONE affirmative limit on federal power-the anti-commandeering principle.

Which of the following is the strongest argument that a decision should be left to the political process?

The decision is complex and far-reaching.

What was the main vehicle for the massive expansion of federal power in the 20th century?

The Commerce Power

What is true of the Supreme Court's willingness to create new suspect classifications under the Equal Protection Clause?

The Court has been extremely reluctant to create new suspect classifications.

How does the exercise of executive discretion to set enforcement priorities relate to the congressional policy underlying any such law?

The Executive's exercise of that discretion must be consonant with, not contrary to, the congressional policy underlying the law.

What two portions of the Constitution did Jones & Laughlin combine?

The Necessary and Proper Clause and the Interstate Commerce Clause.

The hardest cases arise when...

The case involves some circumstances favoring the President alone and others favoring joint Congressional and Presidential action.

What is the central issue in every constitutional case?

The central issue is always the question of institutional choice-which institution should be understood to possess constitutional authority over the issue at hand?

What is the institutional choice in any case involving the Necessary & Proper Clause?

The choice is between the states and the federal government

What rule does NFIB add to the commerce power rules established by J&L?

The commerce power does not permit Congress to regulate inactivity.

What rule do Lopez and Morrison collectively add to the commerce power rules established by J&L?

The commerce power does not permit Congress to regulate noneconomic activities.

Hard cases are cases in which ...

The governing legal rule fails to clearly and decisively resolve the legal issue posed

Easy cases are cases in which ...

The governing rule clearly and decisively resolves the legal issue posed

What is the general rule in free speech cases?

The government may not restrict the content of speech without a very strong reason.

After Citizens United, what must the government prove to prevail in a First Amendment challenge to a restriction on spending money in connection with political campaigns?

The government must prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

What is the first part of the rule announced in Jones & Laughlin?

The power to regulate commerce is the power to enact all appropriate legislation for its protection or advancement.

What is the greatest strength of state governments?

Their responsiveness to popular majorities.

Will a court's interest in conducting a fair and open civil trial be a strong enough reason to over-ride executive privilege?

Time will tell.

Which of the following is one of two parts in McCulloch's two-part rule?

Unless it is acting in bad faith, Congress may use any appropriate means to execute its powers

Which of the following best characterizes the scope of modern congressional power to regulate economic activity?

Very broad

Who are federal courts most well-suited to protect due to their insulation from direct political accountability?

Vulnerable minorities

What is the key debate after Brown?

What constitutes racial discrimination that triggers strict scrutiny.

Lopez, Morrison, and NFIB make it essential to focus on what?

What precisely Congress is seeking to regulate.

When is a state government's responsiveness to popular majorities especially important?

When an issue affects powerful special interests. When an issue involves significant geographic diversity of opinion.

Which of the following is NOT part of Justice Jackson's 3-part framework?

When the President acts with the support of the courts, no one may question the action.

When is a plaintiff most likely to win on a claim that the President violated the Take Care clause?

When the President engaged in an EXTREME instance of non-enforcement.

When are constitutional cases easy?

When the constitutional text or existing case law is clear.

What is the main textual dispute in CREW v. Trump?

Whether emolument should be defined broadly or narrowly.

What is the crucial question in hard individual rights cases?

Whether the challenged government action is subject to rational basis review or heightened scrutiny.

What are the main institutional disputes in CREW v. Trump? Mark all that apply.

Whether the courts or president should make decisions in this area Whether the courts are competent to make an institutional choice in the case

What is the question of institutional choice in Equal Protection cases?

Whether the courts or the political process should determine which classifications are permissible.

What is the most fundamental question raised by the development of the modern administrative state?

Whether the development of the administrative state is constitutional.

What is the question of institutional choice in free speech cases?

Whether the federal courts or the political process is better suited to decide the permissibility of speech regulation.

What are the two key questions in a commerce power case? Mark all that apply.

Whether the regulated activity is commerce/intercourse. Whether the commerce in question affects more than one state.

The bigger the spillovers, the ___________ the case for federal power.

stronger