LAW 404 Final COMBINED
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
Which of the following best describes Thomas Jefferson's views on the first bank of the United States?
Jefferson opposed the creation of a national bank as beyond the powers of Congress.
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.
The case for granting constitutional authority to the President alone is strongest when ...
The decision is urgent.
What is the strongest institutional argument for allocating primary decision-making authority over school funding to state legislatures?
The question is empirically complex (how many students are there per district? what are their current needs and resources? how far can students be reasonably expected to travel to school? should some funding be local to ensure community investment in schools? Etc., etc.), with wide-ranging effects on interests unlikely to be represented before a court.
What is the strongest institutional argument for allocating primary decision-making authority over the death penalty to state legislatures?
The question is both morally and empirically complex (does the death penalty deter murder? by how much? how many innocent persons are likely to be executed? how does race factor into the administration of capital punishment?), with wide-ranging effects on interests unlikely to be represented before a court.
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.
After Jones & Laughlin Steel Co., the Supreme Court ...
did not strike down another law as beyond the federal commerce power until 1995.
James Madison's maxim that "ambition must be made to counteract ambition" is ...
famous but wrong.
What style of rule do federal power and state power follow?
federal power- german (everything is forbidden unless specifically allowed) state power- french
Over the course of U.S. history, the commerce power ...
has contributed greatly to a vast expansion of federal power since the founding.
In Gibbons v. Ogden, Chief Justice Marshall's opinion defined commerce as ...
intercourse, meaning interchange or interaction.
In what sense is the 10th Amendment a "truism"?
it merely reaffirms that Congress has only those powers granted to it.
The most important advantage of the federal government over the states is ...
its greater ability to handle interstate spillovers--that is, problems that affect more than one state.
By broad consensus, the greatest weakness of the federal government is ...
its remoteness from the people and consequent susceptibility to tyranny of the minority.
What is the strongest institutional argument for allocating primary decision-making authority over mercury regulation to the executive branch?
The executive branch possesses greater expertise and investigative research than the legislative branch to deal with the complex scientific questions raised in this context.
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.
What type of injury must a plaintiff allege to establish Article III standing?
A concrete, particularized, and imminent injury.
What is a facially discriminatory law?
A law that explicitly treats persons differently based on a suspect classification.
The dead hand problem is ...
A powerful objection to the U.S. constitution that does not persuade most Americans
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.
How were the Reconstruction Amendments enforced for the first 100 years of their existence?
After a brief period of rigorous enforcement, they weren't.
Courts require that congressional delegations of rule-making authority be governed by what?
An "intelligible principle"
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.
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.
Where in the Constitution does the text explicitly require Executive approval of any law Congress wishes to pass (unless Congress can get approval from a two-thirds majority of both houses to approve the law)?
Article I, Section 7
Which of the following best describes the position of those that defend independent agencies?
Because administrative agencies make decisions on objective technical knowledge, Congress should be able to shield agency officials from the President's political motives.
Why has the Foreign Emoluments Clause so seldom come up in court?
Because violations of the clause do not generally cause the sort of injury that would enable any person to bring suit challenging them. Because most federal officials have scrupulously avoided violating it.
What do separation of powers and individual rights share in common?
Both present a question of institutional choice between different branches of government.
Which case is the first modern Equal Protection decision?
Brown v. Board of Education
Which of the following is the government generally permitted to regulate?
Campaign contributions.
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 is the rule for challenges based on the Equal Protection Clause?
Claims brought under the Equal Protection Clause are only subject to heightened scrutiny when the courts are more trustworthy than the political process.
What is the strongest institutional argument for allocating decision-making authority over the emergency seizure of production facilities to Congress?
Congress is more likely to ensure buy-in from the nation as a whole, including geographically concentrated minorities.
What is the strongest institutional argument for allocating primary decision-making authority over mercury regulation to Congress?
Congress is more likely to ensure buy-in from the nation as a whole, including geographically concentrated minorities.
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.
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.
Which of the following best describes the issue in McCulloch v. Maryland?
Does Congress possess the constitutional power to create a national bank under the Necessary and Proper Claus?
What is the strongest institutional argument for allocating primary decision-making authority over marijuana regulation to the federal government?
Drug policy affects the nation as a whole and the federal government is best suited to take all of the affected interests into account.
What is the institutional logic behind the Court's extension of heightened scrutiny to sex discrimination?
Entrenched barriers like stereotypes and gender-based social norms tend to systematically undervalue women's interests in the political process, which federal courts are insulated from.
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: the government can rely on ad hoc and overbroad generalizations in justifying classifications based on sex.
False
True or false: there is a great deal of case law on the military and foreign affairs powers of the President?
False
why does the Supreme Court seldom stray too far from the views of popular majorities?
Fears of political backlash, budget cuts, and increased caseloads generally cause Supreme Court justices to adhere to the views of popular majorities over the long run.
In individual rights cases, the institutional choice is always between which of the following?
Federal courts and the political process.
Which of the following trigger(s) heightened scrutiny? (select all that apply).
Government discrimination based on race. Government discrimination based on religion. Government discrimination based on sex.
Are delegations of rulemaking authority treated as a delegation of legislative power or as grants of executive power?
Grants of executive power.
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 does IRAC stand for?
Issue, Rule, Application, Conclusion
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.
What is the purpose of the means-end fit requirement of heightened scrutiny?
It ensures that the challenged discrimination is really necessary and smokes out impermissible government purposes.
Which of the following best characterizes rational basis review?
It is a VERY deferential standard.
Why is the intentional discrimination requirement more easily stated than applied?
It is difficult to ascertain what it means for the government to be motivated by a discriminatory purpose.
What is the textual basis for the doctrine of executive privilege?
It is not mentioned explicitly in the constitutional text but has been implied from Article II because it is so vital to the President's ability to do his job.
What role does Article III play in maintaining the separation of powers?
It limits the courts to remedying "particularized" harms, leaving general ideological grievances to the political process.
What is the purpose of executive privilege?
It provides crucial protection for vital relationships between the President and close advisors.
Where in the Constitution does the text explicitly require the President to obtain approval from Congress before acting?
It's a trick question: the Constitutional text nowhere explicitly requires the President to obtain congressional approval for his actions.
How is racial discrimination currently defined by the Court?
It's defined as any racial classification and includes laws that burden whites.
What is the federal government's greatest strength?
Its ability to deal with interstate spillovers.
In individual rights cases, what does the government nearly always argue?
Its action should be subject to rational basis review.
What are some of the greatest strengths of the political process?
Its greater responsiveness to popular majorities, Its greater access to information and expertise
The standard the government must meet to justify classifications based on sex is ________ than the standard the government must meet to justify racial classifications.
Less demanding
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.
Who may ask a federal court for an advisory opinion?
No one.
Did BCRA ban all corporation and union electioneering expenditures?
No, but it prohibited them from spending funds from their general treasuries on electioneering expenditures.
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.
What is the rule for identifying discrimination that triggers heightened scrutiny?
Only intentional discrimination triggers heightened scrutiny.
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.
What is an emolument?
Profit or gain, which may or may not be limited to payments in connection with official duties.
Most Equal Protection challenges are analyzed under what standard of review?
Rational basis
What judicial standard applies to most equal protection claims?
Rational basis review
Which of the following is not one or the three main categories of presidential power?
Revenue Raising
Why are courts so reluctant to review presidential non-enforcement decisions?
Setting enforcement priorities involves complex tradeoffs and Presidents have access to far better information.
Which of the following may be the single most important power that modern Presidents exercise?
Setting enforcement priorities.
After U.S. v. Virginia, how does the level of scrutiny applicable to sex-discrimination claims compare to that of race-discrimination claims?
Sex-discrimination claims are evaluated by a standard almost, but not quite, as strict as that of race-discrimination claims.
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 is the strongest institutional argument for allocating primary decision-making authority over education policy to the state governments?
States are closer to the people and more likely to be responsive to the widely varying preferences of popular majorities in different parts of the country.
Grants of adjudicative power to administrative agencies are constitutionally premised on what recognition?
That a certain amount of rule making and adjudication are inherent in Executive power.
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.
Government actions that discriminate on the basis of race is subject to what level of scrutiny?
The "most rigid scrutiny," or strict scrutiny.
Description of the 10th Amendment.
The 10th Amendment imposes ONE affirmative limit on federal power-the anti-commandeering principle.
What individual rights are protected against the federal government, and which are protected against state governments?
The Bill of Rights and the 14th Amendment are (mostly) protected against both the federal government and states.
What was the main vehicle for the massive expansion of federal power in the 20th century?
The Commerce Power
What is the constitutional basis for the President's removal power?
The Constitution is silent on the President's ability to remove appointed officers.
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.
Which of the following best describes unitary executive theory?
The President is best suited to resolving difficult political questions, and so Congress can not interfere with the President's removal power.
Which of the following best captures the primary distinction between an "Independent Agency" and an "Executive Agency"?
The President may fire the presiding officials (like the Commissioner) of an Independent Agency only for good cause, but may fire the presiding officials of an Executive Agency for any reason or no reason at all.
When did the Supreme Court begin providing constitutional protection against sex discrimination?
The Supreme Court began providing constitutional protection against sex discrimination in 1970, after the second women's movement.
What has the Supreme Court said about whether the President has constitutional authority to commit U.S. troops to offensive military action without congressional authorization?
The Supreme Court has not answered this question.
In McCulloch v. Maryland, the Supreme Court upheld the power of Congress to create a national bank because ...
The bank was an appropriate means of carrying into effect the enumerated powers of Congress under the Necessary and Proper Clause.
The hardest cases arise when...
The case involves some circumstances favoring the President alone and others favoring joint Congressional and Presidential action.
Which of the following first suggested the possibility of applying a higher level of judicial scrutiny to laws burdening disfavored minorities? (select all that apply).
The famous "Footnote Four." Brown v. Board of Education Korematsu v. United States
What is the strongest institutional argument for allocating primary decision-making authority over school funding to federal courts?
The federal courts are less susceptible to tyranny of the majority, which is a significant risk in the context of school funding disparities which disproportionately disfavor poor minority communities.
What is the strongest institutional argument for allocating primary decision-making authority over the death penalty to federal courts?
The federal courts are less susceptible to tyranny of the majority, which is a significant risk in the treatment of accused criminals, especially given the long history of racial disparities in the administration of the death penalty.
What is the question of institutional choice in every individual rights case?
The federal courts vs. the political process
The institutional choice in any commerce-power case is between...
The federal government and the states.
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.
In individual rights cases, what do plaintiffs nearly always argue?
The government's action should be subject to heightened scrutiny.
Which of the following best captures the issue facing the court in US v Nixon?
The issue is whether the transcript is protected by executive privilege.
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 was the practical effect of the decision in Brown v. Board of Education on the ground?
The practical impact was limited.
What is executive privilege?
The privilege of the President not to disclose private communications with high level advisors.
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.
Which statement best captures the question of institutional choice in US v Nixon
The question is whether the President or the courts should decide which of the President's internal communications should be made public.
What risk is the foreign emoluments clause meant to guard against?
The risk that the President (and other federal officials) would represent the interests of foreign governments instead of the American people.
What is the anti-commandeering principle?
The rule that Congress may not force state or local officials to enforce or administer federal law.
Which of the following best captures the question of institutional choice in US v Texas
This case presents two questions of institutional choice: (1) whether Congress or the President should decide who may remain and legally work in the United States, and (2) whether the Court is competent to make the choice between Congress and the President if doing so requires the Court to second-guess the President's enforcement priorities.
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.
Why is Congress allowed to regulate campaign contributions? (Select all that apply).
To avoid the appearance of corruption by quid pro quo contributions. To avoid corruption induced by quid pro quo contributions.
What was the original purpose of the Reconstruction Amendments?
To protect the rights and rights and freedoms of formerly enslaved persons.
What is the key debate after Brown?
What constitutes racial discrimination that triggers strict scrutiny.
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.
Which of the following best captures the issue facing the Court in Free Enterprise Fund v PCAOB?
Whether "for cause" protection for PCAOB unconstitutionally abridges the President's Article II removal power.
Which of the following best captures the issue presented in Clapper v. Amnesty International?
Whether Amnesty International had Article III standing to challenge the Foreign Intelligence Surveillance Act Amendments.
Which of the following best captures the issue in Citizens United v FEC
Whether BCRA violated Citizens United's First Amendment free speech rights.
Which of the following best captures the question of institutional choice in this case?
Whether Congress or an expert executive-branch agency under supervision of the President should make technical decisions about air quality standards.
What are the main institutional disputes in CREW v. Trump? Mark all that apply.
Whether Congress or the President should make decisions in this area. Whether the courts are competent to make an institutional choice in this case.
Which of the following best captures the issue facing the Court in US v Texas?
Whether DAPA violates the President's obligation to faithfully execute the federal immigration laws.
Which of the following best captures the issue in Brandenburg v Ohio?
Whether Ohio's Criminal Syndicalism statute violates the First Amendment freedom of speech.
Which of the following best captures the issue in The Steel Seizure Case?
Whether President Truman's executive order was a valid exercise of his Article II powers.
Which of the following best captures the issue facing the court in Crew v Trump?
Whether President Trump's receipt of financial benefits from foreign governments (through his business empire) violates the Foreign Emoluments Clause.
Which of the following best captures the issue facing the court in Whitman v American Trucking Ass'ns
Whether Section 109(b)(1) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the Environmental Protection Agency (EPA) in violation of the nondelegation doctrine.
What is the issue in United States v. Virginia?
Whether VMI's exclusion of women violates the Equal Protection Clause.
Which of the following best captures the first issue in City of Cleburne v Cleburne Living Center
Whether cognitive disability is a classification calling for a more exacting standard of review than rational basis.
What is the main textual dispute in CREW v. Trump?
Whether emolument should be defined broadly or narrowly.
Which of the following best captures the issue in Brown v Board of Education
Whether racially segregated public schools with materially equal facilities violate the Equal Protection clause.
Which of the following best captures the issue in Williamson v Lee Optical
Whether s 2 of the Oklahoma law violates the Equal Protection clause.
Which of the following statements best captures the question of institutional choice posed by The Steel Seizure Case?
Whether the President acting unilaterally or the President and Congress acting jointly should have the power to seize production facilities to meet a military emergency.
In a "true" Take Care Clause case, what is the issue?
Whether the President has failed to in his obligation to faithfully execute the laws.
Which statement best captures the question of institutional choice in Crew v Trump?
Whether the President or Congress should decide whether the President can personally profit from the sale of goods or services to foreign governments.
What is the crucial question in hard individual rights cases?
Whether the challenged government action is subject to rational basis review or heightened scrutiny.
Which of the following best captures the second issue in City of Cleburne v Cleburne Living Center
Whether the city's permit denial is unconstitutional even under rational basis review.
Which of the following best captures the question of institutional choice in Clapper v Amnesty International
Whether the courts or the political process is best suited to deciding the extent of permissible foreign intelligence surveillance.
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.
Which of the following best captures the question of institutional choice in Williamson v Lee Optical
Whether the federal courts or the political process is best suited to regulating eye care.
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.
Which of the following best captures the issue of institutional choice in Citizens United v FEC?
Whether the political process or the courts are best suited to determine the permissibility of corporate campaign expenditures.
What is the main question of institutional choice in any individual rights case?
Whether the political process or the courts are best suited to making a particular decision.
Which of the following best captures the question of institutional choice in Brandenburg v Ohio?
Whether the political process or the courts are best suited to protect the First Amendment rights of the Ku Klux Klan.
Which of the following best captures the question of institutional choice in Brown v Board of Education?
Whether the political process or the courts are best suited to protect the rights of minority populations.
Which of the following best captures the question of institutional choice in Int' Refugee Assistance Project v Trump
Whether the political process or the courts are best suited to protecting the rights of an insular minority group.
Which of the following best captures the question of institutional choice in City of Cleburne v Cleburne Living Center
Whether the political process or the federal courts are best suited to decide when discrimination against those with cognitive disabilities is permissible.
Which of the following best captures the question of institutional choice in US v Virginia
Whether the political process or the federal courts should decide when to permit gender-based admission policies in public educational institutions.
What are the two key questions in a commerce power case?
Whether the regulated activity is commerce/intercourse, Whether the commerce in question affects more than one state.
Which of the following best captures the issue in Int' Refugee Assistance Project v Trump
Whether the second order violated the Equal Protection Clause.
What hotly contested question arises in most difficult individual rights cases?
Which standard of review should the government's action be subject to?
The Take Care clause imposes a(n) ----- duty and grants a(n) ----- power. (Fill in the blanks)
explicit; implied
The proper scope of national power ...
has always been controversial.
The President's greatest strengths include ...
the ability to act quickly and decisively in a crisis.
How does Gonzales v. Raich define economic activity?
the production, distribution, or consumption of commodities.
Most constitutional disputes over the separation of powers are really disputes about whether a particular constitutional power should be entrusted ...
to the President alone or to the President and Congress acting jointly.
Which of the following best captures the question of institutional choice in Free Enterprise Fund v PCAOB
whether the powers of the PCAOB should be supervised by the President (via the SEC) or by an unusually independent federal agency (twice insulated from the President's removal power).
The central question in EVERY constitutional case is ...
which institution should be understood to possess decision-making authority over the subject at hand.
Who is often called the "Father of the Constitution"?
James Madison
What is the political process?
A collective term for state and federal institutions that are directly or indirectly responsible to the people.
How does a Constitution acquire legal authority?
A community must accept it as legitimate. No legal text is self-legitimating.
Which of the following is NOT a standard type of legal argument used in hard constitutional cases?
Arguments based on political partisanship
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.
How does commandeering compromise the integrity and independence of state electoral processes?
By requiring state officials to act as puppets of the federal government rather than as representatives of state voters.
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.
How are easy federalism cases resolved?
Easy cases are resolved by the Constitution and past Supreme Court cases.
What is the strongest institutional argument for allocating primary decision-making authority over education policy to the federal government?
Education policy affects the nation as a whole and the federal government is best suited to take all of the affected interests into account.
The three big questions of institutional choice in American constitutional law are ...
Federalism, separation of powers, and individual rights
Which of the following best describes Hamilton's view of the spending power?
Hamilton thought the spending power granted Congress the power to spend money for any purpose connected to the general welfare.
Debates over the spending power closely track the ___-___ divide
Hamilton-Jefferson
What serious question did the Jones & Laughlin dissenters raise?
Is there any human activity beyond federal regulatory power?
Where is the spending power found in the constitutional text?
It's a trick question. The spending power is not explicitly granted by the constitutional text.
Which of the following best describes James Madison's views on the spending power?
Madison worried that the spending power would give Congress effective control over all human activities. Madison thought Congress could only spend money in the service of its other enumerated powers.
Assume that three or more of your classmates have signed Constitution 2.0. Is this Constitution the Supreme Law of the Land?
No because no text is self-legitimating and there is no way that the people of the United States would recognize this document or its ratification procedure as legitimate.
Under the manufacturing/commerce distinction established in E.C. Knight, Congress was ...
Permitted to regulate commerce or trade but not manufacturing.
Under the anti-commandeering principle, Congress is prohibited from doing which of the following?
Require the states to legislate or enforce federal law.
Under the U.S. Constitution, those powers not granted to the United States are ...
Reserved to the States.
Over the course of the 19th Century ...
Revolutions in transportation, communication, and industrial organization utterly transformed the U.S. economy
In a hard case, there are ..
Plausible arguments on both sides
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.
What are the "big three" institutional choices?
Separation of Powers (Congress vs. the President vs. the courts), Individual rights (Unelected courts vs. democratically elected institutions/officials), Federalism (Federal government vs. States)
What is the question of institutional choice in McCulloch v. Maryland?
Should the power to charter banks rest with the states alone or should the federal government also possess that power when appropriate to carrying out its other powers?
What is the strongest institutional argument for allocating primary decision-making authority over marijuana regulation to the state governments?
States are closer to the people and more likely to be responsive to the widely varying preferences of popular majorities in different parts of the country.
The question of federalism typically arises in disputes over ...
The Article I powers of Congress.
What was the first constitution of the United States?
The Articles of Confederation.
Most individual rights questions involve ...
The Bill of Rights or the 14th Amendment
How did the Supreme Court initially respond to FDR's New Deal reforms?
The Court struck down several important New Deal statutes.
What two portions of the Constitution did Jones & Laughlin combine?
The Necessary and Proper Clause and the Interstate Commerce Clause.
What is the strongest institutional argument for allocating decision-making authority over the emergency seizure of production facilities to the President?
The President is better able to respond quickly to a fast-developing crisis.
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.
Easy federalism cases are clearly resolved by ...
The constitutional text and previous decisions of the U.S. Supreme Court
What was one of the main objections to the Constitution during the ratification process?
The lack of a Bill of Rights.
What is the greatest strength of state governments?
Their responsiveness to popular majorities.
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
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.
When are constitutional cases easy?
When the constitutional text or existing case law is clear.
The presidential minimum age question explored in the reading is an example of ...
an easy case
In Gibbons v. Ogden, Chief Justice Marshall defined commerce "among the several states" as ...
commerce that concerns or affects more states than one.
According to Anti-Federalist critics of the Constitution, state governments are ...
more responsive to popular majorities than the federal government and thus less vulnerable to powerful special interests.
The bigger the spillovers, the ___________ the case for federal power.
stronger
In Lopez and Morrison, the Supreme Court ...
substantially narrowed federal power to regulate economic activity and upheld Congress's broad power to regulate economic activity.
