POLI 4020 Test 1

In a recent case, Ruth Bader Ginsburg wrote: "Both parts of the Elections Clause are in line with the fundamental premise that all political power flows from the people... the Clause doubly empowers the people. They may control the State's lawmaking processes in the first instance, as Arizona voters have done, and they may seek Congress' correction of regulations prescribed by state legislatures. The people of Arizona turned to the initiative . . . In so acting, Arizona voters sought to restore "the core principle of republican government," namely, "that the voters should choose their representatives, not the other way around."

The majority upheld an Independent Redistricting Commission

What part of the National Industrial Recovery Act was overturned by the "Hot Oil" cases (that is, Panama Refining Company et. al. v. Ryan et. al. and Amazon Petroleum Corporation et. al. v. Ryan et. al., both 1935)?

The prohibition against transportation of certain goods that were produced in excess of state quotas. The bill did prohibit child labor, although that was not part of the case. The bill did allow the executive branch to regulate the poultry industry--although that was the focus of Schecter Poultry (1936) (the Schechter brothers were fined for selling unfit poultry.) The bill did allow workers to unionize (although it stated that while employees had the right to unionize and to bargain collectively, they could not be required to join a labor union)--although that was not the focus of the case. The case centered on the delegation of power from Congress to the executive branch, allowing the executive branch to prohibit interstate and foreign commerce involving oil that exceed state quotas (that is, prohibiting the transportation of oil in those cases.) This case (two cases combined into one decision) and the Schechter case are the only two clear cut examples of the Court overturning a law based only on its conclusion that the law was an impermissible delegation of power by Congress to the President.

Which of the following is true of the 1946 Colegrove v. Green case, in which the Court did not overturn malapportioned IL districts?

. A plurality ruled that the true remedy for malapportionment could only be found in Congress or state legislatures. The state of Illinois had had established election districts in 1901, and then refused to reapportion in the decades following, despite a continued influx of population to urban areas. Districts ranged in population from 112,000 voters to almost a million. Colegrove brought suit, asking the court to enjoin holding upcoming elections, because the congressional districts lacked "compactness and contiguity and approximate equality of population." Frankfurter wrote this 1946 plurality opinion (holding the question to be a "political question".) It was the 1953 addition of Warren (as Chief Justice) and the 1956 addition of William Brennan (as Associate Justice) that opened the door for the Court to consider malapportionment and redistricting as Constitutional issues (in Baker v. Carr.) In Baker, Brennan wrote the majority decision--and Frankfurter wrote a dissent, bewailing the "political thicket" the Court was entering by deciding to rule on reapportionment and redistricting. Frankfurter wrote ". In effect, this is an appeal to the federal courts to reconstruct the electoral process of Illinois in order that it may be adequately represented in the councils of the Nation. Because the Illinois legislature has failed to revise its Congressional Representative districts in order to reflect great changes, during more than a generation, in the distribution of its population, we are asked to do this, as it were, for Illinois....Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress. Justices Black, Murphy, and Douglas dissented, in a dissent written by Black: "The probable effect of the 1901 State Apportionment Act in the coming election will be that certain citizens, and among them the appellants, will, in some instances, have votes only one-ninth as effective in choosing representatives to Congress as the votes of other citizens. Such discriminatory legislation seems to me exactly the kind that the equal protection clause was intended to prohibit. "

Which of the following Amendments prohibited denying the right to vote based on race?

15th

In Bowsher v. Synar (1986), Stevens and Marshall filed an opinion, in which they agreed with the outcome endorsed by a majority of the Court, but disagreed with the reasoning. (Stevens and Marshall argued that the presentment clause was the basis for declaring the law unconstitutional, whereas a majority of the Court had declared the law unconstitutional based on separation of powers (not on the presentment clause, and for that matter, not on the delegation issue). What is this type of opinion--of which the Stevens and Marshall opinion is an example--called?

A Special Concurrence

In a Council of Revision, as proposed by Madison during the Constitutional Convention, who would have initially made a consequential decision about whether a law was constitutional, and when would that determination occur?

A council of the President and judges; the determination would be made after a bill was passed into law, but before it was implemented. The Council of Revision was proposed at the Constitutional Convention by James Madison and other Virginia delegates. (It had been previously used in some colonial governments, and in at least one state government under the Articles of Confederation.) The Council would have been composed of the President and several members of the federal judiciary (various proposals included Supreme Court Justices, or federal judges that had a certain level of seniority, or a system in which Congress could elect judges to sit on the Council). The Council would have reviewed the work of Congress (that is, the laws passed by Congress), and to exercise a veto over the congressional acts with which it disagreed (that is, the laws that the Council deemed in conflict with the Constitution). Congress would be able to override the Council's decision with a super-majority (>51%) vote (generally, Madison was in favor of requiring a 3/4 vote to override the Council's veto of legislation). The Council was not adopted by the Founders--it did not become part of the Constitution. Indeed, the Constitution is silent regarding who would be able to interpret the constitutionality of laws. At least some of the Founders assumed that the Court would do so--albeit most of these individuals assumed that the Court would rarely exercise that power.

What is an opinion that expresses the justice's reasons for disagreeing with the outcome of the case?

A dissent

In the 1940s, Kenneth W. Colegrove, a citizen of Illinois and a Northwestern University political scientist, brought suit against Illinois officials to enjoin them from holding an upcoming election. Colegrove argued that the congressional districts "lacked compactness of territory and approximate equality of population." Which of the following is true about the Supreme Court's holding in this case?

A plurality of justices ruled that malapportionment was a political question, and the IL districts remained in place. The Court held that the Illinois districts were constitutional, largely because existing laws imposed no requirements "as to the compactness, contiguity and equality in population of districts." (Laws had been passed earlier by Congress, but as noted in other quiz questions, each apportionment law passed by Congress only applied to the particular decade / apportionment in question. In a plurality opinion, Frankfurter declined to involve the Court in the districting process, arguing that the political nature of apportionment precluded judicial intervention. "The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress."

What is an opinion that expresses something additional that the justice would like to add to the reasoning and outcome expressed in the majority or plurality opinion?

A regular concurrence

What is an opinion that expresses a judge's agreement with the outcome of a case, but implicitly rejects the reasoning provided in the majority or plurality opinion, and provides a different legal basis on which to reach the same outcome?

A special concurrence

Which of the following is NOT an example of a suit brought regarding the census? a. Utah sued, arguing that overseas population should be counted (including citizens volunteering or employed by private organizations or businesses.) b. Louisiana sued, arguing that representation calculated based on population should not include undocumented immigrants. c. Individuals in Maryland sued, protesting a state law that required that inmates be counted as residing at their pre-correctional location, rather than at the address of the correctional facility. d. Detroit sued, arguing that the census under-counted population in Detroit.

All of the Above

Which of the following are NOT traditional or legal redistricting principles? a. protection of incumbents of both parties b. political subdivision lines (counties, etc.) c. compactness e. communities of interest f. one person one vote g. contiguity

All of the above

Which of the following was NOT a part of the Judiciary Act of 1789? a. Grant to the U.S. Supreme Court of the power to issue writs of mandamus. c. Establishment of the size of the Supreme Court. d. judicial review e. Establishment of the federal Court System

All of them The Judiciary Act is a landmark piece of legislation which established the federal judiciary, with circuit and district courts; recognized federal judicial authority (by authorizing individuals who were sued by citizens of another state to move the case into federal court, rather than leaving it in the courts of the home state of the plaintiff); created the position of Attorney General, U.S. Attorney, and U.S. Marshal; set the size of the Supreme Court (five associate justices and a Chief Justice); and authorized the Supreme Court to issue writs of prohibition (which are orders to an inferior court to stop all proceedings, usually because a case is not in its jurisdiction) and writs of mandamus (which became the focus of Marbury v. Madison); required twelve person juries in capital cases.

What was the result of the 1800 election?

An initial tie in the electoral college between the two anti-federalist candidates (Jefferson and Burr) In 1800, President Adams was unpopular for many reasons. The High Federalists (strong federalists) objected to his reluctance to escalate the Quasi-War with France. The Jeffersonians (or Democratic-Republicans, or Anti-Federalists) objected to the Jay Treaty, which seemed to favor England, and they objected to the Alien & Sedition Acts, which put limits on political speech, and which limited immigration (the largest group of immigrants at the time was from France--and while the Federalists admired Britain, the Jeffersonians admired the French.) The XYZ affair (in which the French attempt to bribe U.S. diplomats was uncovered) was an administration scandal. The two Jeffersonians (Thomas Jefferson and Aaron Burr) ran against the incumbent John Adams, and another Federalist, Charles Cotesworth Pinckney. Most of the voting public understood that Jefferson was the presidential candidate, and Aaron Burr was the vice presidential candidate. However, because each elector cast two ballots, Jefferson and Burr were tied after the election, each with 73 electoral votes. 70 votes were need to win--a majority of voting electors (of which there were 138)--but both candidates had over 70 votes. The Constitution specified that if two candidates tied (or if no one received a majority), the House of Representatives would decide the election, with each state receiving one vote. On the first 35 ballots in the House of Representatives, Jefferson received the support of the states of GA, KY, NJ, NY, NC, PA, TN, and VA. There were 16 states at the time, and Jefferson received the support of 8--but that was one short of the majority that he needed to win the election. The states of DE, SC, CT, MA, NH, and RI voted against Jefferson, and for Burr--so Burr had 6 votes. In both Maryland and Vermont, the delegations were divided evenly over the motion to elect Jefferson president--and so both Maryland and Vermont cast a blank ballot. This meant that the vote total was 8 states for Jefferson, 6 opposed, and 2 with no preference. Only on the 36th ballot was a compromise reached, in which all the representatives of Delaware and of South Carolina abstained (and therefore those two states cast a blank ballot), and the pro-Jefferson representatives in Maryland and in Vermont continued to vote for Jefferson, while their anti-Jeffersonian colleagues in the state delegation abstained. This allowed Jefferson to win the election, with a final House vote of 10 states to 4 states, with 2 abstaining states. The Federalists also incurred significant losses in the House; the House would be controlled after March 1801 by Jeffersonians. The only branch of government that remained under Federalist control was the judiciary.

Where is the "sole power" of impeachment and the "sole power" to try impeachments found?

Article I, Sections 2 and 3

Where in the Constitution is the original and appellate jurisdiction of the Court described?

Article III

In which 1962 case did the Supreme Court (in an opinion written by William Brennan) lay out criteria for deciding whether a case was justiciable?

Baker v. Carr In Colegrove, The Court held that the Illinois districts were constitutional, largely because existing laws imposed no requirements "as to the compactness, contiguity and equality in population of districts." In a plurality opinion, Frankfurter declined to involve the Court in the districting process, arguing that the political nature of apportionment precluded judicial intervention. "The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." In Baker v. Carr, in an opinion which explored the nature of "political questions" and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation. In Powell v. McCormack (1969), the Court ruled that the House does have the power under Article I, Section 5 to expel members. However, expulsion was not the purpose of the proceedings in the Powell case. After analyzing the Framers' debates on this issue, Chief Justice Warren concluded that since Powell had been lawfully elected by his constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him. They could, however, take action against a seated member. In Shaw v. Reno (1993), NC residents filed suit against NC's redistricting plan, arguing that the districts were racially gerrymandered and violated the 14th Amendment. The Court held that although North Carolina's reapportionment plan was racially neutral on its face, the resulting district shape was bizarre enough to suggest that it constituted an effort to separate voters into different districts based on race. The unusual district, while perhaps created by noble intentions, seemed to exceed what was reasonably necessary to avoid racial imbalances. After concluding that the residents' claim did give rise to an equal protection challenge, the Court remanded - adding that in the absence of contradictory evidence, the District Court would have to decide whether or not some compelling governmental interest justified North Carolina's plan.

Section 4 of Article I reads: "The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof..." Which of the following is not true?

Because of the word "legislature", independent voting commissions established by voter ballot initiatives are not constitutionally permissible.

In which case did the Courts rule that Congress was delegating executive power to an agent of Congress?

Bowsher v. Synar (1986)

In the Hot Oil cases, in 1935 (Panama Refining Company et. al. v. Ryan et. al. andAmazon Petroleum Corporation et. al. v. Ryan et. al.), the Court overturned Congress's delegation to the executive branch of the power to enforce limits on the transportation of certain products. Which of the following is true of these cases?

Cardozo dissented, because he believed that the legislation established clear limits on the executive branch's discretion in implementing the law. The cases were not unanimously decided--Cardozo dissented, on the narrow point that he believed that the National Industrial Recovery Act did provide an "intelligible principle" on which the executive branch could rely when executing the details of the law. Note, however, that the other two Justices of the Three Musketeers were not supportive of the law. Brandeis in particular had objected to the NRA as being simply unworkable--he was supportive of necessary and effective increases in the power of the executive branch, under the New Deal, but not for a law that seemed to put into place an unwieldy system for increasing the power of BOTH government and private industry. Taft wasn't on the Court at the time (he retired in 1930). He was in favor of the power of the executive branch, and he developed the "intelligible principle" basis for evaluating these types of cases--but given his commitment to unanimity, and general conservative philosophy, it is difficult to discern whether he would have disagreed with 8 justices who voted to overturn this provision within the law.

If Madison's proposal for a Council of Revision had become part of Article III, what could Congress do if the Council determined that a law was unconstitutional?

Congress could override that decision with a super-majority (for example, 3/4) vote.

In Article III of the Constitution:

Congress is given the power to "except" cases from appellate jurisdiction of the Courts

Article 1, Section 5

Each House may determine the Rule of its Proceedings, punish its members for disorderly behavior, and with the Concurrence of two thirds, expel a member

The Whitman v. American Trucking Association (2001) case is one of the few cases in Constitutional law in which the Court overturned a Congressional delegation of power to the executive branch.

False

Parties are considered private organizations, and therefore primaries are largely unregulated by government.

False Parties are considered quasi-public organization; therefore, primaries can be regulated. They have been regulated by Congressional laws about corruption; they fall under Congressional laws and Constitutional provisions regarding discrimination in voting. (E.g., Smith v. Allwright (1944) held that white primaries were unconstitutional; the U.S. v. Classic (1941) case upheld the application of a congressional law against fraud to primary elections.)

The Constitution requires single member districts.

False The Constitution says nothing about single member districts. Indeed, not until 1842 did Congress pass a law that required the election of representatives by district; before that, it was permissible to elect U.S. House Representatives at large from a state. (The requirement was abolished in 1850, but adopted again in 1862). Even then, districts could be "multi-member"--that is, representatives from each state were elected by district, but multiple representatives could be elected from each district.

In a recent case, the Court ruled that states must use voting-age and voting-eligible population in establishing districts that complied with the one-person one-vote principle.

False- In the Evenwel case, the plaintiffs argued that states should be required to draw legislative district lines based on equal numbers of those who are eligible to vote. In Baker v. Carr (1962), the Court ruled that there must be "one person one vote"—that districts must be to the degree possible equal in population. The Courts did not specify, however, whether total population should be used, or whether total voters should be used—and in fact, the Court ruled in Burns v. Richardson in 1966 that the choice of the denominator was up to the state. The plaintiffs point out that the Voting Rights Act uses voter population to determine whether there is discrimination. On the other hand, almost all states and localities use population—for philosophical reasons, but also for practical reasons. At issue as well is how to interpret "one person one vote" - does one vote mean a share in the district's voting power? Or does it mean a share in representation in the legislature? This case was focused on redistricting for the TX State Senate, but a broad ruling could have influenced redistricting for Congress. The Supreme Court ruled that states could (continue to) use population in establishing districts that fulfilled the one-person-one-vote requirement.

John Marshall was Adams's first choice for Chief Justice, and there was a long delay before he agreed to take the position.

False- John Jay was Adams's first choice for Chief Justice. Jay Jay declined, noting that the Court lacked "energy, weight, and dignity." Jay wrote that "I left the bench perfectly convinced that under a system so defective, [the Court] would not . . . Acquire the public confidence and respect which, as the last resort of the justice of the nation, it should posses." There was not even a building for the Court (it met on the first floor of the Capitol), and it conducted very little business. And, the Justices were required to ride circuit--at best an unpleasant and at worst a dangerous requirement to travel through the young nation. When he heard that Jay declined, a month after being offered the position, in January 1801, Adams immediately offered the position to Marshall. This account comes from Marshall's autobiography, where he writes that he himself carried the Jay's letter to the President. Upon receiving the news, Adams asked Marshall for other suggestions. Marshall had previously suggested Justice William Paterson, and suggests him again--but Adams refuses, but he does not want to appoint a sitting Justice who is not the most senior Justice.--that is, Adams does not want to so visibly pass over sitting Justice Cushing Then after as few moments of silence, Adams turned to Marshall and said "I believe I must nominate you." Somewhat surprisingly, Marshall accepted--immediately--without evening asking for time. He had turned down an earlier offer to serve as Secretary of War, and he had turn down an offer to serve on the Supreme Court. He was deeply in debt, and although he had accepted the position of Secretary of State when offered, he had a great deal of incentive to return to private life. However, some biographers have speculated that Marshall, unlike many others, grasped how powerful the office could be. Marshall was only 45, and so was confirmed somewhat reluctantly by the Senate, January 27, 1801. He remained in his office as Secretary of State, however, through the last day of the administration (March 3).

Which of the following Justices was on the Court for both the Colegrove (plurality holding malapportionment a political question) and Baker (holding malapportionment justiciable) decisions?

Felix Frankfurter

Which of the following two statements are true of the Miller v. Johnson case?

Ginsburg's dissent hinted at cases in the future, and indeed the Court has agreed to hear a case from Virginia which might clarify what to do if considering race in redistricting does not conflict with traditional considerations in redistricting. Ginsburg's dissent argued that the districts should have been upheld, because they were not bizarrely drawn.

Which of the folllowing was, at the time of the ratification of the Constitution, the only part of the federal government directly elected by the people?

House of Representatives

The presentment clause has to do with

How a bill becomes a law

Which case held the legislative veto unconstitutional?

INS v. Chadha

After Federalist Samuel Chase was in 1803 impeached and acquitted by Congressional Jeffersonians,

It became clear that the power of Congress to impeach would not be used frequently, as a way to limit an unpopular President's or SC Justice's tenure in office.

Which of the following is true of the case of J.W. Hampton Jr. v. United States (1928), decided by the Taft Court of 1928?

It reflected Justice Taft's preference for a strong executive and his value for unanimity. The only two cases in which the Court truly focused only on the non-delegation principle, and overturned Congressional legislation as an impermissible delegation of power to the executive, are Schechter and the Hot Oil cases (Panama Refining Company et. al. v. Ryan et. al. and Amazon Petroleum Corporation et. al. v. Ryan et. al. (1935)). There are other cases in which the Court invoked a broader principle of separation of powers, but they did not rely only on the non-delegation principle--they relied on (for example) the presentment clause (relevant to the line item veto), or the power of impeachment, or the appointment power, or the power of interstate commerce, etc. The Hampton case DID focus on the non-delegation principle, but is one of the many cases in which the Court ruled that there was a constitutional delegation of power. The phrase used in the case, repeated many times after that as the principle for deciding such cases, is "intelligible principle"--Congress had to provide in a law an "intelligible principle" for an executive branch official to follow when exercising power delegated to the executive branch by Congress. The decision was unanimous, which did reflect Taft's very strong preference for the Court to speak as one--although it likely may have been unanimous anyway. Taft was certainly philosophically inclined (following the footsteps of Marshall) to see the Court's ability to speak with one voice as critical for its legitimacy--and at the time, the Court's legitimacy and ability to engage in judicial review was being called into question by a group of Republican progressives (called the insurgents--who had actually years earlier played a significant role in Taft losing his campaign for a second presidential term). These Republican progressives would point to a divided decision as evidence that the Court was overstepping its role in interpreting the Constitution--that if any argument could be made for deference to Congress, than that argument should carry the day, and be reflected in a unanimous vote. The distinction between "important subjects" and "mere details" was raised by Chief Justice Marshall in the very first non-delegation case--Wayman v. Southard (1825). The Court upheld the delegation of power by Congress to the executive, noting that while Congress made law through focusing on important subjects, it could be left to the executive branch to attend to the mere details. Arguably, this is very similar to what became (103 years later) the guideline by which delegation cases are decided: the intelligible principle.

Which of the following is true of protectionist policy?

It would be compatible with high tariff rates on imports Protectionist policy is associated with high tariffs, placed with the intent of discouraging consumers in the U.S. from buying goods made in other nations. This sort of distinction is even more difficult to make in recent years, as many goods are produced across nations (different parts produced or different decisions made across nations), and as tariffs have become part of trade agreements. Between 1888 and the late 1920s, however, tariffs were one of the most salient political issues. Republicans generally advocated for higher tariffs, and were opposed by "progressive Republicans" (sometimes called "insurgents"--who made possible Teddy Roosevelt's third party run against Republican incumbent William Howard Taft. Democrats generally advocated for lower tariffs (that is, for free trade). The 1922 Tariff Act (sometimes called the Fordney-McCumber Act) raised tariffs. The question in the case of J.W. Hampton v. U.S. was whether Congress could delegate some discretionary power to the executive branch, allowing the President to alter the manner of calculating tariff levels (there was a debate over whether the calculation should depend on the price of goods in the country of production, or the price of good in the U.S.), and allowing the President to change tariff levels directly. Chief Justice Taft wrote for the majority that such a delegation of power was permissible, as long as Congress in the legislation provided some "intelligible principle" for the executive to follow while exercising discretion (and making regulations--in this case, setting tariffs).

The quote "It is emphatically the province and duty of the Judicial Department to say what the law is." is from

John Marshall

Judicial review was a novel concept at the time of Marbury v. Madison (1803)

Judicial Review was not new--James Wilson, who played the primary role in the Constitutional Convention in drafting Article III, had intended the Court to have the power to interpret the Constitution, although he expected the Supreme Court to exercise the power of judicial review only rarely. Wilson believed that in a democracy, the people were the fundamental source of power--but that checks such as judicial review could prevent majorities from acting out of "passions" and "prejudices" that are "inflamed by mutual imitation and example." And in a couple of cases heard on the circuit court, justices had ruled that particular Congressional laws were unconstitutional. What was new, however, was the Supreme Court's declared power to do this. Note that the Marshall Court had interpreted the Constitution before . In 1801, the Marshall Court had reversed the decision of the Circuit Court of NY regarding the question of the quasi-war (and compensation to the German (Hamburg) owners of a vessel captured by the U.S. (The Marshall Court ruled that there was no declaration of war, but that Congress had authorized the seizure by the U.S. Navy of vessels--and that the Hamburg owners were due compensation for 1/6 the value of the vessels in question.) However, this was the first (and last) time that the Marshall Court declared part of a law passed by Congress to be unconstitutional.

The Three Musketeers is the name by which the "liberal" voting block came to be known. The voting bloc consisted of

Louis Brandeis (appointed by Wilson in 1916), * Harlan Fiske Stone (appointed by Coolidge in 1925--started off relatively conservative (as was predicted, given his experience on Wall Street), and * Benjamin Cardozo, nominated by Hoover in 1932 (when the Republican Hoover was in a close re-election race against Democratic challenger FDR--and Cardozo was a consensus choice, given his 18 year tenure on the New York Court of Appeals, and his writing on the common law.)

Which of the following is NOT a member of the "Three Musketeers" on the Court during FDR's term?

McReynolds

Which of the following cases upheld the Sentencing Reform Act of 1984, allowing Congress to create the U.S. Sentencing Commission as part of the judicial branch, to set sentencing guidelines?

Mistretta upheld the sentencing commission (established by the Sentencing Reform Act of 1984)

In which case did the Court uphold the Congressional delegation of power to a commission set up in the judicial branch?

Mistretta v. United States (1989)

During this era (1960s, 1970s), there was very little discussion of the scope of Congress's legislative power because

New Deal Era precedents establishing fairly boundless powers were not seriously challenged This question represents more of a harbinger of things to come--it is designed to reinforce the idea that in by after the 1940s, there are few court cases that deal with the question of Congress's power over interstate commerce, and there are few court cases that challenge Congress's delegation of power--remember, we mentioned that there are only two cases that really (technically) overturn a Congressional law based on the delegation principle (Schecter and Hot Oil), and only a handful of others that overturn a Congressional law based on any Congressional power. Indeed, one example of a case that upheld Congress's power (under the enforcement clause of the 15th Amendment) was South Carolina v. Katzenbahch (1966). In this case, the Court rejected a challenge by the state of South Carolina to the preclearance provisions of the Voting Rights Act of 1965, which required that some states submit changes in election districts to the Attorney General of the United States (at the time, Nicholas Katzenbach). This case was overturned by the Shelby v. Holder (2013) decision.

Which of the following is true of gerrymandering?

Partisan gerrymandering is generally considered a political question.

What is the holding/ conclusion of U.S. Department of Transportation v. Association of American Railroads?

Perhaps Congress can't delegate power to a private agency, but Amtrak is a government agency.

The Three Musketeers were contrasted to the "Four Horsemen", the four-judge voting block that consistently opposed the New Deal:

Pierce Butler, appointed in 1922 by Warren Harding * James Clark McReynolds, appointed in 1914 by Woodrow Wilson (apparently partly out of a desire to get McReynolds out of the cabinet, as he was remarkably difficult to get along with.) McReynolds has been called "the most strident Court critic of Rooseelt's New Deal programs." * George Sutherland, appointed by Warren Harding in 1922, * and Willis Van Devanter, appointed by William Howard Taft in 1910.

Which three of the following cases were deemed justiciable by the Court?

Powell v. McCormack INS v. Chadha Baker v. Carr

Article 1, Section 7

Presentment Clause

Which of the following is true about impeachment?

President Andrew Johnson was impeached in the 1860's. Acquitted by a one-vote margin

Who dissented in Mistretta (1989), arguing that s/he could "find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than making of laws" and concluding that the Court failed to recognize that this case was about the creation of "a sort of junior varsity Congress."

Scalia That dissent is from Scalia. The decision was 8-1, and the majority opinion does not dwell on the question of the role of Congress in criminal sentencing. Scalia's argument is that the making of laws is quite different from the task of the sentencing commission under the 1984 Sentencing Reform Act--the task of the sentencing commission is to develop very specific guidelines for sentencing, which judges are required to follow.

Article 1, Section 6

Speech and Debate Clause

Article 1, Section 3

States the U.S. Senators are elected by State legislators; VP is president of the Senate (provides tie-breaking votes); gives the senate the sole power to try impeachments

ustice White filed a dissent in the Bowsher (1986) case which argued that the tasks delegated to the Comptroller General involved virtually no discretion--and that therefore were not "executive powers" delegated to a member of the Congressional branch. Justice Blackmun dissented as well. What did he suggest?

That the 1921 law that allowed Congress to remove the Comptroller be addressed--if Congress ever did in fact remove the Comptroller. Blackmun agreed that according to the Constitution, Congress can only remove executive officers through impeachment. But he also observed that despite the provision in the 1921 law that allowed the Congress to remove the Comptroller General via joint resolution, Congress had never actually removed a Comptroller General. Blackmun argued that if Congress were to do so, then the 1921 law could be successfully challenged as unconstitutional--but that it made no sense (to Blackmun) to overturn a recently passed (and much debated law) as unconstitutional, simply because the 1921 law existed.

In the Midnight Judges Act of 1801,

The Federalist Congress created several new positions on the lower courts. In the Midnight Judges Act (and the DC organic Act), the Federalist Congress (which was outgoing--to be replaced by the newly elected Jeffersonian Congress), dozens of new positions on the lower courts were created. This gave President Adams, in his last few days in office, the opportunity to make dozens of appointments. The Act also reduced the number of justices on the Supreme Court (which meant that when a justice left office in Jefferson's term, he would not be able to fill the position). These acts were repealed when the Jeffersonians took office. Congress also changed the law so that the Court, originally scheduled to sit in June 1802, did not sit until February 1803--almost two years after the change in government. Marshall was concerned that the Jeffersonians were waging war on the federal judiciary, which was the only branch that remained under control of the Federalists. Marshall was concerned that he would be impeached--indeed, Associate Justice Chase was impeached.)

The Court has indicated that only the most narrow of conclusions should be drawn from a plurality opinion issued by the Court. That is, decisions by a plurality of four or even three do not carry the same weight with precedent as a majority decision. This rule is called:

The Marks Rule

In Bowsher (1986), what is the difference between the Supreme Court's approach and the District Court's approach?

The Supreme Court ruled based only on separation of powers, and did not address the delegation of power issue, whereas the District Court answered both questions.

In Marbury v. Madison (1803), the Court held a. The federal courts have the power to interpret the law, and determine the constitutionality of law. c. The only appropriate remedy for the plaintiffs was a writ of mandamus (, and the Secretary of State could be the subject of a writ of mandamus) d. Congress could not (constitutionally) grant the power to issue a writ of mandamus to the Supreme Court, because the original jurisdiction given to the Court in the Constitution cannot be expanded. e. the petitioners (Marbury) were entitled to their commissions.

The Supreme Court's opinion in Marbury incorporated all of these conclusions. The Court ruled that the petitioners were entitled to their commissions (which had been signed and sealed--the commissions existed whether or not they were delivered). The appropriate remedy--indeed, the only remedy--for the plaintiffs was a writ of mandamus--the only real relief for the plaintiffs was to give them the positions they had been denied. Moreover, writs of mandamus could be issued to the Secretary of State (in this case, in the Jefferson administration, James Madison). The Secretary of State was not immune to orders expressed in a writ of mandamus. However, the Supreme Court could not be given original jurisdiction to issue the writ of mandamus. This case was not within the two areas of original jurisdiction--so the Supreme Court could only have appellate jurisdiction. And, therefore, the Judiciary Act of 1789 was unconstitutional--because it unconstitutionally added to the Court's original jurisdiction beyond that which was in the Constitution

Which of the following is true of Nixon v. U.S. (1992)? (impeachment)

The U.S. Supreme Court ruled that this was a political question--that the Senate has the sole Power to try all impeachments, and the Supreme Court could not weigh in on Senate process, out of deference to a co-ordinate branch.

Which of the following is true of Baker v. Carr (1962)?

The case involved Tennessee districts; in the TN State House, people in rural districts were disproportionately over-represented in the legislature.

The line-item veto case (Clinton v. NY, (1998)) was a 6-3 decision. The dissenters (Scalia, O'Connor, and Breyer) argued that

The case should have turned on the question of delegation of power, not on the presentment clause--and the "Line Item Veto" was not an unconstitutional delegation of power. Stevens wrote for a 6-3 majority, finding that the Line Item Veto violated the presentment clause, which required (the Court concluded) a bill to be signed, vetoed, or not signed by a president, in the exact text in which it was passed by both chambers. The two dissents (one by Scalia, joined by O'Connor, and one by Breyer) argued that the question that was raised was not about the presentment clause, but instead about the non-delegation principle. Breyer also noted that the line item veto was in many ways no different than the power of the president to refuse to spend appropriations already made. And, Breyer noted that if Congress wished to protect any budget items from the line item veto, they would need only to write that protection into law--Congress would pass a budget fully aware that the veto existed, and so if they did not want a particular item to be changed, they could presumably write that into legislation. (Scalia and O'Connor also questioned the standing of the parties bringing suit. A party (person, group, etc.) has "standing" to bring a suit if he/she/they have a stake in the outcome--a material stake. The is, one can't file suit unless one would be affected one way or another by the judgment of the Court / outcome of the case. Kennedy provided a regular concurrence--not disagreeing with (most) of the reasoning provided in Stevens's opinion, but adding additional considerations, and stressing the importance of separation of powers-arguing that regardless of intent, the line item veto would give much more power to the President, contrary to the separation of powers framework. (A regular concurrence agrees with the outcome of a case, and adds to or develops the reasoning in the majority opinion. A special concurrence agrees with the outcome of the case, but would base the decision on reasoning different than the reasoning in the majority opinion.)

The Schecter Poultry case (1936) involved what parts of the Constitution?

The delegation issue, the Tenth Amendment, and the interstate commerce clause Schechter is one of two examples of which the Court overturned a law based on the non-delegation principle (the other is the "hot oils" set of cases.) But Schechter was also based on the interstate commerce clause (Hughes ruled that the NIRA was an impermissibly broad exercise by Congress of its power to regulate interstate commerce). Schechter cited the Tenth Amendment in the conclusion that Congress was overreaching its powers to regulate interstate commerce--concluding that such powers as were reflected in the act were more appropriate for state or for the people. And, Schechter also addressed whether government had extraordinary economic powers during an economic crisis (the unanimous opinion of the Court, as delivered by Chief Justice Hughes), said government did not. Schechter was a unanimous decision, which greatly surprised FDR, who had assume that all (or at least one or two) of the "Three Musketeers" (the justices most in likely to uphold parts of the New Deal--Brandeis, Stone, and Cardozo) would uphold NIRA. But Brandeis in particular believed that NIRA combined the worst of "big government" and "big industry", and was unworkable.

We've studied several redistricting cases that focus on majority-minority districts: Shaw v. Reno (1993), Miller v. Johnson (1995), Shaw v. Hunt (1996), Georgia v. Ashcroft (2003), and Bartlett v. Strickland (2009). All involve legislative amendments to and renewal of the 1965 Voting Rights Act, which prohibited racial gerrymandering (and was initially upheld by the SCOTUS based on the enforcement clause of the 15th Amendment). Most involve claims brought by voters based on the 14th Amendment's Equal Protection Clause. The question is: which of the following is NOT true?

These cases have been decided by an increasingly wide margin over the years, suggesting the Court is nearing consensus Take home message: 1) These cases involve amendments and renewals to the Voting Rights Act of 1965; the Court initially (during the 1960s) upheld Congressional power to pass the VRA based on the enforcement clause of the 15th Amendment (the 15th Amendment prohibits state discrimination in voting based on race.) 2) cases alleging discrimination in voting are also brought under the 14th Amendment's equal protection clause. 3) strict scrutiny is used as the standard under the 14th Amendment; when strict scrutiny is the standard, government (in this case, state governments who have passed redistricting plans) must demonstrate a compelling purpose for a law, and demonstrate that the law is narrowly tailored to meet that purpose. 4) districts that are not compact and contiguous may raise the issue of whether race was used as the predominant factor. 5) one guiding principle drawn from the 1990s cases is that race cannot be used as the predominant factor in redistricting. 6) one guiding principle drawn from the cases is that a state does not need to draw the max # of majority-minority cases. 7) another principle drawn from the 2009 case is VRA allows redistricting only when a geographically compact group of minority voters could form a majority in the redrawn election district. 6) These cases are ALL 5/4, and the 2009 case (holding that there needed to be a majority of a minority group in order to fall under the Voting Rights Act regulations) was decided with different pluralities making different arguments. 7) The Court has decided to hear Bethune-Hill v. VA state Board Elections, presumably to clarify some of the questions of (1) how to determine whether a state or local government is using race as the predominant reason to redistrict, (2) when strict scrutiny is triggered (whether it is when race is used as a consideration in redistricting, or whether it is when race is used as the predominant reason for redistricting), (3) whether race can be used as the predominant reason in redistricting, if other "traditional districting criteria" would produce the same districts (4) whether and when the drawing of majority-minority districts meets a compelling state purpose; etc.

I expressed my faith that we can make possible by democratic self-discipline in industry general increases in wages and shortening of hours sufficient to enable industry to pay its own workers enough to let those workers buy and use the things that their labor produces. This can be done only if we permit and encourage cooperative action in industry, because it is obvious that without united action a few selfish men in each competitive group will pay starvation wages and insist on long hours of work. Others in that group must either follow suit or close up shop. We have seen the result of action of that kind in the continuing descent into the economic hell of the past four years.

This is a quote from a July 1933 Fireside Chat, in which FDR promotes his National Industrial Recovery Act, and National Recovery Administration. NIRA was a unique experiment in economic policy--passed by Congress in June 1933 as part of FDR's New Deal. The NIRA supported and in some cases required an alliance of industries. Antitrust laws were suspended (to allow industries to work together), and companies were required to work together to write industry-wide "codes of fair competition" that fixed prices and wages, established production quotas, and imposed restrictions on the ability of other companies to enter into the alliances. The act called for industrial self-regulation, and tasked the industries with the development of codes of fair competition for the protection of consumers, competitors, and employers. These codes were subject to public hearing. Employees were given the right to unionize and to bargain collectively. They could not be required to join or refrain from joining a labor organization. Established in July of 1933 by executive order, the NRA was to coordinate the efforst of industry under the NIRA.

Article 1, Section 4

Times, places, and manner of elections for Congress determined by state legislatures, but Congress can by law make and alter regulations

White filed a dissent in Bowsher v. Synar (1986), arguing that Gramm-Rudman Hollings (1) gave no real discretion to the Comptroller General--and that therefore it would be incorrect to view him as an agent of Congress carrying out executive powers (2) the exercise of authority by an officer removable by cause by Congress is not the same as the impermissible execution of a law by Congress itself.

True

Congress has at time required Congressional districts to be compact and contiguous.

True Congress has at times required districts to be compact and contiguous, and (before the 1960s) at times required equality of population across Congressional districts within a state. However, these requirements were never really enforced--members elected from states or districts that violated these requirements were always seated. The US Supreme Court had ruled in the early 20th century,, however, that apportionment acts only governed the apportionment for which they were written. So, for example, in 1911 Congress passed a law that required districts be compact, contiguous and (within states) have equal populations. However, according to the Court, even if that were enforced (and it wasn't), it would only apply to the redistricting done based on the 1910 census.

In Bowsher v. Synar (1986), the District Court concluded that the Act did not violate the delegation clause. However, it found that the Act violated the constitutionally imposed separation of powers, because the Comptroller General (who is, the Court ruled, an "agent of Congress") impermissibly exercises executive functions under the act.

True- the majority opinion concluded that this was not a question of delegation (because Congress is giving power to an an agent of Congress)--it's a question of the legislative branch impermissibly exercising executive power.

There are very few cases in which the Court has ruled that Congress has made an improper delegation of power to the executive branch. Two examples are Schechter and the "hot oil" cases.

True--those cases are Schechter and the "hot oil" cases. Wayman v. Southard (1825) and J.W. Hampton v. U.S. (1928) upheld a delegation of power. The same is true of Whitman (2001) and U.S. Department of Transportation v. AAR (2014), and of Mistretta v. United States (1989), although in the last case, the issue was a delegation of power from the Congress to the court. Clinton v. New York City (1998) overturned the line-item veto, but did so by finding a violation of the presentment clause. Bowsher v. Synar (1986) overturned Gramm-Rudman-Hollings, but did so by ruling that the delegation of executive power was to an agent of Congress (not to the executive branch).

Which case concluded that "The Census Act prohibits the proposed uses of statistical sampling to determine the population for congressional apportionment purposes"?

U.S Department of Commerce v. United States House

Article 1, Section 1

Vesting clause

Two dissents were filed in the Bowsher (1986) case. One of those dissents argued that the Comptroller General was not given any true discretion under the law, and therefore was not truly exercising any executive authority--and therefore wasn't in the executive branch. Thus, the power of Congress to dismiss the Comptroller General posed no constitutional problem. Which justice(s) filed this dissent?

White White's dissent argues that the duty of the Comptroller General--to determine the level of appropriations--is not part of executing the law. It is much closer to the legislative task than to the executive task. And, if the position of Comptroller General, even if in the executive branch, had very little discretion under Gramm-Rudman-Hollings--he essentially reported on spending (the majority opinion focused on the role of the Comptroller General in calculating spending totals, and deficit totals). And, if the office was part of the executive branch, it would take a joint resolution of Congress to remove the Comptroller--which would be no different than Congress changing budget power. White argued that while he agreed that Congress could not execute its own laws, that did not mean that it could not designate an agent to execute its own laws.

Alito's concurrence in the Amtrak case (U.S. Department of Transportation v. Association of American Railroads (2014)) raised significant questions about

accountability in a democratic system, noting that "one way the Government can regulate without operation is by passing off a Government corporation as an independent private concern"

In non-delegation cases, Marshall's distinction between "important subjects" and "mere details" was eventually transformed into Taft's establishment of the need for Congress to specify

an "intelligible principle" to guide the executive The distinction between "important subjects" and "mere details" comes from Chief Justice Marshall's opinion in the first case to address delegation of Congressional power to the executive (Wayman v. Southard (1825)). In the Hampton case, Taft relied on what eventually became the foundation of non-delegation cases: the idea that as long as Congress articulated in legislation an "intelligible principle" to guide executive branch officials in implementing law, then delegations of power to the executive by Congress were not impermissible delegations of power.

Benjamin Franklin opined (during the debates on the Constitution) that impeachment provided an alternative to

assassination

Which three of the following provided the most direct support for the passage & ratification of the 17th Amendment?

ballot initiatives in western states that allowed for recall of state legislators who did not follow voter preferences. ballot initiatives in western states that required state legislators to follow the voters' electoral preferences Progressives, before 1912

Andrew Johnson was impeached

by a congress dominated by radical republicans, for violating the tenure in service act

In Powell v. McCormack (1969), the Supreme Court

continued to enhance its power by ruling that Congress's refusal to seat of Adam Clayton Powell was not a political question This question is drawing from the text of Brennan's opinion in Baker (in 1962), which lays out the criteria for justiciability--as applied in the Powell case. These are the criteria: Whether the text of the Constitution commits the issue to a coordinate branch (i.e., foreign affairs and executive war powers). A lack of judicially discoverable and manageable standards for resolving the issue. The impossibility of deciding a case, because it doesn't involve discretionary acts of non-judicial actors. The impossibility of courts resolving the case without failing to grant due respect to the coordinate branches of government. An unusual need for unquestioning adherence to a political decision already made. The potential for confusion ("embarassment") if there are multiple answers provided by government on one question. The Court ruled on the merits of Powell's case--so it was justiciable. They did not refuse to act; they issued a decision on the merits(that is, addressing the substantive issue that Powell raised.) The case was not moot (settled by other means) -- the Court did in fact issue a ruling on the merits (one justice dissented, arguing that the case was moot). If there had been a "textually demonstrable commitment of the issue to a coordinate branch of government," then the case would have been a political question, and the Court would have declined to issue a decision on the merits.. Indeed, the Court decided that while the Constitution did give a coordinate branch of government (in this case, Congress) power to punish (censure, expel, etc.) seated members of Congress, the Constitution *did not* give Congress the power to refuse to seat an otherwise legitimately elected representative or Senator.

Article 1, Section 2

gives the House the sole power to impeach, also sets out qualifications for house members; also sets out process for census and apportionment

Article IV, Section 4

guarantee of republican government

Article I, Section 9

includes a list of limits on Congress

Article 1, Section 10

includes limits on States (the ways in which the states cannot override Congressional power)

FDR was surprised at the outcome of the Schecter case (1936) because:

it was a unanimous decision- even the "Three Musketeers" voted against upholding the law. He expected all or at least one or two to uphold the constitutionality of the NIRA. The vote to overturn the bill was unanimous.

Stevens's concurrence in Bowsher v. Synar (1986) contained the following quote: "When this Court is asked to invalidate a statutory provision that has been approved by both Houses of the Congress and signed by the President, particularly an Act of Congress that confronts a deeply vexing national problem, it should only do so for the most compelling constitutional reasons." This has been quoted multiple time in decisions following Bowsher. It reflects what principle?

judicial restraint Though Stevens was arguing that the law be overturned, the quote advocates judicial restraint--that a law should be overturned through judicial review if and only if the law is clearly unconstitutional (Stevens went on to say that the Gramm-Rudman-Hollings Act contained a "constitutional infirmity so severe that the flawed provision may not stand.")

In which branch of government are ALL powers heren granted vested?

legislative

Article 1, Section 8

lists powers of Congress, plus necessary and power clause

Article V

process for amending Constitution

In Mistretta v. United States (1989), Scalia noted that the Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Which two cases represent examples of the Court overturning a law because it was an impermissible delegation of power by Congress to the executive?

the "Hot Oil cases" (Panama Refining Company et. al. v. Ryan and Amazon Petroleum Corporation v. Ryan (1935)) and Schechter Poultry Corp. v. United States (1936)

Jefferson once said: "This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." To what was he referring?

the judiciary Jefferson made this quote about the outcome of Marbury v. Madison, and the establishment of judicial review. In part because of his general philosophy (which tended toward the democratic and the republican, in favor of elections as a method of accountability, and skeptical of judges appointed with life terms, given the power to overturn legislation passed by elected members of Congress), and in part because his practical political opposition to Federalists (who controlled the judiciary), Jefferson was very opposed to the outcome of Marbury v. Madison, and wrote several times expressing his wish that it be overturned (although, of course, Jefferson's difficulty--and the likely source of part of his frustration--is that the decision is difficult to overturn, without a ruling that it is unconstitutional....an exercise of judicial review itself.) Jefferson was angry at the outcome; years later he wrote to the prosecutor in Aaron Burr's treason case: "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially & against law, and that their reverse will be the rule of action with the executive." (from The Writings of Thomas Jefferson.) To James Madison, Jefferson wrote in 1810, describing Marshall's "twistifications in the case of Marbury . . . Showing how dexterously he can reconcile law to his person biases." In 1823, Jefferson wrote that the decision was "merely an obiter dissertation of the Chief Justice . . . This practice of Judge Marshall, of traveling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable . . . The Chief Justice went on to lay down what the law would be, had they jurisdiction of the case. . . Could anything exceed this perversion of the law?" Marbury v. Madison limited the power of Congress and of the Presidency (although, in practice, most exercises of judicial review uphold Congressional acts.)

The Bowsher v. Synar (1986) case and the Line Item Veto case (Clinton v. City of New York (1998)) are not considered (by the Court) as examples of the Court overturning Congressional delegations of power to the executive branch because the majority opinion in each case focused on other constitutional issues (the ability of Congress to remove an executive branch official via methods other than impeachment, and the presentment clause, respectively).

true