Constitutional Government Chapter 2

Judicary Act of 1789

Prescribed that the "judicial power of the United States, shall be vested in one supreme Court, and such inferior Courts" as Congress saw fit to establish. It made no provision, though, for the composition or procedures of any of the courts, leaving this to Congress to decide.

Impeachment is strictly a ____ _____ for wrongdoing by a President

(1) political (2) Remedy

What three parts of the Constitution did Heart of Atlanta Motel cite in its attempt to argue that the Civil Rights Act violated its rights?

(1). They argued that Congress exceeded its power to regulate commerce under Article I, Section 8. clause 3, of the constitution. (2). They said that the act violates the 5th amendment, because the Motel is deprived of its right to choose its customers and operate its business as it wishes. They claimed that this in essence is taking their liberty and property, without due process of law. Also it is taking their property without just compensation all violations of the 5th amendment. (3). They argued that Congress is subjecting them ( the Motel) to involuntary servitude by requiring them to rent rooms to Negros. This they claimed was a violation of the 13th amendment.

How have constitutional amendments changed the nature of Congress with regard to both its election and powers?

(1.) Congress gained the power to levy taxes (2.) provides for the direct popular election of U.S. senators (3.) the rest of the amendments relate to the election of the president and congresses functions/pay.

On what two grounds does President Nixon argue that there is "absolute" executive privilege? Why does the SC disagree?

(1.) The first ground that the presidents counsel argued on was the need for protection of communication. It was a confidential conversation between the president and his close advisors that would be "inconsistent" with public interest to produce. They need to protect this type of communication. (2.) The second ground asserted by the presidents counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. It was argued that the independence of the executive branch within its own sphere insulates it from Judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential presidential communications. In other words it was an intra-branch battle, they claimed it was a political question and the judicial branch could not get involved.

Congress's main three powers

(1) Levy Taxes (2) Spend money (3) Borrow money on the credit of the U.S.

U.S. v. Nixon

- 7 former White House aides were indicted on charges of conspiracy and obstruction of justice. -For the trial the special prosecutor demanded Nixon give up 64 White House tapes and documents between the president and his aides. - Nixon refused to turn this information over stating that it was an intra branch matter between superiors and subordinates. So judicial resolution could not be had. - The president also said that executive privilege was necessary for preserving the confidentiality of presidential communication under all circumstances.

Dred Scott v. Sanford

- Dred Scott, a slave, resides in territory declared "free" by MO Compromise. - Scott is to be moved down with Sandford - The Court rules: o MO Compromise is unconstitutional o Congress cannot restrict slavery because they are denying property rights and that is unconstitutional. o Once again this violates property rights - 5th Amendment Due Process - Justice Taney's interpretation o Scott has no standing to sue because he is not a citizen under the Constitution This case involved a number of issues, including: the power of judicial review, Fundamental property rights of slave owners, and the nature of the federal system. -Dred Scott a black slave had sued for his freedom based on his five year residence on free soil. - The first question was did Scott have the right to sue in a federal court, was he a citizen did he have the constitutional right. - Justice Taney answered this question along with the court with a resounding NO, slaves were not considered citizens under the U.S. Constitution.

2001 Authorization of use of military force (example of War Powers Resolution)

- George W. bushes response to 9/11 attacks - Afghanistan and Taliban -Protect future attacks - patriot act and Guantanamo bay

Instead, which of Congress's financial powers did the Supreme Court turn to in NFIB v. Sebelius to uphold the individual mandate of the Affordable Care Act?

- It relied on the Federal taxing power to uphold the "individual mandate" requirement that each person must purchase health insurance or pay a penalty.

Which of Congress's powers didn't justify the individual mandate of the Affordable Care Act, according to the Court in NFIB v. Sebelius?

- The commerce Clause because an individuals failure to purchase health insurance is not an economic activity that can be regulated under the commerce clause. (congress can regulate commercial activity, but not inactivity)

Boumediene v. Bush- 2008

- This was the Supreme Court decision concerning Lakhdar Boumediene an Algerian man arrested in Bosnia, He was suspected to be in connection with a plot to blow up the U.S. embassy in Sarajevo. -The Supreme Court released its decision in 2008 ruling with a 5-4 majority that the prisoners had a right to challenge their continued detention in a civilian court. -the court also declared that section 7 of the Military Commissions act was unconstitutional on the grounds that it stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees.

Plessy v. Ferguson

- This was the separate but equal case, the basis was the 13th amendment and this case is different than -The court said that it is a fallacy to say that separate constitutes inferior. -Harlem's dissent said that we should have a colorblind constitution, race is irrelevant. -Result: Further narrows the 14th amendment, enables state discrimination proliferation of jim crow laws, the states required legal segregation.

Historically, for what purposes has Congress used investigations? (4)

-(1) Important preliminary to the passage of legislation -(2) Oversight of the executive in its administration of programs -(3) Informing the public on important policy issues -(4) Protecting its own privileges (reputation, integrity)

Why is Congress' investigative power controversial (A) from a Constitutional standpoint and (B) from a political standpoint?

-(A) The Constitution no where specifically grants Congress investigative powers. But this gives them factual information on which to base their legislation...so its kind of implied to help them do their job of passing legislation, Informing the people of various public affairs, Protecting the integrity of congress, and addressing democratic accountability. -(B) From a political standpoint however it sucks for the Executive branch, are the investigative efforts by Congress serious efforts to investigate unwise, illegal actions by government officials or are they partisan efforts to score political points by undermining the opposition??

How do the two chambers of Congress differ with respect to the rules they have adopted for speech and debate?

-Because of its size (435 members) the house has strict rules on speech and debate. - The Senate however allows essentially unlimited debate, they can filibuster to disrupt movement of legislation or vote for cloture to end debate all together.

What are the four general restrictions on Congress's taxing and spending power?

-The exercise of the spending power must be in the pursuit of the general welfare -If congress decides to condition the states' receipt of federal funds (congress telling the state they "will only get federal funding if they do this"), they must do so definitely no open to any other interpretation. - The conditions on federal grants might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. - Other constitutional provisions may provide an independent bar to the conditional grant of federal funds. (if there is something else in the constitution that prevents the conditional grant than congress is restricted)

National Federation of Independent Business v. Sebelius

-This case turned out to have very little to do with commerce.

Why did nixon have to turn the tapes over to the special prosecutor?

1. -regarding the presidents claim of being an intra branch matter - The president and the special prosecutor are both apart of the executive branch and therefore the president had to turn the tapes over to the special prosecutor. 2. -regarding the presidents assertion of executive privilege - The Court stated that Nixon's legitimate assertion of privilege did not stand in the face of fundamental demands of due process of law in the fair administration of justice.

4 grounds for impeachment of President Clinton

1. Perjury - president Clinton had lied under oath to a grand jury about his sexual relationship with Ms. Lewinsky 2. Obstruction of Justice - The President conspired with Mrs. Lewinsky to protect their relationship by devising cover stories and concealing personal gifts. 3. Witness Tampering - The president tried improperly to influence the grand jury testimony of his personal secretary, Betty Curie. 4. Abuse of Power- The president abused his Constitutional authority by lying to the American Public, Congress, and the Grand jury for months about his relationship with Ms. Lewinsky, by impeding an ongoing criminal investigation, and by invoking executive privilege to conceal personal misconduct rather than privileged communications received during performance of official duties.

The two methods of dealing with faction

1. removing its causes; by destroying liberty or giving everyone the same opinions beliefs passions and interests. 2. Controlling its effects; by

What are the President's primary constitutional powers/roles?

A. Commander-in-Chief B. Chief Executive C. Legislative leader D. Chief Diplomat

What are the three limits the Constitution places on Congress's power to tax?

A. Taxation on goods shall be uniform throughout the states. B. Congressional power to tax may not be applied to exports. C. Direct taxes must be based on population.

Why has Congress's power to regulate commerce been so controversial?

A. The Constitution provides no definition of "commerce", with the result that a good deal of attention has been devoted over to finding the activities that constitute commerce. B. Changes in technology and economic relations have changed commerce over the years and created a demand for the regulations of these new types of commerce. C. In the face of ever broadening federal controls of commerce-related matters, state governments and their supporters have fought to retain their place in the federal system.

5. In past cases what has qualified as a compelling interest? (good quiz/exam q)

A. remedying the effects of past intentional discrimination B. Diversity at higher education, diversity that is not focused on race alone.

Article I of clinton's impeachment

Accused the president of perjury against the grand jury. This article fail to pass the senate 45- 50

Article III of clinton's impeachment

Accused the president of preventing, obstructing and impeded the administration of justice. This article was deadlocked in the senate 50-50

line item veto

Allows the president to reject parts of a bill without vetoing the entire bill.

Commerce Clause

Article I section 8 Clause III it states that congress shall have the power to "regulate commerce with foreign nations, and among the several states, and with the Indian Tribes."

Watergate

CREEP (The Committee to Re-Elect The President) was caught breaking into the headquarters of the Democratic National Committee. This eventually gave way to a huge scandal that traced all the way back to the president.

Civil Rights Act of 1964

Congress sought to sweep away the years of segregation and discrimination in the American life with this clause. - Section (201) - All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation. All of this without discrimination on the basis of race, color, religion, or national origin. - Basically this act targeted business establishments that were "public accommodations" and said that if their operations " affect commerce or discrimination or segregation is supported by the state" then they were under this law. - It differs from the 1875 CRA - because the part of the constitution used here is now based on the commerce clause.

1866 Civil Rights Act

Congress' attempt to prevent Black Codes, under the authority of the 13 amendments.

Due process of law

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

What role does each house of Congress play in the impeachment process?

First the House of Representatives serves as the grand jury to determine if the charges should be brought against the individual they must have a majority vote. Then the Senate sits as a collective body to decide the guilt or innocence of the defendant, they must decide on a 2/3 vote for conviction.

What are the only two significant differences between the chambers (House and Senate) of Congress in terms of the functions delegated to them by the Constitution?

House: revenue bills must originate in the house Senate: Advise and Consent function basically confirming presidential appointments and ratifying treaties.

Conference Committee

In the process of passing a bill, the bill must be approved by both houses of Congress before it can be passed. This brings together members from both chambers (house and senate) and attempts to eliminate any differences in the two bills that were passed through each house. They then try to provide a compromise that each house can accept.

Federalist No. 51 "double security"

In the this essay James madison is talking about dividing the power that the people surrender into two distinct governments. Then that power is again further subdivided by each government into departments. Hence a double security and division of power arises.

What is the largest source of income for the federal government?

Individual Income taxes

Marbury v. Madison

Issue: Jefferson had just become the 3rd president of the united states. However before leaving office John Adams and the Federalists congress created several new federal judgeships to fill these positions with loyal federalists. Four of the commissions were not delivered one of them being Marbury's. Marbury petitioned to the court to issue a writ of Mandamus to order the commission to be delivered. Controversy: If the court ordered the delivery of the commission, Jefferson would most likely ignore any such order and the court would look like it had no power. On the other hand for the court to not issue the writ would appear even more impotent in the face of presidential opposition. Court Ruling: Yes the supreme court has the authority to review the acts of congress and determine if they are constitutional (judicial review is established)

Youngstown Sheet & Tube v. Sawyer

Issue: Truman made an executive order to seize all the steel mills in an effort to keep them operating during the Korean War. He claimed that the inherent powers of his office allowed him to act as he did. He said he was the Chief executive and Commander in chief. Court Ruling: Justice Black concluded that the presidents actions were unjustified and illegal, it was purely a legislative matter and the president could not make any laws that condone these actions nor could he provide for any evidence of these laws in the Constitution.

Parents involved v. Seattle School District

Legal question - can schools w/o history of de jure segregation (WA) or where de jure has been remedied (KY) take race into account for voluntary desegregation. - Analysis - possible compelling interests that apply? • Past discrimination - doesn't apply here. • Diversity - yes, but their methods are unacceptable. Not "narrowly tailored" - is their a way the state can achieve their objective in another way that isn't discriminatory. o Roberts' conclusion: " The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" ----STOP TAKING RACE INTO ACCONUT... even if its for good reason like right here, when these parents are trying to achieve diversity.

Chief Executive

Means the president has the power to appoint, pardon and request opinions of offices of other departments.

What argument did Nixon's legal team make in the District Court case as well as in this case for why the court lacked the jurisdiction to issue a subpoena for the tapes?

On account of the courts Justiciability, in the District court the president's counsel argued that the court lacked jurisdiction to issue a subpoena because the matter was an intra branch affair between the superiors and subordinates of the executive branch.

13th amendment

Outlaws slavery & overturns Dred Scott, "neither slavery nor involuntary servitude shall exist in the United States"

Chief Diplomat

See curtis wright

Why does the SC say it has jurisdiction in the Nixon case?

The Supreme Court said that the tapes should be handed over because they contain information vital to the investigation of the defendants that were indicted. They also said that while it may be intra branch, the special prosecutor is a member of the executive branch and so the tapes must be delivered to him at his request.

What is the "clear issue" in the South Dakota v. Dole case?

The clear issue focuses one whether or not congress' spending powers may attach conditions on the receipt of federal funds

Katzenbach v. McClung (1964)

The courts proved that this local hole in the wall restaurant, in the middle of nowhere must abide by the CRA of 1964 because this restaurant does affect interstate commerce. -Uphold the law as valid use of commerce power -Doesn't matter if motive is to correct a moral wrong

Line-item veto

The line-item veto, or partial veto, is a special form of veto that authorizes a chief executive to reject particular provisions of a bill enacted by a legislature without vetoing the entire bill. Many countries have different standards for invoking the line-item veto, if it exists at all. Each country and/or state has its own particular requirement for overriding a line-item veto.

The War Powers Act

This was the Congressional resolve to constrain executive war power. It states that the president may only deploy troops to war if: 1. A formal declaration of war by Congress 2. Congressional approval of deployment but no declaration of war 3. An enemy attack upon the U.S. that creates a national emergency a. The president must inform congress within 48 hours of a deployment of troops b. Unless congress declares war against the aggressor state, the troops must be withdrawn within 60 days c. The president can be granted an additional 30 days but after 90 days all troops must be withdrawn at the insistence of both houses and this cannot be vetoed.

Impeachment

The power to remove, under certain circumstances, various federal officials from office.

Legislative leader

The president must deliver a state of the union address and also pass legislation.

The writ of habeas corpus

The right of a prisoner to challenge their detention.

What is the most common source of faction?

The various and unequal distribution of property.

"Black codes"

These codes were enacted by White Southerners, they restricted blacks from carrying arms or using the courts, Compelled them to work, And segregated them in all public facilities. Prevent gun ownership, limiting jury service.

How do Nebraska and Maine award electoral votes in presidential elections?

They assign two electoral votes on a statewide basis and the others by congressional districts.

16th Amendment

This amendment allows congress the power to lay and collect taxes on incomes from whatever source derived, without apportionment among the states. It opened the money pipeline from individuals directly to the the federal government, and it remains the largest source of revenue for the federal government.

Cooper-Church Amendment

This amendment prohibited the use of funds for American combat forces in Laos, Cambodia, and Thailand. It did this because when Nixon was elected he began to expand the war to these regions to fight the guerilla forces seeking refuge outside the country. Congress did not authorize this and consequently they passed this amendment.

Commander-in-Chief

This basically means that the president shall be in charge of the army, navy, and militia of the United States.

Gonzales v. Raich

This case deals with an occurrence when the Court upheld the use of the Commerce Power to prohibit and prosecute the use of "medical" marijuana. In this case the Courts interpretation of the commerce clause along with the comparisons to earlier rulings (Wickard v. Filburn) lead them support federal prosecution and prohibition of marijuana. -Mrs. Raich was growing her own marijuana for her own consumption, Congress said here that it still was a matter of commerce. Congress has the power to "regulate purely local activities that are a part of an economic 'class of activities' that have a substantial effect on interstate commerce.

Executive agreement

This is like a treaty and when enacted it becomes the supreme law of the land.

Cloture

This is the method used by the senate for shutting off debate in the case of a filibuster

Executive Privilege

This is the presidents power to with hold various types of information from the public (military, political, or diplomatic) if they think it should be protected from the public.

Filibuster

This is used in the senate to block or delay legislation. It basically stops legislation from ever reaching a vote through the method of stalling.

The Stewardship theory

This view of presidential power emerged in the early 20th century as the nation struggled with major challenges at both home and abroad. Basically the president functions as a steward or a trustee of the people. This enables the president to do whatever is necessary for the public good unless it is specifically forbidden by the Constitution or by federal law. "Bully pulpit"

"Prerogative" theory

This view of presidential power says that the president has the power to act according to discretion for the public good, without the prescription of the law and sometimes against it.

The Whig Theory of Constitutional power

This was subscribed to by Alexander Hamilton and James Madison and prevailed throughout most of the 19th century. It said that the president was limited to the exercise of those powers expressly granted in the Constitution. (no implied power)

Articles II and IV of clinton's impeachment

Were recommended by the House judiciary committee but they did not garner enough votes.

What are the 3 general categories of regulation Congress is permitted to engage in under the commerce clause?

a. Congress can regulate the channels on interstate commerce b. Congress has the authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. c. Congress has the power to regulate activities that substantially affect interstate commerce. (this is the category applied here.)

14th amendment (3 parts)

forbids the states from: (1) making laws that abridge the privileges or immunities of a citizen of the US, (2) Depriving any person of life liberty or property, without due process of law (3) deny to any person within its jurisdiction the equal protection of the laws. - it give Congress the power to pass laws enforcing these provisions.

What rationale is used to defend executive privilege?

it is used to preserve confidentiality in the Oval office, the president also must ask for a lot of opinions in order to make proper decision and so some of that advising should be kept quiet.

Brown v. Board of education I

o Separate is inherently unequal; overturns Plessy o Acknowledges limits of historical analysis - Times have changed; education is different. • They see that the 14th is very flexible. • They used social science tests that showed that indeed their was an effect on children. o It has a detrimental effect on children's learning ability, social science showed that separation was inherently unequal. • They end the case saying that segregation is wrong but that the people are to go out and gather information to end segregation in one years time. They decide that there is no one size fits all to give to all schools. So each local government will have to come up with their own desegregation plan.

Brown v. Board II

o They would implement the desegregation plans locally o The Supreme Court said that the plans are to be taken care of with "all deliberate speed" The response to Brown v. Board II & Second wave of cases - • State response o Some refuse o Others make efforts to circumvent law o The significance is that the Supreme Court cannot enforce its decisions. • Court reaches its limit o All deliberate speed = Desegregated right now o Congress assists the supreme court - and denies the schools federal funding

Tonkin Gulf resolution

stated that the United states is prepared, as the president determines to take all necessary steps, including the use of armed forces to repel any armed attack against the forces of the United States and prevent any further aggression. This resolution was Congresses way of legitimizing executive action and American involvement in Vietnam.