Midterm Exam Study Guide

Which of the following are limitations on congressional spending power?

- Congressional spending must be consistent with the general welfare. - Conditions on states' receipt of federal funds must be unambiguous. - States must have the practical power to refuse money offered by the federal government.

What are the "big three" institutional choices?

- Individual Rights (unelected courts v. democratically elected institutions/officials) - Federalism (fed. govt v. states) - Separation of Powers (Congress v. the President v. the courts)

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

- Its greater access to info & expertise. - its greater responsiveness to popular majorities.

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

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

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.

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

3

Which of the following is one of the 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 nat. bank as necessary to the survival of the Union.

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.

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 strongest institutional argument for allocating primary decision-making authority over school funding to state legislatures?

The question is empirically complex 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 of the death penalty has wide-ranging effects on interests unlikely to be represented before a court.

Is Paula Peta likely to prevail on the claim that this Act is unconstitutional?

Yes, because Congress clearly passed this Act in bad faith.

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.

James Madison's maxim that "ambition must be made to counteract ambition" is...

famous but wrong.

The three big questions institutional choice in American constitutional law are...

federalism, separation of powers, & individual rights.

The proper scope of nat. power...

has always been controversial.

Over the course of U.S. history, the commerce power...

has contributed greatly to a vast expansion of federal power since the founding.

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

institutional arguments, such as those presented in Federalist 10.

In Gibbons v. Ogden, Chief Justice Marshall's opinion defined commerce as...

intercourse, meaning interchange or interaction.

The most important advantage of the fed. govt over the states is...

its greater ability to handle interstate spillovers (problems that affect more than one state).

By broad consensus, the greatest weakness of the fed. govt is...

its remoteness from the people & consequent susceptibility to tyranny of the minority.

Under the US Constitution, those powers not granted to the US are...

reserved to the States.

The President's greatest strengths include...

the ability to act quickly & decisively in a crisis.

In McCulloch v. Maryland, the Supreme Court upheld the power of Congress to create a national bank because...

the bank was Ann appropriate means of carrying into effect the enumerated powers of Congress under the Necessary & Proper Clause.

Easy federalism cases are clearly resolved by...

the constitutional text & previous decisions of the US Supreme Court.

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

the decision is urgent.

Hard cases are cases in which...

the governing legal rule fails to clearly & 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 question of institutional choice in every individual rights case?

The fed. courts v. the political process

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

The fed. govt & the states

Who is often called the "Father of the Constitution"?

James Madison

What is the political process?

A collective term for state & fed. 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 test is self-legitimizing

The dead hand problem is...

A powerful objection to the US Constitution that does not persuade most Americans.

The presidential minimum age question explored in the reading is an example of...

An easy case

Which of the following is NOT a standard 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 & weaknesses of different institutions.

Which is one of the greatest strengths of Congress & the President working together?

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

What is the fed. govt's greatest strength?

Its ability to deal w/interstate spillovers.

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

Congress & the President acting jointly.

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

Courts defer substantially to the judgment of Congress.

In what context do most federalism cases arise?

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

Which of the following statements best captures the issue posed by this case? POD2

Does Congress have power under the N&P Clause to adopt the Bear-Free School Act?

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.

Is this an easy case or a hard case?

Easy bc the rule defining the scope of the N&P Clause established in McCulloch v. MD easily disposes of the case.

How are early federalism cases resolved?

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

Under Gibbons, is this an easy case or a hard case?

Easy, because borrowing a small amount sugar from one's neighbor does not affect more states than one.

What is the strongest institutional argument for allocating primary decision-making authority over education policy to the fed. govt?

Education policy affects the nation as a whole & the fed. govt is best suited to take all of the affected interests into account.

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

FALSE

In individual rights cases, the institutional choice is always b/t which of the following?

Fed courts & the political process.

Which of the following is correct?

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

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

Hamilton-Jefferson

Is this an easy or a hard case?

Hard, because the governing rule does not clearly and decisively resolve the legal issue posed by the facts: Molly and the government both have plausible arguments that this exercise of power is (or is not) a necessary and proper exercise of Congress's Commerce Clause power.

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?

Which of the following statements best captures the issue posed by this case? POD1

Is criminalizing tax evasion a valid exercise of Congress's power under the Necessary and Proper Clause?

What serious question did the Jones & Laughlin dissenters raise?

Is there any human activity beyond federal regulatory power?

What does IRAC stand for?

Issue, Rule, Application, Conclusion

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.

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

Require states to legislate or enforce fed. law

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 & more likely to be responsive to the widely varying preferences of popular majorities in different parts of the country.

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.

Select the best description of the 10th Amendment.

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

What was the first constitution of the US?

The Articles of Confederation

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

The Commerce Power

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

The N&P Clause & 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.

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

The decision is complex & far-reaching.

The hardest cases arise when...

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

What is the central issue in every constitutional case?

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

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

The choice is b/t the states & the fed. govt.

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.

What is the best institutional argument for the federal government? C9 POD3

The federal government should have the power to regulate union membership in the workplace because labor disputes in one state affect the economy of the nation as a whole. Also, if union organizing is regulated at the state level, employers will move to the states with more lenient laws—a classic interstate spillover problem best suited for the federal government to deal with.

What was one of the main objections to the Constitution during the ratification process?

The lack of a Bill of Rights

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

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

What is the best institutional argument for Vargas? C9 POD3

The states, which are closer to the people, are better suited to balance workers' interests against employers' interests than the federal government because the states are more responsive to popular majorities.

What is the greatest strength of state govts?

Their responsiveness to popular majorities.

Which of the following is one of the 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 are constitutional cases easy?

When the constitutional text or existing case law is clear.

What is the issue in this case?

Whether the CSA's prohibition on the purely personal cultivation and use of marijuana is a valid exercise of Congress's authority under the Necessary and Proper Clause.

Which of the following best captures the issue in this case? C9 POD1

Whether the HTMA is a valid exercise of the federal commerce power.

Which of the following best captures the issue in this case? C9 POD2

Whether the MAHAA's prohibition on borrowing more than a teaspoon of sugar from a neighbor is a valid exercise of Congress's commerce power.

What is the question of institutional choice in this case? C9 POD1

Whether the federal government or the states are best suited to regulate transportation of hazardous materials on interstate roadways.

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 govts are...

more responsive to popular majorities than the fed. govt & thus less vulnerable to powerful special interests.

In a hard case, there are...

plausible arguments on both sides.

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

stronger

The question of federalism typically arises in disputes over...

the Article 1 powers of Congress.

Most individual rights questions involve...

the Bill of Rights or the 14th Amendment.

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 & Congress acting jointly.

The central question in EVERY constitutional case is...

which institution should be understood to possess decision-making authority over the subject at hand.