LAW 404 Final Exam | Answered with complete solutions

LAW 404 Final Exam | Answered with complete solutions Assume that three or more of your classmates have signed Constitution 2.0. Is this Constitution the Supreme Law of the Land? No because no text is self-legitimatin ...

LAW 404 Final Exam | Answered with complete solutions Assume that three or more of your classmates have signed Constitution 2.0. Is this Constitution the Supreme Law of the Land? No because no text is self-legitimating and there is no way that the people of the United States would recognize this document or its ratification procedure as legitimate. What is the strongest institutional argument for allocating primary decision-making authority over education policy to the federal government? Education policy affects the nation as a whole and the federal government is best suited to take all of the affected interests into account. What is the strongest institutional argument for allocating primary decision-making authority over education policy to the state governments? States are closer to the people and more likely to be responsive to the widely varying preferences of popular majorities in different parts of the country. Who is often called the "Father of the Constitution"? James Madison What was the first constitution of the United States? The Articles of Confederation. What was one of the main objections to the Constitution during the ratification process? The lack of a Bill of Rights. What does IRAC stand for? Issue, Rule, Application, Conclusion In a hard case, there are .. Plausible arguments on both sides The presidential minimum age question explored in the reading is an example of ... an easy case Which of the following is NOT a standard type of legal argument used in hard constitutional cases? Arguments based on political partisanship The central question in EVERY constitutional case is ... which institution should be understood to possess decision-making authority over the subject at hand. The three big questions of institutional choice in American constitutional law are ... Federalism, separation of powers, and individual rights The question of federalism typically arises in disputes over ... The Article I powers of Congress. Under the U.S. Constitution, those powers not granted to the United States are ... Reserved to the States. Easy federalism cases are clearly resolved by ... The constitutional text and previous decisions of the U.S. Supreme Court By broad consensus, the greatest weakness of the federal government is ... its remoteness from the people and consequent susceptibility to tyranny of the minority. According to Anti-Federalist critics of the Constitution, state governments are ... more responsive to popular majorities than the federal government and thus less vulnerable to powerful special interests. The most important advantage of the federal government over the states is ... its greater ability to handle interstate spillovers--that is, problems that affect more than one state. The President's greatest strengths include ... the ability to act quickly and decisively in a crisis. Most constitutional disputes over the separation of powers are really disputes about whether a particular constitutional power should be entrusted ... to the President alone or to the President and Congress acting jointly. James Madison's maxim that "ambition must be made to counteract ambition" is ... famous but wrong. Most individual rights questions involve ... The Bill of Rights or the 14th Amendment What is the political process? A collective term for state and federal institutions that are directly or indirectly responsible to the people. What is the question of institutional choice in every individual rights case? The federal courts vs. the political process Which of the following best describes Thomas Jefferson's views on the first bank of the United States? Jefferson opposed the creation of a national bank as beyond the powers of Congress. The proper scope of national power ... has always been controversial. In McCulloch v. Maryland, the Supreme Court upheld the power of Congress to create a national bank because ... The bank was an appropriate means of carrying into effect the enumerated powers of Congress under the Necessary and Proper Clause. In Gibbons v. Ogden, Chief Justice Marshall's opinion defined commerce as ... intercourse, meaning interchange or interaction. In Gibbons v. Ogden, Chief Justice Marshall defined commerce "among the several states" as ... commerce that concerns or affects more states than one. Over the course of U.S. history, the commerce power ... has contributed greatly to a vast expansion of federal power since the founding. How did the Supreme Court initially respond to FDR's New Deal reforms? The Court struck down several important New Deal statutes. Under the manufacturing/commerce distinction established in E.C. Knight, Congress was ... Permitted to regulate commerce or trade but not manufacturing. Over the course of the 19th Century ... Revolutions in transportation, communication, and industrial organization utterly transformed the U.S. economy After Jones & Laughlin Steel Co., the Supreme Court ... did not strike down another law as beyond the federal commerce power until 1995. In Lopez and Morrison, the Supreme Court ... substantially narrowed federal power to regulate economic activity and upheld Congress's broad power to regulate economic activity. How does Gonzales v. Raich define economic activity? the production, distribution, or consumption of commodities. Where is the spending power found in the constitutional text? It's a trick question. The spending power is not explicitly granted by the constitutional text. Which of the following best describes Hamilton's view of the spending power? Hamilton thought the spending power granted Congress the power to spend money for any purpose connected to the general welfare. Which of the following best describes James Madison's views on the spending power? Madison worried that the spending power would give Congress effective control over all human activities. Madison thought Congress could only spend money in the service of its other enumerated powers. In what sense is the 10th Amendment a "truism"? it merely reaffirms that Congress has only those powers granted to it. How does commandeering compromise the integrity and independence of state electoral processes? By requiring state officials to act as puppets of the federal government rather than as representatives of state voters. What is the anti-commandeering principle? The rule that Congress may not force state or local officials to enforce or administer federal law. What is the strongest institutional argument for allocating primary decision-making authority over marijuana regulation to the federal government? Drug policy affects the nation as a whole and the federal government is best suited to take all of the affected interests into account. What is the 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. 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 mercury regulation 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 decision-making authority over the emergency seizure of production facilities to the President? The President is better able to respond quickly to a fast-developing crisis. What is the 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 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 the death penalty to state legislatures? The question is both morally and empirically complex (does the death penalty deter murder? by how much? how many innocent persons are likely to be executed? how does race factor into the administration of capital punishment?), with wide-ranging effects on interests unlikely to be represented before a court. What is the strongest institutional argument for allocating primary decision-making authority over school funding to state legislatures? The question is empirically complex (how many students are there per district? what are their current needs and resources? how far can students be reasonably expected to travel to school? should some funding be local to ensure community investment in schools? Etc., etc.), with wide-ranging effects on interests unlikely to be represented before a court. What is the strongest institutional argument for allocating primary decision-making authority over 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. Which of the following best describes the issue in McCulloch v. Maryland? Does Congress possess the constitutional power to create a national bank under the Necessary and Proper Claus? What is the question of institutional choice in McCulloch v. Maryland? Should the power to charter banks rest with the states alone or should the federal government also possess that power when appropriate to carrying out its other powers? 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. In a hard constitutional case, what kind of arguments are key? Arguments based on the strengths and weaknesses of different institutions. When are constitutional cases easy? When the constitutional text or existing case law is clear. How are easy federalism cases resolved? Easy cases are resolved by the Constitution and past Supreme Court cases. Hard cases are cases in which .. The governing legal rule fails to clearly and decisively resolve the legal issue posed The dead hand problem is ... A powerful objection to the U.S. constitution that does not persuade most Americans What are the "big three" institutional choices? Separation of Powers (Congress vs. the President vs. the courts), Individual rights (Unelected courts vs. democratically elected institutions/officials), Federalism (Federal government vs. States) What style of rule do federal power and state power follow? federal power- German (everything is forbidden unless specifically allowed) state power- French In what context do most federalism cases arise? Disputes over Congress' powers under Article I of the Constitution. How does a Constitution acquire legal authority? A community must accept it as legitimate. No legal text is self-legitimating. 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? When faced with a hard federalism case, lawyers turn to... Institutional arguments, such as those presented in Federalist 10. Easy cases are cases in which ... The governing rule clearly and decisively resolves the legal issue posed What is the federal government's greatest strength? Its ability to deal with interstate spillovers. The case for granting constitutional authority to the President alone is strongest when ... The decision is urgent. Which of the following is one of two parts of McCulloch's two-part rule? Absent evidence of bad faith, the Court will not second guess congressional judgments about which means are appropriate What is one of the greatest strengths of Congress and the President working together? Both working together ensures buy-in from the whole country, avoiding a tyranny of the majority. What are some of the greatest strengths of the political process? Its greater responsiveness to popular majorities, Its greater access to information and expertise When is a state government's responsiveness to popular majorities especially important? When an issue affects powerful special interests, When an issue involves significant geographic diversity of opinion. In individual rights cases, the institutional choice is always between which of the following? Federal courts and the political process. The more important a decision for the nation as a whole and the greater the risk of a rash and irreversible decision, the stronger the case for allocating constitutional authority to ... Congress and the President acting jointly. Which of the following is the strongest argument that a decision should be left to the political process? The decision is complex and far-reaching. What is the greatest strength of state governments? Their responsiveness to popular majorities. The bigger the spillovers, the ___________ the case for federal power. Stronger What is the institutional choice in any case involving the Necessary & Proper Clause? The choice is between the states and the federal government Which of the following is one of two parts in McCulloch's two-part rule? Unless it is acting in bad faith, Congress may use any appropriate means to execute its powers The hardest cases arise when... The case involves some circumstances favoring the President alone and others favoring joint Congressional and Presidential action. Who are federal courts most well-suited to protect due to their insulation from direct political accountability? Vulnerable minorities Which two well-defined camps dominate Federalism? Pro-state; Pro-national 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 two portions of the Constitution did Jones & Laughlin combine? The Necessary and Proper Clause and the Interstate Commerce Clause. What was the main vehicle for the massive expansion of federal power in the 20th century? The Commerce Power 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. Lopez, Morrison, and NFIB make it essential to focus on what? What precisely Congress is seeking to regulate. True or False: The rule announced in Jones & Laughlin is so narrow that basically nothing qualifies as commerce. False 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 scope of "commerce" within the commerce power? Intercourse, interchange, or interaction, including trade and navigation. Under the anti-commandeering principle, Congress is prohibited from doing which of the following? Require the states to legislate or enforce federal law. The federal spending power is subject to __ limitation(s). 3 The institutional choice in any commerce-power case is between... The federal government and the states. Under the anti-commandeering principle, what does Congress remain free to do? Prohibit states from acting in violation of federal law. Which of the following best characterizes the scope of modern congressional power to regulate economic activity? Very broad What serious question did the Jones & Laughlin dissenters raise? Is there any human activity beyond federal regulatory power? Debates over the spending power closely track the ___-___ divide Hamilton-Jefferson Which of the following is NOT a limitation on congressional spending power? Congress may only use federal funds to regulate what it may otherwise regulate under the Commerce Clause. 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 most accurately describes how courts determine whether congressional spending is consistent with the general welfare? Courts defer substantially to the judgment of Congress. Description of the 10th Amendment. The 10th Amendment imposes ONE affirmative limit on federal power-the anti-commandeering principle. What is the textual basis for the doctrine of executive privilege? It is not mentioned explicitly in the constitutional text but has been implied from Article II because it is so vital to the President's ability to do his job. Which of the following is not one or the three main categories of presidential power? Revenue Raising What is executive privilege? The privilege of the President not to disclose private communications with high level advisors. Where in the Constitution does the text explicitly require the President to obtain approval from Congress before acting? It's a trick question: the Constitutional text nowhere explicitly requires the President to obtain congressional approval for his actions. What has the Supreme Court said about whether the President has constitutional authority to commit U.S. troops to offensive military action without congressional authorization? The Supreme Court has not answered this question. Where in the Constitution does the text explicitly require Executive approval of any law Congress wishes to pass (unless Congress can get approval from a two-thirds majority of both houses to approve the law)? Article I, Section 7 Which of the following statements best captures the question of institutional choice posed by The Steel Seizure Case? Whether the President acting unilaterally or the President and Congress acting jointly should have the power to seize production facilities to meet a military emergency. Which of the following best captures the issue in The Steel Seizure Case? Whether President Truman's executive order was a valid exercise of his Article II powers. Why has the Foreign Emoluments Clause so seldom come up in court? Because violations of the clause do not generally cause the sort of injury that would enable any person to bring suit challenging them. Because most federal officials have scrupulously avoided violating it. What is an emolument? Profit or gain, which may or may not be limited to payments in connection with official duties. What risk is the foreign emoluments clause meant to guard against? The risk that the President (and other federal officials) would represent the interests of foreign governments instead of the American people. Grants of adjudicative power to administrative agencies are constitutionally premised on what recognition? That a certain amount of rule making and adjudication are inherent in Executive power. Courts require that congressional delegations of rule-making authority be governed by what? An "intelligible principle" Which of the following best captures the primary distinction between an "Independent Agency" and an "Executive Agency"? The President may fire the presiding officials (like the Commissioner) of an Independent Agency only for good cause, but may fire the presiding officials of an Executive Agency for any reason or no reason at all. Which of the following best describes unitary executive theory? The President is best suited to resolving difficult political questions, and so Congress can not interfere with the President's removal power.