Final Flashcards Preview

• Argues the President pursuant to his foreign affairs powers, has authority to direct limited military operations abroad, even without prior congressional approval
• Article II Setion 8 under the historicl gloss on the executive power, the president bears the vast share of responsibility for the conduct of our foreign relations and accordingly holds independent authority in the areas of foreign policy and national security

• Hamdi is taken as an enemy prisoner in Afghanistan, and it is discovered that he is an American citizen
• Denied that he was an enemy combatant 
• Petitioned for writ of habeas corpus on grounds that he is an American citizen
• SC laid down guidelines governing the battlefield detention of citizens
• He is granted a hearing but the rules regarding said hearing are vague

• Holds conferences trying to determine what the Bush administration's environmental poicy will be
• Later it is discovered that the people that took part in this are implicated in the Enron scandal
• Congress tries to find out what exactly went on in these conferences
• Cheney asserts executive privilege
• Court held that information was protected because it was a civil proceeding

• 1968 saw the Democratic party in disarray and there was talk of an "emerging Republican majority"
• launched a presidential bid that emphasized law and order
• focused attacks on the Johnson Administration as well as the Warren Court

• By the Nixon administration, liberals began to worry about an "imperial presidency" that was becoming so powerful that it could shout-circuit important checks and balances in the constitutional system.

• In Garcia overturned the decision in Usery limiting the power of Congress to regulate and expanding state immunity

Meese: "The Law of the Constitution" 

• Called into question the Supreme Court's assertio in Cooper v. Aaron that the Constitution and the constitutional law articulated by the judiciary were of equal authority 
• Provided room for criticizing, and potentially reversing, judicial decisions with which the administration disagreed, most prominently Roe v. Wade

Rehnquist "The Notion of a Living Constitution" 

• both constitutional design and historical experience cautioned judges to exercise judicial restraint, and defer to elected officials for developing solutions to public problems 
• Beyond the Constitution and the laws of our society, there simply is no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments

Brennan

• Embraced judicial activism and an ever-evolving "aspiration to social justice." 
• This view emphasizes not the transcendent historical authority of the framers but the predominant contemporary authority of the elected branches of government

• "Government is the problem"
• Federal Government takes too much taxes from the people, too much authority from the States, and too much liberty with the Constitution

• Congress has a variety of legitimate tools that it can use to threaten, punish, or weaken the federal judiciary. 
• Can involve legislation or not
• Popularity has surged and waned over time
• Has been a common feature of contemporary politics 

• Bork had long been a forceful advocate for conservative constitutional and legal causes as a lawyer, public speaker, and writer.
• Particularly known for his support for restraint in the exercise of judicial review and for the use of origional intent in guiding constitutional interpretation
• Nomination took on added significance not only because he was thought to have the intellectual skills and beliefs to influence the direction of the court, but also because the vacancy was created by the departure of the moderate Lewis Powell, a swing vote on many issues including abortion and affirmative action

• Would have changed the senate rules so that a simple majority could invoke cloture on judicial nominations--eliminating the possibility of a minority filibuster of judicial nominees

• Theory of separation of powers that holds that all the executive power of the federal government is vested in the president of the United States
• Envisions the structure of the executive branch as a pyramid 
• Key piece of legislation that supports the argument is the "vesting" clause of Section 3 of Article II and the take care clause of Section 3

• public statements issued along with signing of law
• Used to celebrate legislative achievements and downplay its legislative defeats
• Statements that downplay legislative defeats are the more constitutionally interesting
• Administration officials hope that judges will later pick up on these signing statements, either as persuasive interpreations of the law or as authoritative parts of the legislative record that judges might regard themselves as obliged to follow so as to implement the intent of the lawmakers

• Threats to reduce or cut off federal funds to states has been successfully used on occassions to induce the states to adopt policies
• Federal leverage over state policymaking is a side effect
• Examples: minimum drinking age, seatbelt laws, helmet laws, maximum speed 

• Many public-interest groups condemned legislative vetoes as a means that enabled Congress to reject environmental and consumer protection regulations adopted by administrative agencies
• Presidents signed bills containing legislative vetoes in order to get the broad delegations of authority associated with the device, but they also insisted that once power had been delegated, Congress could change lawful executive branch decisions only by passing new legislation consistent with Article I's requirement of bicamerialism and presentment (sent to the president for his signature or veto)

• Formalist = class of arguments about the separation of powers
• Functionalist = emphasize pragmatic, fluid, less clear-cut, but "workable" appraoches to thinking about the strucutres of government 

• Gonzalez decided Congress's power under Section 5 of the 14th Amendment includes enforcing, not defining the amendments provisions
• "Noncommercial" limits on commerce: three categories Congress can regulate: channels, instrumentalitites, substancial relation to inerstate commerce 

•  the anti-commandeering doctrine announced in Mack and Printz "can work as a safeguard for the rights of the people";"the federal government might go too far in prosecuting the war on terrorism," Mack and Printz provides a circuit-breaker that might allow local and state officials to refuse to enforce regulations curbing individual rights

• 11th amendment protected states from federal lawsuits by citizens of other states
• Congress can abrogate state sovereign immunity when acting under Section 5 of the 14th Amend

• Court concluded in INS v. Chadha the line-item veto was unconstitutional

• Yoo wrote the president has broad constitutional power to retaliate to terrorist attacks
• Krass wrote president has the power to commit US troops abroad even without specific prior authorization from Congress

Ex parte Milligan

• Tried by military tribunal for being a Southern combatant, Court decides that this is unacceptable
• He has the right to a writ of habeas corpus

Ex parte Quirin

• Lawsuit that occurs after German spies land on beaches on the East Coast and are captured. One is discovered to be an American citizen
• Unanimous opinion by Justice Stone concluded the accused were enemy combatants and under the Articles of War could try them in military tribunal

• Executive privilege is only alloed in criminal suites (Nixon), not civil suits (Cheney)
• Presidents have immunity in civil suits