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Flashcards in Final Deck (42):

National League of Cities v. Usery

  • May Congress, acting under the Commerce Clause, regulate the labor market of state employees, which the tenth amendment holds for the states? 
  • The Court does not doubt that there are limits upon the power of Congress to override state sovereignty, even when exercising its otherwise constitutional powers. 
  • Upheld the 10th amendment and held that some state entitites are immune from some federal regulations. 


War Powers Act of 1973

  • A compromise between those who favored congressional supremacy i this area and those who simply favored greater and more effective congressional participation in the policymaking process.
  • Called for presidential "consultation" in every possible instance with Congress when American troops would be placed in harm's way. 
  • Although presidents have complied they maintain that they are not constitutionally required to do so


Veto of the War Powers Resolution

  • Believed the resolution imposed upon the authority of the President 
  • and unconstitutional and dangerous to the interests of our nation


US v. US District Court (The Keith Cases)

  • During pretrial motions it was revealed that the defendants were illegally wiretapped
  • Justice Department argued that the warrantless surveillance was lawful as a reasonable exercise of the president's independent Article II power to protect the national security
  • 8-0 opinion found the government's internal security concerns did not jstify departure from customary judicial approval prior to initiation of a search or surveillance 


US v. Nixon

  • Raised a separation of powers question
  • 1-3 in the Supreme Court on executive privilege 


South Dakota v. Dole (1987)

  • Minimum drinking age amendment allowed Secreatry of Transportation Elizabeth Dole to withold highway funds for noncompliance 
  • South Dakota sought an injunction under the invalid exercise of the congressional spending power and a violation of the 21st amendment
  • 7-2 decision, upheld Congress' power to use the spending power in this way


Garcia v. San Antonio Metro Transit Authority et al.

  • Transit Authority felt they were immune from Fair Labor Standards Act and would not comply with its overtime provisions
  • The Supreme Court remanded district court decision upholding the exemption from FLSA


Immigration and Naturalization Service v. Chadha

  • Question on constitutionality of the legislative veto
  • 6-3 decision struck down legislative veto


City of Boerne v. Flores (1997)

  • Can Congress legislatively override the interpretation of the Constitution that the Court has made? 
  • Tried to override the Smith decision and return to the Sherbert Test
  • Court decides that Congress has the power to enforce not to determine what constitutes a Constitutional violation 
  • The Constitution is preserved best when each part of the goernment respects both the Constitution and the proper actions and determinations of the other branches


US v. Lopez (1995)

  • Sixty-year trend of no limits on the federal power to regulate interstate commerce 
  • Declared Congress had no power to pass the Gun-Free School Zones Act of 1990
  • Crucial question of whether this case signals a serious effort to declare sharp limitations on federal power 


Gonzales v. Raich (2005)

  • Does the Controlled Substance Act exceed Congress' power under the commerce clause as applied to the intrastate cultivation and possession of marijuana for medical use?
  • 6-3 opinion delivered by Justice Stevens held that the commerce clause gave Congress authority to porhibit the local cultivation and use of marijuana, despite state law to the contrary.
  • Court's reasoning established Congress' commerce clause power to regulate purely local activities that take part in a "class of activities" with a substancial effect on interstate commerce


US v. Morrison (2000)

  • Notable for being the first after Lopez in which the Court struck down a federal law on comerce clause grounds 
  • Only cases were upheld when commerce clause regulations of interstate activity only where that activity is economic in nature 
  • Rejected the use of the commerce clause and section 5 of the 14th amendment


Printz v. US (1997)

  • Challenges the constitutionality of mandatory background checks for gun purchases
  • 5-4 decision striking down provision of the Brady Act as inconsistent with the anticommandeering principles of the federal system


Alden v. Maine (1999)

  • Group of state officers sued for violations of the overtime provisions of the Federal Fair Labor Standards Act
  • Held that a provision of the FLSA authorizing such private suits against the state government in state courts without state consent was unconstitutional 
  • In general, the state sovereign immunity cases narrowed the ability of individuals to win monetary awards from state governments based on violations of federal statutes that did not relate to civil rights
  • Congress still had ways to enforce such statutory requirements against the states, including persuading states to waive their sovereign immunity


Yoo, memo on the president's authority to conduct military operations

  • The President has broad constitutional powers
  • Has power to retaliate against terrorist attacks
  • President ay deploy military force preemptively against terrorist organizations or the State that harbor or support them
  • The due process clause has no application to the conduct of a military campaign


Torture Memos

  • Geneva convention did not apply at all as a legal matter because we were not involved in uniform enemy combatants 
  • Only concern lies with US law
    • Prohibits acts aimed to inflict severe pain which rise to the level of organ failure, prohibition of bodily functions, or death
  • The statute does not apply, the President has authority to order interrogation of enemy combatants 
  • Constitutional power of comander-in-chief trumps everything 


Levin Torture Memo

  • Supposed to replace the Bybee and Yoo memos after they became so controversial
  • States that discussion in previous memos was unnecessary


Krass Memo

  • 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 v. Rumsfeld

  • 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


Cheney v. US District Court for the District of Columbia

  • 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


Nixon: Speech Accepting Republican Nomination (1968)

  • 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


Nixon Legacy of Distrust

  • 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.


State Soverignty Limits on Commerce Regulation

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


Judicial Supremacy of Departmentalism

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



Restraint or Activism

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


The Problem with Originalism/Textualism


  • 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


President Regan

  • "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


Court Curbing and Stalling Confirmations 

  • 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 


Ideology and the Bork Confirmation 

  • 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


The Nuclear Option

  • 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


Unitary Executive

  • 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


Signing Statements

  • 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


Fiscal Federalism

  • 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 


Legislative Veto

  • 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 v. Functionalist

  • 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 


Commerce Clause

  • 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


State Sovereign Immunity

  • 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


Line-item Veto

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


Presidential War Powers

  • 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


War and Habeas Corpus

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 

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