The Constitution Flashcards
(21 cards)
Example of Constitution fit for Purpose (Separation of Powers)
Congress passed the Stolen Valour Act of 2005, punishing those who misrepresent that they have received high military honours.
In 2012, the Supreme Court ruled that the Act was unconstitutional because it infringed on the right to free speech protected by the First Amendment.
As a result of this, President Obama took action within a month of the SC’s decision, establishing a government-funded national database of medal citations to enable verification of military honours.
Example of Constitution not fit for Purpose (Separation of Powers) 1
The judiciary has been accused of becoming “imperial” and overstepping its mark as 9 unelected individuals, as a result of their power of judicial review (which wasn’t granted by the Constitution), have the power to strike down any laws that they deem unconstitutional.
They also arguably interfere in many issues considered local, such as Obergefell v Hodges (gay marriage), Gonzales v Carhart (abortion).
Their ability to enact social change as an unelected body and interfere an issue that is arguably local has consolidated this image of an imperial judiciary.
Example of Constitution not fit for Purpose (Separation of Powers) 2
The Presidency too has been deemed “imperial” in recent years due the phenomenon where Presidents have effectively exploited their role as Commander-in Chief in overtaking Congress’ constitutional power of being able to declare war, which it has not used since 1941 on Japan.
The Obama administration for instance has been characterised by power, secrecy and illegality, illustrated by its excessive use of drone strikes in the Middle-East that exceeded 2,400 and having no Congressional supervision.
Example of Constitution fit for Purpose (Checks and Balances) 1
The ‘power of the purse’ played a major role in recent times when taking into consideration the “partial” government shutdown that began in December 2018 due to Congress refusing to pass 25% of government spending, including $5 billion to build the US-Mexico border wall, which the Democrats have refused to fund.
Example of Constitution not fit for Purpose (Checks and Balances) 1
Despite the magnitude of its ramifications, President Trump was able to bypass Congress’ check by declaring a national emergency on the border with Mexico in February in order to access billions of dollars (from defence) that Congress refused to grant him to construct a wall there.
Example of Constitution fit for Purpose (Checks and Balances) 2
In 2017, in the case of State of Washington v Donald J. Trump, the federal courts placed a temporary restraining order on Trump’s executive order that banned people from 7 Muslim-majority countries from entering the US.
Example of Constitution not fit for Purpose (Checks and Balances) 2
The fact that the President nominates Supreme Court justices in the first place has given room for politicisation in the judiciary. With Trump’s successful confirmation of Brett Kavanaugh to the Supreme Court in 2018 following the retirement of long-time “swing” justice Anthony Kennedy, the SC entered and age of a solid 5-4 conservative majority.
Example of Constitution fit for Purpose (Federalism) 1
In Printz v. United States (1997), the US Supreme Court struck down provisions of the federal Brady Handgun Violence Prevention Act for unconstitutionally intruding on state sovereignty under the Tenth Amendment.
Example of Constitution fit for Purpose (Federalism) 2
In United States v. Morrison (2000) the SC ruled that parts of the Violence Against Women Act of 1994 were unconstitutional because they exceeded congressional power under the Commerce Clause and under the Fourteenth Amendment.
Example of Constitution not fit for Purpose (Federalism) 1
The most controversial legislative programme was the Patient Protection and Affordable Care Act which passed in 2010, requiring that all adult citizens carry health insurance, or face tax penalties.
In the exit polls at the 2010 mid-terms, 74% of Republicans and 60% of independents agreed that “the federal government is doing too many things better left to businesses and individuals”.
Effective Executive Check on Legislative
Under Article 2 of the Constitution, the President is able to refuse to approve a bill or joint resolution and thus prevent its enactment into law; this is known as a veto.
The most effective type of veto is the pocket veto as it is absolute and cannot be overridden by Congress (unlike a regular veto).
It becomes effective when the President fails to sign a bill after Congress has adjourned for a 10-day and is unable to override it.
E.g. in 2007, President Bush used a pocket veto to reject a sweeping defence bill because the language of the bill would unfairly expose the democratically elected government of post-2003 Iraq to lawsuits arising from the crimes and atrocities committed by Saddam Hussein.
Effective Legislative Check on Executive
On one hand, Congress holds the ‘power of the purse’ (Article 1, Section 8 and 9 of the Constitution) which means that Federal Budget must be gain congressional approval in order to be authorised.
It has also played a major role in recent times when taking into consideration the “partial” government shutdown that began in December 2018 due to Congress refusing to pass 25% of government spending, including $5 billion to build the US-Mexico border wall, which the Democrats have refused to fund.
Effective Legislative Check on Executive (Evaluation)
On the other hand, despite the magnitude of its ramifications, President Trump was able to bypass Congress’ check by declaring a national emergency on the border with Mexico in February in order to access billion of dollars (from defence) that Congress refused to grant him to construct a wall there.
Effective Legislature Check on Judiciary
Congress has the power of impeachment, trial and removal of office.
E.g. in 2010, the House of Representatives impeached federal judge Thomas Porteous for corruption, and following guilty verdicts in the Senate on 4 counts, Judge Porteous was impeached from office later than year
Effective Legislature Check on Judiciary (Evaluation)
Its power to propose constitutional amendments to overturn a decision of the SC has lately proven to be ineffective.
Following a controversial ruling by the SC on the subject of campaign finance in 2010, Senator Tom Udall introduced a proposed constitutional amendment to reverse the effects of this decision. However, the amendment got no further than an unsuccessful vote on the Senate floor.
Effective Judiciary Check on Legislature
The most significant power over Congress which the SC possesses is that of judicial review; this is the power of the court to declare Acts of Congress to be unconstitutional and therefore null and void.
E.g. In 2015, Obergefell v Hodges (2015), the Supreme Court found state laws banning same-sex marriage to be unconstitutional by a 5-to-4 vote. This held that the Due Process Law Clause of the Fourteenth Amendment protects the right to marry as a fundamental liberty and that the protection applies to same-sex couples.
Effective Judiciary Check on Legislature (Evaluation)
Judicial decisions are also not immune from congressional scrutiny, with Congress having found out ways to intervene directly in judicial-decision making.
For example, tired of judges imposing widely disparate sentences for the same crimes, Congress in 1984 created the US Sentencing Commission to standardise sentences nationwide.
In addition to this, there have also been 40 measures introduced in the House of Representatives aimed at stripping jurisdiction from the federal courts on issues such as voting rights, abortion, immigration, and marriage equality.
Effective Judiciary Check on Executive
The courts have the same power of judicial review over the executive branch as the legislative branch.
E.g. in 2017, in the case of State of Washington v Donald J. Trump, the federal courts placed a temporary restraining order on Trump’s executive order that banned people from 7 Muslim-majority countries from entering the US.
Effective Judiciary Check on Executive (Evaluation)
The fact that the President nominates Supreme Court justices in the first place has given room for politicisation in the judiciary. With Trump’s successful confirmation of Brett Kavanaugh to the Supreme Court in 2018 following the retirement of long-time “swing” justice Anthony Kennedy, the SC entered and age of a solid 5-4 conservative majority.
This deteriorates the ability of the judiciary to successfully check the executive due to its lack of empirical political neutrality, given that it is now mostly ideologically aligned with the executive.
Effective Executive Check on Judiciary
The President has the power to grant reprieves and pardons for offences against the United States.
This is one of the least limited powers granted by Constitution to the President as it completely wipes out the legal effects of a conviction.
E.g. In 2019, Trump issued a full pardon to his long-time friend and business associate Conrad Black, a former media mogul who was convicted in 2007 of obstruction of justice and fraud for swindling shareholders of his company.
Effective Executive Check on Judiciary (Evaluation)
This check on the judiciary is limited by the fact that the President is unable to pardon himself in the event of his impeachment.
E.g. Clinton was impeached in 1998, charged with lying under oath to a federal grand jury and obstructing justice.
