LAW 404 Final Study Guide | Verified with 100% Correct Answers

LAW 404 Final Study Guide | Verified with 100% Correct Answers 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. Which of the following best describes the position of those that defend independent agencies? Because administrative agencies make decisions on objective technical knowledge, Congress should be able to shield agency officials from the President's political motives. What is the constitutional basis for the President's removal power? The Constitution is silent on the President's ability to remove appointed officers. Which of the following may be the single most important power that modern Presidents exercise? Setting enforcement priorities. In a "true" Take Care Clause case, what is the issue? Whether the President has failed to in his obligation to faithfully execute the laws. Why are courts so reluctant to review presidential non-enforcement decisions? Setting enforcement priorities involves complex tradeoffs and Presidents have access to far better information. What role does Article III play in maintaining the separation of powers? It limits the courts to remedying "particularized" harms, leaving general ideological grievances to the political process. Who may ask a federal court for an advisory opinion? No one. why does the Supreme Court seldom stray too far from the views of popular majorities? Fears of political backlash, budget cuts, and increased caseloads generally cause Supreme Court justices to adhere to the views of popular majorities over the long run. What is the main question of institutional choice in any individual rights case? Whether the political process or the courts are best suited to making a particular decision. What individual rights are protected against the federal government, and which are protected against state governments? The Bill of Rights and the 14th Amendment are (mostly) protected against both the federal government and states. What do separation of powers and individual rights share in common? Both present a question of institutional choice between different branches of government. Why is Congress allowed to regulate campaign contributions? (Select all that apply). To avoid the appearance of corruption by quid pro quo contributions. To avoid corruption induced by quid pro quo contributions. Which of the following is the government generally permitted to regulate? Campaign contributions. Did BCRA ban all corporation and union electioneering expenditures? No, but it prohibited them from spending funds from their general treasuries on electioneering expenditures. What was the original purpose of the Reconstruction Amendments? To protect the rights and rights and freedoms of formerly enslaved persons. How were the Reconstruction Amendments enforced for the first 100 years of their existence? After a brief period of rigorous enforcement, they weren't. What judicial standard applies to most equal protection claims? Rational basis review What was the practical effect of the decision in Brown v. Board of Education on the ground? The practical impact was limited. Government actions that discriminate on the basis of race is subject to what level of scrutiny? The "most rigid scrutiny," or strict scrutiny. Which of the following first suggested the possibility of applying a higher level of judicial scrutiny to laws burdening disfavored minorities? (select all that apply). The famous "Footnote Four." Brown v. Board of Education Korematsu v. United States What is the purpose of the means-end fit requirement of heightened scrutiny? It ensures that the challenged discrimination is really necessary and smokes out impermissible government purposes. After U.S. v. Virginia, how does the level of scrutiny applicable to sex-discrimination claims compare to that of race-discrimination claims? Sex-discrimination claims are evaluated by a standard almost, but not quite, as strict as that of race-discrimination claims. What is the institutional logic behind the Court's extension of heightened scrutiny to sex discrimination? Entrenched barriers like stereotypes and gender-based social norms tend to systematically undervalue women's interests in the political process, which federal courts are insulated from. In individual rights cases, what do plaintiffs nearly always argue? The government's action should be subject to heightened scrutiny. What hotly contested question arises in most difficult individual rights cases? Which standard of review should the government's action be subject to? In individual rights cases, what does the government nearly always argue? Its action should be subject to rational basis review. What is the rule for identifying discrimination that triggers heightened scrutiny? Only intentional discrimination triggers heightened scrutiny. Why is the intentional discrimination requirement more easily stated than applied? It is difficult to ascertain what it means for the government to be motivated by a discriminatory purpose. What is a facially discriminatory law? A law that explicitly treats persons differently based on a suspect classification. What is the purpose of executive privilege? It provides crucial protection for vital relationships between the President and close advisors. What are the main institutional disputes in CREW v. Trump? Mark all that apply. Whether Congress or the President should make decisions in this area. Whether the courts are competent to make an institutional choice in this case. What is the main textual dispute in CREW v. Trump? Whether emolument should be defined broadly or narrowly. In a criminal case, the presidential interest in confidentiality does not outweigh the interests of the court... Absent some particularized need for secrecy. Will a court's interest in conducting a fair and open civil trial be a strong enough reason to over-ride executive privilege? Time will tell. Which of the following is NOT part of Justice Jackson's 3-part framework? When the President acts with the support of the courts, no one may question the action. True or false: there is a great deal of case law on the military and foreign affairs powers of the President? False The general consensus is that presidential powers are governed by what kind of rule? A German rule. What is a substantial cost of executive privilege? Mark all that apply It creates a temptation for the President to cover-up illegal acts. It deprives the court of essential information. True or false: seldom litigated means unimportant. False Because the Foreign Emoluments Clause has been seldom litigated, future cases are likely to be... Hard, because there is less case law to guide future decisions. What is the big question when it comes to presidential powers? How broadly a statutory or constitutional grant of authority should be interpreted. The Take Care clause imposes a(n) ----- duty and grants a(n) ----- power. (Fill in the blanks) explicit; implied Which of the following best characterizes courts' review of executive decisions of non-enforcement? Courts review these decisions very deferentially. Aside from injury, what other two requirements must a plaintiff meet to establish Article III standing? Causation and redressability. In removal power cases, the courts have generally favored... Impartial expertise. The removal power is... Central to the President's power to control the federal bureaucracy, and thus the President's Article II powers. In effect, all real-world delegations of rulemaking authority are... Constitutional. What is an imminent injury? One that is certainly impending or involves a "substantial risk" of harm. The modern administrative state is... Absolutely central to modern government. Are delegations of rulemaking authority treated as a delegation of legislative power or as grants of executive power? Grants of executive power. What is the question of institutional choice in removal power cases? Presidential control vs. politically isolated agencies. When is a plaintiff most likely to win on a claim that the President violated the Take Care clause? When the President engaged in an EXTREME instance of non-enforcement. How does the exercise of executive discretion to set enforcement priorities relate to the congressional policy underlying any such law? The Executive's exercise of that discretion must be consonant with, not contrary to, the congressional policy underlying the law. What is the most fundamental question raised by the development of the modern administrative state? Whether the development of the administrative state is constitutional. What type of injury must a plaintiff allege to establish Article III standing? A concrete, particularized, and imminent injury. Which of the following is NOT part of the three-part rule that defines the removal power? Any presidential removal must be made with the advice and consent of Congress. How does Article III standing relate to the question of institutional choice? Standing criteria defines which decisions can be made by courts and which must be left to the political process. How is racial discrimination currently defined by the Court? It's defined as any racial classification and includes laws that burden whites. After Citizens United, what must the government prove to prevail in a First Amendment challenge to a restriction on spending money in connection with political campaigns? The government must prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest. Under most Equal Protection cases, which of the following is true? The prohibition of the Equal Protection Clause goes no further than the invidious (i.e., unjust or malicious) discrimination. How has Citizens United influenced campaign finance reform? Citizens United and its progeny have created a formidable obstacle to meaningful campaign finance reform. Most Equal Protection challenges are analyzed under what standard of review? Rational basis Which of the following best characterizes rational basis review? It is a VERY deferential standard. When does regulation of money trigger First Amendment concerns? Money triggers First Amendment concerns only when it is used to facilitate speech, like when money is spent to run a political ad on television. Which case is the first modern Equal Protection decision? Brown v. Board of Education For how long has the Supreme Court vigorously protected freedom of speech? Only relatively recently. What is the standard of "rational basis review"? Courts will defer to the political process unless a challenged classification has "no rational relation" to a legitimate governmental objective. What is the question of institutional choice in Equal Protection cases? Whether the courts or the political process should determine which classifications are permissible.