Question 1

Limits of Powers

Accepted Answer

Federalism, Individual Rights, Separation of Powers

Question 2

Expressed Powers vs Implied

Accepted Answer

- expressed: stated in the constitution
- implied: not stated in the constitution

Question 3

Sources of legislative proposals

Accepted Answer

- Individual Members, Committees and Subcommittees, Informal Groups, Executive Branch, State and Local Government, Supreme Court, Foreign Governments, Constituents, Advocacy and Lobby Groups, Press

Question 4

Congressional Oversight

Accepted Answer

- It is broadly defined as reviewing, monitoring, and supervising the implementation of laws and public policy by the executive branch.
- Investigating how a statute is being administered enables Congress to assess whether federal agencies and departments are administering programs in an effective, efficient, and economical manner.

Question 5

Where does congress get the power to conduct Oversight?

Accepted Answer

Congress's authority to conduct oversight comes from four overlapping sources:
1. The Constitution;
2. Supreme Court decisions;
3. Specific Federal Laws;
4. and House and Senate rules.

Question 6

Purposes of Oversight

Accepted Answer

- Assess Agency or Officials' Ability to Manage and Implement Program Objectives, Ensure Executive Compliance with Legislative Intent, Improve the Efficiency, Effectiveness, and Economy of Governmental Operations, Evaluate Program Performance, Prevent Executive Encroachment on Legislative Prerogatives and Powers, Investigate Abuse, Waste, Dishonesty, and Fraud, Review and Determine Federal Financial Priorities, Ensure That Executive Policies Reflect the Public Interest, Protect Individual Rights and Liberties

Question 7

How broad is the authority to Perform Oversight and Investigative Inquiries?

Accepted Answer

- The Supreme Court has said: There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress . . . nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress.

- Key Point: There must be a legislative purpose to what Congress is doing.

- Ex: Trump Tax Returns

- Key Point: There must be a legislative purpose to what Congress is doing.

- Ex: Trump Tax Returns

Question 8

Congressional Control of policy and its limits

Accepted Answer

- Can Congress grant itself power to act in an executive capacity? NO (ex: Bowsher v. synar (1986))
- Can congress require the supreme court to reopen a case once it made a final decision? NO (ex: Plaut v. spendthrift farm, inc. (1995))
*In order for the government to exist everybody needs to follow the rules (Rule of Law) Ex: If people do not follow the rules the government struggles (civil war: did not agree with no slavery)

Question 9

Separation of Powers

Accepted Answer

...

Question 10

What are the presidents powers?

Accepted Answer

- The constitution, article II, Section I, Clause I states:
- The executive Power shall be vested in a President of the United States of America
- Foreign Powers: Treaties, Executive agreements, Power recognition, War powers
- Domestic Powers: Execute the Law, Appointment and removal, Judicial power, Legislative powers

Question 11

What did the Framers of the Constitution define "executive power?"

Accepted Answer

- Hardest power for the framers to define
- Carry and effect the law
- Appoint officers to enforcing the law
- the president has all the executive power
- headed by a single individual
- Includes domestic and foreign powers:

Question 12

Execute the Law

Accepted Answer

- The Take Care Clause: The President shall take Care that the Laws be faithfully executed(Article II Section 3)
- The Take Care Clause imposes a "duty" upon the President and also provides a source of presidential "power."

Question 13

The Take Care Clause

Accepted Answer

- Establishes Presidential Control Over Law Enforcement

- PROSECUTORIAL DISCRETION: the longstanding authority of an agency charged with enforcing the law to decide where to focus its resources and whether or how to enforce, or not to enforce, the law against an individual.

o applies to the police and the district attorneys

o Choosing who will be prosecuted and who is not

o Police are humans (have their own biases/ prejudices)

o The problem is when prosecutional discretion becomes targative ex: police being racist

- AN IMPORTANT ASPECT OF THE TAKE CARE CLAUSE IS PROSECUTORIAL DISCRETION

Question 14

Can a President Choose to Not Enforce the Law?

Accepted Answer

- It takes a lot of money to send people to enforce the law in every state (ex: Marijuana is federally illegal)

Question 15

What is Prosecutorial Discretion?

Accepted Answer

- The term "prosecutorial discretion" refers to the power that government prosecuting attorneys have to decide whether or not to charge a person for a crime, and which criminal charges to file.
- Choose what to charge you with

Question 16

HOW MUCH DISCRETION DO PROSECUTORS REALLY HAVE?

Accepted Answer

- They have a lot and sometimes the public does not support the decision made
- Example: Did the prosecutor get it right in the Jessie Smollett case? Dropped charges on Jessie Smollett(staged and lied about being a victim of a hate crime) because he bailed and did community service, That state attorney general has the power alone to decide to bring this guy to trial or not (people of power can influence that one official seen here in texts)
- Example: Did the prosecutor get it right in the Breonna Taylor case? Only charged with endangering the lives of people in the neighboring apartments, prosecutor choose not to charge on murder of Taylor

Question 17

Prosecutor's Job

Accepted Answer

- Prosecutors decide: When to bring a case or drop charges, How and whether the prosecute, What level of charges and sentences to pursue?
- Prosecutors are elected by the people
- Prosecutors force people to accept plea bargains, have an enormous amount of power
- Prosecutors can decide life and death of a person, and greatly directly affect their future
- Both sides of the political spectrum can agree on limiting their power because they are too powerful
- Adversarial System and Inquisitorial System

Question 18

Adversarial System

Accepted Answer

prosecutor vs defendant (prosecutors want to win their case and also do justice), they are compromised

Question 19

Inquisitorial System

Accepted Answer

more about seeking justice, people talk it out and consider what is done not fight with the defendant

Question 20

Who Are America's Prosecutors?

Accepted Answer

- 79% WHITE MALES, 16% WHITE WOMAN, 4% MEN OF COLOR, 1% WOMEN OF COLOR
- There is a gender disparity of who are prosecutors
- The people who are enforcing the law at the state level are not a true reflection of the states demographic
- African American youths are 9 times and Latino youth are 4 times more likely than a white youth to receive an adult prison sentence for the same crime (This is enough of the disparity to ask if this gender disparity of district attorneys)

Question 21

Does the Gender disparity of prosecutors associate with the systematic incarcerated population?

Accepted Answer

- This is multicausal
- Laws can be colorblind/ biased
- Police enforcement: biased
- Prosecutorial discretion

Question 22

ARE THERE LIMITS TO A PROSECUTOR'S DISCRETION?

Accepted Answer

- Although prosecutorial discretion is broad, it is not "unfettered."
- The determination of whether to prosecute may not be based upon "race, religion, or other arbitrary classification," or infringe individual constitutional rights.

Question 23

IS THERE A RISK TO SOCIETY BY GIVING SO MUCH DISCRETION (THAT IS, POWER) TO A PROSECUTOR?

Accepted Answer

- Resources/Socio-economic position in society plays a huge part in fighting implicit bias by prosecutors

Question 24

PROSECUTORIAL MISCONDUCT

Accepted Answer

- When the prosecutor does something they are not supposed to do, the prosecutor can get away with it if its prejudicial, someone was biased
- Prosecutors have a special duty - imposed not only by their professional obligations but the Constitution itself - to ensure fairness in a criminal case.
- They engage in prosecutorial misconduct when they improperly or illegally act (or fail to act, when required to do so) in a way that causes a defendant to be wrongfully convicted or punished unjustifiably.
- Prosecutorial misconduct comes in many forms: criminal case, to deciding what charges to seek, to recommending a sentence after conviction - and prosecutorial misconduct can infect any stage of this process.

Question 25

Examples of Prosecutorial Misconduct

Accepted Answer

- "entrapment" - inducing a person to commit a crime who was not otherwise disposed to commit it, Making statements to the media that prejudice the jury pool, o Failing to turn over exculpatory evidence, Tampering with evidence, Knowingly presenting false witness testimony or other false evidence to a court or grand jury.
- Could the prosecutor be charged for a crime? YES

Question 26

Can prosecutors be held liable for their decisions or even misconduct?

Accepted Answer

- Prosecutorial immunity is the absolute immunity (that is, protection) from civil liability that prosecutors have in initiating a prosecution and presenting the state's case.

- The Supreme Court in 1976 ruled that prosecutors cannot face civil lawsuits for prosecutorial abuses, no matter how severe.”

Question 27

WHAT ARE EXECUTIVE ORDERS?

Accepted Answer

- Is not a law but carries the weight of a law
- President's issue this alone then go to judicial review
- An executive order is a signed, written, and published directive from the President of the United States that manages operations of the executive branch of the federal government.
- Every American president has issued at least one, totaling more than (as of this writing) 13,731 since George Washington took office in 1789.
- The authority for the president to issue executive orders is rooted in Article 2, Section 3 of the Constitution, which states that the president "shall take care that the laws be faithfully executed."
- Franklin D. Roosevelt issued the most executive orders as president
- Federal courts have created rules as to when executive orders should be overturned, though this happens rarely
- Presidents have increasingly tuned to executive orders when their policy priorities stall in congress

Question 28

How does the executive branch make law?

Accepted Answer

- Propose legislation to congress
- through agency rulemaking (main way they do it)
- negotiate foreign treaties
- issue executive orders (main way they do it)

Question 29

Do executive Orders have any Limits?

Accepted Answer

- Congress can pass a statue that can proceed the executive order/ congress and supreme court can overturn an executive order (ex: challenge to the Biden vaccine mandate)
- EX: YOUNGSTOWN SHEET & TUBE CO. V. SAWYER (1952), TRUMP'S EXECUTIVE ORDER BANNING TIK TOK

Question 30

How does the executive branch make law?

Accepted Answer

- Issues executive orders
- Through administrative agency rulemaking
- Propose legislation to Congress
- Negotiate foreign treaties

Question 31

What are administrative agencies?

Accepted Answer

- A government body authorized to implement legislative directives by developing more precise and technical rules than possible in a legislative setting.

- There is no one all-encompassing definition of an agency. Instead, the term “agency” can mean different things in different contexts, depending on what statute is at issue.

- The most important definition of “agency” is found in the federal Administrative Procedure Act (APA). The APA provides the “default” procedures that agencies must follow when conducting rulemaking and adjudications unless an agency’s organic statute provides for other procedures. “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—the Congress; the courts of the United States; the governments of the territories or possessions of the United States; the government of the District of Columbia; or [...].

Question 32

What is an "authority"(power to enforce the rules)

Accepted Answer

- "whether the arm [of government] has the authority to act with the sanction of the Government behind it."
- The definition includes all executive branch agencies, including the independent regulatory agencies, even those that are within another authority.
- For example, the DOJ is an agency composed of a number of subunits, such as the Drug Enforcement Administration, the Federal Bureau of Investigation, and the Federal Bureau of Prisons. Each of these divisions is an agency insofar as it is an "authority" of the government.

Question 33

Types of administrative agencies

Accepted Answer

- Executive departments
- Independent Agencies

Question 34

Executive Departments

Accepted Answer

- The federal executive departments are the principal units of the executive branch of the federal government.
- Departments are led by Cabinet secretaries.
- The president can fire the cabinet officials but not the head of the independent agencies
- We don't want politics effecting these agencies (example: politics influence in space exploration)

Question 35

Independent Agencies

Accepted Answer

- These are governmental bodies that exist outside of the federal executive departments.
- They are somewhat insulated from presidential control because the president's power to dismiss the agency head or a member is limited.
- Purpose is to isolate these governments from politics
- Independent Executive Agencies: Subject to presidential control, Similar to cabinet departments, Organized much like cabinet departments but don't have cabinet status Ex: NASA, Environmental Protection Agency
- Independent Regulatory Commission: Very protected from being fired by the president, Are federal agencies created by an act of congress that are independent of the executive departments, These agencies are meant to impose and enforce regulations free of political influence
- Government Cooperation's: Subject to presidential control, Set up to carry out business functions, Ex: post office

Question 36

Why congress creates administrative agencies?

Accepted Answer

- Although the Constitution gave all lawmaking powers to the Congress, Congress has in turn delegated some of those powers to the executive branch of the federal government.
- When Congress passes a law, it often directs the President, members of the President's Cabinet, or other lower officials to create regulations.
- Regulations are created in a different manner than the statutes created by Congress, but regulations also have the force of law because they are created with the authority of Congress.
- To delegate rulemaking authority to those with a significant amount of expertise who can "fill in" technical details of programs that Congress created in statute.
- Congress simply does not have the same depth of expertise that agencies may have.
- Delegating authority to agencies can enable Congress to focus on "big picture" issues rather than spending its time and resources debating all the technical details required to fully implement a complex public policy.

Question 37

Congressional Authority to Create Administration Agencies

Accepted Answer

- The Constitution neither establishes administrative agencies nor explicitly prescribes the manner by which they may be created.
- The Supreme Court, though, has recognized that Congress has broad constitutional authority over the establishment and shape of the federal bureaucracy.
- This power stems principally from the combination of: (congress is to create the judicial branch, congress became the judicial branch) Article II, Section 2, which authorizes the appointment of "officers" to positions "which shall be established by law"; and Article I, Section 8 (enumerated powers)

Question 38

Are there any limits to Congress's power to create agencies?

Accepted Answer

- It is a principle of constitutional and administrative law that holds that legislative bodies cannot delegate their legislative powers to executive agencies or private entities. [back then congress want needed that much because we didn’t have this advancement in technology (Creation of transportation, NASA)]

- In other words, lawmakers cannot allow others to make laws.

- The doctrine is designed to protect Congress’s lawmaking role within the separation of powers and, ultimately, to protect against a tyrannical consolidation of power in the executive branch.

Question 39

How can congress delegate authority to agencies given the nondelegation clause?

Accepted Answer

- A statutory delegation is constitutional as long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform."
- The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion.
- So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides.
- Congress needs to give the agencies a very precise rules in congresses' vision

Question 40

What Administrative Agencies Do

Accepted Answer

Act as all 3 branches of government
- Rulemaking function(legislative): Study a particular social problem, Formulate a draft of administrative rules, Solicit public comments on proposed rules, Promulgate rules
- Enforcement function(executive): investigative alleged instance where laws or rules are violated, Impose sanctions or orders to cease and desist
- Adjudicatory function(judicial): Hear cases of alleged law or rule violations brought by the agency, Issue ruling as to the facts and an order regarding the application of the law or rule to the facts, Provide opportunity to appeal
- Are agencies effectively the "fourth branch" of government?

Question 41

How is the executive bureaucracy controlled?

Accepted Answer

- Federal executive departments and administrative agencies create a vast bureaucracy
- What is a Bureaucracy? A bureaucracy is a group of non-elected officials within a government or other institution that implements the rules, laws, ideas, and functions of their institution.

Question 42

Creating the Federal Judiciary

Accepted Answer

- Article III, Section 1, of the Constitution
- The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish (up to congress to establish the courts, if congress wanted there would be no federal courts just one supreme court)

Question 43

The U.S Supreme Court

Accepted Answer

- Currently has nine justices, one of whom is the chief justice
- Number of justices is set by statute
- President nominates, and Senate confirms
- Appointed for life
- No required qualifications

Question 44

Federal Judicial System

Accepted Answer

CA = 9th district

Question 45

The Judicial Role

Accepted Answer

- Judicial Review
- Interpreting Statutes
- Policymaking

Question 46

The Power of Judicial Review

Accepted Answer

- Judicial review is not only a potent tool for the judiciary—it is also a controversial one, in that unelected federal judges possess the power to undo the decisions of the branches that are theoretically the most responsive to the people.

- The Framers of the Constitution designed the judicial branch to be a countermajoritarian branch. Why? Effect? Puts the judicial at odds with the majority view, they are not supposed to make decisions of what the people want but what the constitution requires, The judiciary are independent, not effected by politics

Question 47

The "Countermajoritarian Difficulty" What is meant by the "Countermajoritarian Difficulty"?

Accepted Answer

- On one hand, an independent judiciary is needed to ensure that the core norms of our society, as embodied in the Constitution, are enforced against temporary populist interests

- On the other hand, when a court “declares unconstitutional a legislative act or the action of an elected executive, [the court] thwarts” the enforcement of an act that presumably reflects the will of the voters

- As a result, judicial review necessarily invites conflict with the political branches

Question 48

Constitutional Interpretation

Accepted Answer

- When deriving meaning from the text of the Constitution, the Supreme Court has relied on certain "methods" or "modes" of interpretation—that is, ways of figuring out a particular meaning of a provision within the Constitution.
- There is significant debate over which sources and methods of construction the Court should consult when interpreting the Constitution.
- Common Modes of Constitutional Interpretation: Textualism, Original meaning, Pragmatism, Judicial Precedent, Moral Reasoning, National Identity, Structuralism (Formalism, Functionalism), Historical Practices

Question 49

Textualism

Accepted Answer

- Textualism is a mode of legal interpretation that focuses on the plain meaning of the text of a legal document.
- Textualists usually believe there is an objective meaning of the text, and they do not typically inquire into questions regarding the intent of the drafters of the Constitution and its amendments when deriving meaning from the text.

Question 50

Original Meaning

Accepted Answer

- The original meaning approach considers the meaning of the Constitution at the time of the Founding in 1791.
- Originalists generally agree that the Constitution's text had an "objectively identifiable" or public meaning at the time of the Founding that has not changed over time, and the task of judges and Justices is to construct this original meaning.
- READ THE WORDS BUT UNDERSTAND THE WORDS IN THE WORLDS/ERAS THEY WERE WRITTEN (OPPOSITE TO THE PRAGMATIC APPROACH)
- "Living document"
- Loose constructionalism

Question 51

Pragmatism

Accepted Answer

- In contrast to textualist and some originalist approaches to constitutional interpretation, which generally focus on the words of the Constitution as understood by a certain group of people, pragmatist approaches consider the likely practical consequences of particular interpretations of the Constitution.
- That is, pragmatist approaches often involve the Court weighing or balancing the probable practical consequences of one interpretation of the Constitution against other interpretations.
- "originalism
- Strict constructionism

Question 52

Judicial Precedent

Accepted Answer

- The most commonly cited source of constitutional meaning is the Supreme Court's prior decisions on questions of constitutional law.
- Judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
- Although the Court routinely purports to rely upon precedent, it is difficult to say how often precedent has actually constrained the Court's decisions because the Justices plainly have latitude in how broadly or narrowly they choose to construe their prior decisions.

Question 53

Moral reasoning

Accepted Answer

- Another approach to constitutional interpretation is based on moral or ethical reasoning.
- Under this approach, some constitutional text makes reference to terms that are infused with certain moral concepts, such as "equal protection" or "due process of law."
- The moral or ethical arguments based on the text often pertain to the limits of government authority over the individual (i.e., individual rights).
- The Court has derived general moral principles from the broad language of the Fourteenth Amendment in cases involving state laws or actions affecting individual rights.

Question 54

National Identity

Accepted Answer

- Another approach to interpretation is judicial reasoning that relies on the concept of a "national ethos.
- This national ethos is defined as the unique character of American institutions, the American people's distinct national identity, and "the role within [the nation's public institutions] of the American people."

Question 55

Structuralism

Accepted Answer

- One of the most common modes of constitutional interpretation is based on the structure of the Constitution.
- Drawing inferences from the design of the Constitution gives rise to some of the most important relationships that everyone agrees the Constitution establishes—
- the relationships among the three branches of the federal government (commonly called separation of powers or checks and balances);
- the relationship between the federal and state governments (known as federalism); and
- the relationship between the government and the people.
- Two basic approaches seek to make sense of these relationships: Formalism(Posits that the Constitution sets forth all the ways in which federal power may be shared, allocated, or distributed) and Functionalism(Treats the Constitution's text as having firmly spelled out the relationship among the three federal branches only at their apexes, but otherwise left it to be worked out in practice how power may be distributed or shared below the apexes)

Question 56

Historical Practices

Accepted Answer

- Judicial precedents are not the only type of precedents that are arguably relevant to constitutional interpretation.
- Prior decisions of the political branches, particularly their long-established, historical practices, are an important source of constitutional meaning to many judges, academics, and lawyers.
- Courts have viewed historical practices as a source of the Constitution's meaning in cases involving questions about the separation of powers, federalism, and individual rights, particularly when the text provides no clear answer.

Question 57

Can the supreme court disregard precedent?

Accepted Answer

- Overruling incorrect precedents may be necessary to rectify egregiously wrong or unworkable decisions or to account for changes in the Court's or society's understandings of the facts underlying a legal issue.
- For example, the changed understanding of the stigmatic effect of racial segregation in public schools.

LAW 210 MIDTERM PART 4: Law Making Institutions

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