Constitutional Law (Powers): Spring 2020

What are the strongest arguments on either side of the Citizens United decision?

How would you describe these concepts of the “plenary power doctrine” and “public rights exception”? Why do you think that the president has, seemingly, gained more power over immigration policy in recent times?

Where do Chief Justice Roberts and Ruth Bader Ginsburg agree, and where do they disagree in the NFIB v. Sebelius opinions? More broadly, do you think the Court should limit the Commerce Clause, or should Congress be given broad authority over economic affairs?

How did the Clinton and Obama Administrations justify their decisions to engage in military action without the explicit approval of Congress? Were you convinced by their reasoning?

PS OLC stands for Office of Legal Counsel, which is basically the President’s legal team.

Describe two causes and two outcomes of “social movement litigation.” Do you think litigation is a viable strategy for social movements?

From the readings and the podcast, what would you identify as the major constitutional questions raised by congressional investigations of the executive branch? What are the Trump administration’s strongest and weakest arguments opposing these investigations?

As I warned you, the reading is tough. There are two main things I want us to get our heads around:

1) Arkes cites Antonin Scalia’s view that “the Congress has the authority to make laws, not legislators.” Why do you think he emphasizes this point so much, and why is it relevant to the New Deal?

2) What are Arkes’s criticisms of how the New Deal affected the Commerce Clause? [Hint – a bit of control-F might help you get to this quickly]

On both of these questions, we will discuss counter-arguments in class – try to start thinking of some here.

According to Lou Faulkner Williams, which aspects of Reconstruction elicited most resistance from white southerners? In which aspects do you think opponents of Reconstruction had their best and worst arguments?

Describe two of the unprecedented actions that Lincoln took during the Civil War. Do any of Lincoln’s actions strike you as an abuse of executive power?

Based on what you can deduce from both readings, highlight what you think are the strongest arguments for and against the following proposition: “The Original Constitution was Proslavery.”