Constitution 30 mark Qs

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separation of powers hinders effective government

  • INTRO:
  • political power in the USA is distributed between various institutions that exist at federal level. Power is exercised at state & federal level of government - Congress = power to pass or reject legislation / President = power to veto legislation passed by Congress / SC = power to uphold rights of citizens / States = power to exercise control within own jurisdictions 
  • each article of the US Constitution enumerated the powers of the various federal institutions & implications for the power of various states in the union 
  • FOR:
  • separation of powers, combined with checks and balances make it difficult for government to move forward with its political agenda - Obama particularly struggled - revealed in 2017 that Over the course of his eight years, he has signed just 1,227 bills into law — less, even, than one-term Presidents Carter and George H.W. Bush. Some analysts say a Congress with four years of divided control crippled Mr Obama, while others say the president failed to find ways to work with the legislature that voters gave him — particularly after the 2010 elections.
  • even when your own party dominates it's difficult - Obama faced criticism from Democrats & Republicans - had to make big concessions to get reforms through
  • in the UK there is no codified constitution & so too much power lies in hands of government - no hindering effective government in the UK 
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separation of powers continued

AGAINST

  • The constitution is very specific about powers of various political institutions in the USA - clear descriptions of the advice and consent powers of the US Senate in Article II - this does not mean the president is frequently unable to get his appointments ratified. The last time the Supreme Court was rejected by the Senate was over 20 years ago - Obama experienced difficulty in 2016, with Judge Garland's appointment - Republican dominated Senate refussed to hold hearings untill Garland's nomination expired - Similarly the power of Congress to  overturn a presidential veto is difficult to achieve and has been successful on relatively few occasions.
  • the constitutional separation of powers has failed to prevent political power becoming overly concentrated in the hands of the executive, which has grown in influence considerably over the past 70 years. In particular, there has been much debate on what Arthur Schlesenger described as the ‘imperial presidency’(two concerns: that the U.S. presidency was uncontrollable and that it had exceeded the constitutional limits) in response to the apparent accretion of presidential power in the 1960s. - analysis of this on other card
  • Founding Fathers created the constitution with an aim to providing limited government. In this respect the checks and balances of the US constitution provide for government that would be seen as effective through their eyes.
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Imperial Presidency - does it exist? - Separation

  • YES:
  • As staff numbers increased, many people were appointed who held personal loyalty to the President & not subject to approval from an outside body -  Bannon appointed - loyal to Trump
  • new advisory bodies developed around the presidency, many of which complemented the main cabinet departments, and the cabinet declined in influence - National Security Council & Office of Management and Budget
  • The Senate does not "advise and consent to" appointments to the Executive Office of the President (with only a handful of exceptions) - EOP staff may work independently and are not held accountable
  • NO:
  •  Executive Office of the President makes up only a very small part of the federal bureaucracy, with no institutional continuity, and the president has very little influence as to the appointment 
  • The organization and functioning of most of the federal government is determined by law, and the president thus little power to reorganize most of the federal government.
  • The growth in the size and the complexity of the federal bureaucracy limits Presidents power
  • A battery of post-Nixon controls on executive power, including transparency rules and "watchdog bureaucracies" such as the federal Inspectors General
  • increased willingness of bureaucrats to protest or "blow the whistle" on policies with which they disagree, with stronger protection for whistleblowing - John Tye - US State Department - released an editorial in Washington Post in 2014, highlighting concerns over data collection under Executive Order 12333  
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"Far from being rigid, the US Constitution is rema

INTRO:

The constitution was created by the founding father of the USA. At the time of writing, the Founding Fathers were keen to ensure that their constitution would stand the test of time, and would be free from meddling – they were keen to avoid “tyranny by the majority”, and wanted to make sure that any powerful political figures would not be able to change the fundamental law of the land on a whim. However, they did recognise that the constitution may need to adapt and change according to the times and so took care to detail a complex amendment process in Article 5 of the Constitution. The result of this care is the debate as to how flexible the constitution really is. 

FOR RIGID:

the fact that the constitution is laid down in a single, codified document, with each of the branches of the constitution having its powers (including the limitations of these powers) described in the various articles. - Article II describes power and limitations of Senate in great detail
the relative difficulty of amending the US constitution - outline this (look at 10 mark card for answer) - compared to the manner in which the UK constitution can be changed - The few constitutional amendments (27) in 205 years

rigidity renders the US constitution less flexible than the UK constitution (synoptic), and that US politics, in consequence, is less adaptable to changing economic, social and political circumstances - Gun Laws - many calls for gun laws in America to be changed following the Parkland, Florida School shooting (17 dead, 14 injured), however difficult to do due to difficulties in amending constitution & opposing views - in UK, following the Dunblane Primary School shooting in 1996, when all guns were banned - there has been no school shootings 

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far from being rigid - against

AGAINST RIGID - FLEXIBILITY 

However, the US constitution's vague wording which allows it to be interpreted by the Supreme Court justices for  a modern context

Article 1 includes something that we now call the elastic clause, or “necessary and proper clause”, which appears after the quite specific list of enumerated powers. This states that “Congress shall have the power to make all laws that are necessary and proper for carrying into execution the foregoing powers”. - the 2010 Supreme Court case of US vs Comstockexamined the claim by convicted sex offenders that Congress was acting ultra vires i.e. outside its given powers when it passed the Adam Walsh Act which restricted the movement of sex offenders. The Supreme Court found that Congress was able to pass this Act under the elastic clause because of its role in protecting citizens. This vague wording has effectively allowed the Supreme Court to grant itself the power of judicial review (following the 1803 Marbury v Madison case). The classic example is the 1973 Roe v Wade case in which the Supreme Court ruled that a woman had the right to an abortion, thus disallowing federal and state restrictions on abortion. The Court ruled that the 14th Amendment could be interpreted to mean that a woman had the right to personal liberty and therefore should have the chance to decide whether to continue with a pregnancy or not. Or the 2015 Obervegell v Hodges case that the right to marry is enshrined in the 14th Amendment’s Due Process Clause and Equal Protection Clause. unlikely the founding fathers would have thought about homosexuality as a key issue, but constitution can deal with this.

use of conventions in establishing political behaviour. Conventions of note include the regular January fixture of the State of the Union address given by the President, the use of signing statements by the President on legislation, executive orders, the existence of EXOP and the White House Office, the dress code of US Supreme Court justices, and so on. These conventions have been a necessary part of ensuring that the US political system has been able to continue functioning as the US has grown in size and complexity.

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Assess the significance of federalism in the USA.

INTRO:

Federalism involves the sharing of powers between different levels of government. In the United States, this relates to the government at a national level (the federal government) and those at the level of the state. Each having their own clear jurisdiction. One of the main focal points of Federalism is that it of decentralisation. This is a contrast to the UK which is unitary in character and where the nature and distribution of power are determined by parliament.

The US constitution was drafted in 178. The new constitution was a compromise after the first constitutional attempt (Articles of Confederation) failed to ensure a workable balance between the rights of the former colonies and the power of a central authority. The constitution was a balance for those that wanted to limit the power of the central government and let states have main control, against those that believe the country would benefit from a strong central government. The Founding Fathers had thought against the tyranny of their British rulers and so they were keen to avoid tyranny. As such the constitution was designed in a specific way giving the USA a federalist system which establishes; checks and balances as well as the powers of the federal and state governments as outlines (enumerated powers). This would call for federalism, therefore, to be considered significant. This argument can be contrasted with the noting of the shifts in federalism and their effect.

This essay will discuss these arguments, and conclude the extent to which federalism can be considered significant in the USA. 

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Assess the significance of federalism in the USA.

Federalism ensures check and balances - preventing tyranny of one branch of government - Separation of powers, combined with checks and balances make it difficult for government to move forward with its political agenda - Obama particularly struggled - revealed in 2017 that Over the course of his eight years, he has signed just 1,227 bills into law — less, even, than one-term Presidents Carter and George H.W. Bush. this prevents tyranny of the president. In the UK there is no codified constitution & so too much power lies in hands of government.  Outlines the powers - enumerated powers - prevents tyranny & ensures effective representation - The federal government holds the power to collect taxes, regulate interstate commerce, print money, declare war and establish an army as outlined by the constitution. The 10th amendment says that any powers not given to the federal branches are therefore powers of the state. The federal government has often had to defend its right to these powers at the Supreme Court. In case Arizona v. United States (2012),  the federal government argued that several of Arizona’s state immigration laws were pre-empted by federal immigration laws. Article 1, Section 8 gives Congress the exclusive power to pass laws on immigration & citizenship. In 2015, 31 state governors announced that they would not cooperate with President Obama’s plans to accept 10,000 Syrian refugees. However, there was little that they could do to prevent it, as Congress has the power to pass immigration laws, and the Refugee Act (1980).  Federalism allows states to function as "laboratories for democracy"  - Former Supreme Court Justice Louis Brandeis said one of the benefits of federalism is that “a state may... serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.” - America is diverse & large - means it's difficult for Congress to pass controversial laws that suit all - Congress has become gridlocked for the issue of gun control, however, liberal states have extended gun control laws, while conservative opened gun control laws. California became the first state to legalise medical marijuana in 1996. Following the law’s success, 29 other states have done the same. In 2012, voters in Colorado & Washington went a step further and legalised recreational marijuana. Following the successful implementation of these laws, Alaska, Oregon and Washington DC introduced their laws in 2014, California, Maine, Massachusetts and Nevada in 2016, and Vermont followed in 2018. they could see impact on other states before reform. 

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assess the significance of federalism in the USA.

the shift in types of federalism has meant that sometimes federalism is not always the same. sometimes the executive can hold more power or states hold more power. 

Federalism is often said to have gone through several stages throughout US history. ‘Dual federalism’ describes the early years of American history, where the states exercised a similar level of power to the federal government. This period ended with the Great Depression and outbreak of World War II. Both crises led the federal government to greatly expand its role, first creating huge national public works schemes to combat the depression and then managing and coordinating the war effort. This period is often described as ‘cooperative federalism’. The 50s and 60s are often referred to as ‘coercive federalism’. Congress used a broad reading of the ‘Commerce Clause’ to pass new laws on Civil Rights, established new federal programmes like Medicare and Medicaid, and used categorical grants to coerce states into taking certain actions. The growth in federal power led to a backlash in the 1970s, and what President Nixon called ‘new federalism’. Successive Republican Presidents, particularly Ronald Reagan, wanted to shrink the size and cost of the federal government, returning power to the states. However, the 9/11 terrorist attacks led President George W. Bush to greatly expand the role and cost of the federal government. He created the Department of Homeland Security in 2002 to focus on anti-terrorism and massively increased defence spending.

Lack of clarity in the constitution in relation to central and state powers. This has been the subject of much discussion in the cases of the Necessary and Proper Clause – the so-called elastic clause of the constitution (in Article I, Section 8, Clause 18). Those who defend states’ rights point to the clause enabling the US Congress to annexe decision-making when it feels there is the need. Defenders of the clause point to the fact that it relates only to those powers already enumerated in that section of Article I. Students may conclude that, although being a key principle of the framers of the constitution, federalism has been difficult to determine in practice. 

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