For Thursday

 Monday video link (with transcription). My apologies for ending class a bit abruptly; I hit the wrong button. Usually, I will stop the recording and stick around the Zoom to answer questions.

We continue with the materials on the Political Question Doctrine. Consider:

   • What is the policy behind the political question doctrine? What are the factor(s) that courts consider? How and why has the Court applied (or not applied) it in different situations, considering Powell, Zivotovsky, Nixon, and Rucho.

    • Is there a problem with the Court surrendering the power to review certain issues? What alternatives are available if the court will not exercise judicial review on some issues? Why, according to Kagan's dissent, are those ineffectual on the issues involved in Rucho?

    • We will spend a bit of time on impeachment, given its relevance in 2020. Review the provisions on impeachment (Art. I § 2 cl.5; Art. I § 3 cl.6; and Art. II § 4). Why is impeachment not a proper subject for judicial review? Why is impeachment and the Senate trial of a President such a momentous issue? Does impeachment serve any purpose if President is not removed (as has been the case in the three presidential impeachments in US history).

 We then move to Legislative Power: Overview; Legislative Power: Necessary & Proper; and Legislative Power: Commerce Clause: Introduction and Pre-1936. So that means two separate panels should be ready to go on Thursday. On Necessary & Proper, read to to p. 106 in Farber & Siegal. Consider:

    • Is there a common theme to the powers granted to Congress in § 8? Why do those powers make sense for the national government and what is the goal of granting those powers?

    • What does "necessary and proper" mean? Necessary and proper to do what? Why is that power uniquely important to Congress? What is the standard for determining whether something is necessary and proper? Why did Congress have the power under this Clause to create the Bank of the United States?

    • How did Comstock expand the Necessary & Proper power?

    • What did the Court mean in saying "it is a Constitution we are expounding"? What does that mean? Expounding a Constitution compared with what? 

    • Why did the Framers give Congress power to regulate commerce among the states? What is the point of a central regulatory authority?

    • Why did the Court take a narrow view of the Clause during the 1930s? How did the Court understand commerce during this period? How did changes in U.S. society change the Court's approach to commerce and the Commerce Clause?