Nine questions. Pick an answer before you open the explanation. If you miss one, go back to the part named in the explanation before moving on.
1. What did Curtiss-Wright hold?
- (a) The President has plenary foreign-affairs power that does not depend on Congress.
- (b) Congress may delegate power to the President more broadly in foreign affairs than at home.
- (c) The Tenth Amendment does not limit the treaty power.
- (d) The power to recognize foreign governments belongs to the President alone.
Answer and explanation
(b). The President acted under a Joint Resolution of Congress, and the question was whether Congress could delegate that much. (a) is the famous "sole organ" dictum, not the holding. (c) is Missouri v. Holland, and (d) is Zivotofsky. Part 1.
2. In Curtiss-Wright, which of Jackson’s categories was the President in?
- (a) Category one: acting with the authorization of Congress.
- (b) Category two: Congress had said nothing.
- (c) Category three: acting against the will of Congress.
- (d) None; the case was decided before Youngstown, so the categories do not apply.
Answer and explanation
(a). Curtiss-Wright came before Youngstown, but you can still place it: the President acted under a Joint Resolution, which is congressional authorization. That is why the "sole organ" passage was not needed to decide it, as Zivotofsky later said. Parts 1 and 3.
3. Why did the Tenth Amendment not defeat the migratory-bird statute in Missouri v. Holland?
- (a) Migratory birds move in interstate commerce, so the Commerce Clause covered the statute.
- (b) The treaty power is expressly delegated to the national government, and treaties are supreme law.
- (c) The Court held that the treaty power has no limits.
- (d) Missouri had no standing to raise the Tenth Amendment.
Answer and explanation
(b). Holmes: it is not enough to refer to the Tenth Amendment "because by Article II, § 2, the power to make treaties is delegated expressly." (c) is wrong: Holmes said there are "qualifications to the treaty-making power," though they must be "ascertained in a different way." Part 2.
4. After Medellín, when is a treaty enforceable in an American court?
- (a) Whenever the United States has ratified it.
- (b) Whenever the President directs that it be enforced.
- (c) When it is self-executing, or when Congress has passed a statute to carry it out.
- (d) Only when an international court has ruled on it.
Answer and explanation
(c). Ratification creates an international obligation, but a treaty is not domestic law "unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be 'self-executing' and is ratified on these terms." (b) is exactly what Medellín rejected: turning a non-self-executing treaty into domestic law "falls to Congress." Part 2.
5. In Dames & Moore, where did the President’s authority to suspend the claims against Iran come from?
- (a) An express provision of a statute.
- (b) A long history of settling claims by agreement, known to Congress and accepted by it.
- (c) The “sole organ” passage of Curtiss-Wright.
- (d) The treaty power, because the agreement with Iran was a treaty.
Answer and explanation
(b). The Court found no statute that authorized the suspension. It relied on "long-continued practice, known to and acquiesced in by Congress." (d) is wrong: the agreement was never submitted to the Senate. Part 2.
6. Why did Medellín refuse to extend Dames & Moore to the President’s memorandum?
- (a) Because Dames & Moore had been overruled.
- (b) Because the claims-settlement cases cover a narrow set of circumstances, and there was no long practice of Presidents ordering state courts to reopen criminal cases.
- (c) Because Texas had not consented.
- (d) Because the President had not cited the Take Care Clause.
Answer and explanation
(b). The Executive's "narrow and strictly limited authority to settle international claims disputes pursuant to an executive agreement cannot stretch so far as to support the current Presidential Memorandum." Acquiescence needs a history, and here there was none. Part 2.
7. What did Zivotofsky do to the “sole organ” passage of Curtiss-Wright?
- (a) Overruled Curtiss-Wright.
- (b) Adopted the passage as a holding.
- (c) Said it was not necessary to the holding and declined to recognize the “unbounded power” it had been cited for.
- (d) Did not mention it.
Answer and explanation
(c). "This Court declines to acknowledge that unbounded power." And: "whether the realm is foreign or domestic, it is still the Legislative Branch, not the Executive Branch, that makes the law." Curtiss-Wright's delegation holding still stands. Part 3.
8. The President acted against an express statute in Zivotofsky and won. Why?
- (a) Because foreign-affairs power is plenary.
- (b) Because the recognition power is the President’s alone, so Congress had no power to override his decision.
- (c) Because the question was political and not for the courts.
- (d) Because Congress had acquiesced in the President’s policy on Jerusalem.
Answer and explanation
(b). In Jackson's third category the President can win only with a power that is exclusive, so that Congress is disabled from acting on the subject. Recognition was such a power. The Court decided the case on the merits, so (c) is wrong, and (d) is wrong because Congress had passed a statute against the President's position. Part 3.
9. What standard of review did Trump v. Hawaii apply to the Establishment Clause claim?
- (a) Strict scrutiny, because the claim was about religion.
- (b) The “reasonable observer” test from the religious-display cases.
- (c) It held that rational basis review applies to every challenge to an entry policy.
- (d) It assumed, without deciding, that it could look behind the Proclamation to the extent of rational basis review, and upheld the Proclamation under that standard.
Answer and explanation
(d). The Court started from Mandel's "facially legitimate and bona fide" test, then said "we assume that we may look behind the face of the Proclamation to the extent of applying rational basis review." (c) overstates what the Court did: it assumed, it did not hold. Part 4.
One question to write about
To test yourself further, write one paragraph in answer to this: Rank the four situations in this tutorial by how much the President can do — Congress authorizing him, Congress silent with a long history behind him, Congress silent with no history, and Congress against him. For each, name the case that shows it, and say what the President has to prove to win.