IP - Shaffer

Home > Flashcards > Print Preview

The flashcards below were created by user CecilySweet on FreezingBlue Flashcards. What would you like to do?

  1. BIG 12 ISSUES
    Who has the Power to Negotiate?
  2. BIG 12 ISSUES - Power to Negotiate

    who is the sole organ for the communication/negotiation function
  3. BIG 10 ISSUES - Power to Sign/Initial

  4. BIG 10 ISSUES - what kind of obligation does a signature create
    only a minor intl legal obligation, not bound to the entirety of the agreement (until ratification); minimal intl legal obligation = cant take any action which defeats the purpose/object of the T
  5. BIG 10 ISSUES - Power to Approve - WHO?
    Senate and House
  6. What are the 4 methods to approve an IA?
    • 1. T w 2/3 S Approval (us Constitution)
    • 2. CEA - submit to both houses of Congress - simple majority of both 
    • 3. PEA - do not need to submit it to congress, sole or inherent EA;
    • 4. Treaty authorized
  7. BIG 10 ISSUES - if congress has pre-approved the agreement when can the Pres enter into it
    any time
  8. BIG 10 ISSUES - most agreements require
    approval by congress
  9. Jackson Categories / Rehnquist Spectrum w minor adaptation
    • 1. P + C (express)
    • 2. P (C dont know for sure)
    • 3. P without C (express or implied)
  10.       = P + C(e)
  11.        = P + 2/3 S
  12. Any agreement upholding as valid in other ranges of the spectrum or other categories (not CEA and not T)
  13. Order of frequency of usage of IAs
    CEA (2) > T authorized (4) > PEA (3) > T (1)
  14. BIG 10 ISSUES - Sesame St.      &      are interchangeable - which IA is not w the other 2
    CEA and T; PEA alone
  15. BIG 10 ISSUES - Power to Ratify - WHO?
  16. Ratification =
    final consent to be bound, brings the agreement into existence
  17. Power to Ratify granted to POTUS by
    commerce clause and necessary and proper clause
  18. BIG 10 ISSUES - Otherwise Valid
    • Highly unlikely in Intl Agreements; 
    • is the bill of rights violated?

    Any other things? another T? the US Constitution?
  19. Power to Implement BIG 10 ISSUES - Who?
    Congress and/or POTUS
  20. Only have to worry about the power to implement when:
    • 1. IA/T is NSE; 
    • AND
    • 2. Current US law is inconsistent w the IA
  21. BIG 10 ISSUES - Power to Implement

    If current inconsistent law, Congress can implement by ..... OR
    Exec branch can implement by...
    • 1. passing a law that would agree with the T; 
    • 2. regulation, proclamation, or exec order (Run POTUS action through JC/RS)
  22. BIG 10 ISSUES - What kind of system of implementation does US have
  23. what is a monist system
    all Ts = SE
  24. what is a dualist system?
    No Ts = SE
  25. BIG 10 ISSUES - SE v. NSE - Who?
    US Political Branch's intent controls the system
  26. SE =
    comes into effect RIGHT AWAY - automatic legal effect
  27. Where can you find intent for SE v. NSE
    • Modernly - domestic documents surrounding the IA often indicate clear intent:
    •     -Presidential Transmittal Letter
    •     -Resolution of Consent - Senate often adds RUDS
    •     -In the language of the T itself 
    •     -Post-Ratification Understanding (i.e. reciprocity)
  28. What are RUDS? (often included in S Resolution of Consent)
    Reservations, Understandings, Declarations

    -Deal w the relation b/n the agreement and the US legal system - often contain intent
  29. Undertake indicates
    further action required
  30. alternative enforcement mechanisms indicate
    further action required (i.e. NSE)
  31. Reciprocity =
    are other nations giving it direct effect?
  32. BIG 10 ISSUES - PRA - Who?
    US Political Brach Intent controls the system
  33. PRA if T = SE?
    presumption against it unless expressly indicates otherwise
  34. Can you use T indirectly to help influence your position against a statute if T=NSE?
  35. If P, in order to use T must prove
    T = SE and PRA
  36. If ∆, need to show that T =
    SE; no need to show T = PRA
  37. Charming Betsy
    doctrine - long established by SCOTUS - US Cts seek to construe statutes consistent w US intl obligations whether they flow from T (SE or NSE) or customary intl law when "fairly possible"
  38. Hierarchy of Norms: SE treaty v. US Statute
    CB then Later-in-time rule
  39. Hierarchy of norms: T v. State law
    T always
  40. Power to terminate - who
  41. what is the last step to get US into an obligation
  42. Power to administer (interpret, vote in IO, Amend)
    Interpret = domestically - ct; internationally - pres; 

    Vote - Exec branch;

    Amend - treat it like a new treaty obligation; ask if its the type of thing the Pres could do alone or does he need approval from congress
  43. When interpreting, what does ct do w exec branch views
    gives great weight to them bc exec branch is forming the Ts and negotiating them; they have greater knowledge of what T means; they are dealing w intl partners on how to interpret the T
  44. US v. Curtiss-Wright
    weapons manufacturer; Prs have power to make executive order pursuant to a joint resolution of Congress? Held: yes. pres has authority to conduct foreign affairs. President is sole organ for negotiating
  45. Triggering Condition US v. Curtiss-Wright
    If pres finds x, then he may do y; i.e. if the pres thinks it will reduce hostility, then he can prohibit the sale of arms
  46. Congress can paint with a wide brush when ...

    US v. Curtiss-Wright
    delegating power int he foreign affairs realm
  47. is pres the sole organ in foreign policy making?
    no, it is shared w congress; but, pres does have substantial powers in the realm (short Constitution, lots of grey area)
  48. Doctrine of enumerated powers
    • Foreign Relations Powers of the fed govt do flow from the Constitution (and are subject
    • to the doctrine of enumerated powers)

    • Doctrine of Enumerated Powers:
    • list of items found in Art. 1, §8 of the US Constitution that set forth
    • authoritative capacity of Congress
  49. Opinio juris
    sense of legal obligation
  50. Customary state law =
    uniform state practice + sense of legal obligation (opinio juris)

Card Set Information

IP - Shaffer
2013-05-01 14:59:53

Show Answers:

What would you like to do?

Home > Flashcards > Print Preview