Introduction Generally—What Does The Constitution Do?

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Structures of the Constitution Outline—Black Bear

DEP—Jones (Winter 2009)

Generally—What Does The Constitution Do?

  1. Establishes 3 branches of government and allocates power between them

    1. All 3 branches are co-equal and balanced

    2. Article 1- Legislative, Article 2- Executive, Article 3- Judicial

    3. Why separate the three branches?

      1. Framers did not want one branch to become too big or too powerful

      2. Wanted to protect individual liberties

      3. Allows for more good action than bad action

  2. Controls the relationship between state and federal governments (Created a federalist system)

    1. Federalism- refers to a situation where two governments have jurisdiction over the same territory

    2. Wanted a stronger government than the articles of confederation, but wanted to preserve localism

  3. Limits government power and protects individual rights

    1. Reason more rights were not listed is the framers thought that if the government wasn’t given the right expressly, they wouldn’t be able to touch the right

      1. If a couple of neg. rights were listed, it might imply the govt. could infringe on the ones not listed

  4. Preferred inaction over action by government

    1. Preferred inefficiency over more governmental powers

    2. Interpret constitution narrowly eve if reading is inefficiency

  5. Why do it with a constitution

    1. Difficult to amend and change

      1. This difficulty was set b/c there was a desire to create processes of government that won’t be changed in times of crises

      2. Must protect it from the temptation to change it to fit the majoritarian thought or rule of the time

Interpreting the Constitution

  1. Tools

    1. Textual-strict interpretation

      1. Limits when ct. can review

      2. Limits when constitution applies

      3. As written by the framers, how they used it (think of the framers intent)

      4. Arguments against textualism

        1. Words are vague and it is difficult to know all meanings

        2. Intent of the words used is not knowable for the entire convention

    2. Structure

      1. Look at the entire document

      2. What things are said elsewhere—glean meaning of words and phrases by looking at different parts of the constitution

    3. History—what did the constitution mean at the time

      1. Easier to figure out intent when you are able to look at behavior

      2. Assumes framers wanted constitution to codify at their time and not grow

      3. Advantages

        1. Predictable

        2. Don’t need to know intent

      4. Disadvantages

        1. Assumes uniformity at the time constitution was adopted

    4. Dynamic tools—(Policy, tradition, social norms)

      1. Constitution is evolving—realist approach

  2. Ways/philosophies to interpret

    1. Textualist- strict interpretation (originalism)

      1. If constitution is silent, the legislature determines the law

    2. Modified/abstract Intentionalism (originalism)

      1. Look at general intent, and not specific intent

    3. Non-originalism

      1. Constitution needs to be more useful

      2. Use dynamic tools to make constitution into something that is relevant to modern times

  3. Reasons why we must interpret the constitution

    1. Some topics are not covered in the constitution

    2. Many important constitution provisions are in broad language that is not very clear or definite

    3. Someone must determine which interests are sufficient for overriding of a constitutional right

Judicial Branch

Authority of Judicial Review

  1. Marbury v. Madison- SCt. declared act of congress unconstitutional

    1. Congress cannot vest the SCt with more powers than what is outlined in art. 3

  2. Cts have power to saw what the constitution says or means

    1. “It is emphatically the province and duty of the judicial department to say what the law is”—Marbury

  3. Review other branches of govt- constitution doesn’t specifically grant this power

  4. State and local courts are bound by SCt decisions

    1. Martin v. Hunters Lessee (two parties had purchased the same tract of land from different govts.)

      1. When a state decides a case involving FED law, SCt has power to review (textual argument)

        1. Text of art. 3 says SCt can hear “all cases involving federal law”

      2. Promotes uniformity of federal and constitutional law (policy argument)

      3. SCt has judicial review over Federal Questions (historical argument)

  5. Two ways to view judicial review:

    1. Activism (Judicial review is a good thing)

      1. Ct should expansively use power

      2. No politics in ct—separate from politics (insulated from the politics of the day)

      3. Neutrally make a decision

      4. Use different tools than other branches of government—reason, logic…

      5. Removed from populace

      6. Restrains legislative and executive branches incentives to make things constitutional

      7. Good branch to have power to be a watchdog because…

        1. Least dangerous—no $, no army, only has good will of people

    2. Judicial Restrain (rarely exercise)

      1. Avoids the constitutional question—rules on something else

      2. Follows constitutional avoidance cannon

      3. Decides cases narrowly as possible

      4. Judicial is bad b/c it “dulls the legislatures own commitment to follow the constitution”

      5. Insulation of judges is bad

        1. They can thwart the will of the people (they are out of touch)

          1. AKA SCt can become counter-majoritarian

        2. Congressional statutes are from the “people”

Limitations on the Powers of the Judicial Branch

  1. Preservation of Good Will (self imposed—must preserve own legitimacy)

    1. SCt. trusts that we will obey its decisions

    2. Can only do as much as we will allows them to do

  2. Textual limitations

    1. The constitution itself limits what the fed. cts. can rule one: (only limited original and appellate)

    2. Based on what’s in the constitution

    3. Constitution only allows lower federal courts as congress allows them

    4. Can only decide matters that are properly before them

  3. Congressional Limitations—constitution gives power to cong. to limit jurisdiction

    1. Strip jurisdiction of ct over certain subjects in appellate

      1. There have been 25 bills pending to restrict what the SCt can hear regarding certain types of cases on certain matters

    2. Cong. can limit SCts jurisdiction over appeal

    3. Cong. can limit what type of cases SCt can hear (Ex Parte McCardle)

      1. “Under such exceptions and under such regulations as congress shall make”

      2. “The power to make exceptions to the appellate jurisdiction of this ct (SCt) is given by express words”—(Ex Parte McCardle)

        1. The word “exceptions” comes right after the word “fact”, so commentators argue that it relates to just “fact” and not to the entire clause…

        2. You can’t really reconcile this with Yerger

      3. Ex Parte McCardle

        1. Broad: Congress could put limitations on the SCt on what kind of cases they can hear

        2. Limited: Ex Parte limits this and shows that that does really work

          1. Why have the SCt if they cant hear certain important constitutional right topics

        3. McCardle- Statute limited SCt jurisdiction and it limited both the state and private rights to use the habeus (it thus wasn’t really politically one sided—both sides were prohibited—this would be something to distinguish on, b/c abortion isn’t politically neutral but affects one party and the expense of another)

        4. General principles: Cong cant use their jxn stripping privilege to strip constitutional issues

  4. Justiciability Limitations—court can hear “cases and controversies” (threshold question)

    1. A case or controversy is a real dispute, about an actual fight, with adverse parties, where the resolution of the fight is good for the cts to decide

    2. Reason for the “case and controversy” requirement/threshold is to make a boundary between what is law and what is politics

    3. Five justiciability doctrines:

      1. Prohibition against advisory opinions

      2. Standing

      3. Ripeness

      4. Mootness

      5. Political question doctrine

    4. WHAT: (Advisory opinions and Political question doctrine)

      1. Prohibition of Advisory Opinions

        1. Parties aren’t actually bound after the ruling—world is same as before/after ruling

        2. To avoid, must have…

          1. An actual dispute between adverse litigants

            1. This is essential b/c it brings out the best in both sides and there is an incentive to find the best solution to the problem

            2. Need one winner and one loser WITH a remedy

          2. Substantial likelihood that a fed. ct. decision in favor of claimant will bring about some change or have some effect

            1. Can’t have just a hypothetical

        3. SCt. must have the final say in the matter—cant have someone reviewing their opinion (otherwise it is an advisory opinion) (Heyburn)

      2. Political Question Doctrine—not justiciable, ct. won’t hear them (VERY RARELY APPLIED)

        1. Subject matter that the Ct. deems to be inappropriate for jud. rev.—does the ? anticipate a kind of problem that is best left to the political process and not the judicial branch

        2. 6 Factors to Consider (Come from Baker (wanted to divide dist; the fact that it is a political right, doesn’t make it a political question)—none are dispositive)

          1. Is there a textually demonstratable constitutional commitment to another branch of government to decide?

            1. Const says a branch has sole power over something (Ex: foreign affairs)

            2. Powell v. McCormak- House refused to seat a rep.

              1. Legislature is the judge of the qualifications, BUT the constitution limits the qualifications that can be considered

              2. Not completely textually committed to leg. so the jud. can rule b/c the house tried to add to the const. requirements

          2. Is there a lack of judicially discoverable and manageable standards for resolving the issue?

            1. AKA lack of judicial expertise in the area

          3. The impossibility of deciding the issue w/op an initial policy determination of a kind clearly for non-judicial discretion

            1. Not a ? that can be resolved with logic or text, but one solely on policy

          4. The impossibility of resolving the case w/o expressing a lack of respect to the other branches

            1. Const. says it is left to another branch—ct will typically stay out of it

          5. Would attempting to resolve the matter create embarrassment from multiple pronouncements?

            1. Goldwater- Carter rescinded a treaty, but senate claims they must allow give permission—need for fed govt to speak with one unified voice

            2. Nixon- Fed judge impeached and convicted, claimed entire senate needed to try him—impeachment is textually committed to the senate, and it does not give anything else that should be considered

              1. Senate has “sole” power of impeachment—last word!

              2. Judiciary is being impeached so they shouldn’t be involved

          6. Is there an unusual need for unquestioning adherence to a political decision already made?

        3. SCt typically won’t hear cases on:

          1. Congress determining requirements of its members,

          2. Impeachment,

          3. Partisan gerrymandering, and

          4. Foreign policy

    5. WHO: Standing—who can bring the case (is the particular person the right person)

      1. Allen v. Wright: black public school children v. white private school with IRS stimulus money

        1. Two types of injuries: Stigmatic injury (insufficient) and imminent (kids haven’t tried to be accepted into the school)

      2. Policy: Why have the standing doctrine?

        1. Intermeddler rationale- their rights are not at issue—the person actually may have different view so the intermeddler isn’t representing the affected party

        2. Efficiency- we don’t want everyone that has a beef with policy to be able to have standing and bring something before the court

          1. Overload the court

        3. Limits cts role in way that preserves the separation of power

          1. Concrete facts mean that cts must tailor what they have to say—this promotes judicial restraint

        4. Personal stake- incentive to do a good job litigating

      3. Constitutional Requirements: Art. 3 (congress can’t override them) (all are mandatory to bring a case before the courts)

        1. Injury in fact

          1. Plaintiff must have suffered direct and personal harm

            1. P has no standing to complain simply that their government is violating the law

          2. Means combination of two things:

            1. Injury is of a sort of recognizable injuries, AND

              1. Recognizable injuries for standing: May be an injury of…

                1. Common law right (not to be assaulted)

                2. Constitutional right (1st and 4th amend)

                3. Statutory right (congress can by statute create a right and a deprivation of that right would give standing)

            2. Plaintiff must personally have suffered or will suffer from injury

              1. P has to convincingly say they have personally experienced harm

              2. Stigmatic injury to a group of people is insufficient (Allen)

          3. Cases:

            1. Lujan v. Def. of Wildlife: Endangered species were being affected overseas/ P had plans to visit these places again

              1. Future plans” are not enough, even though they had visited—no set plan/no plane ticket

              2. Someday intentions are not an actual and imminent injury

                1. Essential to explicitly allege actual or imminent injury

              3. Limited funding provided—and a ruling in favor of P wouldn’t really do anything

              4. Dissent: Unilaterally, P could buy a ticket and have an imminent injury, so why not let him have standing if he could change it

            2. LA v. Lyons: Police pulled over—choke hold—bodily damage (practice of the city police to use the choke hold)

              1. Couldn’t prove that injury would happen to him again

              2. Injunction needs to be an “ongoing” practice or policy

                1. If extremely likely that it will happen again to him personally, it may be sufficient—even absent a policy

              3. “Continuing, present adverse effects”

              4. Real and immediate threat”—applies in equitable remedies

        2. Causation

          1. Allen- Just b/c IRS gave them a tax exempt status, does NOT mean that it caused the children’s injury

          2. Must show that the other party was the one that caused the harm: must be “fairly traceable

          3. Challenged action was a “but for” cause of injury

          4. If there is a problem tying to injury—change the way you describe or think of the injury (Duke v. Carolina) (use the “but for” test for sufficient causation)

          5. Watch out for “intervening actors”—this messes with causation

        3. Redressability

          1. Even if” if you were injured and “even if” D caused it, will a favorable ct decision fix it?

          2. Must show that the cts order will take care of the problem

          3. It really matters how you characterize your injury to determine whether or not there is going to be Redressability

          4. Worth v. Selven- Arrogant town zoned against multifamily housing—which people interpreted to mean they didn’t want low income families

            1. People brought suit to get multifamily dwellings, but SCt held that since no actual plans to build and no proof that someone would build means that a ruling in their favor would not solve the situation

      4. Prudential Standing Requirements: Not Art. 3 based, Congress can override, and made by ct. for own self-governance

        1. 3rd Party Standing is Ordinarily not Allowed (must assert own claim)

          1. Don’t want to unnecessarily adjudicate rights

            1. Maybe the real holder of the rights don’t want them changed and don’t want them adjudicated

          2. 3rd party relationship is often monetary—does NOT need to be same injury as P

          3. Parties themselves are the best proponents of their own rights

          4. NOTE: if these two met, we can have exceptions to the rule

          5. EXCEPTIONS:

            1. Obstacle or hardship to P asserting their own right, OR

              1. Look at likelihood that party can sue on its own behalf

              2. Barrows- black man could never own house and sue over covenant so white man was able to sue

            2. Closeness of relationship between P and injured party

              1. Singleton- Doctor and patient relationship, sued for right of abortion (considered too private) Two factors:

                1. Look at the closeness of the relationship btwn P and injured 3rd party

                2. Is the right “inextricably bound up with the activity the litigant wishes to pursue” and likelihood the 3rd party (patient) could sue on their own behalf

              2. Craig v. Boren- Bartender relationship suffices b/c if bartender followed the law, the 18 yr. old litigant could never sue (law didn’t allow bartender to sell beer to men under 21, but could to women that were under 21)

              3. Newdow- Father with no legal right is NOT sufficient to determine whether child believes in God or not

                1. Parent relationship does NOT work (it may be close, but most examples don’t work) (Gilmore v. Utah- Mom sues in behalf of her prisoner son)

        2. Prohibition of Generalized Grievances (Bar on Taxpayer or Citizen Standing)

          1. Bar on “taxpayer” or “citizen standing” when the harm is “substantially equal measure by all or a large class of citizens”

            1. Injury must be personal to you

          2. “If respondent can’t litigate—no one can”= NOT a very good argument b/c there are other roads to get a remedy (separation of powers)

            1. Richardson- Wanted accounting of CIA spending

          3. EXCEPTION: (VERY narrow—Must be tax and spending power)

            1. Flast v. Cohen- 7 taxpayers brought suit fed. money was being used to support religious school education—violated free exercise clause

              1. You can have standing IF “There is a logical nexus btwn the status asserted and the claim sought to be adjudicated”—It must:

                1. Challenge the expenditure of funds under the taxing and spending clause under the establishment clause (NOT incidental expenditure of funds in the administration of a statute), AND

                2. The law violates a specific provision with the expenditure and NOT just that congress is exceeding the scope of its power under the constitution

              2. ONLY applies to congressional spending clause

            2. Hein v. Freedom- President was spending $ on programs P thought violated specific spending clauses in const. (made Flast an island)

              1. Ct held it was presidential spending, NOT congressional spending (cong. had no enacted any specific budget for it) thus the case didn’t meet the exception

    6. WHEN: (Ripeness and Mootnes)- determine when litigation may occur

      1. Ripeness- Arrived too early, may the SCt grant pre-enforcement review; typically needs to have been enforced against you

        1. Must allege “actual harm” or “imminent apprehension

        2. Must also have “real threat of enforcement” of statute for ripeness

          1. Poe v. Ullman- statute prohibits contraceptives/doctors cannot recommend them

            1. Mere existence of a statute would constitute insufficient grounds to support adjudication against state’s prosecuting official w/o real threat of enforcement

            2. No looming threat—ct. cannot be “umpire to debates concerning harmless, empty shadows

            3. Dead letter statutes are NOT ripe!

          2. Abbot Labs- comply with the labeling standards

            1. Ripe even before it was enforced

            2. Company faced “serious” hardships in they had to comply

            3. Pre-enforcement is appropriate if immediate threat of harm

            4. Oridinary P must take some action to invoke application of the statute

        3. Ct avoids pre-enforcement review b/c it saves time and judicial resources

        4. Must consider two things:

          1. Fitness of the issues for judicial decision

            1. Is it the kind of ? the ct. can decide right now w/o more happening?

          2. Hardship of the parties of withholding court consideration

            1. Will it cripple the party if they don’t take or decide the issue?

            2. Exists when a party is faced with the choice btwn forgoing allegedly lawful behavior and risking likely prosecution with substantial consequences (Abbot)

              1. This is hard to nail down as seen in Mitchell and other cases where the court merely called it “hypothetical” hardship and required the parties to break the law first

        5. If legislations has NOT passed—it will never be ripe

        6. TIPS:

          1. Watch for events that are yet to occur

          2. Esp. in admin law context, cong. passes for administration to iron out details

          3. Think of the problems ripeness is trying to solve or address—there is a big risk in not complying with the law, but you must break the law (typically) for it to be enforced, but ripeness allows for exceptions to that

      2. Mootness-overstay your welcome b/c the issue is not longer alive between the two parties

        1. The case must be alive with a current actual fight between current actual parties in ALL stages of the litigation—even in the appeal

        2. Things that will make a case moot:

          1. Death or settlement of the issue

          2. Changes in the law

          3. Changes in factual circumstances (Ex: Defunis-law student got into the school he was suing—got all that he wanted, so the court had nothing to rule on)

        3. Exceptions: methods around mootness

          1. Wrongs capable of repetition, but evading review

            1. Harm that has a short life, but will happen again

              1. Roe v. Wade- Pregnancy (must be capable of repetition to HER—not just some other person)

              2. Moore v. Ogleview- Shortness of election cycle

          2. Voluntary cessation (“Sham Mootness”)

            1. Party being prosecuted takes action in a live conflict to resolve the issues that are being brought against them

              1. They stop, but it is really stopped forever?

            2. Laidlaw- Co. shut down plant causing harm, but still had permit to run it

              1. Need to make it “absolutely clear” they have stopped and the “heavy burden” of proving cessation falls to the defendant

              2. Voluntary cessation is a “stringent standard

          3. Class action suits

            1. Even if the case is moot for the named party, the case remains alive for other members of the suit b/c they can still have the sharpness of debate

            2. Geraghty- Prisoner suing about probation standard finally received probation—case is still alive for all other inmates

          4. Unresolved Collateral Consequence

            1. Occurs when a “collateral” injury survives after P’s original injury has been resolved

            2. Ex- A is convicted of a crime and serves his sentence, and his appeal is ongoing after he leaves jail—it is NOT moot b/c he suffers harms from being convicted (can’t vote or have certain jobs, etc…) so although his jail time has passed, he still has collateral injuries to resolve)

        4. Benefits

          1. Avoids giving abstract policy

          2. Helps remedy actual injuries

          3. Helps limit the number of cases they hear and helps preserve their credibility

Executive Branch

Inherent Presidential Power

  1. Three Sources of Presidential Authority

    1. Constitutional Provision: Article II §1 gives president power to “execute” the law

      1. If textual hook—president can act on it

    2. Statutory Authorization: Congress authorizes through a statute (judiciary checks constitutionality)

      1. Congress may act to increase the executive power

      2. Clinton v. New York- Questioning the line item veto (very formalistic approach)

        1. President could sign whole bill and then w/5 days cancel certain provisions of it

        2. Article 1 §7 gives power to president to veto any bill passed by congress

        3. Ct. held president was amending the statute and there was already a procedure for that and that the president was essentially “making law”

        4. Even if two branches get together to do something, the third branch may balance or check the actions of the other two—“liberty is always at risk when one or more branches seek to transgress the separation of powers”-Justice Kennedy

        5. Dissent: Functionalist approach- congress should be able to choose the particular means to meet their constitutionally mandated duties; congress “confused” the ct by calling it a line item veto

    3. Inherent Presidential Power: When a President can take an action NOT authorized by the const/statute

      1. Rests upon words within Article I & II

        1. Hamilton: Article I for congress says powers “herein granted” so they are limited to specific powers, President is NOT (he thus has “inherent powers”)

        2. Madison: Inherent powers are inconsistent with a single written constitution—language of Article II is designate one executive/name

      2. Youngstown Sheet & Tube Co. v. Sawyer- President took over steel mills during the war—they gave us four models to consider

          1. NOTE: Before beginning any of the models you MUST first ask “Where is congress on the issue!?”

            1. If the ct. finds itself in a camp alone w/o congressional support, they will pause and try to find support for the presidential act

  1. Model 1: (Black) President may act ONLY if there is constitutional or statutory authority—ONLY these 2 sources will work (No inherent presidential power)

  1. Judiciary may strike down action that aren’t expressly articulated—no inherent authority left over

  2. Benefit is president will always know when he may or may not act

  1. Model 2: President may w/o explicit constitution or statutory authority, UNLESS he infringes or usurps the power of another branch—determined by judiciary

  1. Infringing- Preventing another branch from performing something its constitutional supposed to do

            1. Can’t do their action because of presidential actions

  1. Usurping- Truly taking over a function textually assigned to another branch

  1. Model 3: President may exercise inherent power UNTIL congress acts to limit him—determined by congress

  1. The Jackson Trilogy:

            1. President + congress’s authority = height

            2. President + no congressional authority = twilight

              1. In the face of URGENT need, the president COULD act w/o them—not at his strongest here

              2. May president act when both are silent?

              3. Frankfurter: Differs in this situation here, president has NO power in this specific circumstances (he looks to see if there are other actions to show that congress really was saying no)

            3. President acting contrary to congressional will = lowest ebb

              1. He may act only to the limit of constitutional authority LESS the authority that congress has for the same issue

              2. Judiciary’s job to make this judgment

              3. This is the reverse of model 1 because here (lowest ebb), silence means he is OK to act

  1. The con of this model is that a ct. can’t limit the president, congress must limit the president, but the way they do that is through a statute which the president has veto power over—so it’s very difficult for the legislature to limit him

  1. Model 4: President may act UNLESS his action violates a specific const. limitation

  1. This model allows president to trump congress b/c even if they pass a law preventing something, he can overrule it UNLESS his action violates a constitutional limit

  2. The cts have held this model may be OK in an “emergency” situation

      1. Executive Privilege: The right to do something not explicitly allowed statutorily or constitutionally (Nixon- President uses this power to refuse to turn over evidence)

        1. Judiciary decided the scope of the privilege (relied on Marbury) “it is emphatically the privilege of the court to saw what law is…

        2. There is a privilege

          1. There is an “attendant need” for candor from advisors and it derives from “the supremacy of each branch within its own area of constitutional duties”

        3. It is a qualified privilege

          1. It’s limited to military, diplomatic matters, or essential national security secrets—does not move to other areas

          2. The president cannot determine what the power

          3. There is inherent power in the privilege but it is bounded by what the other branches can do

          4. The need for criminal evidence outweighs the candor considerations

          5. This case does NOT speak to executive privilege in a civil matter

        4. Cheney

          1. Ct. did not rule on executive privilege, but said in dicta that use in civil matters does not warrant the executive privilege

Administrative Agencies

  1. Administrative agencies are troublesome b/c they exercise all the power of the government (they create regulations, enforce the regulations, and employ judicial officials to hear cases)

  2. Non-Delegation Doctrine (Basically non-justiciable now)

    1. Principles:

      1. Congress may not delegate ALL of their legislative authority (may not delegate “unfettered discretion”—must provide “intelligible principles”)

        1. “Congress may not transfer out their essential legislative function” (Panama)

      2. Congress may not delegate non-legislative power given to it in the Const. (Ex: coining money)

    2. Congress must provide “intelligible principles by which the agency makes all its decisions” otherwise they will be struck down—need guidance (Whitman v. Trucking—intelligible principle is “requisite—not too much and not too little”)

      1. This is a broad standard that is pretty easy to meet

    3. ALA & Panama were both struck down b/c they didn’t provide enough guidance for the execution of their power—not a clear enough standard

      1. “Congress cannot delegate power to the president to exercise an unfettered discretion to make whatever laws he thinks may be needed”

      2. SCt held you can give them some power, but you must give clear standards so that they are merely filling in the details

    4. Non-delegation doctrine is either “dead or living, but really frail and pretty much dead”

    5. Agencies belong to a politically accountable branch and they do feel the pressure of the political process

  3. Legislative Veto- Congress can override agencies’ acts if they create a new law

    1. Congress used to pass statutes w/provisions in them that allowed congress to override an agency action by creating a resolution in either one of the two houses (they wanted to delegate w/o losing control)

    2. Immigration v. Chadha- Cong. dcided the agncy wasn’t fulfilling stands and sought to overrule the agncy

      1. Ct held this is unconstitutional—congress MUST pass a new law to overrule an agency action (if they want to overrule a prior law, they need to pass a law and present it to the president)

      2. Formalists (Maj)- The constitution plans it a certain way and it has done a good job of protecting our liberties

      3. Functionalists (Diss)- Legislative veto serves an efficiency purpose that doesn’t harm the separation of powers

      4. This case illustrates that judicial review is firmly entrenched b/c many thought this was a “far out” opinion, but nothing occurred—indicated people are OK with judicial review

  4. Appointment Power- Article II, § 2, clause 2

    1. Principal officers- President may appoint w/senate confirmation (ambassadors, public ministers and consuls, judges of SCt, and all other officers of the US—established by law)

    2. Inferior officers- Congress delegates appointments of these officers (President may do it alone or be required to do it with senate approval)

      1. May only delegate to: (3 Options according to Article II)

        1. Presidents

        2. Heads of departments

        3. Lower courts

      2. Congress cannot give appointment power to itself OR its officers!

    3. Federal employees- Appointed by the President and are just the grunt workers of the fed. government

    4. Factors that an office is inferior: (Morrison v. Olsen- was independent counsel principal or inferior)

      1. Subject to removal by higher executive branch officials

      2. Limited jurisdiction to certain duties

      3. Limited duties

      4. Limited tenure

    5. Morrison had the effect of making everyone below the cabinet level an inferior officer and the dissent viewed this as a separation of powers issue

    6. Scalia’s dissent: Law had to be struck down because (1) Criminal prosecution is exercise of “purely executive power” as guaranteed in the Constitution and (2) the law deprived president of “exclusive control” of that power

  5. Removal Power- No constitutional provision that deals with removal of officials (only impeachment)

    1. Don’t need the twin pillars of appoint

    2. General rules from the cases:

      1. Current Rule: President may fire any executive official, but Congress can limit removal by statute if both it is (1) an office where independence from the president is desirable (Weiner) and (2) the statute does not prohibit removal, but limits it to whether there is good cause

        1. Independence is more desirable (more likely to be desirable), if it is a person that was appointed by someone other than the president

      2. President may remove executive officials unless removal is limited by statute

      3. Congress cannot prohibit removal all together

      4. Congress cannot keep removal power for itself

      5. Congress cannot limit if it is “purely” executive officer (Meyer)

      6. Congress can limit if “quasi-legislative or quasi-judicial” officials or independent counsels—need a reason (Humphrey)

      7. NOTE: Discuss separation of powers and how this doesn’t hurt separation of powers

    3. Myers- President removes post master (“purely executive officer”)

      1. President can appoint so President should be able to remove—he is in best position to know if the person is doing their job

      2. Removal is OK b/c power of removal is “incident to power of appointment”

    4. Humphreys- President appointed (w/senate confirmation) and then removed the FTC commissioner

      1. Congressional control over quasi-legislative or quasi-judicial officials is significant enough that the President still needs a reason for removal (need a reason)

    5. Weiner- Truman tried to get a commission member to resign after appointing him—there was NO statute limiting the President’s actions

      1. Where independence is necessary and it is a quasi official, even if there is no statute, the President can NOT remove w/o cause

    6. Bowsher- If govt. exceeded the budget, congress appointed one of their own to start making cuts

      1. Congress can’t keep for themselves the full power of removal of a purely executive officer—even for cause

    7. Morrison- Rejects quasi v executive, and adopts the “importance” to President test

      1. Does not being able to remove “impede his ability to perform his constitutional duty”

      2. Judicial may limit power of removal—absent a statutory provision

Checks on the President

  1. Suing and Prosecuting the President

    1. Civil suits

      1. Nixon v. Fitzgerald: Absolute immunity—complete prosecution from civil damage suits—exists for a President for all official actions while in office in the scope of his authority

        1. Too many law suits could cripple ability to be President

          1. Lose if you violate clearly established rights

        2. Don’t want the president to self-censor—we want him to make the right decision without concern of personal liability for the decision

        3. “Immunity is a functionally mandated incident of the office”

        4. This does NOT answer if they can get specific performance—it only addresses monetary damages in civil cases (but it is likely he is immune there too)

        5. This also does NOT answer criminal immunity

      2. Clinton v. Jones: Absolute immunity does NOT extend to actions before becoming President

        1. Ct. rejected the argument that this affected the Pres. Decision making b/c it didn’t occur while he was in office

        2. Undecided issues (not ruled on)

          1. Don’t know if President can be indicted for criminal actions

          2. Or if temporary immunity for divorce/child custody

    2. Impeachment

      1. Article II § 4

        1. May impeach for “treason, bribery, and other high crimes of misdemeanors”

      2. Article I § 3 cl. 6

        1. House agrees by a majority vote to impeach, removal is 2/3 of senate

        2. For president, chief justice presides over the trial

      3. High crimes and misdemeanors” is non-justiciable—it is a political question

  2. 6 Total Checks on the President (Nixon v. Fitzgerald)

    1. Impeachment

    2. President is under constant scrutiny of the press

    3. President may want to be reelected

    4. Congress has vigilant oversight over the president

    5. Need to maintain prestige as an element of Presidential influence

    6. President’s traditional concern for his historical stature

War Powers & War on Terrorism—Presidential Power During War

  1. War Power

    1. Article II makes the president commander in chief and Article I grants Congress the power to declare war and the authority to raise and support the army and navy

    2. War Powers Resolution Act- Passed by congress in response to the Vietnam conflict

      1. Puts specific requirements on the president when using military force

      2. President must submit in writing to congress a report w/in 48 hours of beginning

      3. Places time limits (60 days) before president needs congressional approval to continue

      4. The constitutionality of this act has NEVER been tested b/c courts consider it a political question

  2. Detentions

    1. Hamdi v. Rumsfield: US citizen captured in Afghanistan, detained w/o communicating w/lawyer

      1. An American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process and a meaningful factual hearing

      2. Executive DOES have right to detain citizens

        1. Detain for duration of war

        2. Not an inherent right—has right because of statute (from other branch of govt)

      3. Use Matthews balancing test to determine how much processing/liberty you give to detainee, consider:

        1. How much liberty is at stake for the individual (why it should be high) V.

        2. Government’s interest in preventing risk (burden for govt) V.

        3. Risk of erroneous depravation (value added in distance between two)

      4. President has sweeping powers during emergency

      5. Americans have no other recourse—a non-citizen could appeal to their country

Legislative Branch


  1. Two questions in evaluating an act of Congress:

    1. Authorization: Does Congress have a “Constitutional Hook”?

      1. Must have a “hook” because constitution is clear that congress has enumerated, limited powers

        1. Congress does NOT have sweeping authority—must be an enumerated power

      2. Most hooks are found in Art. 1 §8

      3. Examples:

        1. Commerce Clause

        2. Taxing and Spending Power

        3. 14th Amendment- Due Process

          1. §5- Enforcement power

    2. Limitations: Do Congress’s actions violate another constitutional provision or doctrine?

      1. Federalism—10th amendment state rights

      2. Individual liberties

  2. Summary: Ask three questions for the test

    1. (1) Does congress have authorization or a hook?

    2. (2) Does the action taken violate the individual liberties of the people?

    3. (3) Does federalism place any restraint on the otherwise valid action?

Authorization: Constitutional

  1. Necessary and Proper

    1. Text

      1. Art. 1, §8, c. 18- Congress has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this constitution…”

    2. McCulloch v. Maryland

      1. Overarching Rule from McCulloch v. Maryland

        1. “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional”

        2. Two part test whether it is N&P:

          1. Is it a legitimate end? (Enumerated power)

          2. Are the means plainly adapted to that goal and not unconstitutional?

            1. Is it “convenient and useful” to enact an enumerated power?

      2. Generally:

        1. State of Maryland passed a law that imposed taxes on all the banks w/in its territories—Bank of the US fell within this tax

          1. Bank of the US manager failed to pay the tax

        2. Maryland argued that the states created the constitution, so they are superior to the federal government

        3. Government argued that the constitution was created not by the states, but by the people and the constitution when adopted was a “complete obligation

      3. Two Issues:

        1. Does Congress have the constitutional authority to create a bank (do things that are contrary to the will of the states)?

          1. Yes. Congress still needs a textual hook, but when it has this express authority, it also has inherent authority to execute its express authority

          2. Court adopts the broad interpretation (below), and congress may use the power as long as it is “convenient and useful” in enacting the enumerated powers

        2. Is it constitutional for the Maryland to tax the Bank of the US?

          1. No. The power to tax can destroy and the Constitution can’t allow the Federal government to be destroyed

      4. Reasons N&P Clause Allows for Congress to Regulate Banking:

        1. Textual:

          1. The word “expressly” was left out of the constitution—it was taken out b/c it would be a step back to the Articles of Confederation

          2. Legislature currently has many powers that are monetarily based, and thus it makes sense for them textually to have this power

            1. These were listed and then the words “necessary and proper” were given so that Congress could use it to fill in the details

          3. Two Textual Interpretations:

            1. Strict- Must be “absolutely” necessary for them to use the power

            2. Broad- May use the power to make things more “convenient and useful” in enacting the enumerated powers

        2. Structural:

          1. The N&P clause is listed at the end of enumerated power list, so it seems as though it should be a power

            1. “It is placed among the powers of congress and it purports to enlarge the powers of congress”

  2. Commerce Clause

    1. Text:

      1. Art. 1, §8, c. 3- “Congress hall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

    2. What is “Commerce Among the States”?

      1. Ways to approach this question:

        1. Channels and instrumentalities of commerce—narrow reading

          1. These are necessary intrastate facilities (e.g. mail, airlines: they are typically commercial in nature and help channel goes throughout the states)

        2. Direct, logical relationship with commerce—E.C. Knight, Carter Coal

        3. Issues affecting interstate commerce—Gibbons

        4. Stream of commerce theory—Schecter

          1. This one has the benefit of being understandable whereas the others can be interpreted by the judiciary to mean whatever they want

    3. History

      1. Pre-1890s (Early Era)—Expansive Commerce Power

        1. Gibbons v. Ogden—“Commerce Among the States” defined

          1. Summary: NY gave two individuals exclusive rights to operate steamboats on waters w/in state jurisdiction

          2. “The congressional power to regulate interstate commerce includes the ability of congress to affect matters that occur w/in one state IF it has an effect on other states”

            1. This was a “very functional broad reading” of the commerce clause

          3. “This power like all other invested in congress, is complete in itself, and may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution

            1. This sets a precedent for the commerce clause interpretation

          4. Interstate commerce is an enumerated power:

            1. Historical Argument: Power over commerce is one of the reasons the constitution was written (problem with Articles of Confederation)

            2. Structural Argument: It is accepted that Congress has power over foreign commerce—must be given same meaning w/regard to states

          5. Congress has “plenary power

          6. States cannot regulate commerce directly BUT can do it indirectly through taxes and police power—must look at general welfare, not commerce

      2. 1890-1937—Limited Federal Commerce Power (Cts start looking for limitations to CC in response to antitrust laws)

        1. What is commerce?

          1. US v. E.C. Knight—Should Congress be able to regulate manufacturing

            1. Summary: Congress passed the Sherman Antitrust Act of 1890 as a response to the public concern of giant corporations controlling different industries; D controlled 98% of sugar refining in the US

            2. Rule: A direct, logical connection with stream of commerce must exist—NOT things that are indirect or ancillary to the stream of commerce

              1. Manufacturing is separate from commerce and there is no “hook” for it—thus it is “indirect and ancillary”

          2. Carter v. Carter Coal- Can Congress regulate the mining industry

            1. Summary: Congress passed an act that regulated the min. wages and max. hours, and fair practices of the coal industry

            2. Holding: Although the mined coal will end up in interstate commerce, the actual mining is too far removed from interstate commerce

            3. Rule: It is NOT a question of the extent of the effect, but a logical and direct link between the precise activity and the commerce clause

              1. Employee and employer relationship are “local relationships” which are outside the commerce clause

              2. They are “local evils the fed. govt. has no control over”

        2. What does “among the states mean”?

          1. Shreveport Rate Cases-

            1. Summary: Texas RR Comm. mandated that they charge higher rates on freight traveling btwn Louisiana and Texas than on freight traveling solely w/in Texas

            2. Holding: ICC can regulate the intrastate commerce if it has “such a close and substantial relationship to interstate traffic”

              1. Court allowed Congress to regulate intrastate commerce because of its effect on interstate commerce

              2. Look for a “substantial” effect and “close” relationship

          2. ALA Schechter Poultry Case v. US—Sick chicken case

            1. Summary: Buying chicken in NY and the govt passed laws that regulated those purchased chickens

            2. Holding: Regulation of chicken is NOT allowed b/c NY is the end of the stream—thus not

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