con law outline - bell

8/2/2019 Con Law Outline - BELL

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Con Law Outline

Possible extra credit answers:

Justice John Stevens wears a bow tie; appt by President Ford; Most Sr. Assoc. Justice;most liberal member of ct; favor death penalty; ACLU v Ashcroft.

Justice Ruth Ginsburg had cancer

Justice Blackman is her favorite judge Justice Scalia: strict constructionist (takes words and considers a reasonable

understanding of how the document is read); interested in the debate record, what wasgoing on else where; appointed by Regan; Scalia was being considered for associate

justice and Rehnquist was being considered for elevation to chief; 1stamendmentjurisprudence; std of review in equal protection is constitutionally inappropriate andinvalid;

Clarence Thomas-textualist (meaning only works w/ the words in front of him)

Justice Alito-

What is Constitutional Law?Two Main Characteristics:

1. Separation of Powers: separation at the national level that creates checks and balanceswhich are designed to prevent any one branch from becoming too powerful.

2. Federalism: Simultaneous federal/national and state/local governments; 2 levels osovereignty operating at the same time over the people (viable national government thacan behave effectively for all of the people, yet the benefits of diversity anddecentralization).

In looking at any question regarding government action, consider the following:1. What part of government gets to take what actions?

2. Is the government branch taking the action constitutionally permitted to do so?

Three Branches:Article I: Legislative Branch

1: grants Congress legislative powers

8: list powers of Congress; gives Congress enumerated pwrs that are positiveo Clause 1: Spending Clauseo Clause 3: Commerce Clauseo Clause 18: Necessary and Proper Clause

9: limits the power of Congress; negative

10: limits the power of the States (no State shall enter into or pass any law impairingthe obligations of contracts)

Made up of Senate (2 per state) and House of Rep (det. by population of the state)

Article III:Judicial Branch

1: judicial power vest with the Supreme Court and in lower courts as Congress mayordain and establish

2: jurisdiction of the Supreme Court and limits jurisdiction of the federal courts

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The Federal Judicial PowerI. Article III Power

A. Judicial power is created under Article III of the Constitution.B. Article III, 2, Clause 2, dictates when the court is in power to act as a court of origina

jurisdiction; over cases affecting ambassadors, other public ministers and consuls, andthose in which the state shall be a party. In all other cases the Supreme Court has

appellate jurisdiction.i. Congress may give the lower federal court concurrent jurisdiction, even ovethose matters where the Constitution specifies that the Supreme Court hasoriginal jurisdiction.

II. Judicial ReviewA. Authority for Judicial Review

a. Judicial review: the power of the court to declare acts of government/actors asunconstitutional. Acts are unconstitutional according to what the courtinterpretation of what the Constitution is/says; they are the last word unless there isa constitutional amendment/provision.

b. No judicial review clause in the Constitution.Marbury v. Madison established the authority for judicial review of federal, executive and

legislative actions; established that Article III is the ceiling of the federal court jurisdiction.a. Congress acted inappropriately when they altered the Supreme Courts origina

jurisdiction through statutory provision of the Judiciary Act of 1789. TheConstitution provides the means by which it can be altered. (Article V an act oCongress or some act of a State Representative)

b. Congress may NOT expand the original jurisdiction of the SC. The Constitution isthe supreme law of the land (Sup. Clause-Article VI).

i. Marshalls arguments for why the Supreme Court can declare federalaws unconstitutional:

1. The Constitution impose limits on government powers and that theselimits are meaningless unless subject to judicial enforcement.

2. It is inherent to the judicial role to decide the constitutionality of thelaws that is applies.

3. The Courts authority to decide cases arising under the Constitutionimplied the power to declare unconstitutional laws conflicting with thebasic legal character.

4. Judges take an oath of office and they would violate this oath if theyenforced unconstitutional laws.

How a Justices are appointed to the court?o Article II, Section 2, Clause 2: powers of the executive

The Chief Justice of the court decides when a case will be heardo Get to determine who writes the opinion, when he is apart of the majority; when he

is not, the most senior Justice gets to decidedo Sets the docketo Evaluated from the DC Circuit of Appeals

You need the attention of 4 Justices to get a writ of cert

Court can only hear cases after there has been final judgment of the highest state court.

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B. Judicial Review for State Judgmenta. Article VI: establishes that Constitution is the supreme law of the land and

indicates that state court judges are bound by the Constitution.

b. State court judges MUST follow the US Constitution, even when state lawsconflicts with it. Constitution would have little effect if each state were free to applythe document as it saw fit.

c. The Supreme Court can ONLY review a state courts decision under the Courtsappellate jurisdiction in Article III, 2.

Martin v. Hunter Lessee: established power of the Supreme Court to review state courtdecisions that involve federal law; it is essential to ensure uniformity in the interpretation ofederal laws/no bias; states are not the final auditors for federal questions.Cohens v. VA: established that criminal defendants could seek Supreme Court review whenthey claimed that their conviction violated the Constitution.3 Arguments for State law review:

1. Textual argument: Since courts are allowed to hear and decide federal claims, and sinceArticle III of the Constitution gives the Supreme Court jurisdiction over ALL cases arisingunder federal law in the Constitution, then by definition, by reference to the text of theConstitution, the Supreme Court can decide all federal and constitutional issues no mattewhere they come from; whether they come from the federal system of the state system.

2. The first Congress unmistakably thought that the court had such review authority.

3. Uniformityof federal constitutional law is essential so that the federal constitution will notmean 50 different things in 50 different states.

Limits of the Federal Judicial PowerI. Interpretations:Two views on how to interrupt the constitution

1. The constitution terms are to be understood and read based on understanding ofgrammar for the period of time which it was adopted.

2. The constitution is a flexible and evolving documenti. The common understanding and expectation of society

ii. The constitution is a living breathing document that grows Not every thing in the constitution is clearly discussed

i. Removal power not clearly discussedii. Management of war not clearly discussed

The most important elements of the constitution are broadly drawni. The constitution does not do well in defining termsii. It defines rights but does not define the scope of the rights

Originalist Non-OriginalistConstitution is narrowly drawn The supreme court can protect rights

found no where within the constitution(privacy rights, abortion rights, marital

rights,Interruption should be period specific (Circa 1776)Scalia, Thomas (Top originalist)

There are limits to when the court can act which are setout in the constitution and they defer to limits set outby congress so long that congress is acting within theirlimits set out by the constitutionUndesirable for non-elected judges to craft policies Democracy is not majority rule and

there is a role in the court to protectthe rights of the minority

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Six general methods to legal interpretation1. Originalist- very close tight reading of the controlling law (Clearance Thomas, Robert Borke)

Least flexible to conventional changes because it requires that you do a strict reading ofthedocument and take the plain meaning

2. Modified originalist3. Original meaning4. Traditionalist5. Process based6. Aspirationalistism

The court leads society (Broad v. Board of Edu)Interpretative limitation

Textualist-strict to the language of the constitution

HellerMajority- whether the 2nd amendment right to bear arms is individual or collective?Plain meaning- what the average voter at the time would understand the meaning of thedocumentHolding: District of Columbias ban of owning handgun in the home violates the 2nd amendment.If the government wants to limit the right to bear arms they must satisfy a strict scrutiny

Dissent- Whether the 2nd amendment individual rights are broad or narrow?It should be a rational basis burden

III. Congressional Limits: Congress has power to limit the jurisdiction of the federal courts andsome power to limit jurisdiction of the Supreme Court.

A. Article III: Requires that there be a Supreme Court which is divided by original jurisdictionand appellate jurisdiction (review of cases from a federal/state court).a. Congress can decide whether there are lower federal courts (can only hear certain

kinds of cases; w/in federal court jurisdiction).b. Congress can restrict federal court jurisdiction.c. Congress can set the courts term and aspect of its operations.

B. Exceptions and Regulations Clausea. Congress cannot use its powers in a way that would violate the const.b. Congress CANNOT alter the courts ORGINIAL jurisdiction.

c. Congress has the power to LIMIT the courts APPELLATE jurisdiction power underArticle III, Sec. 2, Clause 2. McCardle

i. Ex Parte McCardle: McCardle filed a petition for a writ of habeas corpus

pursuant to a statute that permitted fed. Courts to grant HC relief. Politicsmoved the case from the docket and he could have sought review under adifferent statute. Wanted SC jurisdiction for case, but no jurisdictional statutefor ct. to which hes appealing to.

Issue-jurisdiction Basis for jurisdiction was 1867 act which allowed the federal

court to hear petitions of those held in federal custody.

Writ of Habeas corpus is a request that a judicial officer evaluate the

circumstance of the detention to see if it is legally allowed

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While his claim was pending congress repealed the part of the 1867 act that gave thecourt jurisdiction over his case

Holding: the court held that they did not have jurisdiction over his claim.

Congress had authority to alter jurisdiction in Article III.

C. Separation of Powers as a Limit on Congress Authority

a. Congress can change the law during litigation BUT CANNOT determine the outcome

Function belongs to the judicial branch. Kleini. US v. Klein: The Constitution provides that the judicial power of the United

States shall be vested in one Supreme Court and such inferior courts as theCongress shall from time to time ordain and establish. Applies in a situationwhere Congress directs the judiciary as to decision making under an existinglaw and does not apply when Congress adopts a new law.

D. Other ways in which the political system can control the judiciary:

Amendment process

Appointment process of judges to the Supreme Court/ blockingappointment

Impeachment process

Life tenure of judges

Judicial self-restraint justices understand they should defer tCongress to the greatest extent possible in a democratic society.

IV. Constitutional Limits: must be cases in controversy; must be JUSTICIABLE!

A. Justiciability: creates limits on the matters that can be heard in federal court andauthorizes federal courts to hear several types of cases and controversies. 5

justiciability doctrines (a-f)

a. Advisory Opinions-dont do b/c there is a prohibition agst advisory opinions.Has to be LIVE case and controversy so not be a hypothetical legal question;keeps the court OUT of the legislative process. To avoid being an advisory opinionmust have:

(1) An actual dispute between adverse parties(2) Decision in favor of would bring about a substantial change/have some effec(3) Court must understand the meaning of the case or controversy.

i. Once a judgment is FINAL, a statute CANNOT retroactively authorize itsreopening. Plaut

ii. Article III-the judiciary is not to issue any advisory opinions

b. Constitutional Standing Requirements (MUST HAVE 2nd requirement)Standing determines whether a person is the proper party to bring the matter to court.

i. Promotes separation of powers by restricting the availability of judiciareview.

ii. Serves judicial efficiency by preventing a flood-gate of lawsuits.iii. Standing can be raised at ANY time by the federal court proceeding.

iv. Congress CANNOT overturn constitutional standing.Requirements for standing: if person lacks standing then they are not theappropriate party to bring the action.

v. Injury: must have suffered or imminently will suffer a personal harm; mustbe legally cognizable. A mere interest in the problem is insufficient fostanding.

a. Allen v. Wright: Case was brought against the IRS on behalf ofparents of black school children challenging the tax credit. Thecourt held that there was no standing because there was no

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Questions to ask re:

Justiciability:1. Who is bringing

the suit?

2. When is the suitbeing brought?

3. State rules of

standing.

4. What question is

being asked of the

court?

5. How does issue

line up with casesweve read?


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injury to the black children, causation could not be traced to theIRS, and effect of redressability was not clear.

b. City of LA v. Lyons: In order for a person to have standing toseek an injunction, individual must allege a substantial likelihoodthat he will be subjected in the future to allegedly illegal policy.

c. Lujan v. Defenders of Wildlife: s lacked standing b/c theycould not show a sufficient likelihood that they would be injuredin the future by a destruction of the endangered species abroad.

vi. Causation: must allege that his injury is fairly traceable to the s conduct(governmental actor).

vii. Redressability: must allege that a favorable court decision will redress(fix) the injury; relief sought will take care of problem.

c. Prudential Standing Requirements: (Can be OVERRULED by Congress)

i. Legislative act that creates standing that can be OVERRULED by Congressat anytime.

ii. 3 types: (1) 3rd party, (2) taxpayer, and (3)

iii. (1) Third Party Standing: A party cannot present the claims of 3rd partieswho are not part of a lawsuit; MUST asserts own rights.

1. Requirements:a. A close relationship (inextricably bound up)

i. Ie: parent child, associational standingrealtor/homebuyer, student/schoolboard

ii. Newdowb. 3rd party has to have an independent basis for injury

c. AND something is prohibiting the absent party from litigating(maybe P lacks the intelligence, privacy.

2. Exception: Party must meet standing requirements as well as theexception!

a. Close relationship to and 3rd party which must beinextricably bound up

i. Look at relationship b/t 3rd party and plaintiff

ii. Singleton v. Wulff: doctor given standing to raise therights of their patients in challenging law limiting patientsaccess to contraceptives/abortion.

b. Standing for Associationsi. When an organization with a specific purpose stands in

its members shoesii. Ie: Sorority

iv. Zone of Interest:

1. Arises in administrative law context - seeking standing must bewithin the zone of interest protected by the statute in question.

2. Applies when a person is challenging an administrative agencyregulation that does not directly control the persons actions.

3. must be apart of a group intended to benefit from the law.

v. Tax Payers Standing: a plaintiff may not sue as a taxpayer who shares agrievance in common with all other taxpayers.

1. Requirements Taxpayer standing = Establishment clause + Taxand spending clause (Article I, 8 Cl. 1)

2. Flast v. Cohen : example

3. Richardson : cant give a person .look it up

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d. Ripeness (MUST BE): must be a LIVE CASE OR CONTROVERSY at all time duringthe litigation. (determine if case is premature for review); would need to talk about

all justiciability elements. Failure to meet ripness undercuts your ability to meet

constitutional standingi. Purpose: seeks to separate matters that are premature for review, because

the injury is speculative and never may occur, from those cases that areappropriate for federal court action.

ii.Think boxing: Whey you know that the fist is going to be thrown to come intocontact w/ the adversary; if punch lands different question (no longeripeness)

iii. Cases are declared not ripe b/c the injuries are either too speculative or theymay never occur. The rationale behind the ripeness doctrine is that a cshould not issue premature judgments based on abstract disagreements(Abbott Labs). Ripeness

iv. Definition of Ripeness:1. Q: Has injury occurred?

a. MUST demonstrate that a harm has actually occurred oimminently will occur (it would occur such as you are on yourway to X; you must have gone 3/4s of the way through).

2. Is there a foreseeable irreparable harm if the injury persists? (this isfrom Abbot Labs)

v. Requirements: in looking at whether a case is ripe for review, theSupreme Court considers:

1. Hardship on the parties of withholding court consideration; (ieeconomic hardship, infringement of constitutional right, due processequal protection) AND

2. The fitness of the issues for judicial consideration. Does the ct have away to evaluate it.

vi. Abbott Laboratories v. Gardner: the FDA promulgated a regulationrequiring the inclusion of generic names for prescription drugs on all labelsand other printed materials. The court found that this rule would impose a

large hardship on the parties if they were to comply and therefore the casewas fit for judicial review.

e. Mootness: derived from Article III; an actual controversy must exist at all stages ofederal court proceedings, at both trial and appellate levels. If events subsequento the filing of the case, resolve the dispute, the case should be dismissed as moot!

i. There must be a substantive change and that is why the case is moot

ii. Circumstance that might make a case moot :change in law or fact1. Death (in most instances)

a. Criminal (always moot)i. If criminal dies, the purpose behind the P suing was the

harm done to them by the criminal. Now the criminal isdead and all the legal reasons dies as well

b. Civil (may not be moot)2. Change in law3. Change in circumstances

a. If a case is moot then there is no controversy between theadverse litigants.

b. If you settle-no longer a case of controversy

iii. Exceptions: (court will STILL proceed if moot if)

1. Wrongs Capable of Repetition Yet Evading Review (probablymost important): some wrongs occur and are resolved so quickly thatthey will always be moot.

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a. Some injuries are of short duration that inevitably they are ovebefore the federal ct proceedings are completed

b. Requirements: (ie: Roe v. Wade)

i. injury must be the type likely to happen to the individua

againhas to be personal in nature)ii. it must be a type of injury of inherently limited duration so

that it is likely to always become moot before federa

court litigation is completed.c. IE: pregnancy and election

d. Defunis v. Odegarrd- cause of action was moot because he will graduate

from the law school before the appeal is perfected and is not likely to go

thru law school so he does not have an injury that is likely to repeat

i. Had this been a class action it would not have been moot

2. Voluntary Cessation: A case is not dismissed as moot if the voluntarily ceases the allegedly improper behavior but is free to return

to it at any time. The case is only moot if the cannot return tothe behavior in the future.

a. On an exam look for cease in action causing the harm andregulations changing

b. You cannot take persons word that they will stop the continuedaction have to certain it has CEASED!

c. Person who has the burden to persuade the ct is the person whoasserts mootness

d. Friends of the Earth:i. Dumping Hg into the water system and the company

stopped. The case appears to be moot, however the ctsaid not a mootness case b/c the company still had thepermits and could have a potential to violate again.

3. Class Actions: The Supreme Court has held that a properly certifiedclass action suit may continue even if the name s claims arerendered moot. The argument is that the class maintains a lega

status than that of the named , an do so as long as the classmaintains a live controversy.

a. Requirements:i. Properly certified class action

b. If the main plaintiff drops out the case is not moot so long assome long as there is an original party.

c. If the class is offered for certification and has no other court togo to then the Ps cause of action is moot.

4. Collateral Consequences: (sex offender out of jail and registeredon the state list). Although you dont have the injury you have acontinual injury b/c your circumstances are changed. IE went to jai

and cant vote continuous harm.

f. The Political Question Doctrine:

i. If you get a question about political question and the answer say Justiciable because

the parties articulate a textually demonstrable issue arising under the guaranty

clause---the answer is wrong because guaranty clause equal non-justiciable question

ii. is it legally appropriate for the court to answer the constitutionality of thequestion, the question is political in nature.

iii. Political question examples:

1. congressional membership (Powell v. McCormack)

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a. internal rule making of the legislature

2. challenge to president conduct (Powell)

3. challenge to impeachment (Nixon v. US)4. Foreign Policy (Gold Water v Carter)

5. Political Gerrymandering (Baker)iv. Political Gerrymandering:

1. Baker v. Carr: In determining whether a question falls within the

political question category, the appropriateness under our system ofgovernment of attributing finality to the action of the politicadepartments and also the lack of satisfactory criteria for a judiciadetermination are the dominant considerations.

a. Cases in which Political Questions are involved:i. Constitutional issue for another branchii. Judge has no standard for resolving issueiii. Dont make policyiv. Judicial intervention will be embarrassing to various

governmental departmentsv. An unusual need for adherence to a political question

already made

vi. Its hard for the court to decide an independenresolution without disrespecting other branches.

2. League of United Latin America: TX did redistricting where democratswon. The issue was that TX was redistricted to look like the Ds wonwhen in fact the Rs won.

a. The ct said apply the sole intent test-comes from the per serule that political gerrymandering is a nonjusticiable politicaquestion

v. Congressional Membership and Challenge President Conduct:

1. Powell v. McCormack: P was not able to take his elected seat in the USHouse of Rep. The House tried to add an additional requirement ofethics, which is not stated in the Constitution. Therefore this was a

justiciable political question. However, if they waited till after P tookhis seat and then by 2/3 vote impeached him then this is anonjusticiable

***this can never be an answer: political gerrymandering is per se a nonjusticiable politicalquestion******

****never a right answer: justiciable b/c under the Guaranty clausethis is wrong b/c theGuaranty clause is not justiciable

can tie political question and 3rd party standing in together.

HYPO: S and Z have a K, where S can examine a dining room table whenever S wants to.

However, Z is going out of town and S wants to look at the dining room table. Now theyare litigating.

Under the political question doctrine. This allows the ct to enforce certain aspects of theK, but not all.

What justifies impeachment?high crimes (felonies) and misdemeanors; technically it iswhatever 2/3 vote of legislature thinks is impeachable.

Racial gerrymandering=unconstitutional

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Has to meet all above and now you are in ct to talk abt std of reviews.

of

view

Applies to Articulation of std Notes

ational basismore

nsive

rage of this

rial (623-

Generally the level of scrutiny applies to:-evaluation of Congressional or governmental action

when there is no need or jusitification for a heightened

std of review (Lopez and Morrison)

-any equal protection challenge that does not justify a

heightened level of review such as:

1. rights to education (999)

2. age (807)

3. disability (810)4. Wealth

5. Sexual orientation

6. zoning Regulations

2. Rationally related

3. t

o a legitimate governmental

interest;

4. n

eed not be most (or even an

effective means;

5. need not be actual purposemerely conceivable purpose, but6. g

overnment action CANNOT be

aribitrary unreasonable, or

illegitimate

Burden of proof is on theplaintiff or non-

governmental party

ermediate

iny

-gender

-intellectual ability (downs syn)

important govtal interest that is

furthered by substantially relatedmeans (US v Virginia)

-govt has the burden of

proof

rict Scrutiny Suspect Classification such as:-race (646-721)

-national origin and or alienage status

Fundamental rights such as:

-immigration

-right to vote

-right to travel

-access to the cts

-rights to many

-reproductive medical autonomy-care, custody, control of minor, children

-familial relations

-race, place of origin

1. narrowly tailored to

2. c

ompelling govt interest with

3. n

o less intrusive means to meet

the govt goals.

(Grandma Mary Sunday Morning

Getting Ready in her Girdle-

describes tightness of the std.)

-govt bares the burden todemonstrate appropriate

interest and approach to

meet interest

** Intermediate + Strict scrutiny sometimes collectively is known as a heightened scrutiny, which places the

burden on the govt

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X is a lesbian woman who is Hispanic. X thinks she has been discriminated agst with an application

for a job to work the St. Pattys parade. X applies to be a person to guide the crowd. X believes she

is discriminated what is the result?

A. X will lose, b/c govt failed to show orientation was not a factor

This is wrong b/c it attributes a burden to the wrong place b/c of classification

B. Win if she meets burden to show gender was a factor

This is wrong b/c gender is a class which the govt has the burden

C. Win if govt fails to prove that her ethnic status was not a factorRace and ethnicity and place of origin is usually a heightened level of scrutiny and if the govt has the burden.This is the right answer.

Whether the prohibition of tax payers standing is in fact prudential rather thanconstitutional?

If there is a method by which Congress can alter the rights or interest, to create somethingfor the people that they did not otherwise have, it is appropriately defined as a prudentialrequirement.

o Ex: party seeking to litigate an issue and through normal means they would not beable to demonstrate that they were injured; the precise cause of that injury; but

there is a piece of legislation or policy in place that creates an element that did notexist that is prudential.

You have to satisfy the constitutional and the prudential to have standing.

The Federal Legislative PowerI. Congress and the States

A. Congress: (Look for someone challenging the legality of a Federal Statute)a. Article I vests legislative powers with Congress which consists of a Senate and House

of Representative.b. Federal government is a government of enumerated powers; it MUST have express

or implied authority in the Constitution for its statutes to be valid.

c. Federal government is SUPREME over the States.d. Congress may act ONLYif there is an expressed or implied authority to act in theConstitution.

B. States

a. 10th Amendment indicates that powers not delegated to the US by the Constitutionshall be reserved for the States.

b. States have NO AUTHORITYto negate federal actions.c. States may act UNLESS the Constitution prohibits the action.

Necessary and Proper Clause

1) Article I 82)This clause expands the scope of the enumerated pwrs by giving Congress the power to

make all laws which shall be necessary and proper to execute the enumerated powersand all other powers given to the federal govt by the Constitution.

3) Congress has implied discretionary pwr due to the necessary and proper clause4) Necessary-useful and desirable5) McCulloch v. Maryland : How does the necessary and proper clause fit in?

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Chief Justice Marshall declared that the necessary and proper provision givesCongress the ability to choose any means, not prohinited by the Constitution, to carryout its express authority. Congress has the power to adopt any means which might beappropriate and which are conducive to executing the specified power.

F: MD wanted to tax the federal banks.

Rule: Congress can use any mean that are rationally related to the objectiveCongress is trying to achieve AND that are not specifically forbidden by the

Constitution Congress may choose ANY MEANS, not prohibited by the Constitution, to carry outits lawful authority

McCulloch does several important things: defines relationship btw national andstate govts, rejects idea of state sovereignty, broadly defines

Analysis of Constitutionality of Congressional Acts:

1) Does Congress have power to pass a given piece of legislation? Yes!

2) What is the source of that power?Article I 13) Is there a limitation on that power? Does the law violate another provision/doctrine of

the constitution such as:

Infringing separation of power

Interfering with individual liberties

4) Has Congress exceeded their scope of power?5) Is it Necessary and Proper?

II. The Commerce PowerA. Article I, Section 8, Clause 3 establishes commerce power.A. Intrastate v Interstate

Intrastate-within one particular state. Congress is not in power to regulate

Interstate-b/t states; Congress is able to regulate interstate.B. How to analyze:

ct considers 3 questions:i. what is commerce; is it one stage of business or does it include all aspects of

business and life in the US?

ii. What does among the several states mean; is it limited to instanceswhere there is a direct effect on interstate commerce or is any effect oninterstate activities sufficient?

iii. Does the 10th amendment limit Congress?B. Analyzing Congresss Power

Activities that affect interstate commerce:iv. Interstate=need 2 or more states

The use of channels and instrumentalities that affect interstate commercei. Includes transportation/traffic

ii. Vehicular transportation is NOT requiredany transmission across state linessuch as electricity, gas telephone, TV, radio, and mail transmission, willconstitute interstate commerce.

iii. NOTE: the ct has consistently regarded transportation or traffic as commerce,whether or not a commercial activity is involved

Activities having a substantial economic relationship to interstatecommerce.

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i. The S.Ct has sustained congressional power to regulate any activity, local orinterstate, that either in itself OR in combination w/ other activities has asubstantial economic effect upon or effect on movement in interstatecommerce

When Congress attempts to regulate intrastate activity under this 3rdprong, the CT will uphold the regulation IF:

a. It is of economic OR commercial activity ANDb. The Ct can conceive of a rational basis on which Congress can

conclude that the activity in aggregate substantially affectsinterstate commerce.

c. Gonzales v Raich : marijuana was regulatable b/c it was a part ofa comprehensive federal program to combat the illicit of illegalsubstances. However, if the regulated intrastate activity is NONCommercial and NON-economic, it cant be regulated under theCC UNLESS Congress can factually show a substantial economiceffect on interstate commerce.

d. Lopez : Ct invalidated a federal statute barring possession of a

gun in a school zoneb/c activity is noneconomic, Congresswould have to overcome the burden of proving it had a

substantial economic effect on interstate commerce, which itfailed to do.

Does the necessary & proper clause fit in?

i. Constitution grants Congress auxillary pwr under the Necessary and Proper

Clausepaired with the Commerce Clause gives a broad, expansiveperspective of power

ii. McCulloch

iii. The Clause itself is not a basis of powerit merely give Congress power toexecute specifically granted powers. So if a question asks what is the bestsource of power for a particular act of Congress, the answer SHOULD NOT bethe necessary and proper clause by itself.

C. Eras of Commerce Initial Era (thru 1890s) Commerce is narrow

i. What is Commerce? : Commerce includes ALL phases of business includingNAVIGATION.

Gibbons v. Odgen (1824): did Commerce include navigable waters?a. Navigable waters-you can put something on it and travelb. Everyone understood navigation comprehends commercec. Once we have est that the Federal govt is acting consistent with

its right then the state has to give in to the Federal govt b/c ofthe Supremeacy clause

d. Navigation included in Commerce

e. Monopoly is null and voidii. Among the States?:Three possible meanings:

(a.) Only interstate, never intrastate; or(b.) Includes interstate and any intrastate that has an affect on interstate;(c.) Anything within the borders of all states.

iii. 10th Amendment?: Does not provide clear indication of how the federalregulation effects the 10th Amendment.

Second Era (1890s-1937) Commerce is narrow

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http://en.wikipedia.org/wiki/Gibbons_v._Ogdenhttp://en.wikipedia.org/wiki/Gibbons_v._Ogden


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i. What is Commerce?: Commerce does not include local production, even ifthe goods to be produced are eventually moved between states. Whether ornot interstate commerce is regulated depends upon if there is a DIRECTimpact.

United States v. E.C. Knight: Where interstate (out of state) commerce is indirectly affectedby intrastate (w/in the state) commercial activity such as manufacturing, the federal governmenthas no power to regulate the intrastate activity, lest state sovereignty breakdown. The courtsdistinction was based on preserving the ZONE of activities designates to the states.

Carter v. Carter Coal Co.: Production is a purely local activity and MAY NOT be regulated asinterstate commerce, even if the goods to be produced are eventually moved between states.

Commerce=Trade

Trade is not production

Production=mining, refining, logging, or farming

Therefore Mining is NOT Commerce, refining, logging or farming

ii. Among the States?: Congress can regulate INTRASTATE commerce if iteffects INTERSTATE commerce. The zones of activities controlled by thestates are: mining, manufacturing, and production.

Houston, East & West v. United States: Congress can regulate intrastate commerce if it hasthe potential to effect interstate (out of state) commerce which occurs whenever the interstateand intrastate transactions are so related where the control of one if the control of another.

Where the affects of intrastate transactions among interstatecommerce is merely INDIRECT, such transactions remain in the controlof the State.

ALA Schechter Poultry Corp. v. United States: Congress may not regulate activities thatINDIRECTLY affect interstate commerce.

iii. 10th Amendment?: Courts began to use the 10th Amendment to limit theuse of federal commerce power that infringed on states' sovereignty. Withthis application, courts began to separate different activities as being eitherINTRASTATE or INTERSTATE.

Cannot regulate commerce there was a regulation unless theproducts are dangerous:

a. View 1: the 10th is not a separate constraint on Congress, butrather is simply a reminder that Congress only may legislate if ithas authority under the Constitution.

b. View 2: (federalist view) The 10th protects state sovereigntyfrom federal intrusion. The 10th reserves a zone of activity tothe states for their exclusive control, and federal laws intrudinginto this zone should be declared unconstitutional by the courts.

Hammer v. Dagenhart:The regulation of labor is left to the authority of the State. (Federalgovernment may not regulate interstate transportation of harmless goods to regulate the

employment conditions where goods were manufactured).

Champion v. Ames:To protect public morals, Congress has the power to prohibit the shipmentof lottery tickets which may be considered commerce between the States.

(1937-1990) What is Commerce?:i. Congress can regulate ANY ACTIVITY, intrastate or interstate that has a

substantial effect on interstate commerce. Congress can regulate activitiesthat has little effect on interstate commerce if the activity, looked at

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CUMULATIVELY throughout the country has a SUBSTANTIAL effect oncommerce.

ii. When dealing with Congress ask:

Is it an enumerated power found under Article I 8 Cl. 3.iii. NLRB v. Jones & Laughlin Steel:

Affecting commerce= burdening or effecting commerce or the freeflow of commerce.

iv. Necessary and Proper Clause in Sec 8 limits the pwr given to congress: McCulloch : legislture is allowed to create a federal bank in variousstates.

United States v. Darby: Congress is free to exclude goods from commerce when they are usedin the State for which they were designed and are perceived to be injurious to the public health,moral or welfare.

Case overturned Hammer and Carter cases.Wickard v. Fiburn: Congress can regulate any good that has a cumulative effect on thenational market.

v. Among the States?: Activity that has a SUBSTANTIAL EFFECT on interstate

commerce may be regulated under the Commerce Clause. US. V. Darby: Govtal regulation of the Fair Labor Stds Act overturnedHammer v. Dagenhart The power of commerce extends to thoseactivities that effects commerce.

Heart of ATL v US : public accommodation-places that provides for thenecessity and comfort for the public

10th Amendment?: Rejects the 10th Amendment! The 10th Amendment is buta truism; it is not seen as RESERVING THE ZONE of activities for exclusive statecontrol.

Modern Era (1990s-present)i. Among the States? (Commerce is still defined by 3rd Era)

United States v. Lopez: was convicted under a federal law criminalizing possession of a gunin a school zone. By exercise of the statute, Congress attempted to regulate the possession of agun, by a student, in a school zone. The statue DID NOT have any requirement that the gunhave traveled in interstate commerce. The court determined that the commerce power is notlimitless! It does not extend to NON-ECONOMIC activity when there is no congressional link tointerstate commerce and the activity.

Statute had nothing to do with commerce or any sort of economic enterprise. The court will evaluate their legislation on a rational basis review.ii.3 Prong Test :

1. Congress may regulate the use of the channels of interstate commerce;

Places where commerce occurs, highways, railways, internetForeign nation, Indian tribes, among the state

2. Congress may regulate and protect the instrumentalities of interstate commerce, orpersons or things in interstate commerce, even though the threat may come only fromintrastate commerce;

Things that could facilitate commerce, trucks, plans, internet, electricity, stock,insurance, radio waves, cattle, people

3. Congress may regulate economic activities that have a substantial relation tointerstate commerce. (substantial effects ALONE are not ENOUGH)

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Does the activity include the production, distribution, or consumption of an article ofcommerce?

Do the aggregated effects of this activity have a substantial effect on interstatecommerce?

o Law IS CONSTITUTIONAL if there is a RATIONAL basis for concluding theactivity had a substantial effect on interstate commerce)

Is there a jurisdictional hook relating the activity to interstate commerce?o

Example: SC upheld a regulation telling farmers how much wheat they couldgrow because it had an overall impact on the price of wheat everywhere.

United States v. Morrison (the law as it is NOW): gender motivated crimes of violence arenot, in any sense economic activity. Congress does not have the power to regulate non-economic activity.

The federal government cannot just regulate as deeply as they see fit although expansive they cannot look at aggregate behavior.

iv. 10th Amendment?: Congress violates its States 10th Amendmentprotection when it tries to compel legislation OR compels acceptanceof liability that may otherwise enter the stream of interstate

commerce. You CANNOT MAKE THE STATE USE THEIR OWN MONEYTO ENFORCE A FEDERAL LAW.

New York v. United States: Under the 10th Amendment, Congress may not compel States topass legislation (COMMANDER). Congress violates a States 10th Amendment protections when itcompels legislation/actions; or compels acceptance of liability for materials that may otherwiseenter the stream of commerce. The 10th Amendment prohibits the federal government fromovertaking the conscience of the state actor.

Congress may not adopt regulation with incentives which also request or requiresthat the States legislate or act to a particular end.

Printz v. United States: (same as NY v. US): The Brady Handgun Violence Prevention Actsinterim provision commandeered the chief law enforcement officer of each local jurisdiction to

conduct background checks. The court determined that this was unconstitutional. Federal government MAY NOT COMPEL the States to enact oradminister a federal regulatory program.

If commercial activity, but State is a regulated party, then 10thAmendment is limited on federal power.

Reno v. Condon: States are regulated in the same way as private individuals. There is no extraburden on state employees. Federal government CANNOT COMMANDER States to carry outfederal acts.

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III. Taxing and Spending PowerA. What purpose may Congress Tax and Spend?

a. Article I, Section 8, Clause 1

United States v. Butler:provides how broad or narrow to construe taxing andspending power.

Justice Roberts

Expanding taxing and spending clause beyond Article I

Congress is expressly empowered to lay taxes for the general welfare.Congress may spend in any way it believes it would serve general welfare, solong as it does not violate another constitutional provision.

Congress may tax and spend but not regulate in a particular areaMERELY on the grounds that it is providing for the general welfare.

A statute is vague when an ordinary person will be unable todetermine if the actions that he is contemplating are proscribed.

A statute is overly broad on its face when the govtal entityempowered to enforce the law has virtually unlimited discretion in itsdetermination of whether the law has been violated.

Facial v As applied challenge:a. Facial-an outright allegation that the behavior is inappropriate,constitutionally not supported

Exception to standing if dealing with facial challengeand 1st amendment:

1. HYPO: have a decency statute which prohibitcertain behavior. 2 Live Crew is appropriately regulated bythis statute, but the statute is incorrectly structured. Areasonable person cant know they have violated the statueuntil they are prosecuted. X has a nude pic of her son. B/cof the statute vagueness X may be in violation. 2 Live Crew

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Pre 1937 Post 1937 Modern Era

What is

commerce

Narrow view. Not mining,

refining, things that are post

production. Attempts toregulate work conditions is

not constitutional by the

commerce clause

Adopted a broader prospective.

Took on Prof. Faulk view of

what commerce is. It includesmining, refining, distribution,

farming, recycling.

What is commerce and among

the state collapse together. Not a

very narrow view but broaderthan pre 1937.

Balancing approach

What

constitute

among thestates

Narrow view with direct

effect on commerce.

Shreveport rate case.

Broader view. Had to be

substantial effect on

commerce. Stream ofcommerce.

If there is going to be an effect

on the broader interstatecommerce then it is going to

be regulated by commerce

clause.

Among the states and what is

commerce is one

Lopez test

Channels

Instrumentalities

People or thingsSubstantial effects on interstate

commerce

10th

Amendment

A reliance on 10th

amendment but there is no

particular articulation that the10th amendment reserves the

power to the state.

The 10th amendment is

completely ignored. Switch in

time saved nine.

A resurgence on the reliance on

the 10th amendment.


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facially attacks the statute b/c of the vagueness. It isunderstood that they are litigating the issue b/c it will helpthem and X. Why do we let 2 Live Crew litigate?

a. We allow 2 Live crew to litigate eventhey are arguably regulated, we want themto.assumption being X will not litigatethemselves for whatever reason. However, as amatter of 1st amendment she is w/in her rights.The outliers and the extreme are the peoplewho litigate for the normal people. IE:pornographers

b. As applied-usually this law is fine, but when applied to me, it isunfair.

i. Madison: Congress does not have the power to tax and spend unless it isstated in the Article I. Limited view

ii. Hamilton : As long as Congress is taxing and spending for the generalwelfare it doesnt violate a provision of the Constitution. Broad view.

a. Congress adopted Hamiltons view in this case.

b. Sabri: gives the breadth of taxing and spending power.

i. Bribe case. Take 2 quarters one is based on a bribe, cant figure out whichquarter is tainted so being prosecuted to the full extent of whatever changeyou have.

ii. Re-affirms congresss broad scope of authority under the spending clause.iii. Necessary and Proper Clause doesnt give Congress unrestricted power. The

standard is rational means to effectuate one of Congresss enumeratedpowers.

TEST limiting the spending power:1. Is the exercise of the spending power in pursuit of the general welfare?2. Are the conditions attached to the grant stated unambiguous?3. Are the conditions related to the federal interest in the particular projects or programs?

The condition precedent b/t highway funding and educational system. There has to be a reasonable funding practice and what they are attempting to

regulate.

South Dakota v. Dole4. Does the law directly regulate for the general welfare?

Congress MAY NOT DIRECTLY regulate for the general welfare Congressional regulations MUST be JUSTIFIED by other enumeratedpowers (typically commerce clause).

B. Conditions on grants to State governments

The condition must promote the general welfare (courts should defer substantially to thejudgment of Congress);

The condition must be unambiguous (allowing states to exercise choice knowingly,cognizant of consequences of participation);

The condition should relate to the federal interest in particular national projects orprograms;

Other constitutional provisions may supersede conditional grants.

a. 10th Amendment as a Limit on Congressional Powers:Congress CAN:

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Require states to comply with federal laws of general applicability (i.e. that also apply toprivate parties) unless so requiring causes excessive interference with the functioning ofstate government

Put conditions on receipt of federal fundso Conditions must be EXPRESSLY stated;o Conditions must have some RELATIONSHIP to the purpose of the spending program.

Prohibit sales from engaging in certain acts (prohibit harmful commercial activity by state

governments)

Congress CANNOT:

Compel states regulatory or legislative actionTEST: NOT VIOLATING the 10th Amendment:

Forcing the states to comply with NEUTRAL rule of general applicability

Putting conditions on the receipt of federal funds

Preempting state laws

Prohibiting states from engaging in activitiesTEST: VIOLATION the 10th Amendment:

Compelling a state legislature to enact laws Compelling the state executive branch to execute a federal directive

IV. Congress Power: Post-Civil War Amendments (Reconstruction Amendments)Post- Civil War Amendments: Each amendment has provisions that empower Congress toenact civil rights legislation.

A. 13th Amendment: prohibits slavery an involuntary servitude, except as punishment forcrime (applies to private action).

a. Congress cannot use this to eliminate discrimination

B. 14th Amendment: (Due Process Clause) all persons born or naturalized in the US arecitizens and that no state can abridge the privileges or immunities of such citizens; nor may

states deprive any person of life, liberty, or property without due process of law or denyany person of equal protection of the laws.a. Only applies to action by a state or local government, government officer, or private

individual whose behavior meets the requirements for the state action (Congresscannot use to regulate private behavior).

b. 14th Amendment does not provide protection for an individual.

C. 15th Amendment: prohibits state and federal government from denying the right to voteon account of race or color. Contains an enabling clause that allows Congress to adoptlegislation protecting the right to vote from discrimination.

D. Who may Congress Regulate?

Pursuant to 2 of the 13th Amendment and 5 of the 14th Amendment, congress can

regulate ONLY state and local govt actions and NOT private conduct.a. However, under the 13th Amendment it allows Congress to regulate private activities

entailing slavery. BUT not discrimination.

United States v. Morrison: Court said they could not regulate the conduct of a privatecitizen (i.e. domestic abuse of victim), can ONLY regulate state and local government.

E. What is the Scope of Congresss Power?

2 views correlate to Madison and Hamilton:

a. Nationalist (Broad): Under 5 of the 14th Amendment, Congress can use its powersto expand the scope of their rights and even define the meaning of the

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constitutional provisions so long as they are not diluting rights (i.e. expand therights of life, liberty and property).

i. Hamiltonii. Modern example is broadening the right to marriage to include same sex

marriage.iii. Due Process-Amendment XIV

b. Federalists (Narrow): Congress MAY NOT under 5 create powers of new rights orexpand the scope of rights. Congress can only act to prevent or remedy violationsof rights, and such laws must be narrowly tailored.

i. Congress can ONLY remedy or prevent violations but CANNOT make newlaws/expand.

ii. Madison

Katzenbach v. Morgan (adopted the Nationalist view): Section 4(e) of the Voting Rights Act of1965 provided that no person who had completed the 6th grade in a Puerto Rican school whereinstruction was in Spanish could be denied voting privileges because of illiteracy in English. ANew York voting statute required literacy in English. The court ruled that section 5 of the 14th

Amendment gives Congress the authority to enforce the Amendments equal protectionguarantees. Therefore, Congress may enact legislation to counteract state laws violative of

equal protection.PF 3 Prongs:1. Who is the actor?2. If you are trying to get to the Bill of Rights through the 14th

Amendment, make sure the particular provision is incorporated (only regulatesstate and local government).

The actor MUST be the state.3. Have it been incorporated?

City of Boerne v. Flores (adopted the Federalist view): a Catholic archdiocese, sued cityalleging that the citys failure to allow it to expand a church in a historic district violated thefederal Religious Freedom Restoration Act, which required that states imposing restrictions

that affected religious practice show that the restriction was narrowly tailored in order to servea compelling government interest. The court applied the narrow view providing that theSupreme Court has the ultimate authoritative power to interpret the constitution. They willlook for two things: (1) congruence and (2) proportionality; must be congruence andproportionality between the injury to be prevented and the means adopted.

1. Is there a problem (injury)?i. Ex: Cheri broke her leg.

2. Is the remedy proportioned and congruent to the problem?i. Ex: The doctor put a cast on Cheris arm.

Analysis:1. Does the law create new rights, or attempt to restore a right recently narrowed by the SC to

its previous state? (NOT authorized by the 14th

Amendment b/c its not remedial)2. Is the legislation remediating already-defined rights in a ways that is both:

Proportionate: remedial measures used must be proportionate, and not out of proportion,to the evil they are addressing, and

Congruent: showing a close fit between the means used and the ends to achieved.

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FederalismBackground:

The Constitution imposes certain limitation on state power. These limitations may beexpressed or implied. Faced with federal inaction, a state MAY enact legislation thataffects interstate commerce.

The Constitution grants Congress the power to regulate interstate commerce.Congressional silence in certain area MAY NOT be construed as congressional approval of

state actions.o Court recognizes the legitimacy of CERTAIN state actions taken pursuant to a

states POLICE POWER to protect its citizens and its environment.

A state regulation that affects interstate commerce must meet each:1. Regulation must pursue a legitimate end;2. Regulation must be rationally related to that legitimate end; and3. State interest must OUTWEIGH the burden and discrimination imposed by the regulation oninterstate commerce.

II. Preemption: When the federal government has acted and the state government has actedand there is a conflict between the two. (2 cars-1 lane-head-on-collision)

A. The Supremacy Clause of Article VI provides that the Constitution, and laws and treatiesmade under it, are the supreme law of the land.

B. If federal and state law exist to regulate the same subject matter, the state law ispreempted (precluded) if:

a. Joint compliance is impossibleb. Objectives of both law conflictc. Congress preempts the entire fieldd. There is substantial national need for uniformity in regulation

C. Expressed Preemption (you will see w/in the legislation a clause potential to exclude anyregulation)

a. Lorillard: statue was intended to eliminate cigarette advertising.

b. If the federal statute or law is exclusive in a particular field then state and locallaws are preempted.

i. Example: The federal government has a Federal Meat Labeling Act, becausemeat labeling is exclusively under the federal governments control state lawis preempted.

Lorillard Tobacco Co. v. Reilly: Manufacturers and sellers of tobacco products challenged MAregulations restricting the sale, promotion and labeling of tobacco products. The courtconsidered whether federal tobacco marketing and warning label information preempt state lawon these topics.

VIOLATES the dormant commerce clause!

It amounts to a tax on imported milk, and because there is no internal political

constituency that would oppose the scheme except for consumers, who might notbe interested given the small impact it had on retail prices.

D. Implied Preemption (CONFLICT both state and federal government are on frontage road state from one direction and federal government from another; state and federallegislation may not co-exist)

a. Avocado: regulation of avocadoes; ripeness is determined in the market by thepercentage of oil created by the fruit; we have a federal regulation (ripe date of pickno oil) and state regulation (greater than 8%) concerning oil.

b. If a federal and state law is mutually exclusive, federal law preempts state law.

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ii. Example: If it is not possible for someone to comply with both federal andstate law then state law is preempted.

c. Ifstate law impedes the achievement of a federal objective, federal lawpreempts state law.

iii. Example: Florida has a law which states that anyone who files an unfair laborgrievance cannot receive unemployment benefits. State law is preemptedbecause it punishes those who want to file claims.

d. IfCongress evidence a clear intent to preempt state law

, federal lawpreempts state law.iv. This is usually shown through legislative historyv. Example: Congress has shown that federal law is the only law controlling

immigration, thus any attempt by a state or local government to change lawwill be preempted.

E. Inter-governmental Immunitye. States MAY NOT tax or regulate federal government activity.

PF Analysis:1. Establish the appropriateness of the federal government to regulate in specific area met the

LOPEZ TEST2. If federal government can regulate, define the scope of the regulation (your assumption)!

Other Analysis:1. Does the law facially discriminate against OUT-OF-STATERS? If so, apply heightened scrutiny.

Is there an important local being served?

Is the manner chosen to achieve the end the least restrictive alternative, or are thereequally effective means?

Presumption-invalid if its discriminatory; court will defer to state legislature.

2. Is the law facially neutral with a discriminatory purpose or effect? If so, apply heightenedscrutiny as above.

Does the law discriminate against ALL out-of-staters, or just a subgroup? Is the law motivated by a protectionist purpose?

Does the law impose a cost on out-of-staters that in-staters do not have to bear?

3. Is the law non-discriminatory, but does it nonetheless place a burden on interstate commerce?If so, apply a balancing test:

Does the state/local interest in protecting health, safety, and economic interest of citizensand intrastate business OUTWEIGH the national interest in protecting the free flow ofcommerce?

Presumption=generally valid; court is more deferential to the states in this test.

4. Does the law fall within an EXCEPTION to the dormant commerce clause?

Congressional Approval Congress can explicitly approve a state law that burdensinterstate commerce.

Market Participant if the state is literally a participant in the market, such as with in-statecustomers. But it cannot impose down-stream conditions.

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The Federal Executive PowerI. Presidential PowerPresident is the commander in chief. He gives power to the legislature. He cannotrecruit, pay or discipline the troops. He can raise war.

1. If the President acts with expressed constitutional support for his exercise of power, whatshould the court do? BACK OFF He would be abiding by the Constitution. (There are not

very many acts where the executive acts with expressed constitutional support).2. If the President acts with implied constitutional support, what should the court do? (see

Justice Jackson 4 models)

A. Article II: Executive power is vested in the President.B. Inherent Presidential Power

a. Hamilton: Framers intended INHERENT presidential powers.b. Madison:The president has only the ENUMERATED power.

Youngstown Sheet & Tube Co. v. Sawyer:The court considered whether the President wasacting within his constitutional power when he issued an order directing the Secretary ofCommerce to take possession of and operate most of the Nations steel mills. The mill owners

argued that the Presidents order amounted to lawmaking; a legislative function which theConstitution has expressly confided to the Congress and not the President. The Presidentsorder did not stem from either an act of Congress or from the Constitution itself. ThePresidents EXECUTIVE order was a result of indispensability of steel as a component ofsubstantially all work stoppage would immediately jeopardize our national defense and thatgovernmental seizure of the steel mills was necessary in order to assure the continuedavailability of steel. The court determined the order to be unconstitutional.

Lawmaking powers are entrusted SOLEY to Congress.

The Presidents power to issue and enforce an order must stem from eitheran act of Congress or from the Constitution itself.

President can recommend or veto legislation thats it!

Structure:1. Pres at strongest

2. Twilight Zone3. Nadir

Reasons why Congress MAY support the presidents action?

Efficiency

Emergency situation

What are some of the reasons Congress may NOT support the presidents action?

Party affiliation

Usurping their power (president overstepping his bounds)

4. President MAY act W/OUT EXPRESSED CONSTITUTIONAL orSTATUTORY authority: (4 Models)

(1) There is no inherent presidential power; the president may actonly of there is express constitutional or statutory authority. (Justice Black)

Presidents power MUST STEM from either an act of Congress or fromthe Constitution itself!

President cannot exercise power that cannot be traced to somespecific grant of power.

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This approach is premised on the belief that inherent power isinconsistent with a written Constitution establishing a government of limitedpowers.

(2) The president has inherent authority unless the presidentinterferes with the functioning of another branch of government or usurpsthe powers of another branch.

(Justice Douglas)

Argument is grounded in textual interpretative approach. Allows the courts to invalidate presidential actions that interfere withthe other branches of government.

o Unconstitutional because the President was using federal fundsto compensate the steel mill owners for taking their property. Presidentwas impermissibly usurping Congresss spending power.

This approach recognizes the ability of the president to act withoutexpress constitutional or statutory authority, so long as the president is notinfringing or usurping the powers of Congress or the courts.

o The Constitution makes not mention of a presidential power torecognize foreign governments or to remove presidential appointees fromoffice, nor has Congress ever granted such powers in a statute. YET, it is

conceded that the president has these powers. (3) The president may exercise powers not mentioned in theConstitution so long as the president does not violate a statute or theConstitution. (Justice Frankfurter-action unconstitutional)

There was an expressed Congressional denial of authority by decliningto accept the amendment.

o It is Congresss responsibility to act to STOP presidentialinfringements!

Justice Jacksons Approach (3 Zone Test)

(4) The president has inherent powers that may not be restricted byCongress and may act unless the Constitution is violated. (Justice Vinson )

President has broad authority so long as the Constitution is notviolated.

Federal laws restricting the presidents power are unconstitutional.

US v. Curtiss-Wrighttakes this approach!o Case involved a congressional authorization permitting thepresident to restrict arms sales to 2 warring Latin American nations. Thecourt upheld a BROAD delegation of powers to the president. The courtstated that the fact that the federal government can exercise no powersexcept those specifically enumerated in the Constitution is categoricallytrue only in respect of our internal affairs. The power to conduct foreignpolicy does not stem from the Constitution, but instead is intrinsic tonationality.

Since 9/11, the executive has broad inherent presidentialpower to protect national security and fight terrorism. They canengage in activities like: detaining suspects and warrantlesseavesdropping of Americans conversations with those in foreigncountries.

ON an Exam: Need to know that the she will put us as the position to represent the govt actoror private interest. She expects us to know immediately we need to go to the steel seizure case.May have dog case. Identify the Jackson structure we are working with.

Private interest-in this instance the Federal govt has an undivided hold b/c..

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If have dog case and cant win then tell client what they should do (settle,negotiate, lobby) and guide them in this answer. My bill is ___ b/c I did such and

thus. Cite Article IIlisten to class starting at 12:20i. Steel Seizure is all about the

According to her there needs to be some legislative outcry that something drastic had occurred in order toqualify as an emergency.

Once emergency is declared, Congress cant turn it off. There is nothing in the declaration which saysyou can resend war. Who would litigate this question?

o Congress=political question, so no

o Tax payer standing=no

c. Justice Jackson: 3 Part Test (Analysis of Pres. Power starts HERE!)Justice Jackson found the presidents actions unconstitutional because Congress hadDENIED the president the authority to seize industries. He attempts to reconcile the 4models above. He attempts through the 3 part test:

(1)When the president acts under expressed or implied authorization byCongress, his authority is at its MAXIMUM, for it includes all the hepossesses in his own right plus all that Congress can delegate. VALID!

A. Congress has acted and the issue is the constitutionality ofthe federal law.

(2)When the presidents acts in absence of either a congressional grant ordenial of authority, he can only rely upon his own independent powers.BUT there is a zone of TWILIGHT in which he and Congress may haveconcurrent authority, or in which its distribution is uncertain.

A. Inherent powers where the president is acting w/outconstitutional or statutory authority.i. Ex: executive privilege, rescission of treaties, executive

agreements, removal of executive officials from office,etc.

(3)When the president takes measures incompatible with the expressed oimplied will of Congress, his power is at its LOWEST. Because thepresident is disobeying law, such presidential actions will be allowed ONLYif the law enacted by Congress is UNCONSTITUTIONAL.

Congress has acted and the issue is the constitutionality of the federal law.ii. Youngstown case fits into this zone Congress has left no

seizure of private property an open field but has coveredit by 3 statutory policies inconsistent w/this seizure.

1. Executive PrivilegeExecutive Privilege: refers to the ability of the President to keep secret conversations with or

memoranda to or from advisors. The Constitution does not mention this authority but it has been claimed by Presidentsas necessary for them to receive candid advice.

United States v. Nixon: (Watergate)Tapes were subpoenaed of the White Houseconversations and the Presidents challenged the subpoena in courts. A subpoena was issued, atthe request of the special prosecutor, for the President to turn over the tapes. The SCunanimously ruled that Nixon had to comply with the subpoena.

Absent a need to protect military, diplomatic or sensitive national security information,executive privilege is not ABSOLUTE. However, it does cover candid communication inthe Oval Office.

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o TEST: weigh the importance of the general privilege of confidentiality of

Presidential communications in performance of the Presidents responsibilitiesagainst the inroads of such a privilege on the fair administration of criminal

justice.

Executive privilege v. Constitutional Due Process Rights

In the context of a criminal proceeding, in which the executive holdsinformation relevant, to a criminal Ds due process rights and interest, the

presidents executive privilege must yield to the due process interest ofthe criminal proceeding.

In criminal proceeding the executive privilege must yield (aninterest in constitutional magnitude); in a civil proceeding theexecutive privilege prevails.

Cheney v. U.S. Dist. Court for Dist. of Columbia: A lawsuit was filed claiming that an energytask force, chaired by Dick Cheney, violated the Federal Advisory Committee Act. sought andreceived a discovery order. sought a writ of mandamus to stop enforcement of the discoveryorder. The SC did not resolve whether executive privilege applied here, or even whethermandamus should be issued. The court remanded the case for further consideration.

Difference in this case v. Nixon:

o Unlike Nixon, this was a request for information in a civil suit. Nixon involved theproper balance between the executives interest in the confidentiality of itscommunications and the constitutional need for production of relevant evidencein a criminal proceeding.

Civil cases do not share the same urgency as criminal cases.

The subpoena in Nixon was narrowly focused, while the discovery soughtin Cheney was broad.2. Authority of Congress to Increase Executive Power-Separation

of powersd. Article 1, Section 7: President can veto any bill passed by Congress. If the measure

is vetoed, the veto can be overridden by a 2/3 vote in each house.e. Line Item Veto: a veto of only one line, or a part of a bill. Said you need simple

majority. Assuming the bill became a law under certain circumstances theExecutive can strike certain appropriations w/in that law. The purpose is to allowthe Executive to have more power over the spending practices of the US.

f. The Presentment Clause: Article 1, Section 7, Clause 2: after a bill has passed boththe house of Congress, but before it becomes a law, it must be presented to thePresident. If he approves, he shall sign it, but if no, he shall return it, with hisobjections to that house in which it shall have originated, who shall proceed toconsider it.

g. 2 view points: think form v function

1. Functionalist

2. Formalist a strict interpretation

1. Clinton v City of New York:-the ct applies formalist approach.NY argueby allowing the President to alter the law after it passed that Congresshas allowed the President to legislate and this is problematic bclegislating belongs to the legislature. The president has the power toexecute the law.

a. Scalias dissent: Is a Funcitonalist;b. Majority opted for a formalist approach; Constitutionally

inappriate.

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c. The presidents return of the bill occurred after the bill had beensigned into law, rather than before as the Presentment clauserequires.

d. There is no provision in the Constitution that authorizes thePresident to enact, to amend or repeal statutes.

h. constitutional return occurs before the bill becomes law and is a return of the entirebill. Statutory cancellation occurs after the bill becomes law and will return onlypart of the bill

C. Non-Delegation Doctrinea. Agencies exercise all of the powers of govt. The administrative agencies generally

have legislative power and can promulgate rules to force the law.

Have executive power

Have judicial powerb. Non-delegation doctrine: Congress may not delegate its legislative power to

administrative agencies.

Forces a politically accountable Congress to make policy choices ratherthan to leave this to unelected officials.

c. Ultimately it was decided if Congress delegated its legislative power it must provide

criteria

A.L.A. Schechter Poultry Corp. v. US: Court declared a regulation under the National IndustryRecovery Act unconstitutional as exceeding the scope of Congress commerce power andbecause it was an impermissible delegation of legislative power.

Congress cannot delegate legislative power to the president to exercise an unfettereddiscretion to make whatever laws he thinks may be needed or advisable for therehabilitation and expansion of trade or industry.

D. Legislative Vetoa. Legislative veto: created by Congress as a check on the actions of administrative

agencies authorizes Congress or one of it houses to overturn an agencys action by

doing something less than adopting a new law. A typical form of a legislative veto provision authorized Congress to

overturn an agencys decision by a resolution of one house of the Congress.INS v. Chadha: Chadha successfully sought a suspension of deportation from the INS and theAG. Congress delegated the power to suspend a deportation order to the AG, reserving the rightto either one House to invalidate the decision of the Executive Branch. The court found that thiswas unconstitutional because it violated the Presidents veto power and the bicameral structureof Congress.

Four times when Congress can act alone:(a). House impeachment

(b). Senate - Trials, filing of charges, convictions following trials.(c). Senate - Approve/Disapprove of Presidential appointments Art. II 2, cl. 2

(d). Senate ratify treaties given by President Art. II 2, cl. 2

E. Checking Administrative Powera. Appointment Power

Article II, 2 provides the President, shall nominate, and by and with theAdvice and Consent of the Senate.

Morrison v. Olsen: Independent counsel was appointed to investigate and prosecutewrongdoing by high-level federal officials in connection with Watergate (Nixon). An actauthorizing a non-executive branch of the government to select and remove an officer does notviolate Article II or the separation of powers doctrine if that officers position is inferior.

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Congress cannot delegate appointment power to itself or its officers.

Scalia Dissent: The power to prosecute is an executive power and it usurps presidentialpower for Congress to vest this authority in the independent counsel.

o Functionalist: Obvious benefit to having investigations of executive officialsconducted outside of the executive branch.

o Formalist: Scalia emphasizes that the executive power is vested SOLEY in thepresident so any grant of prosecutorial authority to an independent counsel is

unconstitutional.

b. Removal Power of the Executive

4 prongs:

1. The president has the exclusive power of removing executive officers.Myers v. US

2. EXCEPT Congress may limit the removal power if it is an office whereindependence from the president would be desirable.

3. BUT Congress may not prohibit all removal power UNLESS there isgood cause or exceptional cause shown

4. AND Congress cannot give itself removal power OTHER than byimpeachment. Powell v McCormack

Morrison v. Olson : Rehnquist1. Independent counsel statute-suppose to give Atty General the power

to appoint a person separate and distinct from the legislature toinvestigate the situation and they are able to bring charges. Givesprotection to the investigating person.

2. what happens when you give quasi-legislative and quasi-judicial to the

president. Legislature has full autonomy and control over its own branch so long as

has super majority

The judiciary has full autonomy and control over its own branch.

The utilitarian executive puts forth the idea that the president has fullpower and control over his branch.

Questions to consider:1. Is the office one in which independence from the president is

desirable?a. Must specifically articulate the need or desire for independence.b. Something unique about the agency would suggest the desire

for independence that they should not bend the appointingpowers.i. Good cause restriction (in statute, implied in the

responsibilities in the agencies are expected to carry out)2. Are Congresss limits on removal constitutional?

F. Foreign Policya. On the question of foreign power the states didnt give anything to the

federal govt. The states didnt have power and authority as it related toforeign policy making

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The ability to negotiate did not exist till the ratification of the Constitution.

Only one branch empowered to speak for the US on the intl scene and thisis the executive and he cannot be controlled or directed by any otherbranches or the states when dealing with matters of foreign policy.

Article I 8 grants Congress power to regulate commerce w/ foreign nations.

Article II- provides that the President shall have power, by and with Adviceand Consent of Senate, to make Treaties, provided 2/3 of the Senators

present concur

b. Foreign Policy v. Domestic Affairs

The presidents executive power in foreign relations is greater than that fordomestic affairs. The exigencies of foreign affairs permit the president towield executive authority even if it is not pursuant to a congressional act.

United States v. Curtis-Wright Corp: A 1943 Congressional Joint Resolution permitted thepresident to forbid arms and munitions sales to select countries. Delegation of certain legislativepowers to the president can be constitutional when necessary to govern foreign affairs. Thepresident is the SOLE representative in the field of international affairs; he does not require acongressional act to establish legislative authority in foreign relations. The president MUST beafforded a degree of discretion and freedom from statutory restriction which would be NOT

admissible where domestic affairs alone involved. The executive has broad powers in the executive sphere. The states DO NOT have

power in the international sphere. This power was created when the Constitution wasadopted and brought in the dual government.

c. Treaties v. Executive Agreements

Article 2, Section 2: president shall have power, by and with the adviceand consent of the Senate, to make treaties, provided 2/3 of the Senatorspresent concur.

Treaties: An agreement between the US and a foreign country that isnegotiated by the president and effective when ratified by the Senate.(NEED SENATE APPROVAL)

1. Have same force as statutes.2. If there a conflict between and treaty and federal statute, the one

ADOPTED LAST CONTROLS. Article 6 (Supremacy Clause)3. If a treaty and a statute relate to the same subject, courts will try to

construe them as to given effect to both, BUT if this IMPOSSIBLE,without the language of one violating the other the LATER IN DATEWILL CONTROL.

a. US/president has broad powers to entry into treatiseswith foreign countries.

4. Whether the president may unilaterally rescind a treaty is usuallyconsidered by the Court as a NONJUSTICIABLE political question b/c itinvolves the authority of the president in the conduct of our countrysforeign relations.

5. Treaties CANNOT VIOLATE THE CONSTITUTION.

6. Treaties CANNOT BE CHALLENGED as violating the 10th Amendmentand infringing state sovereignty.

7. Article II expressly authorizes treaties and Article VI makes treaties thesupreme law of the land. Treaty power is broader tan authorityCongress has to enact statutes.

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Executive Agreements: An agreement between the US and a foreigncountry that is effective when signed by the president or any other head ofgovernment. (NO SENATE APPROVAL)

1. Executive agreement can be used for ANY purpose.2. Court has sided with any challenge to the executive agreement.3. Although the Constitution does not mention executive agreements,

they have never been held unconstitutional.4. Executive agreements can be used to do anything that a treaty can do5. Executive agreements prevail over state law.

**What if you have a piece of legislature which is later ratified by a treaty, which

prevails?Last in time prevails when it comes to federal law.d. War Powers

Article I grants the Congress the power to declare war and the authority toraise and support the army and navy.

Article II makes the President the commander and chief

The Supreme Court rarely has spoken as to the constitutionality of thepresident using troops in a war or war-like circumstances withoutcongressional approval.

A person gets their rights based upon PRESENCE in the US or US territoryand NOT because they were born here.

The Constitution applies in the US or its territory regardless of yourcitizenship.

It does not apply outside the US to a foreign nation or even if it is a personworking for the US.

The Supreme Court has generally remarked that challenges to the conductof foreign policy presents a nonjusticiable political question, especiallythose directed to the constitutionality of the presidents use of the warpowers.

Uncertainty as to how Congress may limit the president issue arises mostfrequent with the War Power Resolution, which states that the president asCommander in Chief send the military into hostilities/hostile situation onlyunder to a declaration of war, specific statutory authorization, as a nationalemergency created by attack on the US.

G. Presidential Power and the War on Terrorisma. Authorization of the use of military force:

When enacted the authorization for the use of military force was intendedto authorize the executive to go to war with whomever the intelligenceagency deemed fit who were responsible for the attacks.

This question is important b/c if the authorization of use of military force isappropriate then Congress has broadened the executive power.

AUMF:1. doesnt designate sovereign nation w/ whome we have issue with2. doesnt designate a governmental structure or leader w/ whom we

have an issue3. doesnt set forth a clear and specific articulation of the goal for the

engagement.b. Detentions

Hamdi v. Rumsfeld: An American citizen was captured during militaryoperations in Afghanistan and held as an enemy combatant. His fathersued, demanding right to be hearing to prove his innocence. The court

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determined that DUE PROCESS demands that on these narrow facts, anAmerican citizen has SOME due process right to a hearing at whichhe can contest his innocence (crt never determined the level)

1. writ of habeas corpus :summons w/ the force of a ct orderaddressed to the custodian demanding that a prisoner be broughtbefore the ct, together w/ proof of authority allowing crt to determine ifprison has lawful authot to hold the person.

2. The government has the power to detain unlawful combatants, butruled that detainees who are US citizens must have the ability tochallenge their detention before an impartial judge.

3. Minimum due process required notice of charges, right to respond, andright to be represented by counsel, BUT this case was remanded todetermine what due process should be required when an Americancitizen apprehended in a foreign country is detained as an enemycombatant.

a. Habeas Corpus: seeking relief for an unlawful detention.b. Enemy combatant: individual who is apart of or supporting

forces hostile to the US.4. Constitution applies anything labeled as US, to the extent the rest of

the world views it to be a legitimate US entity5. it is inappropriate in this instance to manage the democratic

relationship b/t congress and the executive and is a political question.

6. OConner/Rehnquist/ Bryer/Kennedya. Agree in the judgment and opinion

7. Souter/Ginsberga. Concur in part

8. Scalia/Stevensa. Agree in dissent; assuming it is appropriate to detain this person

then the detainee is entitled to some level of due process theextent should be determined by Congress, but to date hasntdone it yet.

9. Thomasa. Out on his own; he thought since we are in an emergencycircumstance that the constitution is held in abatement.

Gitmo

1. is a territorial compulsion and the US S.Ct relies on:

a. 494 US 259: Mexico national and DEA working with the Mexico

authority and take into custody a Mexico national believed to have drug

ties. DEA then search his residence w/o a warrant or attempt to obtainone. Question presented to the ct was whether the evidence gathered can

be presented. Point is the case said US behavior outside the US the agents

did act appropriately and they did not have to abide by the Constitution.As concerned with foreign nationals

2. Questions are to ask:

a. LISTEN TO RECORDING FROM4/13/09b. Does the Constitution apply

3. It is not until Bohmedian that the ct answers all 3 of these questions and they give

a preimminent structure of does the consitution apply? YES it does and the last

question is may congress restrict or broaden habeus reviewNO;i. Also talks abt the suspension of Habeus Corpus Writ and therefore

the complete removal of jurisdictional power is constitutionally

inappropriate and therefore for the executive to retain indefinitely

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they must sati

con law outline - bell

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