Constitutional Law Outline Spring 2013 – Baier I. The Federal Judicial Power

A. Article III i. Seven Functions:

a) Created federal judiciary and defines powers of the court b) Created a Supreme Court c) Gives judges lifetime tenure and stable salaries to judges in order to

keep court independent d) §2 defines the federal judicial power into two major themes (9 Cases

and controversies):1) Vindicate and Enforce the powers of the federal government

decide all cases arising under constitution, treaties, and laws of the united states; as well as authority to hear all cases where the US is a party.

2) Allows court to serve an interstate umpiring function, resolving disputes between states and their citizens Controversies between two or more states between a state and citizens of another state between citizens of different states (and citizens of same state

claiming land in other state) e) Establishes the Supreme Court with Appellate jurisdiction; only original

jurisdiction over cases affecting ambassadors, public ministers, and consuls, and those cases in which a state shall be a party. Exceptions subject to congressional power.

f) All crimes able to have trial by jury and are adjudicated in the state where the crime is committed

g) Sets the definition of treason and burden of proof for proving. B. The authority for Judicial Review

Article III never expressly gives power of judicial review or ability to review constitutionality of federal or state laws.

ii. Limitations on Judicial Power a) Federal courts are courts of limited jurisdiction

1) Art III defines scope of federal court authority maximum extent of federal subject matter jurisdiction

2) principles of standing, ripeness, mootnes, and political question (judicial principles or doctrines)

3) Congress – must have statutory authorization to hear cases Art III §2 – Congressional ability to restrict jurisdiction of courts

iii. The Marshall Court a) Marbury v. Madison

1) The Supreme Court has authority under the constitution to review executive actions and legislative acts. Supreme court has limited jurisdiction, the boundaries of which are set by the Constitution and may not be enlarged by congress (Judicial Review) “A government of laws, not of men” “The very essence of civil liberty certainly consists in the right of

every individual to claim the protection of the laws, whenever he receives and injury”

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

Political Questions are also nonjusticiable - “Questions in their nature political...can never be made in this court”

2) Commonwealth v. Cayden First proclamation of Judicial Review

iv. Justifications for Judicial Review a) Written Constitution

1) powers of the legislature and executive are expressly written in the constitution. The court's rule should be to enforce the constitution to prevent absolute power

b) Notions of a Judicial Role1) Ordinary role of courts is to interpret law

requires judges to construe the constitution in ordinary course of conducting judicial business

c) Supremacy Clause 1) “Constitution, and Laws of the United States which shall be made in

Pursuance thereof...shall be the supreme Law of the Land” d) Grant of Jurisdiction

1) The constitution extends judicial power to all cases arising under the Constitution

e) Judges' Oath1) Requires judges to swear to uphold the Constitution

f) The view of Framers and Ratifiers v. Baierisms:

a) Federalist #78 "The complete independence of the court is essential to a limited

constitution Certain specified exceptions to the congressional authoirty

1. No bill of attainder, no ex post facto laws"2. Power of the court to declare void anything contrary to the

"manifest tenor of the constitution"... Thair's Rule of "Clear Mistake"

1) a statute could be voided as unconstitutional only “when those who have the right to make laws have not merely made a mistake, but have made a very clear one,—so clear that it is not open to rational question.”

b) “Our Federalism”1) Came from Younger v. Harris (Justice Black Majority)2) “our federalism represents a system in which there is sensitivity to

the legitimate interests of both State and National Government.” limits federal interference in state civil and criminal proceedings

out of respect for the interests of the states. C. Slavery

i. Judicial Supremacy a) Dredd Scott v. Sanford

1) Is Petitioner a citizen of the United States and entitled to use of the federal court system? Court held that Slaves were not citizens of the US, they were

property. Therefore, case was nonjusticiable on the grounds that Dredd Scott could not use the court system.

Citizens are allowed use of the court system ii. Post Civil War Amendments

a) 13th Amendment prohibits involuntary servitude except as punishment for crime

b) 14 Amendment All persons born or naturalized in the United States are citizens

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 deny any person of equal protection of the law

§5: Enforcement Clause

the congress shall have power to enforce, by appropriate legislation, the provision of this article

c) 15th Amendment The rights of citizens of the United States to vote shall not be

denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude

d) US v. GUEST1) §5 cannot be used to regulate private activity 2) Law didn't allow two or more persons to go in disguise on the

highway, etc... The court held that interference with the use of facilities in

interstate commerce violated the law, whether or not motivated by a racial animus.

iii. Plessy v. Fergason a) Louisiana train car case b) Court ruled that “separate but equal” stood.

1) “we cannot saw that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools...”

2) Harlan Dissent: “...there is in this country no superior, dominant, ruling class...”

D. Constitutional Interpretation i. Rule of 4

a) 4 justices must vote on Cert. ii. DC v. Heller

a) Scalia's categorical approach to interpretation1) guns meant for “militia use” versus other guns2) Looked at text- Operative Clause and Prefatory clause3) Tracing history to English Common law origin (Blackstone)

b) Breyer's Dissent1) Weighing and Balancing approach

iii. McDonald v. Chicago a) Alito majority ruled that the second Amendment was incorporated under

the 14th Amendment. [incorporation theory of interpretation]1) Reviewing the history of the bill of rights to the states and

incorporation thereof

iv. U.S. Term Limits v. Thornton a) Arkansas referendum for term limits found unconstitutional

1) Majority looked at framer's intent and textualism/structuralism v. Carolene Products Footnote

a) Filled Milk Case b) Levels of Scrutiny

1) “There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution...”

2) Default: Laws are Constitutional Rational Basis

1. The challenger has burden of proof2. Challenger has to prove that the law does not serve any

rational, conceivable legitimate purpose or that it is not reasonable way to attain the end.

Intermediate Scrutiny1. Laws need to be substantially related to an important

government purpose often gender, illegitimate or alien children, commercial

speech, speech in public Government has BOP

Strict Scrutiny1. Presumption shift to unconstitutional

Vital and Compelling Government Interest Must be necessary to achieve a compelling purpose. Also

must be a necessary means to the end. Race cases, fundamental rights, etc...

II. Justiciability A. Justiciability includes:

i. Prohibition against advisory positions by the court ii. standing iii. ripeness iv. mootness v. political question

B. Constitutional v. Prudential Requirements of Justiciability i. Constitutional Requirements

a) Come from Article III “Case and Controversies” 1) imposes limits on federal judicial power2) Congress may not override constitutional restrictions on

justiciability ii. Prudential Requirements

a) Not derived from the constitution, but from prudent judicial administration

1) may be overridden by congress. iii. Policy for Requirements

a) Separation of Powers b) Conserving Judicial Resources c) Improve Judicial Decisionmaking d) promote fairness, especially to those who are not litigants before the

court iv. Other Limits on Judicial Power

a) Other Constitutional limits1) 11th Amendment – prevent federal court relief against state

governments. 2) Supreme court has found other circumstances in which federal courts

should abstain and refrain from deciding a matter even though it may be justiciable and jurisdictional requirements are met

b) Other Rules1) ex. Court has stated it will avoid deciding constitutional issues where

there are nonconstitutional grounds for a decision;2) where the record is inadequate to permit effect judicial review3) federal issue not properly presented

c) Advisory Opinions1) Two criteria to be justiciable and not advisory:

Actual dispute between adverse litigants Must be a substantial likelihood that a federal court decision in

favor of claimant will bring about some change or have some effect. 1. Hayburn Case (1792)

Court found that making recommendations regarding pensions was not “of a judicial nature”

“Principal of Finality” - the constitution gives the Federal Judiciary the power, not merely to rule on cases, but to

decide them.” If not deciding a case, violating separation of powers.

v. Standing a) Standing is the determination of whether a specific person is the proper

party to bring a matter to the court for adjudication 1) Promotes Separation of powers2) limits judicial power (no advisory opinions, for example; political

questions; general grievances) 3) ensures there is specific controversy before the court and sufficient

personal concern to effectively litigate the matter. 4) Ensures that people will raise only their rights and concerns. Cannot

protect others who do not want protection. b) Plaut v. Spendthrift Farm

1) Separation of Powers: Federal statute overturned Supreme Court decision, Court struck

down law as violating separation of powers2) “Judicial Power is one to render dispositive judgments, [the law]

effects a clear violation of separation of powers”3) “The constitution gives the judiciary the power, not merely to rule

on cases, but to DECIDE them.” vi. Requirements for Standing

a) Derived from courts interpretation of Article III – They are constitutional restrictions and MAY NOT be overridden by statute

1) Injury must have suffered or imminently will suffer an injury Injury must be real and immediate - Requiring an injury is a key

to ensuring that there is an actual dispute between adverse litigants and court is not asked for an advisory opinion.

US v. Hays1. holds that only a person residing within an election district

may argue that the lines for the district were unconstitutionally drawn in violation of equal protection.

City of Los Angeles v. Lyons (Choke hold case)1. Lyons did not have standing to seek injunctive relief because

the individual must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy.

Lujan v. Defenders of Wildlife1. held that the plaintiffs lacked standing because they could not

show a sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad.

Bond v. US2) What injuries are sufficient?

Injuries to Common Law1. Property, contracts, torts2. Tennessee Electric v. TVA: Standing is unavailable unless the

right invaded is a legal right – one property, one against a tortious invasion, or one founded on a statute which confers a privilege.

To Constitutional Rights1. Two Qualifications

Must decide which constitutional provision bestow rights 1) Generalized Grievances are not

What facts are sufficient?1) Laird v. Tatum: “chilling” of first amendment rights was

deemed not enough for standing2) however, court is inconsistant with “chilling effect” of

free speech regulation.3) Thus, requires inquiry into merits of case

To Statutory Rights1. Trafficante v. Mero Life Insurance

Deprived of right to live in integrated community in violation of Civil Rights Act of 1968 was sufficient for standing2. Lujan

Brought under Endangered Species Act: congress could not create standing by “any person may commence civil suit...”

3. Congress, in expressly permitting such citizen suits, is seen as abrogating prudential requirements and allowing standing so long as it is constitutionally permissible. (Bennett v. Spear)

4. Commission v. AkinsSo long as plaintiff meets Art. III injury requirement, and

there was infringement of a statutory right, standing is permitted.

5. Other injuries Mass. v. EPA- harms of global warming / Parens Patraie Economic Harm, possible criminal prosecutions, loss of

right to sue in the forum Clinton v. New York: change in market conditions harmed

cooperatives.3) Causation and (3) Redressability

Injury must be fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief (Allen v. Wright)

These are two separate hurdles, both must be satisfied Standing is built on the idea of separation of powers

vii. Limitation on Third Party Standing a) Prudential Limitation

1) jus tertii standing2) Plaintiff must generally assert only his own legal rights and interest,

and cannot rest his claim to relief on the rights or interests of third parties can only litigate issues that they themselves have offered

3) Exceptions: Where Third Party Unlikely to be Able to Sue

1. Substantial obstacles to the third party asserting his or own rights.

1) Eisenstadt v. Baird: Contraceptive distribution case. 2) Tried to raise defense that ALL PEOPLE have right to

get contraceptives. Supreme court still allowed Baird standing to sue because there was not a forum in Massachusetts for them to assert their right.

Close Relationship Between Plaintiff and Third Party 1. Third-party standing is permitted in such circumstances where

the individual seeking standing is part of the third party's constitutionally protected activity Pierce v. Society of Sisters

1) parochial school was given standing against a law requiring all children to attend public school

The Overbreadth Doctrine1. Permits a person to challenge a statute on the ground that it

violates the first amendment rights of third parties not before

the court, even though the law is constitutional as applied to that particular defendant

2. Mostly limited to First Amendment Cases Law's excessive regulation must not only be real, but

substantial as well, judged in relation to the statute's plainly legitimate sweep.

Standing for Associations 1. Associations or organization can sue based on injuries to itself

or based on injuries to its members NAACP v. ALABAMA

1) the NAACP was allowed standing, in a representational capacity for its members, to challenge a state law requiring it to disclose its membership lists

Hunt- 1) association has standing to bring suit on behalf of its

members when2) (1) its members would otherwise have standing to sue in

their own right3) (2) the interest it seeks to protect are germane to the

organization's purpose; and 4) (3) neither the claim asserted nor the relief requested

requires the participation in the lawsuit of the individual viii. Generalized Grievances

1) Prohibited from standing when the asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens. Lujan – Generalized Grievances is constitutional principal, not

prudential (This is recent, older cases treated as prudential) Where a harm is concrete, though widely shared, the Court has

found injury in fact (Federal Election Commission v. Akins) 1. So not determined by number of people affected. Rather it is

where plaintiffs sue solely as citizens concern with having the government follow the law or as taxpayers interested in restraining allegedly illegal government expenditures

2) Frothingham v. Melon Plaintiff lacked standing because her “interest in the monies of the

treasury is comparatively minute and indeterminable” - held that federal court review must be based on a plaintiff alleging

a direct injury and not merely that they suffer in some indefinite way in common with people generally. 1. Companion Case: Mass. v. Melon, said the state did not have

standing to challenge the Maternity act. 3) Ex Parte Levitt

plaintiffs cannot gain standing as a citizen claiming a right to have the government follow the law.

(Hugo Black appointment case) 4) Flast v. Cohen

Upheld taxpayer standing to challenge federal subsidies to parochial schools

Allowed: Must be a logical nexus between the status asserted and the claim sought to be adjudicated1. in order to sue as a taxpayer, must establish a logical link

between that status and the type of legislative enactment attacked. Taxpayers can challenge only the expenditure of funds

under the taxing and spending clause, and not an incidental expenditure of tax funds.

2. establish a nexus between that status and the precise nature of the constitutional infringement alleged.

5) US v. Richardson Burger court narrowed Flast

1. plaintiff lacked standing because his case presented generalize grievance: did not allege a violation of a personal constitutional right, but instead only claimed injury as citizen and taxpayer.

2. Cannot seek to employ a federal court as a forum in which to air generalized grievances about conduct of gov't.

6) Arizona Christian School Tuition v. Winn ix. Zone of Interest Requirement

a) Prudential b) must be within zone of interests protected by the statute in question

x. Ripeness a) Requires timing of review to be appropriate:

1) separates premature matters (speculative injury) from “ripe” and appropriate

2) When may a party seek pre-enforcement review of a statute or

regulation? b) Two Considerations to determine if case is ripe:

1) The hardship to the parties of withholding court consideration1. if individual is faced with a choice between forgoing allegedly

lawful behavior and risking likely prosecution with substantial consequences, case is likely ripe

2. or if the only impediment to ripeness is ismply a delay before proceedings commence – when application of law is inevitable

3. substantial hardship because of collateral injuries that are not the primary focus of the suit

2) the fitness of the issues for judicial decision1. the more “legal” the issue and less “factual”, the more likely

ripeness satisfied. c) Poe v. Ulman

1) Pre-Griswold1. Deemed the case nonjusticiable because there had only been

one prosecution under the law in more than 80 years2. Griswold was justiciable under the same statute because it was

litigation based on the enforcement of that law. xi. Mootness

a) Standing in a time frame1) Requisite personal interest must continue throughout the existence of

the case, from trial court through the appellate and Supreme Court level.

2) Moot if: Plaintiff dies and cause of action doesn't survive death; settlement of claim; law repealed or expires.

xii. Political Question a) Certain allegations will not be ruled on by Federal Courts even though

all jurisdictional and other justiciability requirements are met. Court leaves the question to be resolved in the political process.

1) Misnomer: court deals with political questions all the time ex. US v. Nixon, Bush v. Gore Doctrine originated with Marbury:

1. “...Questions in their nature political or which are, by the constitution and laws, submitted to the executive can never be made in this court.

2) Traditionally found in: Republican Form of Government Clause (Art 4 §4)

Electoral Process Foreign Affairs Congressional Internal Self-Regulation Ratifying Constitutional Amendments impeachment process

b) Alexander Bickle's justifications:1) Court's sense of lack of capacity, strangeness of the

issue....momentousness of it....vulnerability? c) Can be seen as constitutional or prudential

1) Constitutional if it is thought to be based on separation of powers or textual commitments to other branches of government

2) Prudential if reflects Court concerns about judicial credibility and limiting the role of non-elected judiciary positions

d) Baker v. Carr 1) Prominently found on the surface of any case held to involve a

political question is found a textual demonstrable commitment of the issue to a coordinate political department....

2) Found that legislative appointments were a justiciable issue and not political questions

3) Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation.

e) Powell v. McCormick1) McCormick re-elected after found to embezzle money from fake

travel vouchers, etc...2) Court found justiciable and not a political question because

Was not expulsion (Art 1 §5), but an exclusion stressed the importance of allowing people to select their

legislators – congress can only judge only qualifications expressed in the constitution

f) Goldwater v. Carter 1) Rescission of treaties is purely political (designated to senate) – court

found political question g) Nixon v. US

1) Impeachment (1993, federal judge impeachment for making false statements to

a grand jury) Rehnquist court found that Art. I §3 impeachment was a textual

commitment for the Senate to handle, so case was nonjusticiable. 1. Separation of powers; checks and balances ON the judiciary

h) Menachem Binyamin Zivotofsky v. Hillary Rodham Clinton 1) Roberts argued that Zivotofsky’s claim did not involve a political

question and is thus justiciable. Resolution of Zivotofsky’s claim would require the Judiciary to vindicate Zivotofsky’s statutory rights, a matter within its competence to resolve.

xiii. Standing and Political Question: a) Bush v. Gore

xiv. Reapportionment Cases a) Colegrove v. Green

1) Found that reapportionment was nonjusticiable challenge. 2) Frankfurter: “...ask of this court what is beyond its competence to

grant. Effective working of our government revealed this issue to be of peculiarly political nature and therefore not fit for judicial determination.” “courts ought not to enter the political thicket”

b) Baker v. Carr 1) did not overrule Luther and Colgrove. 2) Deemed malapportionment violates EQUAL PROTECTION

CLAUSE3) Because based on Equal protection rather than Guaranty clause

(Colgrove) c) Reynolds v. Sims

1) Malapportionment of Alabama's legislature violated the equal protection clause based on “one person; one vote” doctrine

C. Economic Substantive Due Process i. Asks whether the government has an adequate reason for taking away a

person's life, liberty, or property. a) Is there a sufficient justification for government action – modern era

looks to the Rational Basis analysis to tell if regulation violates substantive due process.

ii. Property Rights a) Early Interpretation- Natural Law and Property

1) Constitution protects natural rights that a person possesses to own and keep property

1. Calder v. Bull (natural law instead of 14th DPC) Connecticut law set aside a judgment that denied

inheritance to beneficiaries under a will. Court inquiry into if it is an ex-post facto law:

Court held that it was NOT an ex post facto law;1) upheld the constitutionality of the law on the grounds

that the government can not violate the provisions of the Constitution or rights granted by Natural Law

Chase: “I cannot subscribe to the omnipotence of a state legilature....there are certain vital principles in our free Republic governments...”

Dissent argued for judicial restraint v. Majority Activism2. Fletcher v. Peck (Natural law, not 14thDPC)

Court relied on natural law in part to declare a land grant by the corrupt Georgia Legislature of 35 million acres of land for less than 2 cents per acre.

John Marshall: legislative power is limited by both the general principles of our political institutions and the words of the constitution.

3. Slaughter House Cases Challenged La law granting monopoly to certain businesses First instances of court using natural law to limit regulatory

power of government1) Rejecting the original attempts to use of the 14th Amendment Due

Process clause to protect economic rights 2) Narrowed the scope of Privileges and Immunities clause

to not allow use as a safeguard of individual rights

Field + Bradley Dissent:1) Saw Due Process clause as limiting the ability of states

to adopt arbitrary laws, especially those that interfere with natural rights.

2) Interpreted liberty and property as protecting a right to practice a trade or profession, believed interfering was denying due process.

3) Later became the majority view of Court in Lochner era4. Munn v. Illinois (1877)

Grain Storage maximum rates set by state law. Court began a change:

1) found that “under some circumstances, regulation of business will violate due process”

2) Declared that it was for the judiciary to evaluate the reasonableness (activism)

b) The Lochner Era and “Freedom of Contract” 1) Allegeyer v. La (1897)

1. Declared unconstitutional a state law prohibition payments on marine insurance policies issued by out of state companies that were not licensed in the state. “Freedom of Contract”

2) Lochner v. New York Usage of Substantive due process to protect “freedom of

contract” in declaring a limitation of hours worked by bakers unconstitutional. (upheld by Atkins v. Children's Hospitial, both overturned by West Coast Hotel v. Parrish)

Interfering with “freedom of contract” natural law principal violates Due Process

Three Major Principals:1. Freedom of Contract is basic right protected as liberty and

property rights under DPC includes the rights to enter into all contracts that may

be proper, necessary, and essential to carrying out a trade or profession

2. Government can interfere with freedom of contract only to serve a valid police purpose Public Safety, Morals, Health, General Welfare

3. Judiciary role to scrutinize legislation interfering with freedom of contract to make sure it served a police purpose

Harlan dissent: emphasized need for judicial restraint Holmes dissent: “a constitution is not intended to embody a

particular economic theory...” 3) Atkins v. Children's Hospital

Court declared unconstitutional a law that set minimum wage for female workers because it interfered with freedom of contract but did not serve a valid police purpose.

c) Post- Lochner Era (1937 + ) 1) Freedom of Contract Abandoned – seen as an “illusion”2) Roosevelt Court packing plan to push through his New Deal

regulations 3) West Coast Hotel v. Parrish

Expressly overruled Atkins v. Children's Hospital and abandoned the Lochner approach.

Justice HUGHES: 1. “What is this freedom of contract? The constitution does not

speak of freedom of contract, it speaks of liberty and prohibits the deprivation of liberty without due process of law...

2. Regulation which is reasonable in relation to its subject is adopted in the interest of the community is due process”.

4) Carolene Products + West Coast = Rational Basis Analysis for Government economic regulation

5) NLRB v. Jones Court upheld National Labor Relations Act and application to

steel industry for collective bargaining and wages 6) US. v. Darby

Expressly rejected challenges based on substantive due process and federalism – illustrated that governments have broad power to regulate the economy

Overruled Hammer v. Dagenheart 7) Since 1937, no regulation has been found unconstitutional based

on freedom of contract. The court has upheld the Rational Basis Analysis

D. Implied Fundamental Rights i. Framework:

a) Is there a fundamental right?1) Judiciary defers to the legislature unless there is infringement of

fundamental right2) Originalist v. NonOriginalists, etc... and implied rights3) History, intent of framers, tradition,

Fundamental rights include those that are “deeply rooted int the traditions and history of the Nation”

b) Is the right infringed upon?1) In evaluating, look to the “directness and substantiality of the

interference.” c) Is there a sufficient justification for the infringement?

1) Strict Scrutiny Must prove a compelling interest to justify intrusion if

fundamental right2) Must be a truly vital interest

d) Is the means sufficiently related to the purpose?1) Government must show that the means are necessary to achieve the

objective ii. Non-Expressed Rights

a) Meyer v. Nebraska1) State law prohibited the teaching of foreign languages

Implied right: Freedom of Education2) Court Rule: “Liberty denotes...the right of the individual...to enjoy

those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”

3) None of the rights are absolute, but infringement must hold up to strict scrutiny.

b) Griswold v. Connecticut Implied right: penumbral rights and “zones of privacy”, right to

privacy born. Found privacy implicit in the “penumbras” of the Bill of Rights

[an effort to avert substantive due process, which failed]1. because incorporation of Bill of Rights to the States.

c) Right to Travel

III. THE FEDERAL LEGISLATIVE POWER A. Commerce Power

i. Bank Of the US a) First Bank

1) McCulloch v. Maryland Crux: Congress is not limited to the powers expressed in the

Constitution. Congress may choose any means not prohibited by the Constitution to carry out its lawful authority. (N+P)

Great Chief John Marshall used to broadly construe Congress' powers and limit the authority of state governments to impede the federal government (broad federal power)

Considerations1. Does congress have the authority to create the Bank2. Is the state tax on the bank constitutional

Rejected “compact federalism”1. CF = the idea that the states retain ultimate sovereignty

because they ratified the constitution2. “The government proceeds directly from the people; is

“ordained and established” in the name of the people...the assent of the states....is implied...”

“it is emphatically and truly a government of the people” Though the constitution does not enumerate a power to create a

Bank, it does not prevent congress from creating one. “...it is a constitution we are expounding”

2) US Term Limits v. Thornton Justice Thomas argued “Compact Federalism” in his dissent –

Majority quotes McCollach 3) Necessary and Proper Clause:

Art I §8: Allows congress to, “make all laws necessary and proper for carrying into the Execution the forgoing powers, and all other powers vested by this constitution in the Goverment of the United States...”1. Art I §8 Expands congressional power; §9 limits

4) United States v. Comstock Sexually Dangerous prisoners case : strongly reaffirms

McColloch – General Welfare, Necessary and Proper

Breyer upholds federal law – Art I §81. Is it RATIONALLY RELATED to the implementation of a

constitutionally enumerate power.2. “reasonably adapted to the attainment of a legitimate end”

B. General Spending + Original Expansive View of Commerce Clause (Art I § 8) i. Two Major Questions:

1) What is Commerce?2) What does “Among the States” mean?

b) Congress has broad powers over interstate commerce (among the states meaning multiple states)

c) Broad Commerce Clause Power ALL stages of business considered as commerce – manufacturing,

transport, sale, use, etc... ii. Gibbons v. Ogden

a) Steamboat Monopoly was a impermissible restriction on state commerce b) Chief Justice John Marshall:

1) Congress is authorized to lay and collect taxes, to pay the debts and provide for the common defense and general welfare of the United States. ... Congress is not empowered to tax for those purposes which are within the exclusive province of the States."

c) “Commerce...is intercourse.” 1) commerce includes all phases of business, including navigation.

d) Among the States1) Commerce among the states does not stop at the boundary of each

state...” 2) Commerce which concerns more than one state...the completely

internal commerce of the state is left to the state itself e) The power over commerce...is complete in itself, may be exercised to

its utmost extent... congress has complete authority over commerce between states

C. Between 1887-1937 Narrowing of Commerce Power 1) Many federal laws invalidated on 10th Amendment Grounds

(State “zones of activity”) 2) Dual Federalism:

federal and state governments separate sovereigns with “zones” of authority

3) Narrowed Commerce Clause: Commerce was one stage of business Restrictive definition of “among the states” to only where there

was a substantial effect on interstate commerce ii. What is Commerce?

a) US. v. EC Knight1) Held Sherman Antitrust act could not be used to stop a monopoly for

sugar refining because Congress did not have the power to regulate manufacturing in the Constitution

2) “Commerce succeeds to manufacture, and is not a part of it - Fuller Court found that because it was a “indirect effect” on commerce,

could not be regulated. b) Carter v. Carter Coal Co.

1) Declared Coal Conservation act unconstitutional (wages, collective bargaining)

2) “Commerce is the equivalent of the phrase 'intercourse for the purpose of trade'” - Sutherland

3) Said mining Coal is not intercourse, and cannot be regulated by Congress.

iii. Among the States? a) Shreveport Rate Case

1) Upheld the ability of the ICC to set intrastate railroad rates because directly impacted interstate commerce

2) “Congress in the exercise of its paramount power may prevent the common instrumentalities of interstate and intrastate commercial intercourse from being used in the intrastate operations to the injury of interstate commerce...”

iv. Schechter Poultry v. US a) “Sick Chickens” case

1) Declared federal law (Poultry Code) unconstitutional the law required the selling of whole coops of chickens and made

it illegal for buyers to reject individual chickens2) Not a sufficiently direct relationship to interstate commerce

“but where the effect of intrastate transactions upon interstate commerce, is merely indirect, such transaction remain within the domain of state power”

3) must be recognized as essential to the maintenance of our

constitutional system. v. Hammer v. Degenhart (later overruled; Darby)

a) 10th Amendment Limited Commerce Power 1) Court said regulation of child labor in MANUFACTURING is state

power – manufacture of goods is local. b) Contrast with Champion v. Ames (Lottery Case)

1) the power to regulate commerce includes the ability to prohibit items from being in interstate commerce. Dual sovereignty – limit federal power Lottery tickets were interstate commerce; manufacture was state

vi. Court Packing and FDR a) pushing New Deal Legislation by packing the court with supporters.

D. Changing of Commerce Clause Doctrine after 1937 (RB ERA) i. NLRB v. Jones & Laughlin Steel

a) National Labor Relations Act1) Steel Corporations and Industry was interstate commerce.

Began broadening Commerce Power again ii. United States v. Darby

a) Expressly overruled Hammer b) Fair Labor Standards Act Case

1) rejected the view that production was left to entirely to State regulation “While manufacture is not in itself interstate commerce, the

shipment of manufactured goods interstate is commerce and prohibition of such shipment by Congress is indubitably a regulation of commerce.

The [Tenth] Amendment states but a truism that all is retained which has not been surrendered”

iii. Wickard v. Filburn a) AAA – Wheat

1) Rejected the limits on commerce power that were enforced in earlier era “Questions of federal power cannot be decided simply by finding

the activity in question to be production, nor can consideration of its economic effects be foreclosed by calling them indirect”

2) Since the AAA regulated something that had SUBSTANTIAL

ECONOMIC EFFECT- the growing of wheat, subject to Congressional regulation under the commerce power.

iv. Test Developed Through NLRB, DARBY, and WICKARD a) Substantial Effect on Interstate Commerce

1) No longer was the Tenth Amendment a limit on Congressional Power – as long as there is substantial effect on interstate commerce.

2) A federal law will be upheld so long as it is within the scope of power

3) ALL PHASES of business can effect IC4) “Rational Basis” for believing that there was an effect on commerce

Hodel v. Indiana: “(1981) – a court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding of effect on interstate commerce.

E. Application of Bill of Rights to Private Conduct i. Civil Rights Act

a) prohibited private discrimination based on race, gender, religion in public places like hotels and restaurants.

b) Enacted under commerce clause power and upheld as such. ii. Cases

1) Civil Rights Cases - “STATE ACTION DOCTRINE” Ruled the Civil Rights Act unconstitutional with respect to

regulation of private conduct1. The court ruled that the Fourteenth Amendment applies just to

state and local government actions, not to private conduct2. Congress under §5 of the 14th Amendment could not regulate

private conduct, but only has the ability to legislate against wrongs by state governments

2) Heart of Atlanta Motel Upheld the constitutionality of Title II of the Civil Rights Act,

which prohibited discrimination in public accommodations based on COMMERCE CLAUSE. (not §5) - Impeded Interstate Travel

Used [1] rational basis test and then asked if [2] the means it selected to eliminate that evil are reasonable and appropriate.

If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze”

3) Katzenbach v. McClung Rational Basis to determine that discrimination effected

interstate commerce (COMMERCE CLAUSE, not §5) Ollie's BBQ – discrimination against black customers

1. Upheld the Act application to small business2. Power of Congress under the commerce clause is “broad and

sweeping” 4) Shelley v. Kramer

Neighborhood restrictive covenants on blacks1. Court found that the actions of state courts and judicial officers

in their official capacities is to be regarded as state action within the meaning of the 14th Amendment

2. Held that courts may not enforce racially restrictive covenants5) Burton v. Wilmington Parking

City operated a parking authority that leased space to restaurant. 1. Found that government “so entangled” that there was a

symbiotic relationship sufficient to evidence “state action”6) Moose Lodge v. Irvis

Refused to serve liqour to blacks1. State given liquor license- but all other actions private 2. Not a symbiotic relationship because the state played no role

in establishing or enforcing the membership or guest policies of the lodge.

b) Hodel v. Indiana Strip mining case a court may invalidate legislation enacted under the Commerce

Clause only if it is clear that there is no rational basis for a congressional finding of effect on interstate commerce. 1. Or no reasonable connection between regulatory means

selected and asserted ends. c) Perez v. US

1) Congress prohibited loan sharking on Rational Basis effect on interstate Commerce.

2) Later led to RICO, etc... F. Post 1995 ( Lopez and Morrison) Commerce Clause

i. US. v. Lopez a) Gun Free School Zone Act

1) first law found unconstitutional since 1936.2) Returned to the notion that ART I limits Congress' legislative

powers to those that are express or implied in the Constitution3) Ruled that relationship to interstate commerce was too attenuated and

uncertain to uphold the law on Commerce grounds Rehnquist court

1. saying that guns are not “commerce”; rejecting rational basis test

2. Emphasized that the Constitution creates a nation government of enumerated power

Stevens dissent: guns have substantial effect 4) Congress may legislate to regulate and protect the instrumentalities

of interstate commerce may regulate based on Substantial relation – but a more restrictive

interpretation of congressional power b) US v. Morrison

1) Civil Damages provision of the Violence Against Women Act2) Congress lacked authority under Lopez test

Congress exceeded Commerce Power by regulating noneconomic activity.

ii. Three Part Test (4 th Era) developed by Lopez and Morrison a) Congress may regulate

1) The channels of interstate commerce2) the instrumentalities of interstate commerce and persons or

things in interstate commerce3) activities that have a substantial effect on interstate commerce

b) Traditionally state regulated areas of Commerce have a narrowing effect on the Commerce Clause

c) Congress cannot regulate noneconomic activity based on a cumulative substantial effect on interstate commerce.

iii. Printz and New York v. US a) New York v. US

1) Unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations

b) Printz v. US 1) Upheld New York

Brady Handgun Prevention Act1. violated the Tenth Amendment in requiring that State and

Local law enforcement officers conduct background checks on

handgun purchasers. Violates Tenth Amendment when conscripts state

governments and compels states to act (also, violates SOP). G. Taxing Power

a) Art I §8 – Taxing and Spending Clause1) Congress shall have the power to lay and collect Taxes, Duties,

Imposts and Excises, to pay the Debts and provide for the common Defence and gener Welfare of the United States; but all Duties, Imposts, and Excises shall be uniform throughout the United States

b) United States v. Butler1) Congress has broad authority to tax and spend for the General

Welfare expansive view – declaring AAA unconstitutional on the grounds

that it violated the Tenth Amendment because it regulated production , but the authority to tax and spend is expansive.

2) Congress is not restricted to spending on enumerated power under Art. I. Congress may spend in any way it believes will serve the

general welfare, so long as it doesn't violate another Constitutional provision.

c) AFFORDABLE CARE ACT CASES (Sebelius)** H. Tenth Amendment

a) “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

1) Interpretation over time: 19th C: Federal law constitutional as longs as Congress was acting

in scope of authority Until 1937: Tenth Amendment reserved zones of state regulation

(e.g. production) 1937-1990s: Back to “scope of authority”:

only one case, Usury, was deemed to violate 10th Amendment, but was later overruled in Garcia.

1990s+ : Moved back to 10th Amendment as Congressional Limit b) National League of Cities v. Usury

1) Congress violates the Tenth Amendment when it interferes with traditional state and traditional government functions

2) While the power of Congress under the Commerce Clause is

"plenary," that power has constitutional limits. In this case, the exercise of the commerce power ran afoul of the Tenth Amendment which protects the states' traditional activities. “Traditional Government Function”

c) Hodel v. Va Surface Mining 1) determined Usery only applies when Congress regulating state Gov't,

not private conduct. (States qua states) it must address matters that are indisputably attributes of state

sovereignty – must directly impair states operations to traditional gov't function

d) Garcia v. San Antonio Metro Transit (1985 - overruling Usury) 1) Blackmun- Usury became unworkable:

“We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether particular gov't function is “traditional”

2) Protection of state prerogatives should be through the political process – judicial restraint

3) Threw out “traditional government function” e) Arizona v. US

1) States infringing on the 10th Amendment rights of the Federal government. Immigration is of exclusive federal authority and that state enforcement risks conflicts with the US Fo POL/ other nations.

I. Tenth Amendment as Federalism Based Limitation i. Is the 10th Amendment a constraint on federal power? ii. Treaty Power

a) The president has the authority to make treaties with the consent of the legislature. The court has found that 10th Amendment does NOT limit Treaty power.

b) Reid v. Covert – Treaties cannot violate Constitution Court reversed a conviction of a United State military dependent

who was convicted of murder in Great Britain without a jury trial, jurisdiction pursuant to a treaty between the US and GB.

Necessary and Proper Clause limited by the express constraints of the bill of rights

Congressional power under Art. I Sec 8 [14] is limited by the bill of rights

Justice Black: “No agreement with a foreign nation can confer

power on the Congress, or on any other branch of government which is free from the restraints in the constitution”

c) Missouri v. Holland1) Migratory Bird Treaty

Missouri argued that the treaty violated the 10th Amendment because a federal game warden enforced the treaty across the states

Court ruled that the Constitution expressly grants the federal government the power to make treaties, and thus states cannot claim that the treaty or statute pursuant to violate 10th Amendment.

iii. Self-Executing Treaties a) Non-Self Executing treaties require an act of Congress to come into

effect; Self-executing do not. b) Medellin v. Texas

1) Mexican national arrested, charged, convicted of murder; death penalty Gave confession but was not notified of right to notify the

Mexican Consulate of his detention under Vienna Convention on Consular Relations Treaty

2) Found that not self-executing treaty; no legislation supported the enforcement of the treaty provision this would result in international tribunals having a higher status

than constitutional protection J. Scope of Congressional Power under The Post-Reconstruction

Amendments i. 13th Amendment

a) Since early 20th:

1) Thirteenth Amendment was intended only to prohibit slavery – blacks should not be protected by special legislation

b) Last 40 years:1) 13th Amendment Reaches to Private Conduct

Jones v. Alfred H. Mayer1. Real estate developer case2. Held that congress could prohibit private discrmnation in

selling and leasing property. Congress has the power under the 13th Amendment to adopt

the law preventing private discrimination.

“Congress has the power...rationally to determine what are the badges of slavery and the authority to translate that determination into effective legislation”

ii. Scope of the Fourteenth Amendment Power a) Two Views

1) Nationalist Congress may use §5 authority to expand the scope of rights

2) Federalist Congress cannot create new rights or expand the scope of rights

under §5 of the 14th amendment. b) §5 of the 14th Amendment cannot be used to regulate private activity

1) Katzenbach v. Morgan Voting rights for Puerto Ricans – Spanish speakers/Literacy Tests Nationalist Perspective:

1. Ruled that Congress can use §5 to overturn the Supreme Court and Interpret the Constitution

Reasoning:1. Denied Equal Protection 2. Remedy for discrimination

BROAD powers – under §5 – rejected the view that legislative power is restricted to “abrogating only state laws that the judicial branch was prepared to declare unconstitutional”

2) US v. Morrison Disavowed Guest -

1. Law exceeded the scope of commerce power because Congress cannot regulate noneconomic activity based on a cumulative impact on interstate commerce

2. NOT allowable under §5 enforcement May regulate only state and local gov't, not private

conduct3) City of Boerne v. Flores (§5 is now a remedy or preventative

measure) RFRA case: declared unconstitutional as exceeding the scope of

powers Congress may not create new rights or expand the scope of

rights; Congress limited to laws that prevent or remedy violations of rights recognized by the Supreme Court

1. Kennedy: “There must be a congruence and proportionality between the injury to be prevent or remedied and the means adopted to that end”

2. “If congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the constitution be superior paramount law unchangeable by ordinary means.”

4) Application: Flores is used now to apply when the Court considered whether a

particular law can be used to sue state governments. US v. Georgia – ADA Congress may authorize suits against states

for their unconstitutional acts and thus may be sued under Title II of the ADA for conduct that violates constitution.

K. State Regulation of Interstate Commerce – PROTECTIONISM and DCC i. Dormant Commerce Clause

a) state and local laws are unconstitutional if they place an undue burden on interstate commerce.

b) Frankfurter: “The doctrine is that the commerce clause, by its own force and without national legislation, puts it into the power of the Court to place limits on state authority.”

c) Traced back to Gibbons Marshall draws distinction between a state's exercise of it's police

power and a state exercising the federal power over commerce ii. Cooley v. Board of Wardens

a) State law required local pilot or pay fine to use Port of Philly 1) Court found crucial question was:

Whether the subject is of a nature that requires uniform national regulation or diverse local regulation

2) Determined regulating pilots was a local matter Problems with Cooley Test:

1. allows state regulation, no matter how protectionist or how much they interfere with interstate commerce.

2. There is no distinction between what is national and local L. Privileges and Immunities Clause Art IV §2 (NOT 14th Amendment)

i. “The citizens of each state shall be entitled to the all Privileges and Immunities of Citizens in the several states”

“Citizens” does not extend to corporations ii. When a challenge is brought under P&I, two inquiries:

a) Is there a discrimination against out of state persons with regard to the privileges and immunities provided to the state's citizens?

b) Is there a sufficient justification for the discrimination? iii. Interstate Mobility/Ability to Earn Livelihood: Fundamental Rights

a) Corfield v. Coryell1) Bushrod Washington: P&I “protects interests which are

fundamental; which belong, of right, to the citizens of all free governments. They may be comprehended under the following general heads: Protection by the gov't, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety...

b) Crandell v. Nevada1) Declared unconstitutional a state law that imposed a tax on a

railroad/coach for every passenger transported out of state. Tax was “passed on” to consumers Court held that it was unconstitutional: right to travel

1. “The people of the US constitute one nation...right of free access.

Passenger Cases1. Supreme court declared unconstitutional tax on aliens into

ports Taney Dissent: “We are all citizen of the US, and as

member of the same community, must have the right to pass and repass...without interruption”

c) Supreme Court of NH v. Piper1) State law required persons to be residents in order to be admitted to

the bar. 2) Court found unconstitutional violation of P+I: The ability to practice

law is a fundamental right d) Toomer v. Witsell

1) Declared unconstitutional a South Carolina state law that required nonresidents to pay a license fee of $2,500 for their commercial shrimp boats compared to $25 for residents.

2) “Commercial Shrimping... like other common callings, is within the purview of the privileges and immunities clause.” Persons guaranteed “substantial equality” to the citizens of other

states to do business in that state. iv. Test

a) NOT an absolute – a state may discriminate against out-of-staters if:1) “substantial reason for the difference in treatment; and2) only if law is closely related to the justification

in determining [2], look at availability of less restrictive means M. Protectionism in State Regulation of Interstate Commerce

i. Question: Does a state law discriminate against out-of-staters? a) Laws that do not discriminate are generally upheld and only struck

down only if found to place a {burden on interstate commerce that outweighs the benefits from the law}

1) If not deemed discriminatory, BALANCING TEST b) Laws that discriminate usually invalidated and will be upheld only if

{deemed necessary to achieve an important government purpose} (strict scrutiny)

1) Face a per se rule of invalidity ii. Protectionism: when a state discriminates against out-of-staters to benefit

its own citizens at the expense of the out-of-staters iii. Facially Discriminatory Laws:

a) Statute expressly draws distinction between in-state and out-of-staters 1) Attempting to keep natural resources and limit access of them to out-

of-staters Philadelphia v. New Jersey

1. New Jersey law that kept landfills in the state only for New Jersey use by preventing importation of waste

Hughes v. Oklahoma1. Oklahoma law prevented the exportation of minnows for sale

outside the state iv. Facially Neutral Laws

a) Not discriminatory on face, but the effect is discriminatory1) Hunt v. Washington State Apple Advertising Commission

NC law required US Grade labeled apples or standard,forbid any other labels sold or shipped.

Court found the law was discriminatory because of its effect on the sale of Washington Apples, which had a more stringent grading policy only used by Washington apples. 1. “The challenged statute has the practical effect of...burdening

interstate sales of Washington apples...also discriminating against them.”

2. “Stripping competitive and economic advantages” v. Non-Discriminatory Laws; Balancing Test

a) Law's Burdens on Interstate Commerce v. Benefits of Law + least restrictive alternative

but the court has never found a non-discriminatory law to be invalid based on “least restrictive alternative” - All that have been deemed unconstitutional were also discriminatory.

b) State Laws for Trains and Trucks1) South Carolina Highway Dept. v. Barnwell

Upheld South Carolina restriction on length and tonnage of trucks1. Emphasized judicial deference to state regulation when the law

is non-discriminatory2. though it burdened commerce, court found that the benefit to

South Carolina outweighed the burden.2) Kassel v. Consolidated Freightways

Ruled unconstitutional Iowa ban on 65-foot double trailers.1. Weighed burden on commerce v. safety purpose2. Found that the law had a substantially larger burden on

commerce than safety interest for residents.3) Southern Pacific Co. v. Arizona

Ruled unconstitutional state law limiting train lengths to 14 passenger or 70 freight cars

“enforcement of the law in Arizona must inevitably result in an impairment of efficient railroad operation ecause the railroads are subjected to regulation which is not uniform in its application...”

Law did nothing to enhance safety vi. Discriminatory Laws; Balancing Test + Least Restrictive Alternative

a) Strict Scrutiny Analysis: Strong presumption against discriminatory laws that burden interstate commerce. Law upheld only if necessary to achieve important government purpose.

Per se rule of invalidity if discriminatory against interstate commerce

b) “Shielding in-state industries from out-of-state competition is almost never a legitimate local purpose, and state laws that amount to simple economic protectionism consequently have been subject to a virtually per se rule of invalidity (Maine v. Taylor)

1) Hughes v. Oklahoma

Minnows Statute was facially discriminatory 1. “Far from choosing the least discriminatory alternative,

Oklahoma has chosen... the way that most overtly discriminates against interstate commerce”

2. As a result, unconstitutional2) Maine v. Taylor

Balancing test not always fatal; Can be upheld if discriminatory law is necessary to serve an important purpose

Bait-fish case, prevented import to “protect ecosystem”1. Court determined that there was no less discriminatory

alternative 2. served a legitimate local purpose that could not adequately be

served by nondiscriminatory alternatives vii. Three Categories of Laws That Discriminate

a) Laws that limit out of state access to in state resources Philadelphia v. New Jersey Hughes v. Oklahoma

b) Laws that limit access to local markets by out of state business Washington Apples

c) Laws that require use of local business Cooley

N. RELATIONSHIP BETWEEN DCC AND P+I (Art IV, §2) i. The dormant commerce clause and P+I overlap:

a) BOTH used to challenge state and local laws that discriminate against out-of-staters

b) “Mutually Reinforcing Relationship” ii. Differences:

a) P+I only used if there is discrimination; DCC can be applicable to non-discriminatory laws that burden interstate commerce

b) Discriminatory laws more likely to be invalidated under the DCC c) Corporations and Aliens can sue under DCC, but not P+I d) Exceptions to DCC do not apply to P+I:

1) Congressional Approval2) Market participant exception (meh)

IV. FEDERAL EXECUTIVE POWER A. Art II: The executive Power shall be vested in a President of the United

States of America B. EXECUTIVE ORDER: Youngstown Sheet and Tube v. Sawyer

i. Nationwide steel strike. Truman issued Executive Order 10340 telling SOC to take over the steel industry.

a) The court declared seizure unconstitutional as beyond scope of power ii. Four Approaches:

a) There is no inherent presidential power (only express power) b) The President has inherent authority unless he interferes with the

functioning of another branch of government c) President may exercise powers not mentioned in the Constitution so

long as he doesn't violate statutes/Constitution d) The president has inherent powers not to be restricted by congress and

may act unless the Constitution is Violated iii. Jackson's concurring opinion (c):

a) Three Zones1) When president acts pursuant to an express or implied authorization:

authority is at maximum2) When president acts in absence of congressional grant or denial of

authority, he can only rely upon his own independent powers, but there is a zone where his powers overlap with Congress. Constitutionality is based on the circumstances

3) When president cats incompatibly with the will of Congress, lowest power.

b) Jackson said Truman's power was (3) because congress has not left seizure of private property an open field, but rather covered it by statutory policies inconsistent with the seizure.

C. LINE ITEM VETO: Clinton v. City of New York i. Federal Statute allowed president to line-item veto.

a) “Repeal of Statute must comply with Article I; there is no express veto power for the president in article II.

b) Justice Stevens majority declared unconstitutional because it made president too much like a legislator – able to go line by line and strike items.

c) Unconstitutional because it INCREASED power of president D. APPOINTMENT AND REMOVAL POWER

i. Art II §2: The president... “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other Officcers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the Appointment of such inferior officers, as they think proper, in the President Alone, to the Courts..., or Heads of Departments.

a) No Constitutional provision for the removal power ii. Appointment:

a) Morrison v. Olsen1) Ethics in Government Act: allowed for the appointment of an

independent counsel to investigate and prosecute wrongdoing by high-level federal government officials (specifically, the judges, including one from the DC circuit). Kennedy upheld law, because it is permissible for Congress to

vest appointment in the federal courts because the independent counsel was an inferior officer (she could be removed by AG at any time for cause)

Court noted independent counsel is inferior power to AG and appointed for a limited tenure

2) “The most logical place to put the appointment power was the judicial branch”

b) Myers v. US1) Firing of the Postmaster General by President.

“The power to remove is an incident of the power to appoint” The president has the exclusive power of removing executive

officers of the US whom he has appointed by and with the advice and consent of the Senate

c) Humphrey's Executor v. US1) The court upheld the ability of congress to limit the removal of a

commissioner of the FTC Congress, pursuant to powers under ART I could create

independent agencies and insulate their members from presidential removal unless good cause for firing existed

“...act in discharge of their duties independently of executive control...”

President cannot remove congressional appointed officers of independent agencies

d) Weiner v. US1) Even without a statutory limit on removal, the president cannot

remove executive officials where independence from president is desirable

2) The functional need for independence of the War Claims Commission is limited to President's removal power. “Sharp differentiation between those who are part of the

Executive Establishment and those whose tasks require absolute freedom from Executive interference”

e) Bowsher v. Synar1) Congress cannot give itself the power to remove executive officials.

Exception, Congress can always remove an executive official through the impeachment process

2) The comptroller general could be removed only by Congress and Concluded that the executive power was not to be exercised on a person who was totally insulated from presidential removal congress cannot reserve for itself the power of removal of an

officer charged with the execution of the laws except by impeachment

f) Free Enterprise Fund v. Public Company Accounting Oversight Board1) Multilevel protection from removal is contrary to Art II...

President cannot take care that laws be faithfully executed if he cannot oversee faithfulness of officers who execute them

g) PRINCIPAL FROM THESE1) President has the power to remove executive officials, but Congress

may limit the removal power if it is an office where independence from the president would be desirable. Congress cannot completely prohibit all removal, and it cannot

give removal power to itself (except impeachment power) Nor can congress create a “double layer of protection”

2) Questions for Analysis: (1) Is the office one in which independence from President is

Desirable?1. If so, congress may limit removal power and the judiciary

may restrict removal in absence of statutory restrictions (2) Are Congress' limits on removal constitutional?

Cannot completely prohibit presidential removal, but can limit where there is good cause

E. War Powers i. Art I grants Congress the power to declare war and the authority to raise

and support the army and the navy. Art II makes president commander in chief.

a) Challenges to presidential use of troops is likely to be a nonjusticiable political question

b) Little exists in law or jurisprudence about presidential use of power ii. What is sufficient declaration of war?

a) Unresolved iii. How may Congress limit President?

a) War Powers Resolution1) states that the president is Commander in Chief and may introduce

the US Armed forces into hostilities or situations where hostilities

appear imminent only pursuant to (1) a declaration of war (2) specific statutory authorization or (3) a nation emergency created by attack upon the United States.

2) Requires that president report to Congress within 48 hours of introducing troops

3) Must withdraw troops after 60 days unless Congress has declared war or authorized a 60 day extension or is physically unable to meet as a result of armed attack.

b) War on Terror1) Detentions

Hamdi v. Rumsfeld 1. American citizen apprehended in a foreign country and held as

enemy combatant. Court said had to be accorded due process and a

meaningful factual hearing also, detention of an American Citizen apprehended in a

foreign country is authorized pursuant to an Act of Congress.

Rasul v. Bush 1. those detained in Guantanamo Bay have a right to have a

hebeas corpus petition heard in federal court. Boumadine v. Bush

1. Denial of habeas corpus to noncitizens held as enemy combatants is unconstitutional

2. “Art I §9 has full effect at Guantanamo Bay2) Military Tribunals

Ex Parte Quirin1. Court upheld the use of military tribunals

Quirin involved military tribunal of eight Nazi saboteurs who landed on American soil during WWII. They were carrying explosives and wearing uniforms. Roosevelt Executive order providing for Military Tribunal

Hamdan v. Rumsfeld 1. The court found that miltary tribunals were not authorized by

an act of Congress and that they violated the UCMJ and Geneva Conventions

iv. Impeachment and Removal from Office, Domestic Affiars v.

V. OTHER IMPORTANT PROVISIONS A. Habeus Corpus: Art 1 Sec 9 [2]

i. writ that is used to bring a party who has been criminally convicted in state

court into federal court. ii. Writ of Habeas Corpus not suspended unless rebellion, invasion the pubic

safety may require it