Con Law Outline Possible extra credit answers: Justice John Stevens wears a bow tie; appt by President

ent 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 was going on else where; appointed by Regan; Scalia was being considered for associate justice and Rehnquist was being considered for elevation to chief; 1st amendment jurisprudence; std of review in equal protection is constitutionally inappropriate and invalid; 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 balances which are designed to prevent any one branch from becoming too powerful.

2. Federalism: Simultaneous federal/national and state/local governments; 2 levels of

sovereignty operating at the same time over the people (viable national government that can behave effectively for all of the people, yet the benefits of diversity and decentralization). 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 positive o Clause 1: Spending Clause o Clause 3: Commerce Clause o 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 impairing the 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 may ordain and establish 2: jurisdiction of the Supreme Court and limits jurisdiction of the federal courts

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The Federal Judicial Power I. 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 original jurisdiction; over cases affecting ambassadors, other public ministers and consuls, and those 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 over those matters where the Constitution specifies that the Supreme Court has original jurisdiction. II. Judicial Review A. Authority for Judicial Review a. Judicial review: the power of the court to declare acts of government/actors as unconstitutional. Acts are unconstitutional according to what the courts interpretation of what the Constitution is/says; they are the last word unless there is a 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 original jurisdiction through statutory provision of the Judiciary Act of 1789. The Constitution provides the means by which it can be altered. (Article V an act of Congress or some act of a State Representative) b. Congress may NOT expand the original jurisdiction of the SC. The Constitution is the supreme law of the land (Sup. Clause-Article VI). i. Marshalls arguments for why the Supreme Court can declare federal laws unconstitutional: 1. The Constitution impose limits on government powers and that these limits are meaningless unless subject to judicial enforcement. 2. It is inherent to the judicial role to decide the constitutionality of the laws that is applies. 3. The Courts authority to decide cases arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal character. 4. Judges take an oath of office and they would violate this oath if they enforced 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 heard o Get to determine who writes the opinion, when he is apart of the majority; when he is not, the most senior Justice gets to decided o Sets the docket o 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 Judgment a. 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 laws conflicts with it. Constitution would have little effect if each state were free to apply the document as it saw fit. c. The Supreme Court can ONLY review a state courts decision under the Courts appellate jurisdiction in Article III, 2. Martin v. Hunter Lessee: established power of the Supreme Court to review state court decisions that involve federal law; it is essential to ensure uniformity in the interpretation of federal laws/no bias; states are not the final auditors for federal questions. Cohens v. VA: established that criminal defendants could seek Supreme Court review when they 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 since Article III of the Constitution gives the Supreme Court jurisdiction over ALL cases arising under federal law in the Constitution, then by definition, by reference to the text of the Constitution, the Supreme Court can decide all federal and constitutional issues no matter where 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. Uniformity of federal constitutional law is essential so that the federal constitution will not mean 50 different things in 50 different states. Limits of the Federal Judicial Power I. Interpretations: Two views on how to interrupt the constitution 1. The constitution terms are to be understood and read based on understanding of grammar for the period of time which it was adopted. 2. The constitution is a flexible and evolving document i. 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 discussed ii. Management of war not clearly discussed The most important elements of the constitution are broadly drawn i. The constitution does not do well in defining terms ii. It defines rights but does not define the scope of the rights Originalist Constitution is narrowly drawn Non-Originalist 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 set out in the constitution and they defer to limits set out by congress so long that congress is acting within their limits set out by the constitution Undesirable for non-elected judges to craft policies

Democracy is not majority rule and there is a role in the court to protect the rights of the minority

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Six general methods to legal interpretation 1. 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 of the document and take the plain meaning 2. Modified originalist 3. Original meaning 4. Traditionalist 5. Process based 6. Aspirationalistism The court leads society (Broad v. Board of Edu) Interpretative limitation Textualist-strict to the language of the constitution Heller Majority- 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 the document Holding: 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 and some power to limit jurisdiction of the Supreme Court. A. Article III: Requires that there be a Supreme Court which is divided by original jurisdiction and 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 Clause a. 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 under Article 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. Politics moved the case from the docket and he could have sought review under a different statute. Wanted SC jurisdiction for case, but no jurisdictional statute for 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 the court 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. Klein i. 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 the Congress shall from time to time ordain and establish. Applies in a situation where Congress directs the judiciary as to decision making under an existing law 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/ blocking appointment Impeachment process Life tenure of judges Judicial self-restraint justices understand they should defer to Congress 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 and authorizes 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 opinion must have: (1) An actual dispute between adverse parties (2) Decision in favor of would bring about a substantial change/have some effect (3) Court must understand the meaning of the case or controversy. i. Once a judgment is FINAL, a statute CANNOT retroactively authorize its reopening. 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 judicial review. ii. Serves judicial efficiency by preventing a flood-gate of lawsuits. Questions to ask re: iii. Standing can be raised at ANY time by the federal court proceeding. Justiciability: iv. Congress CANNOT overturn constitutional standing. 1. Who isRequirements for standing: if person lacks standing then they are not the bringing the suit? appropriate party to bring the action. 2. When is the suit v. Injury: must have suffered or imminently will suffer a personal harm; must being brought? be legally cognizable. A mere interest in the problem is insufficient for 3. State rules of standing. standing. a. Allen v. Wright: Case was brought against the IRS on behalf of 4. What question is being asked of the parents of black school children challenging the tax credit. The court? court held that there was no standing because there was no
5. How does issue line up with cases weve read?

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injury to the black children, causation could not be traced to the IRS, and effect of redressability was not clear. b. City of LA v. Lyons: In order for a person to have standing to seek an injunction, individual must allege a substantial likelihood that he will be subjected in the future to allegedly illegal policy. c. Lujan v. Defenders of Wildlife: s lacked standing b/c they could not show a sufficient likelihood that they would be injured in 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 Congress ii. iii.
at anytime. 3 types: (1) 3rd party, (2) taxpayer, and (3) (1) Third Party Standing: A party cannot present the claims of 3rd parties who are not part of a lawsuit; MUST asserts own rights. 1. Requirements: a. A close relationship (inextricably bound up) i. Ie: parent child, associational standing, realtor/homebuyer, student/schoolboard ii. Newdow b. 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 the exception! a. Close relationship to and 3rd party which must be inextricably bound up i. Look at relationship b/t 3rd party and plaintiff ii. Singleton v. Wulff: doctor given standing to raise the rights of their patients in challenging law limiting patients access to contraceptives/abortion. b. Standing for Associations i. When an organization with a specific purpose stands in its members shoes ii. Ie: Sorority Zone of Interest: 1. Arises in administrative law context - seeking standing must be within the zone of interest protected by the statute in question. 2. Applies when a person is challenging an administrative agency regulation that does not directly control the persons actions. 3. must be apart of a group intended to benefit from the law. Tax Payers Standing: a plaintiff may not sue as a taxpayer who shares a grievance in common with all other taxpayers. 1. Requirements Taxpayer standing = Establishment clause + Tax and spending clause (Article I, 8 Cl. 1) 2. Flast v. Cohen: example 3. Richardson: cant give a person .look it up

iv.

v.

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d. Ripeness (MUST BE): must be a LIVE CASE OR CONTROVERSY at all time during
the 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

i. Purpose: seeks to separate matters that are premature for review, because the injury is speculative and never may occur, from those cases that are appropriate for federal court action. ii. Think boxing: Whey you know that the fist is going to be thrown to come into contact w/ the adversary; if punch lands different question (no longer ripeness) iii. Cases are declared not ripe b/c the injuries are either too speculative or they may never occur. The rationale behind the ripeness doctrine is that a ct should 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 or imminently will occur (it would occur such as you are on your way to X; you must have gone 3/4s of the way through). 2. Is there a foreseeable irreparable harm if the injury persists? (this is from Abbot Labs) v. Requirements: in looking at whether a case is ripe for review, the Supreme Court considers: 1. Hardship on the parties of withholding court consideration; (ie: economic hardship, infringement of constitutional right, due process, equal protection) AND 2. The fitness of the issues for judicial consideration. Does the ct have a way to evaluate it. vi. Abbott Laboratories v. Gardner: the FDA promulgated a regulation requiring the inclusion of generic names for prescription drugs on all labels and 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 case was fit for judicial review. e. Mootness: derived from Article III; an actual controversy must exist at all stages of federal court proceedings, at both trial and appellate levels. If events subsequent to 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 fact 1. 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 is dead and all the legal reasons dies as well b. Civil (may not be moot) 2. Change in law 3. Change in circumstances a. If a case is moot then there is no controversy between the adverse 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 (probably most important): some wrongs occur and are resolved so quickly that they will always be moot.

constitutional standing

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a. Some injuries are of short duration that inevitably they are over before the federal ct proceedings are completed b. Requirements: (ie: Roe v. Wade) i. injury must be the type likely to happen to the individual 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 federal 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 to the behavior in the future. a. On an exam look for cease in action causing the harm and regulations changing b. You cannot take persons word that they will stop the continued action have to certain it has CEASED! c. Person who has the burden to persuade the ct is the person who asserts 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 ct said not a mootness case b/c the company still had the permits and could have a potential to violate again. 3. Class Actions: The Supreme Court has held that a properly certified class action suit may continue even if the name s claims are rendered moot. The argument is that the class maintains a legal status than that of the named , an do so as long as the class maintains a live controversy. a. Requirements: i. Properly certified class action b. If the main plaintiff drops out the case is not moot so long as some long as there is an original party. c. If the class is offered for certification and has no other court to go to then the Ps cause of action is moot. 4. Collateral Consequences: (sex offender out of jail and registered on the state list). Although you dont have the injury you have a continual injury b/c your circumstances are changed. IE went to jail 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 the
question, 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 challenge to president conduct (Powell) challenge to impeachment (Nixon v. US) Foreign Policy (Gold Water v Carter) 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 of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are the dominant considerations. a. Cases in which Political Questions are involved: i. Constitutional issue for another branch ii. Judge has no standard for resolving issue iii. Dont make policy iv. Judicial intervention will be embarrassing to various governmental departments v. An unusual need for adherence to a political question already made vi. Its hard for the court to decide an independent resolution without disrespecting other branches. 2. League of United Latin America: TX did redistricting where democrats won. The issue was that TX was redistricted to look like the Ds won, when in fact the Rs won. a. The ct said apply the sole intent test-comes from the per se rule that political gerrymandering is a nonjusticiable political question v. Congressional Membership and Challenge President Conduct: 1. Powell v. McCormack: P was not able to take his elected seat in the US House of Rep. The House tried to add an additional requirement of ethics, which is not stated in the Constitution. Therefore this was a justiciable political question. However, if they waited till after P took his seat and then by 2/3 vote impeached him then this is a nonjusticiable

2. 3. 4. 5.

***this can never be an answer: political gerrymandering is per se a nonjusticiable political question****** ****never a right answer: justiciable b/c under the Guaranty clausethis is wrong b/c the Guaranty 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 they are litigating. Under the political question doctrine. This allows the ct to enforce certain aspects of the K, but not all. What justifies impeachment?high crimes (felonies) and misdemeanors; technically it is whatever 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.

Std of Review
1. Rational basis (For more expansive coverage of this material (623646)

Applies to
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

Articulation of std
2. R ationally related 3. t o a legitimate governmental interest; 4. n eed not be most (or even an effective means; 5. need not be actual purpose merely conceivable purpose, but 6. g overnment action CANNOT be aribitrary unreasonable, or illegitimate important govtal interest that is furthered by substantially related means (US v Virginia) 1. n arrowly 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 Girdledescribes tightness of the std.)

Notes
Burden of proof is on the plaintiff or nongovernmental party

2.Intermediate Scrutiny

-gender -intellectual ability (downs syn)

-govt has the burden of proof -govt bares the burden to demonstrate appropriate interest and approach to meet interest

3. Strict 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

** 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 factor Race 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 than constitutional? If there is a method by which Congress can alter the rights or interest, to create something for the people that they did not otherwise have, it is appropriately defined as a prudential requirement. o Ex: party seeking to litigate an issue and through normal means they would not be able 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 not exist that is prudential. You have to satisfy the constitutional and the prudential to have standing. The Federal Legislative Power I. 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 ONLY if there is an expressed or implied authority to act in the Constitution. B. States a. 10th Amendment indicates that powers not delegated to the US by the Constitution shall be reserved for the States. b. States have NO AUTHORITY to negate federal actions. c. States may act UNLESS the Constitution prohibits the action.

Necessary and Proper Clause

1) Article I 8 2) 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 powers and all other powers given to the federal govt by the Constitution. 3) Congress has implied discretionary pwr due to the necessary and proper clause 4) Necessary-useful and desirable 5) 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 gives Congress the ability to choose any means, not prohinited by the Constitution, to carry out its express authority. Congress has the power to adopt any means which might be appropriate 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 objective Congress 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 out its lawful authority McCulloch does several important things: defines relationship btw national and state 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 1 3) 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 Power A. 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 instances where there is a direct effect on interstate commerce or is any effect on interstate 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 commerce i. Includes transportation/traffic ii. Vehicular transportation is NOT requiredany transmission across state lines, such as electricity, gas telephone, TV, radio, and mail transmission, will constitute 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 interstate commerce.

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i. The S.Ct has sustained congressional power to regulate any activity, local or interstate, that either in itself OR in combination w/ other activities has a substantial economic effect upon or effect on movement in interstate commerce When Congress attempts to regulate intrastate activity under this 3rd prong, the CT will uphold the regulation IF: a. It is of economic OR commercial activity AND b. The Ct can conceive of a rational basis on which Congress can conclude that the activity in aggregate substantially affects interstate commerce. c. Gonzales v Raich: marijuana was regulatable b/c it was a part of a comprehensive federal program to combat the illicit of illegal substances. However, if the regulated intrastate activity is NONCommercial and NON-economic, it cant be regulated under the CC UNLESS Congress can factually show a substantial economic effect on interstate commerce. d. Lopez: Ct invalidated a federal statute barring possession of a gun in a school zoneb/c activity is noneconomic, Congress would have to overcome the burden of proving it had a substantial economic effect on interstate commerce, which it failed 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, expansive perspective of power ii. McCulloch iii. The Clause itself is not a basis of powerit merely give Congress power to execute specifically granted powers. So if a question asks what is the best source of power for a particular act of Congress, the answer SHOULD NOT be the 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 including
NAVIGATION. Gibbons v. Odgen (1824): did Commerce include navigable waters? a. Navigable waters-you can put something on it and travel b. Everyone understood navigation comprehends commerce c. 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 of the Supremeacy clause d. Navigation included in Commerce e. Monopoly is null and void ii. 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 federal regulation effects the 10th Amendment.

Second Era (1890s-1937) Commerce is narrow

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the goods to be produced are eventually moved between states. Whether or not interstate commerce is regulated depends upon if there is a DIRECT impact. United States v. E.C. Knight: Where interstate (out of state) commerce is indirectly affected by intrastate (w/in the state) commercial activity such as manufacturing, the federal government has no power to regulate the intrastate activity, lest state sovereignty breakdown. The courts distinction 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 as interstate 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 effects INTERSTATE commerce. The zones of activities controlled by the states are: mining, manufacturing, and production. Houston, East & West v. United States: Congress can regulate intrastate commerce if it has the potential to effect interstate (out of state) commerce which occurs whenever the interstate and intrastate transactions are so related where the control of one if the control of another. Where the affects of intrastate transactions among interstate commerce is merely INDIRECT, such transactions remain in the control of the State. ALA Schechter Poultry Corp. v. United States: Congress may not regulate activities that INDIRECTLY affect interstate commerce. iii. 10th Amendment?: Courts began to use the 10th Amendment to limit the use of federal commerce power that infringed on states' sovereignty. With this application, courts began to separate different activities as being either INTRASTATE or INTERSTATE. Cannot regulate commerce there was a regulation unless the products are dangerous: a. View 1: the 10th is not a separate constraint on Congress, but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. b. View 2: (federalist view) The 10th protects state sovereignty from federal intrusion. The 10th reserves a zone of activity to the states for their exclusive control, and federal laws intruding into this zone should be declared unconstitutional by the courts. Hammer v. Dagenhart: The regulation of labor is left to the authority of the State. (Federal government 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 shipment of lottery tickets which may be considered commerce between the States.

i. What is Commerce?: Commerce does not include local production, even if

ii. Among the States?: Congress can regulate INTRASTATE commerce if it

(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 activities that has little effect on interstate commerce if the activity, looked at

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CUMULATIVELY throughout the country has a SUBSTANTIAL effect on commerce. 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 free flow 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 various states. United States v. Darby: Congress is free to exclude goods from commerce when they are used in 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 the national 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 overturned Hammer v. Dagenhart The power of commerce extends to those activities that effects commerce. Heart of ATL v US: public accommodation-places that provides for the necessity and comfort for the public

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

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 gun in a school zone. By exercise of the statute, Congress attempted to regulate the possession of a gun, by a student, in a school zone. The statue DID NOT have any requirement that the gun have traveled in interstate commerce. The court determined that the commerce power is not limitless! It does not extend to NON-ECONOMIC activity when there is no congressional link to interstate 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, internet Foreign nation, Indian tribes, among the state 2. Congress may regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate 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 to interstate commerce. (substantial effects ALONE are not ENOUGH)

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 Does the activity include the production, distribution, or consumption of an article of commerce? Do the aggregated effects of this activity have a substantial effect on interstate commerce? o Law IS CONSTITUTIONAL if there is a RATIONAL basis for concluding the activity 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 could grow 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 are not, in any sense economic activity. Congress does not have the power to regulate noneconomic 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 Amendment protection when it tries to compel legislation OR compels acceptance of liability that may otherwise enter the stream of interstate commerce. You CANNOT MAKE THE STATE USE THEIR OWN MONEY TO ENFORCE A FEDERAL LAW. New York v. United States: Under the 10th Amendment, Congress may not compel States to pass legislation (COMMANDER). Congress violates a States 10th Amendment protections when it compels legislation/actions; or compels acceptance of liability for materials that may otherwise enter the stream of commerce. The 10th Amendment prohibits the federal government from overtaking the conscience of the state actor. Congress may not adopt regulation with incentives which also request or requires that the States legislate or act to a particular end. Printz v. United States: (same as NY v. US): The Brady Handgun Violence Prevention Acts interim 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 or administer a federal regulatory program. If commercial activity, but State is a regulated party, then 10th Amendment is limited on federal power. Reno v. Condon: States are regulated in the same way as private individuals. There is no extra burden on state employees. Federal government CANNOT COMMANDER States to carry out federal acts.

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III. Taxing and Spending Power A. What purpose may Congress Tax and Spend? a. Article I, Section 8, Clause 1

What is commerce

What constitute among the states

Pre 1937 Narrow view. Not mining, refining, things that are post production. Attempts to regulate work conditions is not constitutional by the commerce clause Narrow view with direct effect on commerce. Shreveport rate case.

Post 1937 Adopted a broader prospective. Took on Prof. Faulk view of what commerce is. It includes mining, refining, distribution, farming, recycling. Broader view. Had to be substantial effect on commerce. Stream of commerce. If there is going to be an effect on the broader interstate commerce then it is going to be regulated by commerce clause. The 10th amendment is completely ignored. Switch in time saved nine.

Modern Era What is commerce and among the state collapse together. Not a very narrow view but broader than pre 1937. Balancing approach Among the states and what is commerce is one Lopez test Channels Instrumentalities People or things Substantial effects on interstate commerce A resurgence on the reliance on the 10th amendment.

10th Amendment

A reliance on 10th amendment but there is no particular articulation that the 10th amendment reserves the power to the state.

United States v. Butler: provides how broad or narrow to construe taxing and spending 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, so long as it does not violate another constitutional provision. Congress may tax and spend but not regulate in a particular area MERELY on the grounds that it is providing for the general welfare. A statute is vague when an ordinary person will be unable to determine if the actions that he is contemplating are proscribed. A statute is overly broad on its face when the govtal entity empowered to enforce the law has virtually unlimited discretion in its determination 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 challenge and 1st amendment: 1. HYPO: have a decency statute which prohibit certain behavior. 2 Live Crew is appropriately regulated by this statute, but the statute is incorrectly structured. A reasonable person cant know they have violated the statue until they are prosecuted. X has a nude pic of her son. B/c of the statute vagueness X may be in violation. 2 Live Crew

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i. ii. b. Sabri:
i.

ii. iii.

b. unfair. Madison: Congress does not have the power to tax and spend unless it is stated in the Article I. Limited view Hamilton: As long as Congress is taxing and spending for the general welfare it doesnt violate a provision of the Constitution. Broad view. a. Congress adopted Hamiltons view in this case. gives the breadth of taxing and spending power. Bribe case. Take 2 quarters one is based on a bribe, cant figure out which quarter is tainted so being prosecuted to the full extent of whatever change you have. Re-affirms congresss broad scope of authority under the spending clause. Necessary and Proper Clause doesnt give Congress unrestricted power. The standard is rational means to effectuate one of Congresss enumerated powers.

facially attacks the statute b/c of the vagueness. It is understood that they are litigating the issue b/c it will help them and X. Why do we let 2 Live Crew litigate? a. We allow 2 Live crew to litigate even they are arguably regulated, we want them to.assumption being X will not litigate themselves for whatever reason. However, as a matter of 1st amendment she is w/in her rights. The outliers and the extreme are the people who litigate for the normal people. IE: pornographers As applied-usually this law is fine, but when applied to me, it is

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. Dole 4. 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 enumerated powers (typically commerce clause). B. Conditions on grants to State governments The condition must promote the general welfare (courts should defer substantially to the judgment 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 or programs; 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 to private parties) unless so requiring causes excessive interference with the functioning of state government Put conditions on receipt of federal funds o 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 action TEST: 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 activities TEST: 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 to enact civil rights legislation. A. 13th Amendment: prohibits slavery an involuntary servitude, except as punishment for crime (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 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 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 (Congress cannot use to regulate private behavior). b. 14th Amendment does not provide protection for an individual. th C. 15 Amendment: prohibits state and federal government from denying the right to vote on account of race or color. Contains an enabling clause that allows Congress to adopt legislation 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 private citizen (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 powers to 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 the rights of life, liberty and property). i. Hamilton ii. 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 or expand the scope of rights. Congress can only act to prevent or remedy violations of rights, and such laws must be narrowly tailored. i. Congress can ONLY remedy or prevent violations but CANNOT make new laws/expand. ii. Madison

Katzenbach v. Morgan (adopted the Nationalist view): Section 4(e) of the Voting Rights Act of 1965 provided that no person who had completed the 6th grade in a Puerto Rican school where instruction was in Spanish could be denied voting privileges because of illiteracy in English. A New 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 protection guarantees. 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 regulates state 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 city alleging that the citys failure to allow it to expand a church in a historic district violated the federal Religious Freedom Restoration Act, which required that states imposing restrictions that affected religious practice show that the restriction was narrowly tailored in order to serve a compelling government interest. The court applied the narrow view providing that the Supreme Court has the ultimate authoritative power to interpret the constitution. They will look for two things: (1) congruence and (2) proportionality; must be congruence and proportionality 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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Federalism Background: The Constitution imposes certain limitation on state power. These limitations may be expressed or implied. Faced with federal inaction, a state MAY enact legislation that affects 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; and 3. State interest must OUTWEIGH the burden and discrimination imposed by the regulation on interstate commerce. II. Preemption: When the federal government has acted and the state government has acted and 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 treaties made 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 is preempted (precluded) if: a. Joint compliance is impossible b. Objectives of both law conflict c. Congress preempts the entire field d. There is substantial national need for uniformity in regulation regulation) 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 local laws are preempted. i. Example: The federal government has a Federal Meat Labeling Act, because meat labeling is exclusively under the federal governments control state law is preempted. Lorillard Tobacco Co. v. Reilly: Manufacturers and sellers of tobacco products challenged MA regulations restricting the sale, promotion and labeling of tobacco products. The court considered whether federal tobacco marketing and warning label information preempt state law on 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 not be 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 federal legislation may not co-exist) a. Avocado: regulation of avocadoes; ripeness is determined in the market by the percentage of oil created by the fruit; we have a federal regulation (ripe date of pick no oil) and state regulation (greater than 8%) concerning oil. b. If a federal and state law is mutually exclusive, federal law preempts state law.

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

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ii. Example: If it is not possible for someone to comply with both federal and state law then state law is preempted. c. If state law impedes the achievement of a federal objective, federal law preempts state law. iii. Example: Florida has a law which states that anyone who files an unfair labor grievance cannot receive unemployment benefits. State law is preempted because it punishes those who want to file claims. d. If Congress evidence a clear intent to preempt state law, federal law preempts state law. iv. This is usually shown through legislative history v. Example: Congress has shown that federal law is the only law controlling immigration, thus any attempt by a state or local government to change law will be preempted. E. Inter-governmental Immunity e. 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 TEST 2. 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 there equally 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 heightened scrutiny 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 citizens and intrastate business OUTWEIGH the national interest in protecting the free flow of commerce? 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 burdens interstate commerce. Market Participant if the state is literally a participant in the market, such as with in-state customers. But it cannot impose down-stream conditions.

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The Federal Executive Power I. Presidential Power President is the commander in chief. He gives power to the legislature. He cannot recruit, pay or discipline the troops. He can raise war. 1. If the President acts with expressed constitutional support for his exercise of power, what should 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 was acting within his constitutional power when he issued an order directing the Secretary of Commerce 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 the Constitution has expressly confided to the Congress and not the President. The Presidents order did not stem from either an act of Congress or from the Constitution itself. The Presidents EXECUTIVE order was a result of indispensability of steel as a component of substantially all work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability 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 either an act of Congress or from the Constitution itself. President can recommend or veto legislation thats it! Structure: 1. Pres at strongest 2. Twilight Zone 3. 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 or STATUTORY authority: (4 Models) (1) There is no inherent presidential power; the president may act only of there is express constitutional or statutory authority. (Justice Black) Presidents power MUST STEM from either an act of Congress or from the Constitution itself! President cannot exercise power that cannot be traced to some specific grant of power.

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 This approach is premised on the belief that inherent power is inconsistent with a written Constitution establishing a government of limited powers. (2) The president has inherent authority unless the president interferes with the functioning of another branch of government or usurps the powers of another branch. (Justice Douglas) Argument is grounded in textual interpretative approach. Allows the courts to invalidate presidential actions that interfere with the other branches of government. o Unconstitutional because the President was using federal funds to compensate the steel mill owners for taking their property. President was impermissibly usurping Congresss spending power. This approach recognizes the ability of the president to act without express constitutional or statutory authority, so long as the president is not infringing or usurping the powers of Congress or the courts. o The Constitution makes not mention of a presidential power to recognize foreign governments or to remove presidential appointees from office, 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 the Constitution so long as the president does not violate a statute or the Constitution. (Justice Frankfurter-action unconstitutional) There was an expressed Congressional denial of authority by declining to accept the amendment. o It is Congresss responsibility to act to STOP presidential infringements! Justice Jacksons Approach (3 Zone Test) (4) The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated. (Justice Vinson ) President has broad authority so long as the Constitution is not violated. Federal laws restricting the presidents power are unconstitutional. US v. Curtiss-Wright takes this approach! o Case involved a congressional authorization permitting the president to restrict arms sales to 2 warring Latin American nations. The court upheld a BROAD delegation of powers to the president. The court stated that the fact that the federal government can exercise no powers except those specifically enumerated in the Constitution is categorically true only in respect of our internal affairs. The power to conduct foreign policy does not stem from the Constitution, but instead is intrinsic to nationality. Since 9/11, the executive has broad inherent presidential power to protect national security and fight terrorism. They can engage in activities like: detaining suspects and warrantless eavesdropping of Americans conversations with those in foreign countries. ON an Exam: Need to know that the she will put us as the position to represent the govt actor or 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 II listen to class starting at 12:20 i. Steel Seizure is all about the

According to her there needs to be some legislative outcry that something drastic had occurred in order to qualify as an emergency. Once emergency is declared, Congress cant turn it off. There is nothing in the declaration which says you 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 had DENIED the president the authority to seize industries. He attempts to reconcile the 4 models above. He attempts through the 3 part test: (1)When the president acts under expressed or implied authorization by Congress, his authority is at its MAXIMUM, for it includes all the he possesses in his own right plus all that Congress can delegate. VALID! A. Congress has acted and the issue is the constitutionality of the federal law. (2)When the presidents acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. BUT there is a zone of TWILIGHT in which he and Congress may have concurrent authority, or in which its distribution is uncertain. A. Inherent powers where the president is acting w/out constitutional 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 or implied will of Congress, his power is at its LOWEST. Because the president is disobeying law, such presidential actions will be allowed ONLY if 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 covered it by 3 statutory policies inconsistent w/this seizure. 1. Executive Privilege Executive 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 Presidents as necessary for them to receive candid advice. United States v. Nixon: (Watergate) Tapes were subpoenaed of the White House conversations and the Presidents challenged the subpoena in courts. A subpoena was issued, at the request of the special prosecutor, for the President to turn over the tapes. The SC unanimously 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 in the 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 responsibilities against 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 holds information relevant, to a criminal Ds due process rights and interest, the presidents executive privilege must yield to the due process interest of the criminal proceeding. In criminal proceeding the executive privilege must yield (an interest in constitutional magnitude); in a civil proceeding the executive privilege prevails.

Cheney v. U.S. Dist. Court for Dist. of Columbia: A lawsuit was filed claiming that an energy task force, chaired by Dick Cheney, violated the Federal Advisory Committee Act. sought and received a discovery order. sought a writ of mandamus to stop enforcement of the discovery order. The SC did not resolve whether executive privilege applied here, or even whether mandamus 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 the proper balance between the executives interest in the confidentiality of its communications and the constitutional need for production of relevant evidence in a criminal proceeding. Civil cases do not share the same urgency as criminal cases. The subpoena in Nixon was narrowly focused, while the discovery sought in Cheney was broad. 2. Authority of Congress to Increase Executive Power-Separation of powers d. 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 the Executive can strike certain appropriations w/in that law. The purpose is to allow the 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 both the house of Congress, but before it becomes a law, it must be presented to the President. If he approves, he shall sign it, but if no, he shall return it, with his objections to that house in which it shall have originated, who shall proceed to consider 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 argue by allowing the President to alter the law after it passed that Congress has allowed the President to legislate and this is problematic bc legislating belongs to the legislature. The president has the power to execute 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 been signed into law, rather than before as the Presentment clause requires. d. There is no provision in the Constitution that authorizes the President to enact, to amend or repeal statutes. h. constitutional return occurs before the bill becomes law and is a return of the entire bill. Statutory cancellation occurs after the bill becomes law and will return only part of the bill C. Non-Delegation Doctrine a. 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 power b. Non-delegation doctrine: Congress may not delegate its legislative power to administrative agencies. Forces a politically accountable Congress to make policy choices rather than 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 Industry Recovery Act unconstitutional as exceeding the scope of Congress commerce power and because it was an impermissible delegation of legislative power. Congress cannot delegate legislative power to the president to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. D. Legislative Veto a. 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 the AG. Congress delegated the power to suspend a deportation order to the AG, reserving the right to either one House to invalidate the decision of the Executive Branch. The court found that this was unconstitutional because it violated the Presidents veto power and the bicameral structure of 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 Power a. Appointment Power Article II, 2 provides the President, shall nominate, and by and with the Advice and Consent of the Senate. Morrison v. Olsen: Independent counsel was appointed to investigate and prosecute wrongdoing by high-level federal officials in connection with Watergate (Nixon). An act authorizing a non-executive branch of the government to select and remove an officer does not violate 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 presidential power for Congress to vest this authority in the independent counsel. o Functionalist: Obvious benefit to having investigations of executive officials conducted outside of the executive branch. o Formalist: Scalia emphasizes that the executive power is vested SOLEY in the president 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 where independence from the president would be desirable. 3. BUT Congress may not prohibit all removal power UNLESS there is good cause or exceptional cause shown 4. AND Congress cannot give itself removal power OTHER than by impeachment. Powell v McCormack Morrison v. Olson: Rehnquist 1. Independent counsel statute-suppose to give Atty General the power to appoint a person separate and distinct from the legislature to investigate the situation and they are able to bring charges. Gives protection 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 full power 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 appointing powers. 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 Policy a. 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 to foreign 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 this is the executive and he cannot be controlled or directed by any other branches 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 Advice and 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 for domestic affairs. The exigencies of foreign affairs permit the president to wield executive authority even if it is not pursuant to a congressional act. United States v. Curtis-Wright Corp: A 1943 Congressional Joint Resolution permitted the president to forbid arms and munitions sales to select countries. Delegation of certain legislative powers to the president can be constitutional when necessary to govern foreign affairs. The president is the SOLE representative in the field of international affairs; he does not require a congressional act to establish legislative authority in foreign relations. The president MUST be afforded 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 was adopted and brought in the dual government. c. Treaties v. Executive Agreements Article 2, Section 2: president shall have power, by and with the advice and consent of the Senate, to make treaties, provided 2/3 of the Senators present concur. Treaties: An agreement between the US and a foreign country that is negotiated 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 DATE WILL CONTROL. a. US/president has broad powers to entry into treatises with foreign countries. 4. Whether the president may unilaterally rescind a treaty is usually considered by the Court as a NONJUSTICIABLE political question b/c it involves the authority of the president in the conduct of our countrys foreign relations. 5. Treaties CANNOT VIOLATE THE CONSTITUTION. 6. Treaties CANNOT BE CHALLENGED as violating the 10th Amendment and infringing state sovereignty. 7. Article II expressly authorizes treaties and Article VI makes treaties the supreme law of the land. Treaty power is broader tan authority Congress has to enact statutes.

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 Executive Agreements: An agreement between the US and a foreign

country that is effective when signed by the president or any other head of government. (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 do. 5. 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 to raise 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 the president using troops in a war or war-like circumstances without congressional approval. A person gets their rights based upon PRESENCE in the US or US territory and NOT because they were born here. The Constitution applies in the US or its territory regardless of your citizenship. It does not apply outside the US to a foreign nation or even if it is a person working for the US. The Supreme Court has generally remarked that challenges to the conduct of foreign policy presents a nonjusticiable political question, especially those directed to the constitutionality of the presidents use of the war powers. Uncertainty as to how Congress may limit the president issue arises most frequent with the War Power Resolution, which states that the president as Commander in Chief send the military into hostilities/hostile situation only under to a declaration of war, specific statutory authorization, as a national emergency created by attack on the US. G. Presidential Power and the War on Terrorism a. Authorization of the use of military force: When enacted the authorization for the use of military force was intended to authorize the executive to go to war with whomever the intelligence agency deemed fit who were responsible for the attacks. This question is important b/c if the authorization of use of military force is appropriate then Congress has broadened the executive power. AUMF: 1. doesnt designate sovereign nation w/ whome we have issue with 2. doesnt designate a governmental structure or leader w/ whom we have an issue 3. 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 military operations in Afghanistan and held as an enemy combatant. His father sued, 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, an American citizen has SOME due process right to a hearing at which he can contest his innocence (crt never determined the level) 1. writ of habeas corpus :summons w/ the force of a ct order addressed to the custodian demanding that a prisoner be brought before the ct, together w/ proof of authority allowing crt to determine if prison has lawful authot to hold the person. 2. The government has the power to detain unlawful combatants, but ruled that detainees who are US citizens must have the ability to challenge their detention before an impartial judge. 3. Minimum due process required notice of charges, right to respond, and right to be represented by counsel, BUT this case was remanded to determine what due process should be required when an American citizen apprehended in a foreign country is detained as an enemy combatant. 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 entity 5. 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/Kennedy a. Agree in the judgment and opinion 7. Souter/Ginsberg a. Concur in part 8. Scalia/Stevens a. Agree in dissent; assuming it is appropriate to detain this person then the detainee is entitled to some level of due process the extent should be determined by Congress, but to date hasnt done it yet. 9. Thomas a. Out on his own; he thought since we are in an emergency circumstance 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 obtain one. 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 FROM4/13/09 b. 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 satisfy requirements and it remains to be vested with the DC court. 4. To understand detention need to understand Hamdi, Hamdan, and Bohmedian
c. Military Tribunals: Hamdan v Rumsfield: 1. Stevens 2. declaration of martial law3. Commissions historically used in 3 situations a. They have substituted for civilian cts at times and in places where martial law has been declared b. Commissions have been est to try civilians c. Icident to the conduct of war where there is a need to seize and subject to disciplinary measures those enemies who in there attempt to thwart or impede our military effort have violated the law of war. 4. The term unlawful enemy combatant is not defined anywhere. Rules of war if 1 is at war with another sovereign entity you are required to wear your uniform to a point. a. IE: during WWII Germans were specifically instructed to wear their insignia till they reach US soil b. If you are captured there are specific rights: i. Once cease fire commences you are no longer a threat and are free to go. 5. The issue here was Hamdan hid with the civilians and therefore violates the Common Law war tactics. Therefore the term unlawful enemy combatant is not defined. The administration doesnt put forth These 2 anything which provides a legal definition. cases begin 6. In McCardle even when you were stripping S.Ct rule you were only to show the stripping one basis. haste for 7. War crime tribunals: a military court designed to try members of which we enemy forces during war time operating outside the scope of begin to act. conventional criminal and civil proceedings. 8. Can the president create military tribunals to try military combatants? a. Only if there is authority from the UCMJ 21 or the American Common Law war, the UCMJ 36, and the international law of war Geneva Common Article 3. d. Habeas Corpus and the War on Terrorism Boumediene v. Bush: Boumediene and 5 other Algerian natives were seized by Bosnian police when US intelligence officers suspected their involvement in a plot to attach the US embassy there. The government classified the men as enemy combatants in the war on terror and detained them at Guantanamo Bay. Boumediene filed a writ of habeas corpus, alleging violations of the Constitutions Due Process Clause. The court held that the prisoners had a right to the habeas corpus under the Constitution and that the MCA was an unconstitutional suspension of the right. 1. Does MCA unconstitutionally suspend writ of habeas corpus? YES. 2. Does constitutional writ of habeas corpus extend to enemy combatants? YES. 3. If it does, is the detentions treatment at review process an adequate substitute for habeas corpus? NO.

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4. Does the executive have authority to eliminate federal habeas review? NO, because even though Congress gave executive authority it conflicts with the constitution. 5. Congress said we re giving the executive certain powers and are to go to certain issues. 6. Justice Jackson wrote to address this for the executive power. 7. Correlates to Steel Seizure. e. Suing and Prosecuting the President Nixon v. A, Ernest Fitzgerald P seeks relief in civil damages from President Nixon, claims rested on actions taken in Nixons official Presidential capacity. P lost his job as management analyst with the Department of the Air Force, in which his job was eliminated. One year before he testified against the Air Force, saying there were major financial problems. Holding: President is entitled to absolute immunity from damages liability predicated on his official acts. We consider this immunity a functionally mandated incident of the Presidents unique office, rooted in the constitutional tradition of the separation of powers and supported by our history. Policy supported by the decision include: (a) President may be diverted from duties with concern from private suits. (b) The president is extremely visible and may be in danger of suits. (c) There are already checks on the presidents power (impeachment). The party of the president may be implicated if suits are allowed.

Clinton v. Paula Jones Facts: Paula Jones suit against Bill Clinton. President Clinton argued that the suit must be stayed until his Presidency had ended. We have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity. Holding: Executive Privilege does not require the judiciary to stay a private suit against the President for non-governmental action. Like every other citizen who properly invokes jurisdiction, the respondent had a right to an orderly disposition of her claims. H. Impeachment a. Article II, Clause IV b. Treason: Article II, Section 2, Clause 1.1 1. The ultimate check on presidential power is impeachment and removal. 2. Article I, 2 provides that the House has the sole power to impeach. 3. Article I, 3 gives the Senate the sole power to try impeachments. 4. Issues: What are high crimes and misdemeanors? o High Crimes or Misdemeanors (whatever the majority of the House says they are) comes back to the voting electorate (we communicate with our

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representative whether we believe a person should be impeached); Obstruction of justice o Clinton was impeached for this, not for having an affair. What procedures must be followed when there is an impeachment and removal proceeding? o Example: if congress decided to impeach a president for failure to balance a budget in a timely manner would that be an appropriate offense? o If Congress received the requisite number of votes, this would likely be an impeachable offense. o This is a political question? PQ is a question that is directly left to one of the two political branches. o House of Rep. (435) is responsible for adopting the articles of impeachment (they decide what they are going to be). Simply majority in the House to pass. These are the indicted offense or the actuations. o Trial is conducted in the Senate (100 members, 2 from each state). Traditionally, it is a criminal trial before a jury of 100. 2/3 in the Senate to pass.

The going assumption is that impeachment is a non-justiciable issue (political question). The SC is allowed to determine what the law is and it is inappropriate for them to speak on them, as it is specifically laid out in Article II.

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