Con Law Epperson 10

Front 1

What article are we in with judicial review

Back 1

Article III, never expressly grants fed courts power to review C'lity of fed or state law in executive actions

Front 2

Fed courts are courts of

Back 2

limited jx

Front 3

2 primary restrictions on fed judicial power

Back 3

Art III of C: defines scope of fed authority/also, judical interpret of III has created justiciability doctrines: restrict access to fed courts
CS is other b/c SC can only hear a matter when there is both C'l and statutory authorization. Under III, CS has power to create "exceptions and regulations" to SC's appellate jx

Front 4

What did MvM do?

Back 4

Establish authority for judiciary to review C'lity of exec and legis acts (power not expressly enumerated in C)

Front 5

Actual holding of MvM

Back 5

UC to hear case as matter of orig jx even though Judiciary Act of 1789 did authorize jx, this provision was UC b/c CS cannot allow original jx beyond sits enumerated in C

Front 6

Legal or political question in MvM

Back 6

Legal

Front 7

Bottom line of MvM

Back 7

Court can declare laws UC, if that law is repugnant to C, it has power to strike it down

Front 8

What issue does MvM raise

Back 8

Counter-majoritarian issue: Judicial review puts powr in the hands of a small few who were not elected. the argument here is that courts should be reluctant to set aside the decisions of other, elected organs of govt

Front 9

Which reading of MvM has prevailed?

Back 9

Broad: Takes MvM and expands, sC has supreme role

Front 10

What's the Hand/Wechsler debate?

Back 10

Basically, Hand says JR should be discretionary. Wechsler says it is mandatory

Front 11

What does Cooper case do

Back 11

state officials were not bound by SC's decision in BvB since Ark not party. Holding: SC is supreme arbiter and every branch of the govt and all people must follow our rule…The C is the Supreme Law of the Land and it “emphatically the province and duty of the judicial dept to say what the law is

Front 12

So, what does Cooper show?

Back 12

Fed courts have the authority to review the C'lity of state laws and the actions of state officials in addition to state court decisions.

Front 13

What is the most important limit on federal judicial power?

Back 13

The Justiciability Doctrines, they determine which matters federal courts can hear and decide and which must be dimissed

Front 14

Sources of justic doctrines?

Back 14

Created by SC who interpretted from
1)C'l limits (III Section 2 Clause 1 "cases" or "controversies" requirement
2)Prudential restrictions

Front 15

So, which ones can and cannot be overridden by CS

Back 15

C'l limits can't be, prudential restrictions can be

Front 16

Why have these doctrines?

Back 16

Separate powers b/t branches of govt and define judicial role/conserve J resoures/improve J decision making by providing concrete contros/promote fairness

Front 17

What is the polical question doctrine?

Back 17

Some C'l issues are "political" in nature so non justic. Court feels that C'l interpret should be left to politically accountable branches of govt (prez and CS).

Front 18

How many cases fall in PQ

Back 18

1/1000

Front 19

What are usually found to involve political questions and therefore non justic (#1)

Back 19

Guarantee clause cases: Article 4 section 4 "The US shall guarantee to every State in this Union a Republican Form of Govt."

Front 20

What does guarantee clause actually mean? Think of Luther case

Back 20

Case raised PQ b/c under clause it rests with CS to decide what govt is established one in state

Front 21

PQ number 2

Back 21

Foreign Affairs: when wars end and begin, recognizing different foreign govts, rat of treaties, questions of armed forces abroad, and diplomatic status of foreign reps

Front 22

Give an example of FA

Back 22

Goldwater: Prez had authority to terminate treaty without consent of Senate in nonjust pq which is better resolved to exec and legis branches

Front 23

PQ number 3:

Back 23

Ratifying C'l Amendments

Front 24

PQ number 4

Back 24

Impeachment and Removal from Office. Is all judicial review of impeachment non-justiciable?

Front 25

Take Nixon case through the 3 PQs strands

Back 25

Structure of Art I Sec 3 revealed textual commitment of impeachment to the Senate. “Sole.(first strand)” “Try” does not give only one way (2nd strand). Judicial review would be inconsistent with the framer’s creation of impeachment as the only check on the judicial branch by the legislature. (3rd strand)

Front 26

What did Souter concurrence say with respect to Nixon

Back 26

Mentions Hand’s view of judicial review and states that not all judicial interference with impeachment process is inappropriate and would be necessary if Senate acted in manner seriously threatening the integrity of its results. =discretionary matter that depends on circumstances

Front 27

PQ number 5

Back 27

Reapportionment cases: Originally nonjust, Colegrove v. Green showed that, fell under 1st strand and CS had the exclusive authority to secure fair rep by the States in the House of Reps. Then Baker v. Carr: SC deemed justiciable claims that malapportionment violates EP clause

Front 28

What if Baker, reapportionment EP claim, had been guarantee clause

Back 28

Nonjust

Front 29

So, what makes Baker d/f than Borden

Back 29

Court found judicial standard for determinin EP claims. No jud stnds for dtermining claims under Guar Clause

Front 30

When talking about case or controversy requirement talking about

Back 30

standing, m, ripeness

Front 31

What are advisory opinions?

Back 31

These are opinions on the legality of executive or legislative action that does not involve actual case. Essentially an opinion by the court that has no binding effect or lacks concrete legal dispute that it is meant to decide. Some states allow their SC to give advisory opinions, in federal prohibited.

Front 32

Criteria to avoid being an advisory opinion (2)

Back 32

a. Must be can actual dispute b/t adverse litigants and there must be a substantial likelihood that a federal court decision in favor of the claimant will bring about some change or have some effect.

Front 33

Do courts usually need to talk about advisory opinions?

Back 33

Nope: S, R, and M all stem from same issue

Front 34

Standing?

Back 34

Whether litigant litigant is entitled to have the court decide the merits of the dispute or of particular issues. Comes from Art III’s Case or Controversy Requirement, it’s self imposed prudence.

Front 35

Requirements for Standing

Back 35

Remember that some are C'l and cannot be overriden by statute and others are prudential and can be overridden by statute

Front 36

Talk about the C'l limit on standing with respect to injury:

Back 36

real and imminent+concrete and particularized to litigant

Front 37

Mere interest in the problem ok

Back 37

Nope. Need someone to go skiing there or its speculative

Front 38

When are aesthetic and environmental injuries sufficient to form standing

Back 38

as long as P claims to suffer injury personally

Front 39

Exception to 3rd party standing

Back 39

Where third party is unlikely to sue/close relationship b/t P and 3rd party (i. Where individ is part of the third party’s C’ll protected activity. Seller of beer )

Front 40

What's the exception to generalized grievances?

Back 40

P denied a specific C'l right, may have standing even though e/o injured too. 1st A

Front 41

When will CS ability to confer standing be shot down
Where do we see it might be possible for CS to confer

Back 41

If it violates separation of powers
Kennedy Lujan concurrence where he says that at a min, CS must identify the injury it wishes to vindicate and relate the injury to class of persons who can sue

Front 42

What exactly did Scalia say in Lujan

Back 42

1. To permit CS to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Executive’s most important constitutional duty to take care that laws are faithfully executed…This is not in the purview of the judiciary to monitor the wisdom and soundness of executive action.

Front 43

FEC v. Akin

Back 43

Information injury was directly related to voting, the most basic political right, is sufficiently concrete, and specific such that the fact that it is widely shared does not deprive CS of C'l power to authorize its vindication in federal courts

Front 44

When do legislators have standing?

Back 44

When they have been deprived of something to which they are personally entitled. Not when the assertion is based on loss of political power rather than private right

Front 45

So, can senators argue that Line Item Veto Act dilutes political power and therefore injury

Back 45

Nope, even though act said that any member of CS coudl bring an action alleging UC'llity of act

Front 46

Rationale of Raines Line Item case

Back 46

affects all equally, other options like repealing or exempting appropriations from the bill

Front 47

Option left open in Raines

Back 47

may have standing if vote was nullified or denied in disriminatory manner

Front 48

Mootness and Ripeness generally:

Back 48

timing of lawsuit and when review is appropriate. Will often overlap. Stem from case or controversy requirement/prudential concerns

Front 49

Ripeness:

Back 49

Ripeness doctrine seeks to prevent premature adjudication/Aims to avoid disputes that are insufficiently developed and are too remote or speculative to warrant judicial action/Must have injury in fact

Front 50

Mootness:

Back 50

2. Mootness doctrine requires that an actual controversy must be extant at all stages of review, not merely at the time the complaint was filed. So, a case is moot if circs change ending controversy, no longer live controversy. Can be change of law or facts

Front 51

Two important exceptions to mootness doctrine

Back 51

Wrongs capable of repetition yet evading review
Voluntary cessation of challenged act: case is not dismissed as moot if D voluntarily ceases unless no reasonable chance he'll resume

Front 52

Supreme court and state court judgments

Back 52

Can hear them but it must be a question of federal law. Don't review cases that are adequate and independent state grounds.

Front 53

Why do we even have to worry about this state court judgment thing?

Back 53

B/C MvM said Court had power to review C'llity of federal executive actions and fed statutes

Front 54

Doctrine of interposition

Back 54

Where state courts would deny the general authoritativeness of the fed courts decisions on the ground that the states right to interpose their own interpretations of the C against federal action

Front 55

Where does authority to review state court d/cs come from

Back 55

Not explicitly in C. Authority party comes from Section 25 of Judiciary Act of 1789 which said SC could review state court D/cs. Also set up in lower fed courts. Not in C but framers would have wanted it

Front 56

What did Martin case do

Back 56

Established C'l basis for SC to review state court decisions

Front 57

holding and rationale of Martin

Back 57

See outline

Front 58

Holmes view on Martin case

Back 58

1. Doesn’t think US would come to end if we lost our power to declare an Act of CS void. I do think the Union would be imperiled if we could not make that declaration as to the law of the several states.

Front 59

What did Cohens case do?

Back 59

1. Confirmed and expanded the decision in martin
2. Court sustained is jx to review the validity of state laws in crim procs

Front 60

Holding of Cohens

Back 60

(a) Judicial Power Extends to all cases arising under the constitution or a law of the US, whoever may be parties (including states themselves)
(b) In ratifying the C, the states have agreed to subject themselves to the jx of the SC on appeals from state courts. States allow themselves to be part of this system and can be called to the SC

Front 61

What is the checklist for SC to have authority to look at State decisions?

Back 61

1.Federal question (C’l or Statutory)
a.The case must involve the violation of federal law for the SC to have subject matter jx
b.State courts are final arbiters of state law

Front 62

How can countermajoritarian theme of SC be a problem?

Back 62

It is the least accountable branch b/c the 9 justices are not elected but they are making major decisions about how the govt works

Front 63

So, what weapons are available to the executive and legislative branches in reacting to rulings in which they disagree...ways to hold SC accountable (first way):

Back 63

1)Amendments to the C to overturn specific SC decisions
a. Art 5 sets out not so easy proc for As
b.(11, 14, 16, 26 good examples

Front 64

2nd, 3rd and 4th way to hold SC accountable:

Back 64

Impeachment: Article 2 Sec 4: never been done
Congressional power to set the size of Court (FDR's court packing plan)
Congressional Power to set when the court meets

Front 65

5th way to hold SC accountable:

Back 65

Appointments and Confirmation Art II Sec 2 Clause 2: Prez noms Justices to SC, but Art II Sec 2 Cl 2 provides that the appointment not effective unless he gets "Advice and Consent of the Senate"

Front 66

6th way to hold SC accountable:

Back 66

Exceptions clause: Article 3 Sec 2 Cl 2: Most significant control over. CS's most powerful tool-ability to regulate appellate jx of SC

Front 67

Exceptions clause language

Back 67

See outline (probably needs to be in here)

Front 68

Is exceptions clause widely used?

Back 68

Nope

Front 69

Case where exceptions clause was used

Back 69

Ex Parte McCardle: showed that CS may prevent SC review of C'l issues in certain situations

Front 70

What are the external constraints on exceptions clause?

Back 70

1.Public opinion, like if s/t goes against EPA or 1st
2.CS cannot violate sep of powers
a.US v Klein showed that CS cannot restrict SC appellate review when it violates sep of powers.

Front 71

Subsection II: Powers of Fed Govt: Legislative Powers

Back 71

New section

Front 72

Historical Justifications for federalism:

Back 72

Double security. Vert sep of powers b/t nation and state and horizontal sep of powers b/t fed branches would give double security to the rights of the people by preventing concentrations of power.

Front 73

Scope of Congressional powers

Back 73

Limited and defined. CS can only act pursuant to enumerated express or implied power.

Front 74

Where does CS specifically get its power?

Back 74

Article I: "All legislative power herein granted shall be vested in a CS of the US which shall consist of a Senate and HoRs

Front 75

Scope of State powers

Back 75

1.States may act unless the Constitution prohibits the action
2.10th Amendment: “Powers not delegated to the US by the Constitution, nor prohibited to it by the States are reserved to the States respectively, or to the people
a.The “flip side” of enumerated
3.Residuary Powers: states can enjoy all that are not enumerated by the constitution to be held by the federal

Front 76

What are the questions to ask when evaluating C'llity of Act of Congress?

Back 76

a.Does Congress have the authority under the Constitution to legislate?
b.If so, does the law violate another constitutional provision or doctrine?

Front 77

What are the quesions to ask when evaluating C'llity of State Law

Back 77

a. Does the legislation violate the constitution?
i.Note: state has the police power which allows it to adopt any law not prohibited by the constitution

Front 78

CS has both blank and blank limits on its powers

Back 78

Internal and External

Front 79

Talk about internal limits on CS's power to regulate private activities

Back 79

They are the enumerated powers of CS (spending, commerce, section 5, treaty)

Front 80

Talk about external limits on CS's power

Back 80

Derived from references to 10th and 11th As
i. Look at the core sovereignties retained under these As

Front 81

What's the deal with necessary and proper clause?

Back 81

specific powers of CS may be enlarged by this clause

Front 82

Talk about McCulloch v. MD

Back 82

N&P clause issue. According the Marshall, listing all possible powers would be two extensive. Omission of the word expressly in 10th A not accidental, this means powers can be implied

Front 83

So, McvMd, lack of enumeration:

Back 83

Does not necessarily mean lack of power

Front 84

It is the C Blank blankety blan

Back 84

we are expounding, needs to stand the test of time

Front 85

Actual N&P clause

Back 85

See outline

Front 86

So, what can CS do with respect to N&P clause

Back 86

May choose any means, not probihited by C, to carry out its express authority

Front 87

More N&P stuff

Back 87

see outline

Front 88

So, what are the judicially enforceable limits on Congressional Power mentioned

Back 88

a.Court would maintain a role in scrutinizing whether the means chosen by CS were adequately related to legit ends.
b.Court would decide whether Congressional assertions of necessity were a pretext

Front 89

What does the commerce power do?

Back 89

Art I Section 8 clause 3: Congress has the power to “regulate commerce with foreign Nations, and among the Several States, and with Indian Tribes.”

Front 90

Commerce power is the

Back 90

Most significan power CS has

Front 91

2 parts to the commerce clause

Back 91

1.Affirmative: Positive grant to reg commerce b/t states. Broadest grant, lots of reg has been enacted pursuant to this clause.
a.over the coure of history, the SC has adopted varying views as to the meaning of the CC and the extent to which Congressional power under it are limited by the 10th A.
2. Dormant: negative element that allows CS to limit things that will hurt commerce.

Front 92

History of CC

Back 92

See outline. basically nothing exceeded the reach of commerce clause for a long time. Then cases made partial return to the more interventionist commerce clause jurisprudence of the pre-New Deal Era:Lopez and Morrison

Front 93

Pre-1995 CC doctrine

Back 93

of deferential review

Front 94

What did Wickard show?

Back 94

That Court's pre 1937 CC doctrine had been abandoned. We're deferentialing reviewing

Front 95

What test did Wickard lay out?

Back 95

Rational Basis test: Whether the activity has a substantial effect on IS commerce looked at in aggregate

Front 96

What is Wickard claiming?
What is Court saying

Back 96

That law can't be C'lly applied to him, home consumption not part of IS commerce.
Cumulative effect on IS commerce

Front 97

What is the actual test?

Back 97

Whether there is a rational basis for regulation since the activity had an effect on IS commerce in the aggregate.

Front 98

Talk about the CRA of 64 and CC:

Back 98

a. In part, it prohibits private employment discrimination based on race, gender, or religion, and forbids discrimination by places of public accommodation. CS enacted it under CC, SC upheld

Front 99

Reason why this wasn't under section 5 of 14th A?

Back 99

In Civil Rights cases of 1883, SC held that CS could only regulate state action and not private conduct or discrimination under the 14th A
i.Plus, CS knew SC was deferential to CC power

Front 100

Talk about Heart of Atl and Katezenbach

Back 100

Discrimination in these places had direct and adverse affect on IS commerce
Doesn't matter if purely local in character
Using rational basis test

Front 101

What does upheld Title II of CRA as C'l show

Back 101

Judiciary's deferential review of commerce power

Front 102

Question raised in Black's concurrence to both cases: what if everything was local, is that beyond reach of commerce power?

Back 102

probably not, broad deference. Court would say in aggregate substantially affected IS commerce

Front 103

What is the current doctrine of the CC look like? Talk about changing tide case

Back 103

US v Lopez: first time court found a federal law UC under the CC in 60 years. Introduces "substantial effects" test, more bite than standard before

Front 104

What is the new test we see in Lopez?

Back 104

Substantial effects test with an economic activity requirement

Front 105

Reconcile Lopez with Prior decisions:

Back 105

Test remains the same: Substantial EFFECTS TEST
i. THis is just the first time that something failed.
ii. What changes about the test?
1. Does not look to the aggregate if it is not an economic activity
2. More emphasis on balancing state and federal powers

Front 106

Talk about the gist of Rehnquist's opinion in Lopez

Back 106

1.Signal of R's legacy of pushing for more power to the states and less federal power.
2.Cautions about the balance b/t fed/state powers
a. Warns don't assume CS can put in legislation on local issues

Front 107

Talk about the gist of Thomas's concurrence

Back 107

Originalist:
1.Looks at how the constitution was interpreted and what it meant in 1789
2.Urges a much narrower view of congressional power than adopted by the majority and states that the substantial effects test is a New Deal Innovation which goes beyond the framers intent
3.Says the Court should return to the limits on the commerce power followed between 1887 and 1937

Front 108

A bunch more crap about Lopez

Back 108

See outline

Front 109

A bunch more crap about Lopez

Back 109

See outline

Front 110

A bunch more crap about Lopez

Back 110

See outline

Front 111

Alright, now time to really get screwed up, talk about Gonzales v. Raich

Back 111

SC held that application of CSA provisions criminalizing manufacture, distribution, or possession of MJ intrastate growers and users did not violate CC.

Front 112

So, what's the test in GvR?

Back 112

rational basis tests: In assessing CS's CC authority, Court need not determine whether respondents' activities, taken in the aggregate, substantially affect IS commerce in fact, but only whether a "rational basis" exists for so concluding.

Front 113

What was a trick court used in GvR

Back 113

Used a broad definition of economic activity so they could basically stick anything in there

Front 114

What case did Court rely on in GvR?

Back 114

Wickard: commodity meant for home consumption has substantial effect on S and D of nat'l market.
Anyway, in assessing the scope of CS's CC authority, need not determine whehter activities taken in aggregate, substantially affect IS commerce, but only whether "rational basis" exists for so concluding.

Front 115

How does Court distinguish itself in GvR from Lopez?

Back 115

See outline

Front 116

Rehnquist Dissented on GvR--can you figure out why

Back 116

Probably because we're overstepping our bounds with the state

Front 117

How to read these cases?

Back 117

L might be about bad draftmanship. R might too

Front 118

Overview of the test from Wickard to Lopez

Back 118

a.Wickard(HoA and Katzenbach)
i.Rational Basis Test: Look at whether the regulated Activity Substantially Effected IS Commerce
b.Lopez
i.Gave Rational Basis Test more Bite
1.Look to see if the thing is an ECONOMIC ACTIVITY
a.If not, will not look in the aggregate
2.Will not look at it if it is something which the state is always sovereign
a.Criminal law, family law, education
3.Drafting
a.Jx’l Standing
b.Congressional Finding
c.Congressional Finding
i.Proves Court is still using Rational Basis Test

Front 119

Name other enumerated powers of CS

Back 119

Spending power, treaty power, power conferred by Section 5 of 14thA

Front 120

Talk about the Spending Pwr

Back 120

Imporant regulatory device since it has impact on how federal system actually functions

Front 121

Tax and Spending Power clause:

Back 121

Article 1 Section 8 Clause 1

Front 122

What that aforementioned clauase actually says:

Back 122

See outline

Front 123

A bunch more crap about Lopez

Back 123

See outline

Front 124

A bunch more crap about Lopez

Back 124

See outline

Front 125

A bunch more crap about Lopez

Back 125

See outline

Front 126

Alright, now time to really get screwed up, talk about Gonzales v. Raich

Back 126

SC held that application of CSA provisions criminalizing manufacture, distribution, or possession of MJ intrastate growers and users did not violate CC.

Front 127

So, what's the test in GvR?

Back 127

rational basis tests: In assessing CS's CC authority, Court need not determine whether respondents' activities, taken in the aggregate, substantially affect IS commerce in fact, but only whether a "rational basis" exists for so concluding.

Front 128

What was a trick court used in GvR

Back 128

Used a broad definition of economic activity so they could basically stick anything in there

Front 129

What case did Court rely on in GvR?

Back 129

Wickard: commodity meant for home consumption has substantial effect on S and D of nat'l market.
Anyway, in assessing the scope of CS's CC authority, need not determine whehter activities taken in aggregate, substantially affect IS commerce, but only whether "rational basis" exists for so concluding.

Front 130

How does Court distinguish itself in GvR from Lopez?

Back 130

See outline

Front 131

Rehnquist Dissented on GvR--can you figure out why

Back 131

Probably because we're overstepping our bounds with the state

Front 132

How to read these cases?

Back 132

L might be about bad draftmanship. R might too

Front 133

Overview of the test from Wickard to Lopez

Back 133

a.Wickard(HoA and Katzenbach)
i.Rational Basis Test: Look at whether the regulated Activity Substantially Effected IS Commerce
b.Lopez
i.Gave Rational Basis Test more Bite
1.Look to see if the thing is an ECONOMIC ACTIVITY
a.If not, will not look in the aggregate
2.Will not look at it if it is something which the state is always sovereign
a.Criminal law, family law, education
3.Drafting
a.Jx’l Standing
b.Congressional Finding
c.Congressional Finding
i.Proves Court is still using Rational Basis Test

Front 134

Name other enumerated powers of CS

Back 134

Spending power, treaty power, power conferred by Section 5 of 14thA

Front 135

Talk about the Spending Pwr

Back 135

Imporant regulatory device since it has impact on how federal system actually functions

Front 136

Tax and Spending Power clause:

Back 136

Article 1 Section 8 Clause 1

Front 137

What that aforementioned clauase actually says:

Back 137

See outline

Front 138

Analysis of Tax and spending power Clause

Back 138

States that you can tax and spend for the “general welfare” Implies Congress cannot tax and spend for any reason

Front 139

For what purposes may CS Tax and Spend (2 debates)

Back 139

1. Madison’s view: Narrow view: Congress was limited to taxing and spending to carry out the other enumerated powers specifically granted in Article I Section 8 of the C (commerce power, etc
2. Hamilton’s view: Broad view: CS should tax and spend for any purpose that it believed served the general welfare, so long as CS did not violate another C’l provision

Front 140

Who wins

Back 140

Hamilton

Front 141

Conditional spending:

Back 141

CS has the ability to place conditions on grants to state and local governments so long as the conditions are EXPRESSLY STATED and have some RELATIONSHIP TO THE PURPOSE OF THE SPENDING PROGRAM

Front 142

What is the case that does conditional spending

Back 142

SD case withhold 5% of the federal highway funds from any state govt that failed to impose drinking age. SD says that this violated C'l limits on congressional spending pwr

Front 143

Holding of SD case:
So, what does this mean?

Back 143

b. Held: C’l condition even if CS might lack the power to impose a national minimum drinking age directly. Condition valid use of Spending Power
c. Rationale: So, objectives not thought to be w/in Article I’s enumerated legislative fields may nevertheless be attained through use of the spending power and the conditional grant of federal funds.

Front 144

Standards of spending power from this case

Back 144

See outline

Front 145

O'Connor's Dissent from SD

Back 145

1. Narrow view of germaness requirement
2. Establishment of a minimum drinking age is not sufficiently related to interstate highway construction to justify conditioning funds appropriated for that purpose
a. Under and over inclusive: Under inclusive because teens are only part of drunk driving problem and over inclusive because stops teens who are not going to be driving from drinking
3. The requirement needs to say in some way how the money will be spent, so that Congress intent in making the grant will be effectuated

Front 146

So, what does all this mean?

Back 146

ii. This could be another battle ground one day…

Front 147

Next up, the treaty power, where is it in C

Back 147

a. Under Article II, Section 2, clause 2: President has the authority “by and with Advice and Consent of the Senate, to make Treaties, provided 2/3 of the Senators present concur.”
b. Congress has power to ratify treaties

Front 148

General rules with Treaty:

Back 148

a. Treaties are the law of the land and prevail over all conflicting state law
b. Treaties can confer upon Congress powers in addition to those granted in Article I
c. State Sovereignty and the 10th Amendment do not limit the scope of the treaty power
d. Limitation: Treaties cannot violate the Supreme Law – the Constitution

Front 149

What powers were invoked to Enact Treaty in Mizzou case?

Back 149

i. Article II, Section 2: Treaty Power: Power to make treaties given to prez
ii. Article VI: Supremacy Clause: treaties made under the authority of the U.S. are declared Supreme Law of Land
iii. Article I, Section 8: Necessary and Proper clause: Treaty is a necessary and proper means to execute the power of the government.

Front 150

Is the 10th A relevant in Mizzou?

Back 150

Nope, since power to make treaties is delegated EXPRESSLY. If treaty is valid, then the statute is also since it is necessary and proper. The treaty does not contravene any prohibitory words in the C

Front 151

Talk about state's interest in Mizzou

Back 151

iii. State’s interest, while sufficient to justify regulation in the absence of federal regulation, is too transitory to preempt nation regulation.

Front 152

More crap about Mizzou

Back 152

See outline

Front 153

Breadth of Authority in Enacting Treaties?

Back 153

a.Very Broad. There may be matters that an act of CS cannot do but that a treaty can.
b.Thus, CS has an increase in its power via the treaty power
i.Here, treaty was acceptable because it did not contravene any prohibitory words in the C

Front 154

Limitations?

Back 154

Treaty cannot violate individual rights under the BoR or violate the C. Ex: Reid v. Covert: No agreement with a foreign nation can confer power on the CS, or on any other branch of Govt, which is free from restraints in the C

Front 155

What exactly happened in Reid v. Covert

Back 155

That's a helluva question

Front 156

Talk about Executive agreements:

Back 156

Agreements between US and foreign country that are effective when signed by the president and the head of the foreign nations. CS’s role: Congressional approval is not required

Front 157

One more enumerated power of CS, section 5 of 14thA.

Back 157

Yep

Front 158

First, a bit of a background. What are the Recon As? Talk about the 13th:

Back 158

a.13th A: prohibits slavery and involuntary servitude, except as punishment for a crime. Also, gives CS power to enforce it
c.15th A: The rights of citizens of the U.S. to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude.
i.Gives CS power to enforce it.

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Talk about the 14th

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b.14th A: Provides that all person born or naturalized in US are citz 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 protections of the law
i.Section 5: the congress shall have power to enforce, by appropriate legislation, the provisions of this article

Front 160

Talk about the 15th

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c.15th A: The rights of citizens of the U.S. to vote shall not be denied or abridged by the US or by any State on account of race, color, or previous condition of servitude.
i.Gives CS power to enforce it.

Front 161

What happened in 1883 with those CRs cases?

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a.The SC limited CS’s ability to use its powers under the Reconstruction Amendments to regulate private counduct
b.Declared that the 14th A only applies to govt action and that therefore it cannot be used by CS to regulate private behavior.
i.“The 14th A is prohibitory upon the states. Individual invasion of individual rights is not the subject matter of the A”

Front 162

So, what is CS's power under Section 5 of 14th A?

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i.Gives CS power to enforce appropriate legislation to enforce the prohibitions of Section something of 14th A
ii.State actor requirement: CS may only regulate state and local govt under this authority and not private conduct of private individs
iii.There is CONGRUENC AND PROPORTIONALITY STANDARD
1.Prophylactic legislation under Section 5 must have a “congruence and proportionality b/t the injury to be prevented or remedied and the means adopted to that end.”

Front 163

Which case shows CS's power under section 5 is limited by State Action Requirement?

Back 163

Morrison VAWA, which was beyond CS's enumerated powers b/c state action requirement missing

Front 164

Another thing to remember about defense of VAWA

Back 164

that they defended it as valid under CC as well

Front 165

What might have made VAWA case stand up under section 5 of 14th?

Back 165

express recovery against state officials

Front 166

Holding with respect to CC power: THIS IS UNBELIEVABLY IMPORTANT

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i. Commerce Power: Law exceeded the scope of commerce power because CS cannot regulate noneconomic activity based on cumulative impact of interstate commerce

Front 167

So, VAWA is

Back 167

UC

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Section 5 and 11th

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Section 5 and 11th

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Section 5 and 11th

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11

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5

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Front 183

Talked about enumerated powers, next:

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Federalism based limits on CS''l Power: The AntiCommandeering Principal

Front 184

What is the Trigger and Rule:

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See if state is the party or if it’s an individ. If state, then this section applies. Rule: Even where CS has the authority under C to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts

Front 185

CS has both Internal and External Limits on its powers:

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1.Internal limits on CS's power to regulate private activities
a. They are all the enumerated powers
External limits
a.Derived from reference to 10th and 11th As
i.Look at the core of sovereignties retained under these As
1.Barrier of State autonomy
b.Some state actions, even though otherwise related to commerce, are nonetheless immune from federal regulation, because of external limits stemming from the structure postulates implicit federal scheme and reflected in 10th and 11th As

Front 186

What is the Anti-Commandeering Principal?

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1.Congress can have a power pursuant to its enumerated powers under Article I (like the commerce power) but congress may not extend regulation to the states if it violates state sovereignty
2.Congress may not commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program

Front 187

2 views of 10thA over time

Back 187

See outline

Front 188

History of 10thA as an external limit on CS's power

Back 188

See outline

Front 189

2 cases from 1937-1990, talk about first case

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Could fed min wage be extended to state and local govts?[already applied to private individs
Nope, State autonomy defense under 10th A was held sufficient to invalidate the application to state and local governments of a federal law otherwise permissible under the commerce power. State compliance with federal law cannot directly impair its ability to structure integral ops in areas of traditional govt functions.
i. state should be able to decide how to allocate its funds, etc.
problem with this case is that it's tough to apply the test to other cases

Front 190

2nd case

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Overturns first case: case involved the subjection of a muni transit authority to the min-wage and overtime requirements of the Fair Labor Standards Act
Here, structural principals of federalism do not protect the state. Application of fed law to state was C'l

Front 191

Holding of 2nd case

Back 191

See outline

Front 192

2nd case says there's a problem with traditional govt functions test:

Back 192

unworkable, see outline

Front 193

See outline on case 2

Back 193

see outline

Front 194

see outline on case 2

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see outline

Front 195

You need to learn anticommandeering

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see outline

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You need to learn anticommandeering

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see outline

Front 197

You need to learn anticommandeering

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see outline

Front 198

Now we're into powers of the Fed Govt: Federal Limits on State Regulatory Powers

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great

Front 199

Talk about state powers vs. Federal

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1.State:
a.Police power: means that state can take any action unless there is a C’l prohibition
b.Limitation: 1) Constitution’s protections of individual rights. 2) Article 1 section 10: States cannot
i.Enter treaty, alliance, or confederation
ii.Coin money
iii.Emit Bills of Credit
iv.Grant Title of Nobility
2.Federal: Can only act if there is C’l authority

Front 200

Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 1):

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1. CS has acted
a. PREEMPTION
i.CS has passed law and it is lawful exercise of CS"l power, the federal law preempts state or local law
1.Supremacy Clause
2.ie Congress has exercised CC power

Front 201

Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 2):

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2.CS has not acted
a.DCC
i.Situation: Congress has not acted, or the judiciary has decided that federal law does not preempt state or local law. Really?
ii.Definition: The principal that state and local laws are UC if they place an UNDUE BURDEN ON IS COMMERCE
1.Applies even if CS has not acted
iii.Power stems from the commerce clause

Front 202

Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 3, again CS has not acted):

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b.Privileges and Immunities Clause of Article IV, Section 2: The citizens of each State shall be entitled to all Ps and Is of Citizens of the sev states
i.Definition: The Ps and Is Clause is interpreted as limiting the ability of states to discriminate against out-of-staters with regard to C’l rights or important economic activities including ability to earn a livelihood.

Front 203

Under the DCC, the Court

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invalidates some protectionist state legislation, even in the absence of C’l preemption

Front 204

So, it's a

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Negative implication found in the commerce clause that means in the wake of Congressional silence, states cannot regulate in such a way to limit or discriminate against or unduly burden IS

Front 205

Where does DCC come from

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Not expressly stated, SC has drawn on the negative implications of the grant of power to CS to regulate commerce under Art 1 Sect 8. From this the court has read judicially enforceable limits on state legislation when CS has not acted

Front 206

When is the DCC relevant?

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a.ONLY RELEVANT IF CS HAS NOT REGULATED activity in question
b.IF CS has legislated:
i.Question is whether the federal law preempts state or local law
ii.NOT THE DCC

Front 207

Arguments for the DCC

Back 207

See outline

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Why the courts the ones to protect this?

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See outline

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DCC Test

Back 209

See outline

Front 210

If I see state laws that burden IS commerce or discriminate against out of staters use:

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DCC, Ps and Is Clause, and Equal Protection of the 14th A (not for me)

Front 211

What will facial disrimination against IS commerce look like?

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Where a statute expressly draws a distinction b/t in-staters and out-of-staters

Front 212

Examples of facial discrimination

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See outline

Front 213

Facial Discriminatory Test:

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(a) Whether a state law is protectionist or if it is aimed instead at local interests with incidental effects:
(i) First: What is the state’s justification for the law
(ii) Next: Evil of protectionism can reside in the means and the ends to examine both
(iii) Third: Could the state have used other nondiscriminatory means to reach the same goal? Ie: New Jersey could have used other means (steep taxes, limits on all waste)
(iv) Finally: Do a cost benefit analysis to see who is being benefited and who is being hurt

Front 214

Rule from City of Philly

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State can’t prohibit importation of waste solely b/c of their source of origin

Front 215

Again, what is the exception to the ban on facially discriminatory laws?

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Quarantine laws: Difference: Laws did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles whatever their origin. What the hell is the difference???

Front 216

Talk about Maine v Taylor case:

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Notable exception to "virtually per se invalidity." Atypical case where court used heightened level of scrutiny but still found it to be valid law

Front 217

Holding of Maine v. Taylor

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State importation of Batefish Band had a legitimate environmental purpose stemming from uncertainty about possible ecological effects on the possible presence of parasites and nonnative species in shipments of out-of-state baitfish, and that the purpose could not be adequately served in nondiscriminatory ways

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What makes Dean Milk interesting?

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involves facial discrim by locality and not a state

Front 219

Rule from Dean Milk:

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A locality may not discriminate against IS commerce, even to protect the health and safety of its people, if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests

Front 220

Facts of Dean Milk+Holding:

Back 220

See outline

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Rationale from Dean Milk:

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Reasonable and adequate alts Madison could have used.

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Was it relevant that law discriminated against in staters?

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Nope

Front 223

Talk about localities and facial discrimination:

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i) Discrimination against IS commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest

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Where law is not facially discriminatory, Court will do what

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Purpose or effect: try to smoke out discriminatory purpose before subjecting it to the virtually per se rule of invalidity

Front 225

Why was Baldwin v. Seelig not facial discrimination?

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I have no idea

Front 226

Real purpose of law in Milk case that prohibited sale of out of stae milk if it was bought at a lower price than NY minimum?

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(i) Real purpose to not for assuring regular and adequate supply of milk – instead it was to protect NY farmers from competition

Front 227

Talk about Taxes

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States can employ taxes on out-of-staters as long as they are not discriminatory

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Facial Discriminatory Test:

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(a) Whether a state law is protectionist or if it is aimed instead at local interests with incidental effects:
(i) First: What is the state’s justification for the law
(ii) Next: Evil of protectionism can reside in the means and the ends to examine both
(iii) Third: Could the state have used other nondiscriminatory means to reach the same goal? Ie: New Jersey could have used other means (steep taxes, limits on all waste)
(iv) Finally: Do a cost benefit analysis to see who is being benefited and who is being hurt

Front 229

Rule from City of Philly

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State can’t prohibit importation of waste solely b/c of their source of origin

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Again, what is the exception to the ban on facially discriminatory laws?

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Quarantine laws: Difference: Laws did not discriminate against interstate commerce as such, but simply prevented traffic in noxious articles whatever their origin. What the hell is the difference???

Front 231

Talk about Maine v Taylor case:

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Notable exception to "virtually per se invalidity." Atypical case where court used heightened level of scrutiny but still found it to be valid law

Front 232

Holding of Maine v. Taylor

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State importation of Batefish Band had a legitimate environmental purpose stemming from uncertainty about possible ecological effects on the possible presence of parasites and nonnative species in shipments of out-of-state baitfish, and that the purpose could not be adequately served in nondiscriminatory ways

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What makes Dean Milk interesting?

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involves facial discrim by locality and not a state

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Rule from Dean Milk:

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A locality may not discriminate against IS commerce, even to protect the health and safety of its people, if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests

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Facts of Dean Milk+Holding:

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See outline

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Rationale from Dean Milk:

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Reasonable and adequate alts Madison could have used.

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Was it relevant that law discriminated against in staters?

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Nope

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Talk about localities and facial discrimination:

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i) Discrimination against IS commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest

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Where law is not facially discriminatory, Court will do what

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Purpose or effect: try to smoke out discriminatory purpose before subjecting it to the virtually per se rule of invalidity

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Why was Baldwin v. Seelig not facial discrimination?

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I have no idea

Front 241

Real purpose of law in Milk case that prohibited sale of out of stae milk if it was bought at a lower price than NY minimum?

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(i) Real purpose to not for assuring regular and adequate supply of milk – instead it was to protect NY farmers from competition

Front 242

Talk about Taxes

Back 242

States can employ taxes on out-of-staters as long as they are not discriminatory

Front 243

Talk about use taxes

Back 243

i) Non-Discriminatory use of taxes:
(a) Use Taxes:
(i) States with sales tax often seek to avoid the loss of revenue by imposing a use tax, equal to the sales tax, on in-state use of products purchased out of state
(ii) Henneford v. Silas Mason Co.:
WA had a 2% tax; if person had not paid 2% out-of-state, then had to pay it to use product in state. Holding: OK…Tax seen as an equalizer
Local retail sellers will be helped to compete upon terms of equality with retail dealers in other states who are exempt from sales tax

Front 244

Bacchus case (a 'purpose" case):

Back 244

(a) Holding: “purpose”: exemption was motivated by intent to confer a benefit upon local industry not granted to out-of-state industry, exemption invalid
(b) Rationale: Court invalidated a Hawaii statute that exempted from the State’s liquor tax a brandy distilled from the root of a shrub indigenous to Hawaii. Also, tax exemption for fruit wine was also found invalid since there was evidence it was enacted to promote the local pineapple wine industry

Front 245

Effect case with Hunt

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(a) Facts: NC law requiring that closed containers of apples bear “no grade other than the applicable U.S. grade or standard.” Law was facially neutral since all apples had to comply. WA apples shipped half of all apples into the state. WA had higher standards of inspection which they advertised on their boxes but under the NC law they could not show this.

Front 246

Holding of Hunt

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(b) Holding: Discrimination was not justified by the asserted local interest in eliminating deception and confusion in the market place/ Law flawed because it had a discriminatory effect rather than protectionist motive

Front 247

Rationale from Hunt

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Law had the practical effect of not only burdening interstate sales of WA apples, but also discriminating against them
i) Discrimination by:
(a) Raising cost of doing business in N.Carolina
(b) Stripped away WA’s competitive and econ advantages of its grading system
(c) Law had a leveling effect which operated to the advantage of local growers

Front 248

Last part of where we can strike down law:

Back 248

Facially neutral state laws that "Unduly Burden" IS Commerce: A law that is neither discriminatory nor protectionist may be reviewed and struck down under the court’s residual balancing test

Front 249

Give examples of this final category

Back 249

Pike v. Bruce Church, this is where balancing test comes it

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What is the balancing test?

Back 250

Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the claimed local benefits
Please see outline

Front 251

Does the court have more discretion here than with the virtually per se invalid' rule?

Back 251

yes

Front 252

What happened in Pike?

Back 252

AZ is saying that AZ grown cantaloupes need to advertise state of origin. Compliance would have cost him 200k

Front 253

Can you think of another case that falls into this final category? Rule

Back 253

State burdens on transportation: Kassel case: trying to promote public health and safety doesn't insulate law from CC attack

Front 254

Why was this case interesting?

Back 254

The Court normally does accord "special deference" to state highway regs

Front 255

What did the court balance

Back 255

“asserted safety purpose against the degree of interference with interstate commerce.” Court said state failed to present persuasive evidence, found that law substantially burdens IS commerce

Front 256

Brennan concurrence with Kassel

Back 256

See outline, saying that this law is invalid not because of safety issue but because it is protectionist and discriminatory

Front 257

Scalia dissent with Kassel

Back 257

Balancing test too unclear...The true problem with today’s decision is that it gives no guidance whatsoever to these states as to whether their laws are valid or how to defend them.

Front 258

So Scalia, again, we see that:

Back 258

(ii) Emphasizes importance of federalism and that state’s should decide.

Front 259

Ok, I messed up, the last category is actually "Market Participant" Exception to the DCC, talk about it:

Back 259

If the state is literally a participant in the market, such as with a state-owned business, and not a regulator, the dormant commerce clause does not apply

Front 260

So can states discrim here?

Back 260

Yes, it is allowed. States may favor its own citizens in dealing with govt owned businesses and in receiving benefits from govt programs

Front 261

So, this piece of legislation will be totally immune from attacks?

Back 261

Nope, still may be vulnerable to other C'l challenges under the PandI Clause, etc.

Front 262

Can you remember the market participant case? What is the sticking point here?

Back 262

Imposes important limit on market participant exception:State businesses may favor in-state purchasers, but they may not attach conditions to a sale that discriminate against interstate commerce

Front 263

What are the conditions gonna look like in a case like this?

Back 263

by statute, regulation, or contract, that have a substantial regulatory effect outside that particular market.

Front 264

More South Timber

Back 264

See outline

Front 265

Distinction we saw in South Timber

Back 265

(i) Ability of a state to prefer its own citizens in the initial disposition of goods when it is a market participant
(ii) State’s attachment of restrictions on dispositions subsequent to the goods coming to rest in private hands

Front 266

So, where did South Timber actually fall?

Back 266

Rule of per se invalidity b/c of protectionist nature of local processing r/qment and the burden on commerce that resulted

Front 267

Privileges and Immunities Clause of Article IV

Back 267

No notes yet

Front 268

Preemption

Back 268

No notes yet

Front 269

We are now to the next outline: Powers of the Fed govt: Executive Powers and the Separation of powers

Back 269

Great

Front 270

Starting with Intro to Executive Powers: Why have sep of powers?

Back 270

Avoid centralization of power and prevent a tyrannical form of government. However: not meant to be an airtight separation (There will be some mixing)

Front 271

Where do Prez Powers come from?

Back 271

Article II Section 1: Exec powers shall be vested in a prez.
a. Enumerate specific powers in II section 2

Front 272

What is an executive order?

Back 272

An order issued by or on behalf of the president, usually intended to direct or instruct the actions of executive agencies or government officials, or to set policies for the executive branch to follow

Front 273

Where does Executive Power usually stem from?

Back 273

Powers pursuant to enforcing statutes or exercising power delegated to him by Congress

Front 274

What are the Inherent Exec Pwrs?

Back 274

i. Ability of the President to act without express constitutional or statutory authority
ii. Power not enumerated in Article II

Front 275

What is the Debate surrounding these inherent Exec powers?

Back 275

i. Article II vests executive power without qualification
ii. Conversely, Article I states all legislative powers herein granted shall be vested in a congress…
1. Debate raged over whether the framers intended to create inherent presidential powers and whether he has authority not specifically delineated in the Constitution

Front 276

What's Madison's view, what's Hamilton's?

Back 276

a. Madison: president has no powers that are not enumerated in Article II
b. Hamilton: Difference in the wording reveals the framers’ intention to create inherent presidential powers

Front 277

Inherent executive power test is found where?

Back 277

Jackson's Famous Concurrence in Steel Seizure case

Front 278

Steel seizure case is different than Dames in Moore in that

Back 278

It dealt with domestic affairs

Front 279

Quick facts of Steel Seizure case:

Back 279

Order directing Sec of Comm to take possession and keep running. Mill owners said this was lawmaking, a legislative function. No statutory authority. Even Had bill that said he couldn't

Front 280

Majority opinion in Steel Seizure was a blank approach

Back 280

Black: formalistic:
i.Holding: There is no inherent presidential authority to issue an executive order. The president may only act pursuant to express or clearly implied statutory or constitutional authority
ii.Rationale: Constitution does not subject the lawmaking power to the president.

Front 281

Frankfurter's concurrence, a more flexible functional approach

Back 281

Prez may take any action not prohibited by the C or statute or if history or common practice allows the action

Front 282

Triparite analysis states that

Back 282

presidential powers are not fixed but fluctuate

Front 283

Actual triparite test:

Back 283

See outline

Front 284

Difference b/t treaty and exec agreement

Back 284

Ratification by Senate

Front 285

Does exec agreement take precedence over conflicting state policy under the Supremacy Clause?
And it's valid unless

Back 285

Yes
Violating another C'l provision or federal statute

Front 286

Where does the power to make an exec agreement come from?

Back 286

Not mentioned in C but it is well established that they are C’l/A/t that can be done by a treaty can also be done by exec agreement/Court has consistently upheld validity

Front 287

So what do you do on test if you see an executive agreement? If there's zone of twilight

Back 287

Apply tests from Jackson's Tripartite concurrence.
If zone of twilight:
a. If there is congressional acquiescence (i.e. they have not opposed it)
b. Does it deal with foreign affairs: need to speak with one voice
c. History of allowing this type of thing to happen

Front 288

Quick summary of importance Dames and Moore v. Regan:

Back 288

Recent exampl of SC Upholding exec agreement. Different Outcome to the Steel Seizure Case. Dealt with foreign affairs: where there is a greater need for the “nation to speak with one voice”

Front 289

Quick summary of facts

Back 289

IRAN national emergency response

Front 290

Executive decisions in time of war and terror

Back 290

Congratulations, you made it to part b

Front 291

Talk about the C with respect to the prez, CS, and the use of armed forces:

Back 291

a. Framer’s Design leads to ambiguity about the president’s powers in war
i. Congress: Article I, §8, cl.11: grants congress the power to declare war/ cl.12-13: raise and support the army and the navy
ii. Executive:Article II, §2:makes prez Commander-i-C of the army

Front 292

Apparently there is a zone of twilight between the exec and the legislature.

Back 292

See outline, I have no idea.

Front 293

Although CS declares war...

Back 293

US has often deployed military forces without formal declaratin of war.

Front 294

Can a Prez unilaterally commit Nation to War

Back 294

i. Usually congress passes a resolution authorizing military force: Ex: AfghanistanResolution after 9/11 where Congress authorized President Bush to use “all necessary and appropriate force” against those nations, organizations, or persons he determines planned etc
1. Would he have had power to do so minus the resolution: Probably because there was a direct attack on the country

Front 295

Compare that resolution to the resolution of 2002

Back 295

a. Congress passed joint resolution allowing country to go to war
b. Would he have had power alone? NO

Front 296

Debate exists over:

Back 296

1. Does president have authority to unilaterally commit troops to battle?
a. Constitution clearly allows: repel attacks or use of force in a national emergency created by attack on the US
b. But, does it allow broad preemptive action?

Front 297

What is the War Powers resolution of 1973

Back 297

Pretty interesting, see outline

Front 298

Executive Detention of enemy combatants, start with the C and emergencies:

Back 298

a. The text of US constitution contains no general “state of emergency” exception or other explicit provision for its own suspension.

Front 299

So, what can the govt do in an emergency? BANGO!

Back 299

1. Suspension of individual rights under Art. I, § 9, cl.2:
a. The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or invasion the public safety may require it
b. Has only been suspended once during the civil war

Front 300

So, first thing govt could do was suspension of individual rights. Second thing is:

Back 300

2. Fifth Amendment relaxes requirement for a grand jury indictment for military cases in actual service in time of war or public danger.
a. But: Constitutional protections apply – even in time of war

Front 301

What is a writ of Habeus Corpus?

Back 301

Protects against arbitrary and wrongful imprisonment
a. Article I, section 9, cl. 2: employed to bring a person before a court most frequently to ensure that the party’s imprisonment or detention is not illegal.
b. Can only be suspended:When in rebellion or invasion

Front 302

How does the Prez conduct the War, can he detain prisoners indefinitely?

Back 302

i. Usually run by 4 Geneva Conventions
1. Includes: Treatment of prisoners
a. BUT: President has said that fighters in Afghanistan are not subject to the Geneva Convention and is keeping them indefinitely. HOW AND WHY?

Front 303

Talk about Ex Parte Quirin

Back 303

Military tribunals could be used to try "unlawful combantants (no unis, include US citizens, not presenting themselves as soldiers) . Pre issued proc that said that peeps who attempt to enter to committ sabotage don't get access to courts

Front 304

What zone would this be

Back 304

Zone 1: power delegated by CS: CS explicitly said that military tribunals have jx

Front 305

Talk about Ex Parte Milligan:

Back 305

Lincoln couldn't suspend writ of habeus corps during Civ War and could not try civilians in military tribunals while civil courts were open and working.

Front 306

Difference between Quirin and Milligan

Back 306

Enemy combatant

Front 307

What was Bush's military order after 911-What did it authorize

Back 307

a. Establishment of military commissions to proseciute any non-citizen who Prez determine “is or was” a member of al Qaida or engaged in terrorism in US
b. Gave military tribunals “exclusive jurisdiction” regarding such individuals and denied any remedy in any court of the US. Is that an executive order

Front 308

Talk about CS's joint Resolution after 911

Back 308

a. Authorization for Use of Military Force (AUMF)
b. Gave President broad authority to “use all necessary and appropriate force” in order to prevent any future acts of international terrorism against the US

Front 309

Detention of non-US citizens accused of being enemy combatants

Back 309

Not quite sure, see outline

Front 310

Detention of US citizens accused of being enemy combatants.
Where does O'Conner's plurality think Prez's zone is in Hamdi v. Rumsfeld?

Back 310

In zone 1: Presidential authority was at max since acting with CS's authority.

Front 311

Quick facts of Hamdi:

Back 311

American citizen was captured in Afghanistan, allegedly on battlefied, and was being held in US as enemy combatant. Hamdi brought writ of habeus corpus to challenge his detention as unlawful since he was not an enemy combatant

Front 312

More on Hamdi

Back 312

See outline

Front 313

More on Hamdi:

Back 313

See outline

Front 314

More on Hamdi:

Back 314

See outline

Front 315

Final piece of Hamdi: The Min DP that a citizen-detainee seeking to challenge his classification must receive:

Back 315

1. Notice of the factual basis for his classification, and
2. Fair opportunity to rebut the gov’s factual assertions before a neutral decision maker

Front 316

What did Scalia's dissent say about Hamdi?

Back 316

1. Since he is a citizen aiding the enemy:
a. Should be treated like a traitor and subject to the Criminal Process
2. Where enemy-combatant insists he is not a belligerent:
a. Absent suspension of the writ by congress, government must let him go unless:
i. Criminal proceedings are promptly brought with normal due process
ii. Congress has suspended the writ of habeas corpus

Front 317

Now part c: congressional encroachment on the Executive Power

Back 317

Great

Front 318

For exam, what are you going to look for?

Back 318

Look at the action of leg or exec and see if it is primarily legislative or executive. How one chooses to categorize the action will determine whether it is C'l or not. See majority and dissent of Clinton and INS.
Also, if it's executive, go to Jackson's tripartite analysis

Front 319

What are CS's 2 options for checking exec branch?

Back 319

Retain control over Exec Officers' actions (legis or line item veto) or
Retain control over their jobs (appointment of exec and inferior officers)

Front 320

CS self help mechs and why it would delegate it's power

Back 320

See outline

Front 321

Problem with administrative agencies is that they violate blank blank blank because:

Back 321

separation of powers
i. Have rule-making power (legislative)
ii. Executive power to enforce regulations
iii. Judicial power to adjudicate violations

Front 322

What is the Nondelegation doctrine?

Back 322

a. Principle that CS may not delegate its legis powers to administrative agencies
b. Forces a politically accountable CS to make policy choices, rather than leave this to unelected administrative officials
c. Way to put a check on executive powers

Front 323

History of nondel doctrine, where are we now?

Back 323

See outline, basically since 1930s, all delegations of authority have been upheld. Strong consensus in favor of allowing broad delegations of legis power to admininistrative agencies

Front 324

Arguments for and against enforcing non delegation:

Back 324

See outline

Front 325

What is a Legislative veto?

Back 325

a. In statutes, Congress would include provisions authorizing Congress or one of its houses or committees to overturn an agency’s action by doing something less than adopting a new law
i. Check on actions of administrative agencies
b. Typical form:
i. Authorize Congress to overturn an agencies decision by a resolution of only one house
c. Over 200 federal laws contain legislative veto provisions

Front 326

What is the problem with legislative veto?

Back 326

a. Allows legislature to encroach on executive power

Front 327

What is the bicameralism Requirement?

Back 327

a. Found in Article I, §§ 1, 7
b. Provides that no law could take effect without the concurrence of the prescribed majority of the Members of both houses
c. Point: Legislation should not be enacted unless fully and carefully considered by the Nation’s elected officials

Front 328

What is Presentment?

Back 328

a. Found in Article I, § 7, cl.2:
b. Requires that all legislation be presented to the president
i. Power to veto: Article I, § 7, cl.3
c. Point: Framers provided president power to nullify legislation by veto based on idea that powers conferred on Congress were the powers to most carefully circumscribed

Front 329

How does the actual process work?

Back 329

a. House and senate pass a bill
b. Present to President who can veto
c. House and Senate can override veto with 2/3 of both houses

Front 330

What does INS v. Chadha tell us?

Back 330

Legislative veto is UC

Front 331

INS deals with 3 main concepts

Back 331

See outline

Front 332

Facts of INS

Back 332

confusing, see outline

Front 333

Issue of INS

Back 333

May Congress employ the legislative veto device to oversee delegations of its authority to the executive branch?

Front 334

Holding:

Back 334

Nope: Since it is clear that the action by the House under the statute was not within any of the express constitutional exceptions authorizing one house to act alone, and equally clear that it was an exercise of legislative power, the legis veto is UC.

Front 335

Talk about the formalistic approach in this case:

Back 335

See outline

Front 336

Rule from this INS case, important:

Back 336

There are four provisions in the C, explicit and unambiguous, by which one House may act alone with the unreviewable force of law, not subject to the Prez’s veto:
a. House = Initiate Impeachments
b. Senate = conduct trials on impeachment charges
c. Senate = power over presidential appointments
d. Senate = ratify treaties

Front 337

If stuff doesn't fall in the rule then?

Back 337

4. Otherwise, must go through the channels of bicameralism and presentment

Front 338

What test did they use in INS?

Back 338

6. Test: Looks to see whether actions, in law or fact, taken by the house or senate contain matter which is properly to be regarded as legislative in character or effect.
5. Rationale: House’s actions were essentially legislative in purpose and effect

Front 339

White's Dissent in INS talks not about formulistic but what

Back 339

Functional scheme

Front 340

What is the functional way of looking at this?

Back 340

a. Need a workable government
b. Legislative is necessary to check administrative power
c. CS has such a huge workload that this is necessary
d. Looks to what is functional rather than what the framers saw in 1789

Front 341

More on White's dissent:

Back 341

See outline

Front 342

Result of the INS ruling, extremely important

Back 342

1. 300 legislative vetoes are still in effect
2. CS has continued to enact statutes with legislative veto
3. Why:
a. No one has standing to bring another case yet
b. Executive goes along with it because:
i. Congress could retaliate with budget
ii. SC’s power only extends to cases before it

Front 343

Alright, next up is bicameralism and presentment, talk about the Line Item Veto

Back 343

Sweet

Front 344

What is the Line Item Veto?

Back 344

a. Gave president power to “cancel in whole” three types of provisions that have been signed into law:
i. Any dollar amount of discretionary budget authority
ii. Any item of new direct spending
iii. Any limited tax benefit
b. Then prez must determine, with respect to each cancellation, that it will
i. Reduce the federal budget deficit
ii. Not impair any essential Government functions
iii. Not harm the national interest
c. Must tell congress of changes within 5 days after canceling a provision
d. A majority of the house can issue a “disapproval bill”
e. Then president can veto the disapproval bill and regular process applies

Front 345

Is Line Item Veto allowed in states?

Back 345

Yes

Front 346

Why would CS want to enact line item veto?

Back 346

See outline

Front 347

Clinton case tells us that

Back 347

Line Item Veto is UC

Front 348

Why is it UC

Back 348

1. Allows the President to legislate
2. Blurs the line between roles of legislature and executive
3. Impermissible delegation of congressional power to the president

Front 349

What clause did they look at

Back 349

ii. Presentment clause sets floor and a ceiling for what the Prez should do
1. Entire scope of his power in C and nothing can be added to it

Front 350

Is the triparite Analyis relevant here?

Back 350

Nope but see outline

Front 351

Stevens simple formalistic approach to Clinton

Back 351

The Line Item veto violates Article I, § 7 of the Constitution.

Front 352

Rationale for Stevens

Back 352

1. C requires that prez approve or deny all parts of the bill
2. President has a traditional power to decline to spend appropriated funds. But, he may not have the unilateral power to change the text of duly enacted statutes.

Front 353

What does Scalia's dissent say?

Back 353

No difference b/t CS allowing prez to cancel a spending item and allowing money to be spent on a particular item at Prez's discretion.

Front 354

Breyer does functionalism in his dissent:

Back 354

i. Functional Approach
1. Need a workable government
ii. Executive is using executive not legislative powers
1. Sometimes there is a blending of powers
iii. Cancellation is not equivalent of a repeal or amendment of law. It leaves statutes as they were written intact. Act does not violate separation of power because congress can disapprove of a cancellation.

Front 355

Congressional Control over Executive Officers-Appointment Power

Back 355

Great

Front 356

Where does appointment power come from?

Back 356

i. Article II, § 2, cl.2:
1. Prez 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 officers of the US, whose Appointments are not herein otherwise provided for, and which shall be established by law;
a. SUPERIOR OFFICERS
2. but the Congress may by law vest the Appointment of inferior officers, as they think proper, in the President alone, the Courts of Law, or in the Heads of Departments
a. INFERIOR OFFICERS

Front 357

Why can't CS directly appoint executive officers?

Back 357

Separation of Pwrs concern: Idea that same group cannot make and execute laws

Front 358

So, CS cannot

Back 358

give appointment power to itself or to its officers

Front 359

Buckley case held that

Back 359

a fed LAW that empowered the speaker of the House and the president pro tempore of the senate to appoint for of the six members of the Federal Election Commission was UC

Front 360

How would Bucklye have been C'l

Back 360

1. Speaker of House/President Pro Tempore were not the president, heads of departments, or courts of law: therefore they could not possess the appointment power
2. Any appointee exercising authority as an officer must be appointed in a manner prescribed by the Appointment clause

Front 361

What makes removal power different than appointment power?

Back 361

i. No constitutional provision addresses the removal power
ii. Impeachment
1. Only removal provision
2. Article II,§4
iii. But, impeachment not always practical or desirable for lower officers

Front 362

Note for exam with respect to appointment pwr:

Back 362

i. Who can appoint: (Article II, § 2)
1. President: Superior Officers
2. Congress: vest appointment for inferior officers in Courts, president, heads of departments
a. Who is an inferior officer: One who is removable by another level of executive branch above them and who is hired for a circumscribed purpose

Front 363

Note for exam when looking at removal power

Back 363

1. CS cannot give removal power to itself (outside of impeachment)
2. Congress cannot completely prohibit executive removal

Front 364

Main Test

Back 364

iv. President has the power to remove executive officials, but congress may limit this removal power if:

Front 365

iv. President has the power to remove executive officials, but congress may limit this removal power if:

Back 365

1. It is an office where independence from the president is desirable
a. If so:
i. Congress May limit power with a statute
ii. Judiciary may limit in absence of statute (Weiner
b. Examine:Type of power the person being removed is using (this is not dispositive after Morrison)
i. Is it quai-legislative/quasi-judicial?
ii. Or “purely executive” then beyond Congress’s control
c. Then ask question: Whether the removal restrictions are of such a nature that they impede the president’s ability to perform his constitutional duty? (does it effect his core duties)

Front 366

So, you ask question 1, then questsion 2:

Back 366

2. Are Congress’s limits on removal constitutional?
a. Congress can
i. Can limit removal to where there is “good cause”
b. Congress Cannot
i. Complete prohibition of presidential removal allowed
ii. Give itself sole power to remove an executive official

Front 367

What is the general rule on CS"l removal of executive officers

Back 367

i. CS CANNOT GIVE ITSELF THE POWER TO REMOVE OFFICIALS WHO HAVE EXECUTIVE POWER. CAN ONLY USE IMPEACHMENT

Front 368

Rule from Blowsher v. Synar case

Back 368

Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment
1. FORMALISTIC APPROACH TO APPOINTMENTS

Front 369

Facts and Issue of Blowsher

Back 369

See Outline

Front 370

In Justice Burger's Majority we see the

Back 370

same formalisitc approach see in INS v. Chadha.
fights for clear lines between executive and legislative functions

Front 371

Holding:

Back 371

a. Congress cannot reserve power for itself of removal when officer is charged with executive functions except by impeachment
b. Congressional participation ends once it has delegate authority to the CG

Front 372

Rationale of Blowsher

Back 372

a. To permit an officer controlled by Congress to execute the laws would be, in effect, a congressional veto. Congress would simply remove, or threaten to remove, an officer for executing laws in any fashion fould to be unsatisfactory to Congress. Chadha makes clear that this type of congressional control over the executive is impermissible.
i. Chadha: delegated power to executive but kept a reserve of congressional power (same as situation here)

Front 373

White's dissent in this case

Back 373

a. Functional approach
i. This act offers a practical workable solution to deal with the budget

Front 374

White's rationale:

Back 374

a. Agrees the CG is acting as an executive capacity
b. Says this differs from Chadha:
i. Chadha: just one house could overturn
ii. Here: meets the requirements of bicameralism and presentment since a joint resolution is passed by both houses and signed by the president

Front 375

Now, presidential removal of Executive Officers, what is the general rule for removal of Executive Officers by the Prez

Back 375

1. President may remove subordinate executive official unless removal is limited by statute
a. Congress may limit presidential removal by statute if:
i. It is an office where independence from the president is desirable
ii. Law does not prohibit removal, but rather limits removal to instances where good cause is shown

Front 376

Talk about Myers v. U.S., is it a broad or narrow view of presidential removal power?

Back 376

Broad
a. REMOVAL POWER IS AN INCIDENT OF THE POWERS TO APPOINT (article II, § 2) AN IS IN ITS NATURE AN EXECUTIVE POWER
b. Thus any provision limiting authority to remove would be unconstitutional

Front 377

In contrast, Humphreys Executors v. US is

Back 377

Limited Prez'l removal power

Front 378

More on Humphrey the humpback whale

Back 378

2. CONGRESS COULD LIMIT PRESIDENT’S POWER OF REMOVAL IN A STATUTE IF THE PERSON WAS NOT A “PURELY EXECUTIVE OFFICERS”
a. i.e.: were quasi-legislative/quasi-judicial

Front 379

Ans some more:

Back 379

3. UNDER MEYERS: PRESIDENT STILL HAD UNRESTRICTABLE POWER TO REMOVE PURELY EXECUTIVE OFFICERS
a. Examples of purely executive officers beyond Congress Control
i. Cabinet Members: could not limit since only carry out president’s policies
b. Non-purely executive officers
i. Independent regulatory commission: could limit to situations where there was just cause for firing

Front 380

Talk about the Rule from Weiner

Back 380

1. EVEN WITHOUT A STATUTORY LIMIT ON REMOVAL, THE PRESIDENT COULD NOT REMOVE EXECUTIVE OFFICIALS WHERE INDEPENDENCE FROM THE PRESIDENT IS DESIRABLE

Front 381

Ok, now Morrison, which for some reason is the "d" to "Presidential Removal of Executive Officers'" "c"

Back 381

Hmmm

Front 382

Why is Morrison important?
What do we need to do with Morrison?

Back 382

1. REPRESENTS A FUNCTIONAL APPROACH TO APPOINTMENTS
a. Compare with Bowsher and Chadha: formalistic approach

Front 383

Facts of Morrison

Back 383

See outline

Front 384

Holding

Back 384

see outline

Front 385

Issues and resolution:
1) Was the Independent Counsel an inferior officer?

Back 385

a. Yes: she exercised considerable discretion to the Attorney General, had a temporary position, and could be removed by the Attorney General for good cause showed she was inferior in rank and authority
b. Inferior Officer: One who is removable by another level of the executive branch above them and who is hired for a circumscribed purpose

Front 386

Could the Judiciary Appoint the Independent Officer?

Back 386

a. Yes: allowed under Article II, § 2

Front 387

Issue 3: Does the provision to remove only for good cause infringe on the president's powers?

Back 387

a. No. Congress left removal in the hands of an executive official
b. Congress need not approve but may be left to judicial review
c. Are the removal restrictions of such a nature that they impede the President’s ability to perform his constitutional duty? NO

Front 388

Finished Congressional control of executive officers, now to interbranch appointments

Back 388

Sweet

Front 389

What did Minstretta v. US do?

Back 389

a.Followed Functional approach seen in Morrison
b.Recognized that there can be some co-mingling between the branches
i.Justice Jackson's zone of Twilight

Front 390

Facts and issue of this case

Back 390

Facts: Commission created to set federal guidelines for criminal sentences
Issue: Was this a delegation of legislation function to the judiciary?

Front 391

Blackmun's majority opinion:

Back 391

a. Admits there was some delegation, but OK if the commission is
i.Specific
ii.Detailied
iii.Not too execessive
b.Judiciary already plays a role in sentencing so it is part of their traditional role

Front 392

Scalia's dissent in this case:

Back 392

a. says its excessive delegation
b.creates JV CS

Front 393

Next Section BoRs and Post Civil War Amendments

Back 393

Sweetness