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393 Cards in this Set

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What article are we in with judicial review
Article III, never expressly grants fed courts power to review C'lity of fed or state law in executive actions
Fed courts are courts of
limited jx
2 primary restrictions on fed judicial power
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
What did MvM do?
Establish authority for judiciary to review C'lity of exec and legis acts (power not expressly enumerated in C)
Actual holding of MvM
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
Legal or political question in MvM
Legal
Bottom line of MvM
Court can declare laws UC, if that law is repugnant to C, it has power to strike it down
What issue does MvM raise
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
Which reading of MvM has prevailed?
Broad: Takes MvM and expands, sC has supreme role
What's the Hand/Wechsler debate?
Basically, Hand says JR should be discretionary. Wechsler says it is mandatory
What does Cooper case do
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
So, what does Cooper show?
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.
What is the most important limit on federal judicial power?
The Justiciability Doctrines, they determine which matters federal courts can hear and decide and which must be dimissed
Sources of justic doctrines?
Created by SC who interpretted from
1)C'l limits (III Section 2 Clause 1 "cases" or "controversies" requirement
2)Prudential restrictions
So, which ones can and cannot be overridden by CS
C'l limits can't be, prudential restrictions can be
Why have these doctrines?
Separate powers b/t branches of govt and define judicial role/conserve J resoures/improve J decision making by providing concrete contros/promote fairness
What is the polical question doctrine?
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).
How many cases fall in PQ
1/1000
What are usually found to involve political questions and therefore non justic (#1)
Guarantee clause cases: Article 4 section 4 "The US shall guarantee to every State in this Union a Republican Form of Govt."
What does guarantee clause actually mean? Think of Luther case
Case raised PQ b/c under clause it rests with CS to decide what govt is established one in state
PQ number 2
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
Give an example of FA
Goldwater: Prez had authority to terminate treaty without consent of Senate in nonjust pq which is better resolved to exec and legis branches
PQ number 3:
Ratifying C'l Amendments
PQ number 4
Impeachment and Removal from Office. Is all judicial review of impeachment non-justiciable?
Take Nixon case through the 3 PQs strands
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)
What did Souter concurrence say with respect to Nixon
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
PQ number 5
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
What if Baker, reapportionment EP claim, had been guarantee clause
Nonjust
So, what makes Baker d/f than Borden
Court found judicial standard for determinin EP claims. No jud stnds for dtermining claims under Guar Clause
When talking about case or controversy requirement talking about
standing, m, ripeness
What are advisory opinions?
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.
Criteria to avoid being an advisory opinion (2)
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.
Do courts usually need to talk about advisory opinions?
Nope: S, R, and M all stem from same issue
Standing?
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.
Requirements for Standing
Remember that some are C'l and cannot be overriden by statute and others are prudential and can be overridden by statute
Talk about the C'l limit on standing with respect to injury:
real and imminent+concrete and particularized to litigant
Mere interest in the problem ok
Nope. Need someone to go skiing there or its speculative
When are aesthetic and environmental injuries sufficient to form standing
as long as P claims to suffer injury personally
Exception to 3rd party standing
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 )
What's the exception to generalized grievances?
P denied a specific C'l right, may have standing even though e/o injured too. 1st A
When will CS ability to confer standing be shot down
Where do we see it might be possible for CS to confer
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
What exactly did Scalia say in Lujan
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.
FEC v. Akin
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
When do legislators have standing?
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
So, can senators argue that Line Item Veto Act dilutes political power and therefore injury
Nope, even though act said that any member of CS coudl bring an action alleging UC'llity of act
Rationale of Raines Line Item case
affects all equally, other options like repealing or exempting appropriations from the bill
Option left open in Raines
may have standing if vote was nullified or denied in disriminatory manner
Mootness and Ripeness generally:
timing of lawsuit and when review is appropriate. Will often overlap. Stem from case or controversy requirement/prudential concerns
Ripeness:
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
Mootness:
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
Two important exceptions to mootness doctrine
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
Supreme court and state court judgments
Can hear them but it must be a question of federal law. Don't review cases that are adequate and independent state grounds.
Why do we even have to worry about this state court judgment thing?
B/C MvM said Court had power to review C'llity of federal executive actions and fed statutes
Doctrine of interposition
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
Where does authority to review state court d/cs come from
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
What did Martin case do
Established C'l basis for SC to review state court decisions
holding and rationale of Martin
See outline
Holmes view on Martin case
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.
What did Cohens case do?
1. Confirmed and expanded the decision in martin
2. Court sustained is jx to review the validity of state laws in crim procs
Holding of Cohens
(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
What is the checklist for SC to have authority to look at State decisions?
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
How can countermajoritarian theme of SC be a problem?
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
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):
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
2nd, 3rd and 4th way to hold SC accountable:
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
5th way to hold SC accountable:
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"
6th way to hold SC accountable:
Exceptions clause: Article 3 Sec 2 Cl 2: Most significant control over. CS's most powerful tool-ability to regulate appellate jx of SC
Exceptions clause language
See outline (probably needs to be in here)
Is exceptions clause widely used?
Nope
Case where exceptions clause was used
Ex Parte McCardle: showed that CS may prevent SC review of C'l issues in certain situations
What are the external constraints on exceptions clause?
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.
Subsection II: Powers of Fed Govt: Legislative Powers
New section
Historical Justifications for federalism:
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.
Scope of Congressional powers
Limited and defined. CS can only act pursuant to enumerated express or implied power.
Where does CS specifically get its power?
Article I: "All legislative power herein granted shall be vested in a CS of the US which shall consist of a Senate and HoRs
Scope of State powers
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
What are the questions to ask when evaluating C'llity of Act of Congress?
a.Does Congress have the authority under the Constitution to legislate?
b.If so, does the law violate another constitutional provision or doctrine?
What are the quesions to ask when evaluating C'llity of State Law
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
CS has both blank and blank limits on its powers
Internal and External
Talk about internal limits on CS's power to regulate private activities
They are the enumerated powers of CS (spending, commerce, section 5, treaty)
Talk about external limits on CS's power
Derived from references to 10th and 11th As
i. Look at the core sovereignties retained under these As
What's the deal with necessary and proper clause?
specific powers of CS may be enlarged by this clause
Talk about McCulloch v. MD
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
So, McvMd, lack of enumeration:
Does not necessarily mean lack of power
It is the C Blank blankety blan
we are expounding, needs to stand the test of time
Actual N&P clause
See outline
So, what can CS do with respect to N&P clause
May choose any means, not probihited by C, to carry out its express authority
More N&P stuff
see outline
So, what are the judicially enforceable limits on Congressional Power mentioned
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
What does the commerce power do?
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.”
Commerce power is the
Most significan power CS has
2 parts to the commerce clause
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.
History of CC
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
Pre-1995 CC doctrine
of deferential review
What did Wickard show?
That Court's pre 1937 CC doctrine had been abandoned. We're deferentialing reviewing
What test did Wickard lay out?
Rational Basis test: Whether the activity has a substantial effect on IS commerce looked at in aggregate
What is Wickard claiming?
What is Court saying
That law can't be C'lly applied to him, home consumption not part of IS commerce.
Cumulative effect on IS commerce
What is the actual test?
Whether there is a rational basis for regulation since the activity had an effect on IS commerce in the aggregate.
Talk about the CRA of 64 and CC:
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
Reason why this wasn't under section 5 of 14th A?
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
Talk about Heart of Atl and Katezenbach
Discrimination in these places had direct and adverse affect on IS commerce
Doesn't matter if purely local in character
Using rational basis test
What does upheld Title II of CRA as C'l show
Judiciary's deferential review of commerce power
Question raised in Black's concurrence to both cases: what if everything was local, is that beyond reach of commerce power?
probably not, broad deference. Court would say in aggregate substantially affected IS commerce
What is the current doctrine of the CC look like? Talk about changing tide case
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
What is the new test we see in Lopez?
Substantial effects test with an economic activity requirement
Reconcile Lopez with Prior decisions:
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
Talk about the gist of Rehnquist's opinion in Lopez
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
Talk about the gist of Thomas's concurrence
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
A bunch more crap about Lopez
See outline
A bunch more crap about Lopez
See outline
A bunch more crap about Lopez
See outline
Alright, now time to really get screwed up, talk about Gonzales v. Raich
SC held that application of CSA provisions criminalizing manufacture, distribution, or possession of MJ intrastate growers and users did not violate CC.
So, what's the test in GvR?
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.
What was a trick court used in GvR
Used a broad definition of economic activity so they could basically stick anything in there
What case did Court rely on in GvR?
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.
How does Court distinguish itself in GvR from Lopez?
See outline
Rehnquist Dissented on GvR--can you figure out why
Probably because we're overstepping our bounds with the state
How to read these cases?
L might be about bad draftmanship. R might too
Overview of the test from Wickard to Lopez
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
Name other enumerated powers of CS
Spending power, treaty power, power conferred by Section 5 of 14thA
Talk about the Spending Pwr
Imporant regulatory device since it has impact on how federal system actually functions
Tax and Spending Power clause:
Article 1 Section 8 Clause 1
What that aforementioned clauase actually says:
See outline
A bunch more crap about Lopez
See outline
A bunch more crap about Lopez
See outline
A bunch more crap about Lopez
See outline
Alright, now time to really get screwed up, talk about Gonzales v. Raich
SC held that application of CSA provisions criminalizing manufacture, distribution, or possession of MJ intrastate growers and users did not violate CC.
So, what's the test in GvR?
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.
What was a trick court used in GvR
Used a broad definition of economic activity so they could basically stick anything in there
What case did Court rely on in GvR?
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.
How does Court distinguish itself in GvR from Lopez?
See outline
Rehnquist Dissented on GvR--can you figure out why
Probably because we're overstepping our bounds with the state
How to read these cases?
L might be about bad draftmanship. R might too
Overview of the test from Wickard to Lopez
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
Name other enumerated powers of CS
Spending power, treaty power, power conferred by Section 5 of 14thA
Talk about the Spending Pwr
Imporant regulatory device since it has impact on how federal system actually functions
Tax and Spending Power clause:
Article 1 Section 8 Clause 1
What that aforementioned clauase actually says:
See outline
Analysis of Tax and spending power Clause
States that you can tax and spend for the “general welfare” Implies Congress cannot tax and spend for any reason
For what purposes may CS Tax and Spend (2 debates)
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
Who wins
Hamilton
Conditional spending:
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
What is the case that does conditional spending
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
Holding of SD case:
So, what does this mean?
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.
Standards of spending power from this case
See outline
O'Connor's Dissent from SD
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
So, what does all this mean?
ii. This could be another battle ground one day…
Next up, the treaty power, where is it in C
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
General rules with Treaty:
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
What powers were invoked to Enact Treaty in Mizzou case?
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.
Is the 10th A relevant in Mizzou?
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
Talk about state's interest in Mizzou
iii. State’s interest, while sufficient to justify regulation in the absence of federal regulation, is too transitory to preempt nation regulation.
More crap about Mizzou
See outline
Breadth of Authority in Enacting Treaties?
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
Limitations?
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
What exactly happened in Reid v. Covert
That's a helluva question
Talk about Executive agreements:
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
One more enumerated power of CS, section 5 of 14thA.
Yep
First, a bit of a background. What are the Recon As? Talk about the 13th:
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.
Talk about the 14th
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
Talk about the 15th
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.
What happened in 1883 with those CRs cases?
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”
So, what is CS's power under Section 5 of 14th A?
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.”
Which case shows CS's power under section 5 is limited by State Action Requirement?
Morrison VAWA, which was beyond CS's enumerated powers b/c state action requirement missing
Another thing to remember about defense of VAWA
that they defended it as valid under CC as well
What might have made VAWA case stand up under section 5 of 14th?
express recovery against state officials
Holding with respect to CC power: THIS IS UNBELIEVABLY IMPORTANT
i. Commerce Power: Law exceeded the scope of commerce power because CS cannot regulate noneconomic activity based on cumulative impact of interstate commerce
So, VAWA is
UC
Section 5 and 11th
Section 5 and 11th
Section 5 and 11th
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Talked about enumerated powers, next:
Federalism based limits on CS''l Power: The AntiCommandeering Principal
What is the Trigger and Rule:
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
CS has both Internal and External Limits on its powers:
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
What is the Anti-Commandeering Principal?
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
2 views of 10thA over time
See outline
History of 10thA as an external limit on CS's power
See outline
2 cases from 1937-1990, talk about first case
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
2nd case
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
Holding of 2nd case
See outline
2nd case says there's a problem with traditional govt functions test:
unworkable, see outline
See outline on case 2
see outline
see outline on case 2
see outline
You need to learn anticommandeering
see outline
You need to learn anticommandeering
see outline
You need to learn anticommandeering
see outline
Now we're into powers of the Fed Govt: Federal Limits on State Regulatory Powers
great
Talk about state powers vs. Federal
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
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 1):
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
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 2):
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
Talk about the situations where limits on state powers arise from National Govt or other states (Scenario 3, again CS has not acted):
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.
Under the DCC, the Court
invalidates some protectionist state legislation, even in the absence of C’l preemption
So, it's a
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
Where does DCC come from
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
When is the DCC relevant?
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
Arguments for the DCC
See outline
Why the courts the ones to protect this?
See outline
DCC Test
See outline
If I see state laws that burden IS commerce or discriminate against out of staters use:
DCC, Ps and Is Clause, and Equal Protection of the 14th A (not for me)
What will facial disrimination against IS commerce look like?
Where a statute expressly draws a distinction b/t in-staters and out-of-staters
Examples of facial discrimination
See outline
Facial Discriminatory Test:
(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
Rule from City of Philly
State can’t prohibit importation of waste solely b/c of their source of origin
Again, what is the exception to the ban on facially discriminatory laws?
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???
Talk about Maine v Taylor case:
Notable exception to "virtually per se invalidity." Atypical case where court used heightened level of scrutiny but still found it to be valid law
Holding of Maine v. Taylor
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
What makes Dean Milk interesting?
involves facial discrim by locality and not a state
Rule from Dean Milk:
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
Facts of Dean Milk+Holding:
See outline
Rationale from Dean Milk:
Reasonable and adequate alts Madison could have used.
Was it relevant that law discriminated against in staters?
Nope
Talk about localities and facial discrimination:
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
Where law is not facially discriminatory, Court will do what
Purpose or effect: try to smoke out discriminatory purpose before subjecting it to the virtually per se rule of invalidity
Why was Baldwin v. Seelig not facial discrimination?
I have no idea
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?
(i) Real purpose to not for assuring regular and adequate supply of milk – instead it was to protect NY farmers from competition
Talk about Taxes
States can employ taxes on out-of-staters as long as they are not discriminatory
Facial Discriminatory Test:
(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
Rule from City of Philly
State can’t prohibit importation of waste solely b/c of their source of origin
Again, what is the exception to the ban on facially discriminatory laws?
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???
Talk about Maine v Taylor case:
Notable exception to "virtually per se invalidity." Atypical case where court used heightened level of scrutiny but still found it to be valid law
Holding of Maine v. Taylor
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
What makes Dean Milk interesting?
involves facial discrim by locality and not a state
Rule from Dean Milk:
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
Facts of Dean Milk+Holding:
See outline
Rationale from Dean Milk:
Reasonable and adequate alts Madison could have used.
Was it relevant that law discriminated against in staters?
Nope
Talk about localities and facial discrimination:
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
Where law is not facially discriminatory, Court will do what
Purpose or effect: try to smoke out discriminatory purpose before subjecting it to the virtually per se rule of invalidity
Why was Baldwin v. Seelig not facial discrimination?
I have no idea
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?
(i) Real purpose to not for assuring regular and adequate supply of milk – instead it was to protect NY farmers from competition
Talk about Taxes
States can employ taxes on out-of-staters as long as they are not discriminatory
Talk about use taxes
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
Bacchus case (a 'purpose" case):
(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
Effect case with Hunt
(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.
Holding of Hunt
(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
Rationale from Hunt
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
Last part of where we can strike down law:
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
Give examples of this final category
Pike v. Bruce Church, this is where balancing test comes it
What is the balancing test?
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
Does the court have more discretion here than with the virtually per se invalid' rule?
yes
What happened in Pike?
AZ is saying that AZ grown cantaloupes need to advertise state of origin. Compliance would have cost him 200k
Can you think of another case that falls into this final category? Rule
State burdens on transportation: Kassel case: trying to promote public health and safety doesn't insulate law from CC attack
Why was this case interesting?
The Court normally does accord "special deference" to state highway regs
What did the court balance
“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
Brennan concurrence with Kassel
See outline, saying that this law is invalid not because of safety issue but because it is protectionist and discriminatory
Scalia dissent with Kassel
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.
So Scalia, again, we see that:
(ii) Emphasizes importance of federalism and that state’s should decide.
Ok, I messed up, the last category is actually "Market Participant" Exception to the DCC, talk about it:
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
So can states discrim here?
Yes, it is allowed. States may favor its own citizens in dealing with govt owned businesses and in receiving benefits from govt programs
So, this piece of legislation will be totally immune from attacks?
Nope, still may be vulnerable to other C'l challenges under the PandI Clause, etc.
Can you remember the market participant case? What is the sticking point here?
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
What are the conditions gonna look like in a case like this?
by statute, regulation, or contract, that have a substantial regulatory effect outside that particular market.
More South Timber
See outline
Distinction we saw in South Timber
(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
So, where did South Timber actually fall?
Rule of per se invalidity b/c of protectionist nature of local processing r/qment and the burden on commerce that resulted
Privileges and Immunities Clause of Article IV
No notes yet
Preemption
No notes yet
We are now to the next outline: Powers of the Fed govt: Executive Powers and the Separation of powers
Great
Starting with Intro to Executive Powers: Why have sep of powers?
Avoid centralization of power and prevent a tyrannical form of government. However: not meant to be an airtight separation (There will be some mixing)
Where do Prez Powers come from?
Article II Section 1: Exec powers shall be vested in a prez.
a. Enumerate specific powers in II section 2
What is an executive order?
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
Where does Executive Power usually stem from?
Powers pursuant to enforcing statutes or exercising power delegated to him by Congress
What are the Inherent Exec Pwrs?
i. Ability of the President to act without express constitutional or statutory authority
ii. Power not enumerated in Article II
What is the Debate surrounding these inherent Exec powers?
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
What's Madison's view, what's Hamilton's?
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
Inherent executive power test is found where?
Jackson's Famous Concurrence in Steel Seizure case
Steel seizure case is different than Dames in Moore in that
It dealt with domestic affairs
Quick facts of Steel Seizure case:
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
Majority opinion in Steel Seizure was a blank approach
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.
Frankfurter's concurrence, a more flexible functional approach
Prez may take any action not prohibited by the C or statute or if history or common practice allows the action
Triparite analysis states that
presidential powers are not fixed but fluctuate
Actual triparite test:
See outline
Difference b/t treaty and exec agreement
Ratification by Senate
Does exec agreement take precedence over conflicting state policy under the Supremacy Clause?
And it's valid unless
Yes
Violating another C'l provision or federal statute
Where does the power to make an exec agreement come from?
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
So what do you do on test if you see an executive agreement? If there's zone of twilight
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
Quick summary of importance Dames and Moore v. Regan:
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”
Quick summary of facts
IRAN national emergency response
Executive decisions in time of war and terror
Congratulations, you made it to part b
Talk about the C with respect to the prez, CS, and the use of armed forces:
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
Apparently there is a zone of twilight between the exec and the legislature.
See outline, I have no idea.
Although CS declares war...
US has often deployed military forces without formal declaratin of war.
Can a Prez unilaterally commit Nation to War
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
Compare that resolution to the resolution of 2002
a. Congress passed joint resolution allowing country to go to war
b. Would he have had power alone? NO
Debate exists over:
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?
What is the War Powers resolution of 1973
Pretty interesting, see outline
Executive Detention of enemy combatants, start with the C and emergencies:
a. The text of US constitution contains no general “state of emergency” exception or other explicit provision for its own suspension.
So, what can the govt do in an emergency? BANGO!
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
So, first thing govt could do was suspension of individual rights. Second thing is:
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
What is a writ of Habeus Corpus?
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
How does the Prez conduct the War, can he detain prisoners indefinitely?
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?
Talk about Ex Parte Quirin
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
What zone would this be
Zone 1: power delegated by CS: CS explicitly said that military tribunals have jx
Talk about Ex Parte Milligan:
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.
Difference between Quirin and Milligan
Enemy combatant
What was Bush's military order after 911-What did it authorize
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
Talk about CS's joint Resolution after 911
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
Detention of non-US citizens accused of being enemy combatants
Not quite sure, see outline
Detention of US citizens accused of being enemy combatants.
Where does O'Conner's plurality think Prez's zone is in Hamdi v. Rumsfeld?
In zone 1: Presidential authority was at max since acting with CS's authority.
Quick facts of Hamdi:
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
More on Hamdi
See outline
More on Hamdi:
See outline
More on Hamdi:
See outline
Final piece of Hamdi: The Min DP that a citizen-detainee seeking to challenge his classification must receive:
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
What did Scalia's dissent say about Hamdi?
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
Now part c: congressional encroachment on the Executive Power
Great
For exam, what are you going to look for?
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
What are CS's 2 options for checking exec branch?
Retain control over Exec Officers' actions (legis or line item veto) or
Retain control over their jobs (appointment of exec and inferior officers)
CS self help mechs and why it would delegate it's power
See outline
Problem with administrative agencies is that they violate blank blank blank because:
separation of powers
i. Have rule-making power (legislative)
ii. Executive power to enforce regulations
iii. Judicial power to adjudicate violations
What is the Nondelegation doctrine?
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
History of nondel doctrine, where are we now?
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
Arguments for and against enforcing non delegation:
See outline
What is a Legislative veto?
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
What is the problem with legislative veto?
a. Allows legislature to encroach on executive power
What is the bicameralism Requirement?
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
What is Presentment?
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
How does the actual process work?
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
What does INS v. Chadha tell us?
Legislative veto is UC
INS deals with 3 main concepts
See outline
Facts of INS
confusing, see outline
Issue of INS
May Congress employ the legislative veto device to oversee delegations of its authority to the executive branch?
Holding:
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.
Talk about the formalistic approach in this case:
See outline
Rule from this INS case, important:
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
If stuff doesn't fall in the rule then?
4. Otherwise, must go through the channels of bicameralism and presentment
What test did they use in INS?
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
White's Dissent in INS talks not about formulistic but what
Functional scheme
What is the functional way of looking at this?
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
More on White's dissent:
See outline
Result of the INS ruling, extremely important
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
Alright, next up is bicameralism and presentment, talk about the Line Item Veto
Sweet
What is the Line Item Veto?
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
Is Line Item Veto allowed in states?
Yes
Why would CS want to enact line item veto?
See outline
Clinton case tells us that
Line Item Veto is UC
Why is it UC
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
What clause did they look at
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
Is the triparite Analyis relevant here?
Nope but see outline
Stevens simple formalistic approach to Clinton
The Line Item veto violates Article I, § 7 of the Constitution.
Rationale for Stevens
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.
What does Scalia's dissent say?
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.
Breyer does functionalism in his dissent:
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.
Congressional Control over Executive Officers-Appointment Power
Great
Where does appointment power come from?
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
Why can't CS directly appoint executive officers?
Separation of Pwrs concern: Idea that same group cannot make and execute laws
So, CS cannot
give appointment power to itself or to its officers
Buckley case held that
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
How would Bucklye have been C'l
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
What makes removal power different than appointment power?
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
Note for exam with respect to appointment pwr:
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
Note for exam when looking at removal power
1. CS cannot give removal power to itself (outside of impeachment)
2. Congress cannot completely prohibit executive removal
Main Test
iv. President has the power to remove executive officials, but congress may limit this removal power if:
iv. President has the power to remove executive officials, but congress may limit this removal power if:
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)
So, you ask question 1, then questsion 2:
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
What is the general rule on CS"l removal of executive officers
i. CS CANNOT GIVE ITSELF THE POWER TO REMOVE OFFICIALS WHO HAVE EXECUTIVE POWER. CAN ONLY USE IMPEACHMENT
Rule from Blowsher v. Synar case
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
Facts and Issue of Blowsher
See Outline
In Justice Burger's Majority we see the
same formalisitc approach see in INS v. Chadha.
fights for clear lines between executive and legislative functions
Holding:
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
Rationale of Blowsher
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)
White's dissent in this case
a. Functional approach
i. This act offers a practical workable solution to deal with the budget
White's rationale:
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
Now, presidential removal of Executive Officers, what is the general rule for removal of Executive Officers by the Prez
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
Talk about Myers v. U.S., is it a broad or narrow view of presidential removal power?
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
In contrast, Humphreys Executors v. US is
Limited Prez'l removal power
More on Humphrey the humpback whale
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
Ans some more:
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
Talk about the Rule from Weiner
1. EVEN WITHOUT A STATUTORY LIMIT ON REMOVAL, THE PRESIDENT COULD NOT REMOVE EXECUTIVE OFFICIALS WHERE INDEPENDENCE FROM THE PRESIDENT IS DESIRABLE
Ok, now Morrison, which for some reason is the "d" to "Presidential Removal of Executive Officers'" "c"
Hmmm
Why is Morrison important?
What do we need to do with Morrison?
1. REPRESENTS A FUNCTIONAL APPROACH TO APPOINTMENTS
a. Compare with Bowsher and Chadha: formalistic approach
Facts of Morrison
See outline
Holding
see outline
Issues and resolution:
1) Was the Independent Counsel an inferior officer?
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
Could the Judiciary Appoint the Independent Officer?
a. Yes: allowed under Article II, § 2
Issue 3: Does the provision to remove only for good cause infringe on the president's powers?
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
Finished Congressional control of executive officers, now to interbranch appointments
Sweet
What did Minstretta v. US do?
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
Facts and issue of this case
Facts: Commission created to set federal guidelines for criminal sentences
Issue: Was this a delegation of legislation function to the judiciary?
Blackmun's majority opinion:
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
Scalia's dissent in this case:
a. says its excessive delegation
b.creates JV CS
Next Section BoRs and Post Civil War Amendments
Sweetness