My Outline Con

8/2/2019 My Outline Con

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Part One: History and Theory of Constitution

1. Why did we need a constitution?a. The Articles of Confederation was ineffective in governing the nation in

peacetime.

i. US only had the powers expressly delegated and proved to be aninflexible, unmanageable standard.ii. States retained sovereignty

1. Fractured nation and states were adopting laws thatdiscriminated against neighboring states

iii. Since the power of the Federal govt came through the states, Fedwas very limited in its ability to solve problems between states

1. As a result, States were not complying with the laws ofCongress and the Fed was powerless to do anything

iv. Fed could not tax or regulate commercev. There was no Federal executive or judiciary

2. Constitutional Ratificationa.

Was Constitution unlawfully ratified?i. Art. 13 of Art. Of Confed. required unanimous consent to revise

Art.ii. BUT: Constitution Art. VII required 9 states to ratify

1. Hamilton: The ends justify the means2. Formalist: Constitution is illegal3. Madison: Constitution is great mechanism to embody the

will of the people whereas the Art was a crude

approximation.

3. What did Constitution do?a. Created a federal govt whose power came directly from the people and

not from the states. Therefore, the federal govt could override the states.

b. Divides the federal govt into three branches.i. Art I- creates the legislative power and vests it in Congress

ii. Art. II- places executive power in the presidentiii. Art. III- judicial power shall be in SCOTUS and inferior courts.

c. It created a strong federal govt and weakened the individual powers of thestates.

i. Supremacy clause: state and local laws are deemed preempted ifthey conflict with federal law.

4. Anti-Federalist Argumentsa. Constitution is inconsistent with republicanismb. It removes the people too much from the system of government

i. Creates a large, powerful central govt1. Exactly what the revolution fought against

c. It will allow majority to trample the rights of the minorityd. We are better off with smaller, localized govt where people are as similar

as possible and as involved in the political process as possible.

e. Participating in govt will foster civic virtue, educate people, and makethem better people


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f. Creating a strong central govt makes tyranny more likely5. Federalist Arguments

a. Constitution isnt illegali. Popular sovereignty trumps legal formalism

b. Men are not angels and should not be trusted with poweri.

Solution: Fracture power between state and fed govtc. Recognized danger of Factioni. The Constitution makes a few people responsible for a very large

group.

ii. The larger the group the harder it is for any one faction to control1. Therefore it will be inevitable that to be elected, the

factions will be diluted and will be unable to invade the

rights of a minority.

d. Ambition must be made to combat ambitioni. Checks and balances at a national level

1. Parchment barriers alone wont be effective in preventingthe branches from usurping power from the others.ii. Fracture power b/t federal and state govt

1. Double security to protect peopleiii. Bicameral legislatureiv. Large republic makes tyranny less likelyv. Prevents one factions domination over minorities

6. Checks and Balancesa. By dividing power b/t the three branches, ambition is made to combat

ambition within the fed govt

i. Makes tyranny less likelyb. Branches are not entirely separate but are somewhat dependent on the

others

i. However, each one has supreme power over the others in certainareas

c. Madison believed the legislature was the most dangerous branch andtherefore the constitution gives a lot of power to the other branches and

limits Congress powers to herein granted

Part Two: Structure of Constitution

1. The Structure of the Constitution:a. Article I

a. The powers of Congress are limited by the words herein granted butnot the word expressly.

b. The powers of Congress are set out in section 8.


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c. It says a Congress of the United States as opposed to the articleswhere Congress was the United States.

b. Article IIa. The executive power, which shall be vested in the President of the

United States.

b. Notice that it doesnt have any limiting language on that power.i. This is the source of the argument for a strong executive not

limited to the duties listed.

c. Article IIIa. The Judicial power which shall be vested in one Supreme Court and

such inferior courts that Congress creates.

i. Section 2 of this article says that the judicial power shallextend to implying a limit to that extent.

d. Article IV governs the relationships of the individual States with each otherand their citizens.

e. Article V tells how to amend the constitution.f. Article VI tells of the Supremacy and significance of the Constitution.

Part Two: The Relationship between the Nation and States

1. Federal Power of Congress and the Statesa. Context

i. Art. I, 8: Enumeration of powers to Congress1. Increases power to levy tax, regulate interstate commerce,

etc.

2. Limits Fed power by restricting authority to powers expressor implied in the Constitution

ii. Art. I, 8, cl. 16: Necessary and Proper Clause1. Congress has power to create all laws which is necessary

and proper for carrying into execution the foregoing powers

iii. 10th Amendment1. Powers not delegated to the U.S. by the Constitution, nor

prohibited by it to the States, are reserved to the States

respectively, or to the people.

a. Left out expressly which was in the Articles ofConfederation in order to somewhat narrow Statespowers.

b. 3 overarching points on Congressional Poweri. Enumerated Powers


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1. Congress may act only if there is express or impliedauthority to act in Constitution.

2. Art. I, 8: way of limiting power, protecting individualliberty, and state sovereignty

ii. Federalism1. States retain authority in many areas and state laws only

preempted when they conflict with Fed

a. Supremacy clauseiii. Structure of Fed Govt as a check

c. Madisons Rules for Interpreting Leg. Authorityi. Construction that destroys characteristic of govt cant be just

1. Govt of limited powers: if construction expands power itcannot be justified

ii. If clear textual command and meaning its command must befollowed

1. Regardless of pragmatic policy considerationsiii. In unclear meaninglook to the meaning the framers intended if

theres reliable evidence

1. Writings of 1798 controliv. If unclear meaninglook to the consequences

1. Framers intentcreate good govta. If interpretation leads to bad

consequencesprobably incorrect interpretation

i. Brings in policy concernsv. Degree of Importance

1. If its a really important powerframers would haveincluded it

2. If power is left outlikely a good reason framers did notinclude it

a. Fundamental powers should have been included2. McCulloch v. Maryland

a. Rule of Lawi. Let the end be legitimate, let it be within the scope of the

Constitution, and all means which are appropriate, which are

plainly adopted to that end, which are not prohibited, but consistwith the letter and spirit of the Constitution, are Constitutional.

ii. The federal Constitution and the laws made pursuant to it aresupreme and control the constitutions and the laws of the states.

b. Significancei. Seminal case articulating a broad vision of Federal power and its

relationship with the States.c. Background


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i. To limit the operation of the Bank of the U.S., MD imposed a taxon any bank not charted by the state.

ii. Bank refused to pay the tax.iii. James/MD sued to recover the money owed under the tax.

d. Q: Does Congress have authority to create a Bank?i.

Yes. Four Arguments1. Historya. Historical practice suggests Bank is constitutional

i. Successive leg and judges have upheld theconstitutionality.

b. History should not be lightly disregarded and Courtshould strike down only if its clear the Bank isunconstitutional

i. When in doubt, defer2. Compact Federalism

a. State Arg: States retain ultimate authorityb.

SCOTUSi. People, not states are sovereign

ii. Uses popular sovereignty rhetoric to leadtowards expansive view of Fed power

3. Characteristic of Constitutiona. Const is a great outlinedoes not specify every

power that Congress has been granted

b. Structural argumentc. Congress is not limited only to those acts specified

in Constitutioni. Congress may choose any means, not

prohibited by the Constitution, to carry out

its lawful authority

4. Necessary and Proper Clausea. Authority to create Bank b/c doing so is necessary

and proper for the Fed Govt to lay and collect taxes

and regulate commerce.b. Congress can exercise the means needed to reach

the ends which are the powers granted to them in

the Constitution.i. Necessary = useful

1. Not absolutely necessarye. Is Maryland tax constitutional?

i. No1. State power to tax = power to destroy

a. The power to tax is held in check by people whogrant the power to the politicians.

i. Democracy-promoting/representation-reinforcement argument: when states tax

own constituents, there is a political check.


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Same when federal govt taxes. But here, a

state taxes the nation, undermining thecheck.

b. Basis for rep-reinforcement view of ConLaw: thejudiciary should respond wen democratic processes

break down and certain groups are not able toadequately participate in democratic system.

f. Modern Implicationsi. Federal govt is supreme over the States

1. States have no authority to negate Fed actionsii. Court expansively defines the scope of legislative power

iii. Court limits the ability of states to interfere with federal activitiesPart Three: The Judicial Power

1. Generala. The power of the courts to review legislation to determine whether it is

consistent with the Constitution.

b. A fundamental question in constitutional law is why courts are authorizedto exercise this power given the absence of this provision in theConstitution.

2. Marbury v. Madison: Authority for Judicial Review of FederalLegislation:

a. Rule of Law:i. The SC has the power, implied from the Constitution, to review

acts of Congress, and if they are found repugnant to the

Constitution, to declare them void.b. Background

i. Marbury was suing to get his commission to be a justice of thepeace from Madison, the newly appointed Secretary of State. He

wanted the Court to issue a writ of mandamus ordering Madison to

deliver the commission.

ii. Marbury claimed the Judiciary Act of 1789 authorizes SCOTUS togrant mandamus in a proceeding filed initially in SCOTUS.

c. Issue/Holdingi. Does Marbury have a right to the commission?

1. Dicta: Yes b/c all appropriate procedures were followed inappointment.

a. Establishes judicial review over executive actionsii. Do the laws afford Marbury a remedy?

1. Yes.a. SC can afford remedy against executive when there

is a legal duty to a specific person


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b. SC cannot afford a remedy when it deals with amatter left to executive discretionpoliticalquestions

iii. What is appropriate remedy? Can SCOTUS issue this remedy?1. Appropriate remedy is mandamus and Judiciary Act

authorizes SCOTUS to issue mandamus.iv. Can SCOTUS declare laws unconstitutional?1. Yes.

a. The power granted under Judiciary Act to issuewrits of mandamus is unconstitutional because the

constitution limits the areas where the Court has

original jurisdiction.i. Issuing writs is not one of them.

d. Marshalls Arg forJudicial Reviewi. Constitution imposes limits on govt powersthese limits are

meaningless unless subject to judicial enforcement

1.

Reads Art. IIIs enumeration of original jurisdiction to be aceiling of federal jurisdiction

a. Reads Art. 13 as expanding the enumeratedjurisdiction under Art. III (which limits)

i. If Congress can expand jurisdiction, Art.IIIs enumeration would be mere surplusage

2. Counter Arga. Art. IIIs enumeration of the Courts original

jurisdiction still has meaning even if Congress can

increase it.i. Art. III viewed as the floor, the minimum

grant of jurisdiction that cant be reduced by

Congress.

ii. The Supreme Court can declare laws unconstitutional because theconstitution is the supreme law of the land (otherwise there would

be no point in having a constitution)

1. Therefore if there is a contradiction between theconstitution and a law, the law is void.

iii. As it is the province of the judiciary to say what the law is (andthey are bound by oath to uphold the constitution) they must then

say when a act of Congress is not law b/c it repugnant to the

Constitution.

e. Expansive view:i. It is the role of the court to uphold and interpret the Constitution,

other branches should defer to the Court re: constitutional

questions because they are the best suited to answer those

questions. Judges declare what the law is.f. Narrow View


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i. Congress may have their own interpretation of the Constitution andthey are just exercising that interpretation and their own oath touphold it.

3. Judicial Review of State Legislationa. Lochner v. New York: Counter majoritarian Difficultyi. Facts

1. NY state leg passes law that bakers cant work more than60 hours per week, or 10 hours in a day

2. SCOTUS declares the law unconstitutional b/c it violated14

thAm due process by interfering with freedom of

contract and b/c the law did not serve a valid police power.

3. SCOTUS said it was their duty to carefully scrutinize statelegislatures

ii. Dissents1. Harlan

a. Need for judicial deference to democraticallyelected legislaturesi. When court strikes down a law, it means the

democratic function of the legislature cannot

unfold

b. Court is substituting their own views for thedemocratically elected legislature

i. Courts should not inject themselves into thisarena

2. Holmesa. Court should not use judicial review to limit

legislative actions (majoritarian foundation) andprotect a certain economic theory.i. If court has that power, what is the limit?

b. Counter majoritarian difficultyi. Unelected court reviewing legislature thwarts the democratic

process

1. Dont want 9 unlected judges deciding policy for peopleii. Counter Arg

1. Hamilton (no. 78): judges should decide based onjudgment not will;

2. also, when striking down statute as unconstitutional, theyare upholding the Constitution, which is the ultimate voiceof the People overa statute, passed merely by peoplesreps.

4. Pro Judicial Reviewa. SCOTUS review of executive and legislative action re: constitutionality

ensures that the written Constitution really means something, and keeps

both L & E within boundaries of the Constitution.

b. Judges must declare what the law is;


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i. Constitution is the supreme law so judges must determineconstitutional issues in laws/cases brought before them. (If Lmakes it, E executes it, need J to review it) separation of powers.

Checks and balances.

c. National Uniformity of Lawd.

Protection of Federal Rightse. Ensure protection of political minorities

i. Ely: judicial review promotes democracy when courts protect therights of minorities to participate fully in our democracy and courtsgenerally should guard against breakdowns in democratic process

5. Con Judicial Reviewa. Tension b/t review and democracyb. Interpretative difficulty: a few unelected judges have large power to

interpret laws as they see fit in cases wherein there is a lot of room for

differing interpretations.

c.

If court strikes down law, public may ignore court

loss of credibility

Constitutional and Prudential Restrictions on Judicial Power

1. Generala. Justiciability doctrines determine which matters federal courts can

hear/decide and which must be dismissed.2. Constitutional Limits

a. Art. III, 2: defines the federal judicial power in terms of nine catergoriesof cases and controversies

i. Requirements for Art. III Jurisdictions1. Concrete and non-hypothetical (Advisory Opinion)2. Actual, concrete injury (Standing)3. Dispute must be ripe and not moot4. Must be justiciable (political question)

3. Advisory Opinionsa. Art. III requirement

i. Must be an actual dispute b/t adverse litigantsii. Substantial likelihood that court decision in favor of claimant will

have some effect

b. Policyi. SOP maintained by keeping courts out of legislative process

1. Judicial role is limited to deciding actual disputes, notadvising Congress

ii. Judicial Resources are conservediii. Restriction ensures that cases will be presented in terms of specific

disputes, not hypothetical questions.

4. Standinga. Art. III Requirements


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i. Party must allege that he or she suffered or imminently will sufferan injury

ii. Party must allege that injury is fairly traceable to defendantsconduct

iii. Favorable court decision is likely to redress the injury.b.

Prudential Standing Doctrinesi. Third Party Standing

1. Generally, P must assert only his or her own rights andcannot raise the claims of third parties not before the court

ii. Generalized Grievance1. Cannot bring abstract questions with wide ranging public

significanceiii. Zone of Interest

1. Ps claims must fall within the zone of interest protected bystatute in question.

c. Policyi.

Promotes SOP1. Restricts the availability of judicial review and keeps thejudiciary from reviewing every action by the otherbranches.

ii. Judicial Efficiency1. Prevents a flood of litigation by those who have only an

ideological stake in the outcome

iii. Improves judicial decision-making1. Requiring a specific controversy with an actual advocate

with sufficient personal concern will ensure that heeffectively litigates the matter.

iv. Fairness1. Ensures that people will only raise their own rights and not

others.

5. Mootness and Ripenessa. Mootness Doctrine

i. Requirement that an actual controversy be in existence at all stagesof review, not merely at times the complaint is filed.

b. Exceptionsi. Cases involving wrongs capable of repetition yet evading

review. Roe v. Wade (1973)

c. Policyi. Avoids unnecessary court decisions

ii. Limits the role of the judiciaryiii. Saves courts institutional capital for cases truly deserving

decisions.

d. Ripeness Doctrinei. Requirement that separates matters that are premature for review

b/c the injury is speculative and may never occur


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1. Compared to cases where the injury has occurred andappropriate for judicial review.

ii. Policy1. Not a true case or controversy until there is a real injury2. Waste of resources to deal with speculative issues that may

never amount to an actual injury.6. Political Questiona. General

i. Refers to subject matters the Court deems inappropriate for judicialreview because although there has been an alleged Constitutional

violation, the resolution of that conflict should be left to the

political branches.b. Marbury v. Madison definition

i. Is this case essentially political (left to discretion of politicalbranch) or legal (statutory, constitutional)?

c. Categories of PQ: Baker v. Carri.

A textually demonstrable constitutional commitment of the issue toa political dept; or

ii. A lack of judicially discoverable and manageable standards forresolving it

iii. An impossibility of deciding without first making a policydetermination for a nonjudicial branch

iv. When deciding issue would express a lack of respect due to acoordinate branch

v. Unusual need for unquestioning adherence to political decisionalready made

vi. Potentially of embarrassment from different pronouncements madeby various departments on one question.

d. Policyi. Passive Virtues-Bickel

1. Accords courts the ability to avoid controversialconstitutional questions and thus, preserve the judiciarys

political legitimacyii. Expertise

1. Allocates decisions to the branches of govt that havesuperior expertise in particular areas.

iii. SOP1. Minimizes judicial intrusion into the operations of the other

branches

e. Specific Areasi. Republican form of govt clause and judicial review of electoral

process

ii. Foreign policyiii. Congressional Self-Governanceiv. Process for ratifying amendmentsv. Excessive interference with coordinate branches


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vi. Impeachmentf. Examples

i. Congressional Self-Governance: Powell v. McCormack1. Holding

a. Constitution commits to the discretion of Congressonly the power to determine if a member meets thequalifications stated in Art. I, 2requirements of

age, citizenship, and residence.

b. SCOTUS is the one that decides whether theConstitution has given something over to one of the

political branches.

c. Thusi. Art. I, 5 is at most a textually-

demonstrable commitment to Congress tojudge ONLY the qualifications expressly set

forth in the constitution.

2.No a PQ b/c it is Courts duty to decide what theConstitution has given other branches.

a. Since Congress was claiming a right not found inConstitution (exclusion, not expulsion), it was the

Courts duty to determine if Congress actually had

that power.ii. Amendment: Coleman v. Miller

1. Congress has the sole and complete control over theamending processPQ and not appropriate for judicial

review

PART FOUR: THE EXECUTIVE BRANCH IN CONFLICT

The Veto Power1. The Legislative Veto: INS v. Chada

a. Backgroundi. Rise of Administrative Agenciesissue arises as to power

agencies will be checked and controlled.

1. Congress could enact laws to overturn agencys rule butthat would be inefficient and limit the checking power

ii. Create Legislative Veto1. Congress included in statutes provisions authorizing

Congress or committee to overturn an agencys action by

doing something less than adopting a new law.

2. INS v. Chadaa. Rule of Law: Because it constitutes an exercise of legislative power and is

thus subject to the bicameralism and presentment requirements of Art. I ,the federal statute purporting to authorize a one-house veto of the Attorney


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Generals decision to allow a particular deportable alien to remain in the

U.S. is unconstitutional.

b. Formalistic View: Congress may legislate ONLY if there isbicameralism, passage by both House and Senate, andpresentment, giving

the bill to the president to sign or veto.i. Presentment: Green light theory1. Need all three branches to agree before status quo is

changeda. Legpass bill, get approval in both housesb. Prezmust enact the bill and enforce the lawc. Courtmust uphold the law as constitutional

c. Bicameralism and presentment serve essential const. functionsi. Prez participation in leg process is check against Congress

ii. Bicameralism forces full study and debate in separate housesiii. Prez veto checked by 2/3 of Congress can overrule it

3.

Dissenta. Pragmatic Argleg veto is indispensible to modern govt (agency)i. Leg veto is an essential check on the broad delegation of

legislative powers to the agencies.

1. If no leg veto, Congress must either;a. Refrain from delegating the necessary authority to

agencies and writing every law in Congress, OR

b. Abdicate its lawmaking function to the executivebranch and independent agencies

4. Analysisa. Dispute about the proper form of analysis in SOP cases

i. FormalisticText and framers intentii. Pragmaticconsider the functional justification for leg veto

5. Take Awaya. If Congress wants to overturn an executive action, there must be

bicameralism, passage by both houses of Congress, andpresentment,

giving the bill to the president for signature or veto.

Line-Item Veto: Clinton v. City of New York

1. Backgrounda. Federal statute that created the authority for a presidential line-item veto

i. Empowered the prez to veto (more precisely to cancel) particularparts of appropriation bills while allowing the rest to go into effect

b. Congress could overturn such a veto by majority vote of both housesc. Purpose: Reaction to Chada

i. Required presentment to prezii. If prez vetoes and no disapproval bill in Congressbudget in tact


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iii. Allows prez to cut out any political compromise (pork) that isnt inthe nations best interest.

2. Issue: Can congress expand the presidential power?a. Congress had given the prez the power to veto (or cancel) particular parts

of appropriation bills while allowing the rest to go into effect.

i.

Congress could overturn such a veto by a majority vote of bothhouses.

3. Rule of Law: Formalistic Viewa. This statutory increase in presidential power is unconstitutional

i. Prez, by exercising veto, was changing a law adopted by congresswithout being a legislative act.

1. In both legal and practical effect, the prez has amendedtwo acts of congress by repealing

a. No constitutional authority for prez to enact.Amend, or repeal statutes.

i. Legislative process of constitution must bestrictly adhered to and cannot be altered bylegislative action (line-item veto).

b. The prez only constitutional power was to sign bill into law or veto theentire billno piecemeal veto.

4. Dissenta. Breyerstressed the practical need for line item veto

5. Profs Viewa. Line item veto is constitutional

i. When Congress passes budget, they appropriate up to X amount1. Prez has discretion to decide how much to spend

a. Not rewriting law by not spending it, rather hes notspending what has been appropriated.

ii. Congress designated the line item veto and has full knowledge ofits use

b. Non-delegation doctrine: Certain core powers of govt and of a particularbranch cant be vested in another branch or individual

i. Kennedy: Congress crafts budget and therefore, prez has somediscretion in spending in order to keep deficit manageable

1. However prez has SO much discretion with line-itemthat the prez is legislating and violating non-delegation

ii. Kennedy is always rejected on his non-delegation viewsPROSECUTION POWER

1. Executive has power to exercise discretion as to whether or not there shall be aprosecutionCox

a. SOP concerncourts are not to interfere with the free exercise of thediscretionary power of the executive branch.

i. Courts may not compel or mandamus a prosection, nor can a grandjury.


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b. HoweverPresidents power to affirmatively prosecute can rather easilybe thwarted by grand juries and courts

i. They may simply refuse to agree to an indictmentEXECUTIVE PRIVILEGE

1. Background: Executive privilege is not in the text of the Constitution, but can bederived from the structure of the documenta. Defability of prez to keep secret conversations with or memoranda to or

from advisors.

b. Policyi. Privilege is necessary in order for prez to receive candid advice

ii. Privilege is necessary to protect national security2. U.S. v. Nixon

a. Factsi. Special Prosecutor appointed to investigate burglaries in which top

justice dept officials were suspected of involvement

ii. SP subpoenaed tapes from Nixon: 3 Argsb.

Nixons 3 Argsi. The prosecutor ultimately works for me and therefore I can say to

him dont prosecute here.1. Ctlook to controversy, not names. Clearly SP and prez

are adversaries

ii. The Subpoena violates the Presidents absolute executive privilege,and the judiciary doesnt have the power to review the President.

iii. Even if there is not absolute privilege here it should be privilegedbecause it is confidential discussions between the President and his

advisors and that tops a subpoena.c. Holding

i. MarburyCourt should not defer to Nixons claim of absoluteprivilege b/c it is the role of the Court to say what the law is.

ii. Recognize existence of Exec Priv.1. Inherent presidential power

a. In constrast to Youngstown (Black) that in absenceof statutory authorization, a prez action must bebased on some provision of the constitution.

iii. Priv. isnt Absolute1. Exec priv must yield when there are important

countervailing interests.

a. Absolute priv would interfere with the ability ofjudiciary to perform its constitutional function

iv. Courts must be properly respectful to the Prez and preventvexatious subpoenas.

APPOINTMENT POWER

Art. II, 2: The president shall nominate, and by and with the Advice and Consent of

the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the

Supreme Court, and all other Officer of the United States, whose Appointments are not


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herein otherwise provided for, and which shall be established by Law: but Congress may

by Law vest the Appointment of such inferior Officers, as they think proper, in the

President alone, to the Courts of Law, or in the Heads of Departments.

1. Main Issuesa.

Who is an inferior officer within meaning of Art. II?b. May Congress assign the appointment power in other ways besides thoseenumerated in Art II?

i. Specifically, when, if at all, may Congress give the appointmentpower to itself or its officers?

1. Morrison v. Olsona. Significance: Established a new standard Do the removal

restrictions impede the presidents ability to perform hisconstitutional duty? In this case, no, because AG is part of the

executive.

i.

Held it was permissible for Congress to vest appointment inthe federal courts b/c the independent counsel is an

inferior rather than a principal officer.b. Court upheld Ethics in Government Act,

i. Which vested power in the Special Division (3 judgespecial court) to appoint independent counsels at therequest of the AG.

ii. Vesting this power in the Special Division is consistent w/Appointments Clause and doesnt violate separation of

powers.iii. More over, it didnt impair the constitutional functions of

another branch, nor was there an incongruity between

normal judicial functions and this appointment

responsibility.c. Dissent: Scalia

i. Power to prosecute is a quintessentially executive authorityand that it usurps presidential power for Congress to vestthis authority in the independent counsel.

1. Prosecution is purely executive function2. BUTCongress has given that power to a person

who is not within the control/supervision of the prez

ii. Constitution presumes that all executive powers are withinthe control of the president and this it is unconstitutional for

Congress to vest the prosecutorial power in the indiecounsel

d. SOP: Functional vs. Formalisti. Functional (Majority): Obvious benefit to having

investigations of executive officials conducted outside the

executive branch


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1. Indie is desirable b/c an independent individual,appointed by Art. III judges, is conducting theinvestigation and prosecution rather than by Justice

Dept, who are ultimately answerable to AG and

prez.

ii.

Formalist (Scalia): Exec power is vested solely in the prez1. Any grant of prosecutorial authority to anindependent counsel is unconstitutional

e. Differences:i. This test goes across the government regardless of the

branch affected.

ii. Distinguished Chadha by holding that the Ethics Act didnot directly give Congress more power.

iii. Distinguished fromBowsherbecause Congress had no rolein removing IC.

iv. Distinguished fromHumphreys Executorand Weinerbecause the central question is not the function of theoffice, but whether the removal restrictions are such a

nature that they impede the presidents ability to performhis constitutional duty

f. Inferior Officer qualifications: limited jurisdiction/power, limitedtenure, and removal by a higher executive officer.

i. the AG was in charge of requesting the indie counsel andthe AG had removal power (for cause).

2. Legislative Creation and Control of Executive Functions:a. A purely executive officer whose must be removable only by the

executive not the legislature even if they only have a consent

power. (Myers)

b. A quasi-legislative body can be set up with different standardsbecause it is not within the executive branch alone. (Humphreysexecutor)

c. Superior officers must be appointed by the President with consentof the Senate but inferior officers can be appointed in fashionscreated by Congress as they think proper in the President alone, the

courts of law, or the Heads of departments.

d. Even though Congress can delegate their power to executiveofficers they cant delegate it to lower offices in the legislativebranch. (Bowsher, Stevens Concurrence).

e. If a Commission is not appointed pursuant to the appointmentclause (for either inferior or superior officers) then it cant performexecutive functions.

f. Even a purely executive officer need not be removable by thePresident at will as long as it is an executive officer that canremove him.

Removal Powers


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1. EXAM APPROACH/ANALYSISa. FirstIs the office one in which independence from the president is

desirable?

i. If soCongress may limit the removal power, and Weinerindicates that the judiciary may limit removal even in the absence

of a statutory restriction.ii. Issue: is there a test for when independence is desirable?1. Humphreys: distinguishes b/t purely executive tasks

and those that are quasi-leg or quasi-judicial

a. Difficult to apply in practice2. Morrison Test: Are the removal restrictions of such a

nature that they impede the Presidents ability to performhis constitutional duty?

iii. Take Away: Analysis must be functional and contextual1. Are there good reasons why the officer should be

independent of the president?

b.

Second

Are Congress limits on removal constitutional?i. Congress cannot completely prohibit presidential removal but itcan limit removal to where there is good cause.

ii. Congress cannot give itself sole power to remove an executiveofficial or structure removal so that there is a double layer of

insulation from presidential removal.

1. Myers v. United States (1926) Stands for the broad proposition that anycongressional limits on the removal power are unconstitutional.

a. Issue: Can the President remove the Postmaster General at will, withoutcause?

b. Holding: Yes. The president has the exclusive power of removingexecutive officers of the US whom he has appointed by and with the

advice and consent of the Senate.c. Reason

i. Ability of the prez to control the personnel in administrativepositions is central to the executive power.

ii. But the President alone can remove him.1. Under take care President alone, not subordinate officers,

must take care that laws are faithfully executed, as such he

should be able to fire The statute saying otherwise, theTenure of Office Act, is struck down (same statute in

Johnsons impeachment).

iii. Senate approval undermines the idea of an efficient, unitaryexecutive

d. Policy: separation of powers, purpose, take care2. Humphreys Executer(1935) Much Different Position: Congress could, for some

officers and under some circumstances, limit the removal power.


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a. Issue: Can the President remove the head of an administrative agency atwill, despite a statute limiting removal to only for reason (e.g. neglect ofduty)?

b. Holding: No.i. The Court unanimously upheld the statute.

ii.

The FTC is not an executive agency.1. Its a quasi-legislative, quasi adjudicative independentagency created by Congress;

a. If responsive to the President, that gives Presidentthose quasi legislative/adjudicative powers.

iii. Presidential at-will removal would undermine checks and balances,purpose of FTC (indie agency that needs to make long-term,unpopular decisions, requires insulation from political pressures)

c. Compared to Myersi. Myers only applied to purely executive officers

ii. Humphreysapplies to officers in quasi-leg/quasi-judicialpositionsiii. Practical Effect

1. Draws distinction between cabinet officials and those whoare in independent regulatory agencies.

3. Bowsher v. Synar (1986)a. Facts: Comptroller General, head of GAO, is appointed by President and

can be removed by Congress by joint resolution but only for reason.

i. If spending exceeded deficit ceiling, CG, who is the head of acongressional agency, was instructed to impose budget cuts

1. w/ Gramm-Rudman Act, CG is given power to report toPresident a binding list of budget cuts.

b. Holding: The Court struck down the Gramm-Rudman Act, for giving theCG executive powers. Congress can remove an executive officer only by

Impeachment. (If congress can control CG, gives it undue power overexecution.)

c. Stevens, concurring: The CG is really acting legislatively under the Act.Congress cant delegate its legislative power though; it can only legislateas a whole. No shortcuts.

d. Majority+Stevens: Congress cannot delegate executive or legislativepower to its own agents. Chadha says no delegation of legislation to asub-set or own agents. Bowsher: no delegation of executive power.

4. Morrison v. Olson (1988) Indie Counsela. General

i. DistinguishedBowsherand upheld the constitutionality of limitson the presidents ability to remove the indie counsel.

b. The Court upheld Ethics in Government Act, which provides for indiecounsels appointed by a special court if the AG determines reasonablegrounds for further investigation regarding high-level executive branch

officials.

i. The AG had removal power, but only for cause


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c. Issue:i. Whether Congress can impose a for cause restriction on the

Presidents removal power does not depend on whether or not theofficial is considered purely executive.

ii. Previous cases turned not on defining rigid categories but onensuring that Congress does not interfere w/ the Presidentexercise of executive power and his constitutionally appointed

duty to take care.

d. The restrictions on the removal power dont interfere w/ the exercise ofexecutive power or the take care duties.

e. Nor did the act violate the principles of separation of powers by disruptingthe proper balance.

f. The Special prosecutors power was limited strictly to the case at hand. g. Shes an inferior officer appointed by the AG; not a principal officer.

5. Scalia, dissenting:a. The indie counsel exercises purely executive power. The President, in

whom the Constitution invests the executive Power must be able toremove the indie counsel at will. Scalia calls her a principal officer; shes

not truly subordinate to anyone.

Note: problem of who polices the police.

Eventually, Congress let this statute expire. DOJ regs for special prosecutors remain

1. EMERGING PRINCIPLEa. In general, the president has the power to remove executive officials, but

Congress may limit the removal power if it is an officer where

independence from the president would be desirable (Humphreys).

b. Congress cannot, however, completely prohibit all removal, and it cannotgive the removal power to itself

i. Other than by exercising its impeachment powerc. Nor can congress prescribe a double layer of protections from presidential

removal whereby inferior officers may be removed only for just cause

by officers who may be removed by the Prez only for just cause.

2.

WAR POWERS

1. Generala. Court rarely speaks

i. Little case law on as to which circumstances warrant the prez usingtroops or what Congress may do to suspend US involvement inwar

ii. Political Questions


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1. SCOTUS rarely resolves questions as to the conduct offoreign policy

1. Congress: Art I 8a. Declare War; Issue Letters of Marque and Reprisal (armed conflicts not

amounting to war); make rules for handling war prisoners [11] Provide forArmy [12] and Navy [13] Make Rules for regulating armed forces [14]

2. President: Art IIa. Commander in Chief.

i. Want a unitary executive in war. No war by committee. One manaccountable, and a civilian.

b. Executive can repel sudden attacksbut not declare war This is criticalquestion today.

c. Elys approach: President should go to Congress first. If he feels that hecannot wait, then he should go to Congress simultaneous w/ action.

d. Note-Almost always there is enough time. And Congress can give greatdeference to its intelligence and military committees w/ better info.i. Prior to Vietnam, wars every 20 years or so. Since, every 5 years

or so, not counting 2 over last 7 years

Youngstown Sheet & Tube v. Sawyer: 1952 (C 358)1. Background

a. Truman issues Executive Order 10340i. Directs Secretary of Commerce to take possession of the

steel mills and to keep them running1. Truman believed the steel strike would endanger the

national defense and the war effort in Korea.

b. Truman reported this action to Congressi. Congress took no action in response to the seizure

2. Issuea. What is the scope of inherent presidential power?

i. The ability of the president to act without expressconstitutional or statutory authority

3. Blacks Majoritya. No inherent presidential power

i. The prez may act only pursuant to express or clearlyimplied statutory or constitutional authority.

1. The presidents power, if any, to issue the ordermust stem either from an act of congress or from the

constitution itself.

ii. Take Care Clause1. Seizure is job for Congress, not the prez

a. Prez takes care that laws enacted arefollowed but he cannot enact laws on his

own.


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i. Seizure is essentially lawmaking andtherefore unconstitutional for theprez

2. Prez can only recommend laws, not enact them andcan veto passed laws

b.

Applicationi. Trumans order was unconstitutional because there was nostatute that expressly authorizes him to take possession of

property like he did here and there is no expressconstitutional language granting this power.

c. Policyi. Belief that inherent authority is inconsistent with a written

constitution establishing a govt of limited powers.

1. No undefined residuum of power which he canexercise because it seems to him to be in the public

interest.

d.

Problems with Blacki. Historical: Emancipation Proclamation1. No textual power to take property2. Justified under commander in chief power

4. Frankfurtera. SOP is a doctrine of necessity (men arent angels) but also flexible

i. If there is grey area in legislation, courts should bedeferential and not strike it down, especially in wartime

b. BUT: Congress explicitly rejected giving prez the authority toseize industry and clearly and emphatically withheld the powerfrom prez

c. THUSSeizure is unconstitutional5. Douglas

a. The prez can act without express statutory or constitutionalauthority so long as the prez is not usurping the powers of another

branch of govt or keeping another from performing its duties.

b. Seizure is Unconstitutionali. Prez is forcing the expenditure of federal funds to

compensate the steel owners for the taking of their property

1. Thus, prez power is impermissibly usurpingCongress spending power.

ii. The prez might seize and the Congress by subsequentaction might ratify the seizure. But until and unless

Congress acted, no condemnation would be lawful. Thebranch of govt that has the power to pay compensation for

a seizure is the only one able to authorize a seizure or make

lawful one that the prez has effected. That seems to me tobe the necessary result of the condemnation provision of

the 5th amendment.

6. Jackson


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a. Prez act unconstitutional because Congress had denied the prez theauthority to seize industries.

b. Three Zones of Prez Poweri. First: Prez acts pursuant to an express or implied

authorization of Congress

1.

Authority is at its maximum2. All prez acts presumptively validii. Second: When the prez acts in absence of either a

congressional grant or denial of authority, he can only relyupon his own independent powers.

1. Zone of silence in which he and congress may haveconcurrent authority or in which its distribution isuncertain.

a. In judging constitutionality of certainactions, it depends on the specific facts and

circumstances at hand

iii.

Third: When the prez takes measures imcompatible withthe expressed or implied will of Congress, his power is at

its lowest ebb.1. Prez is disobeying a federal law, thus his actions

will be allowed only if the law enacted by Congress

is unconstitutional.c. Application

i. Zone Three1. Congress expressly passed statute that forbids the

prez from seizing industry.

Jackson says that usage of Presidential power could be grouped in threecategories. In this case the presidents action is in the group where he acts againstCongress and therefore must back himself up with direct Constitutional power.

The power as used in this case is simply not there.

1. Domestic Affairs:a. There are three basic views of the Presidents power:

i. Because there is no limiting language of herein granted or shallextend by the President he has absolute executive power over

anything not expressly given to another branch or taken from him

in the Constitution. (Held by many Presidents especially TR)ii. The Presidents power is limited to what is specified in the

Constitution Article II section 2 & 3.

iii. Somewhere in between as most eloquently set forth in JusticeJacksons concurrence in Youngstown.

a. In the Steel seizure case Justice Jackson says that there are three categories inwhich the President exercises power.


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b. 1. Maximum Authority: When the President acts pursuant to authorization byCongress, because then he has all his power plus everything Congress can

delegate. In such cases his actions are given the strongest of presumptions of

being valid, with the burden of persuasion resting on the other side.

c. 2. Twilight Authority: When Congress hasnt indicated one way or anotherand the issue is one of which it is unclear whether Congress or the President

has authority (or they both do). In this area it is likely to depend on the

imperatives of events rather than any abstract theories of law.

d. 3. Lowest Ebb Authority: When the President acts against the expressed orimplied will of Congress his power is limited to those things that the

Constitution gives the President sole power over.

e. Here, it first the third. President argues Commander in Chief, and Jacksonrebuts no doctrinewould seem to me more sinister and alarming than that aPresident, whose conduct of foreign affairs is so largely uncontrolled andoften even is unknown, can vastly enlarge his mastery over the internal affairs

of the country by his own commitment of the Nations armed forces to some

foreign venture. Congress declares war, primary responsibility for supply

armed forces too. [The President] has no monopoly of war powers.Purpose of President C-in-C power was no war by committee and civilian

accountability.a. Rebutting argument that President should have emergency powers

based on gloss, [The Founders] suspected that emergency powers

would tend to kindle emergencies.i. -Fed No. 48 tyranny may be apprehended upon some

favorable emergency

b. Rebutting President is using Take Care power: Take Care is matchedby the 5th Amendment (Due Process). And would still require anindependent constitutional provision or law that the President was

taking care of.

i. Jackson then recognizes that the Presidents power has grown.Executive agencies are larger, his status as party-leader

supplements extra-constitutionally his executive powers.

Chastises Congress to stand up for itself, We may say that

power to legislate for emergencies belongs in the hands ofCongress, but only Congress itself can prevent power from

slipping through its fingers.

a. Dissent: With or w/o explicit statutory authorization, Presidents havedealt w/ national emergencies by acting promptly and resolutely to

enforce legislative programs, at least to save those programs until


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Congress could act. w/o seizure, military procurement/war ends, he

acted under take care.b.c. Note: ripeness question: majority takes ex ante look (congress has

spoken). Dissent takes ex post (hasnt reacted)

Executive detention and trial of enemy combatants

Note: Habeas corpus suspension provision is in Art I, which suggests that suspension

requires legislative approval.

Ex Parte Milligan (1866): Ct ruled that emergency provision could not constitutionally

authorize the trial and conviction of a citizen detained during the war by a military

tribunal rather than by a civilian ct. Ct had problems with the fact that a citizen was triedby a court not ordained and established by Congress and was denied to a trial by a jury.

Additional considerations:o Ct emphasized that: Milligan not of a defiant state;o States courts were open;o Congressional authorization needed to suspend hc.

Martial rule properly applied when courts are closed and it is impossible toadminister criminal justice according to the law; limit in duration to only when

needed.

Ex Parte Quirin (1942)

Rule of law: The detention and trial of foreign espionage and sabotage agents within the

United State during time of war, by a military commission appointed by the President, is

constitutional.

Background:

Military tribunal of 8 Nazi saboteurs 1 of them claims to be U.S. citizen FDR issued EO for trial in military tribunal

Note: It made no difference that the unlawful combatants in this case were apprehended

before they had the opportunity to actually commit and espionage and sabotage.

Rationale:

Through Articles of War, Congress has explicitly provided, so far as it mayconstitutionally, that military tribunals shall have jurisdiction to try offenders or

offenses against the law of war in appropriate cases


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Lawful combatants = prisoners of war trial by jury Unlawful combatants = offenders against the law of war no trial by jury

o E.g., enemy combatants, spies Ex Parte Milligan not applicable because defendant was of different background

(see below)

Difference betweenMilligan and Quirin:

Not a resident of any of the states in rebellion Not an enemy belligerent/combatant Never in military service

Note: If there had not been legislative approval, could President use military tribunals in

this situation?

According to Jackson tripartite, it would be in #2 gray area.EXECUTIVE DETENTION AND TRIAL OF ENEMY

COMBATANTS AFTER 9/11

Johnson v. Eisentrager(1950): Detainees (German civilians captured in the Pacific

theater) cannot be extended privilege of litigation in the U.S. courts because at norelevant time were they within any territory over which the U.S. is sovereign, and the

scenes of their offense, their capture, their trial and their punishment is beyond territorial

jurisdiction of any court of U.S.

Relied upon inAl Odah v. U.S. (D.C Cir. 2003) in finding that federal courts hadno jurisdiction over Guantanamo detainees because enemy aliens held outside the

U.S.

Reversed(below)Rasul v. Bush (2004): ReversedJohnson andAl Odah. Held that district courts had

authority within their respective jurisdictions to entertain habeas applications bypersons claiming tobe held in custody in violation of the laws of the U.S. Habeasstatute confers a right to judicial review of the legality of executive detention of aliens in

a territory over which the U.S. exercises plenary and exclusive jurisdiction, but not

ultimate sovereignty.

These defendants are different from defendants inEisentrager.o Not nationals of countries at war with U.S.o Deny they have engaged in or plotted acts of aggression against the U.S.o Never been afforded the access to any tribunalo Never charged or convicted of wrongdoingo Imprisoned for over 2 yrs in territory over which the U.S. exercises

exclusive jurisdiction and control

Note: About the reach of habeas corpus, rather than the use of military tribunalsas a substitutes.

Hamdi v. Rumsfeld(2004)


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Rule of law: Due process requires that a citizen held in the United States as an enemycombatant be given a meaningful opportunity to contest the factual basis for that

detention before a neutral decision-maker.

Background:

Louisiana-born Saudi-American

Detained in Afghanistan No majority opinion

Rationale:

Federal govt has authority to hold an American citizen apprehended in a foreigncountry as an enemy combatant under AUMF.

o AUMF meets requirement of Non-Detention Act that a detention bepursuant to an Act of Congress

o U.S. may detain for duration of hostilities Due process must be accorded to detainee.

o Matthews v. Eldridge balancing test (between national security andindividual rights): (1) important of the interest of the individual, (2) theability of additional procedures to reduce the risk of an erroneous

deprivation, and (3) the governments interests.

o Hamdi must be given meaningful factual hearings. At a minimum, thisincludes:

Notice of charges Right to respond Right to be represented by counsel

Hearsay may be admissible and burden of proof could beplaced on Hamdi

Concurrence (Souter & Ginsburg): Congress had not expressly authorizeddetention under AUMF and therefore detention violates Non-Detention Act tohold American citizen as an enemy combatant.

Dissent (Scalia & Stevens)o No authority to hold an American citizen in the US, where civilian courts

are open, as an enemy combatant without charges UNLESS Congress

expressly suspends the writ of habeas corpus. If Congress could effectively circumscribe the Suspension Clause

with AUMF, Suspension clause would be a total sham and could

be evaded by mere congressional acts

o Unconstitutional Power Grab by SCOTUS By finding authorization for detention where none exists anddiscarding the requirements of the Suspension Clause, Court

injects itself by prescribing what procedural protections areappropriate

Not the Courts role to make illegal detentions legal bysupplying a process that the Govt could have provided but

chose not toMr. Fix It Mentality

o Institutional Competence


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Far beyond Courts competence to determine what is necessary fornational securitythats the leg and executive

If situation truly demands suspension of writ, the leg can doso through an open and democratic method rather than the

silent erosion that the majority does to the Suspension

Clause. Dissent (Thomas)

o President has inherent authority, pursuant to Art. II, to hold Hamdi as anenemy combatant

Commander in ChiefSCOTUS should defer to his judgments

Rumsfeld v. Padilla(2004): Ct ruled that P had not properly filed his habeas petition;

should have filed in SC not SDNY Start over.

Rasul v. Bush

2.

Backgrounda. Aliens held at Gitmo filed habeas petitionsb. Govt moved to dismiss claiming that Fed Courts lacked authority to hear

habeas by aliens in Gitmoc. Court of Appeals: US courts lack jurisdiction and ruled that no court in

country could hear the petitions brought by Gitmo Detainees

i. Reasoning1. Johnson v. Eisentrager

a. 21 German nationals sought habeas in Chinab. Convicted by Army in US Military Commission for

violating laws of war

c.

Convicted and repatriated to Germany at prisonwho custodian was an American army officer

d. Sought habeas in federal court and SCOTUS foundthat there was no jurisdiction to hear petitions.

2. Rasula. Gitmo prisoners are like those inJohnson and

dismissed petitionsd. SCOTUS

i. Reversed and held that a federal court may hear the habeas petitionof aliens at Gitmo

ii. Reasoning1.

DistinguishedJohnsona. InJohnson, those detained were accorded a trial in a

military tribunal, but Gitmo prisoners never hadany formal trial or due process

b. UnlikeJohnson, Gitmo is functionally under thecontrol and sovereignty of US

Boumediene v. Bush1. Background


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a. In response toRasul, Congress adopted Detainee Treatment Act (DTA)i. DTA: Fed courts could not hear writs of habeas corpus by enemy

combatants

1. DTA does not apply retroactively to those held prior to itsenactment (Hamdan)

b.

In response toHamdan, Congress adopted the Military Commission Acti. MCA: Noncitizens held as enemy combatants shall not haveaccess to federal courts via a writ of habeas corpus or otherwise,

except that if there is a military proceeding, the detainee may seekreview of its decision in the US Court of Appeals for the District of

Columbia.

2. Holdinga. MCAs preclusion of habeas corpus jurisdiction was unconstitutional

i. Court had to power under Art. 1, 9 to suspend habeas corpus intimes of rebellion or invasion but the govt did not suspend writ.

b. Suspension Clause has full effect at Gitmoi.

If privilege is to be denied to Gitmo detainees, then Congress mustact in accordance with requirements of the Suspension Clausec. Remedy of review in DC Court was not a substitute for habeas

i. Detainees may invoke the fundamental procedural protections ofhabeas corpus

1. Laws of constitution are designed to survive and remain inforce during extraordinary times.

a. Framers intended habeas to be essential part of theframework of the nations laws.

3. Dissent (Roberts, Scalia, Thomas, Alito)a. Court should have deferred to the choices made by Congress and the

presidenti. Today, the court strikes down as inadequate the most generous set

of procedural protections ever afforded aliens detained by thiscountry as enemy combatants. The political branches crafted these

procedures amidst an ongoing military conflict, after much careful

investigation and thorough debate. The Court rejects them todayout of hand, without bothering to say what due process rights the

detainees possess, without explaining how the statute fails to

vindicate those rights, and before a single petitioner has exhaustedthe procedures under the law. And to what effect? The majority

merely replaces a review system designed by the peoplesrepresentatives with a set of shapeless procedures to be defined by

federal courts at some future date.

b. Procedures provided in the MCA were sufficient to avoid being asuspension of the writ.

4. Dissent (Scalia, joined by others)a. Judiciary has no business being involved in the matter at all.

i. What competence does the court have in second-guessing thejudgment of Congress and the President on such a point? None


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whatever. But the Court blunders in nonetheless. Henceforth, as

todays opinion makes unnervingly clear, how to handle enemyprisoners in this war will ultimately lie with the branch that knows

least about the national security concerns that the subject entails.5. Majority vs. Dissent

a.

Express vastly different views about the role of the federal courts duringthe war on terrorism.b. Majoritythe Constitution and access to the federal courts to enforce it

are essential even in times of crisis.

i. This decision is a profound reaffirmation of the rule of law. c. DissentDecision was a dangerous judicial meddling in a realm properly

left to the president and congress.

MILITARY COMMISSIONS

Hamdan v. Rumsfeld(2006)

Rule of law: A military commission does not have jurisdiction to hear a case if the

commissions structures and procedures violate the Uniform Code of Military Justice andthe Geneva Conventions.

Background:1. Ex Parte Quirin

a. Upheld the use of military tribunals of 8 Nazis who landed on Americansoil during WWII carrying explosives and wearing uniforms

b. Roosevelt issues exec order providing for their trial in a military tribunali. Detainees filed habeas in federal court

c. SCOTUS: Upheld use of military tribunals and started that the prez hadconstitutional authority to try individuals before a military commission.

i. Distinguished between lawful and unlawful combatants1. Lawfultreated as POW2. Unlawfuloffenders against law of war and subject to trial

and punishment by military commissiond. Disagreement over Holding

i. BushQuirin is on point for current commissions and specificallyauthorizes the use of tribunals in this situations

ii. CriticsQuirin is a discredited decision that should not befollowed

1. Quirin occurred during a declared war and there was astatute authorizing military tribunals

2. Background toHamdana. 2001:

i. AUMF: Congress authorizes the prez to use all necessary andappropriate force against those nations, organizations, or persons

he determines planned, authorized, committed, or aided the 9/11

attacks.


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ii. Executive Order1. Bush issues executive order providing for military tribunals

to try non-American citizens accused of participating in or

assisting terrorism.

b. 2005: Congress enacts Detainee Treatment Acti.

Provides that no court shall have jurisdiction to hear or consideran application for habeas corpus filed by alien detained at Gitmo.

ii. D.C. circuit court has exclusive jurisdiction for a limited review byUSCA DC Cir of whether enemy combatant status determinationcomplied with DTA and Constitution.

c. Hamdani. Yemeni national

ii. Bin Ladens driveriii. Captured in Afghanistaniv. Held in Guantanamo

3. Issue: Are the military commissions created pursuant to Bushs executive orderconstitutional?4. Holding: No.

a. The military commissions were not expressly authorized by Congressionalstatute

b. The procedures violated the Uniform Code of Military Justice,c. The commissions didnt satisfy the Geneva Conventions.

Rationale:

AUMF and DTA does not expand executive power to create militarycommissions.

o Such commissions permitted in three circumstances:1.

To substitute for civilian law after martial law declared;2. Substitute for civil law during times of temporary militarygovernment;

3. A situation usually occurring in the battlefieldto decide whetherthe defendant has violated the law of war.

o Only #3 can possibly apply, but conspiracy is not seen internationally asviolating the law of war.

The commissions procedures violated the Uniform Code of Military Justice andthe Geneva Conventions.

How the executive violated the separation of powers inHamdan:

Tried to perform legislative functions by creating a previously unknown crimesubject to hearing by military commission;

Tried to perform executive functions by prosecuting the alleged violation of thenew crime;

Tried to perform judicial functions by adjudicating the prosecution of the allegedviolation of the new crime in a forum over which the executive branch held great

control.


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Boumediene v. Bush (2008)

Rule of law: Foreign terrorism suspects held at the Guantanamo Bay Naval Base in

Cuba have constitutional rights to challenge their detention in United States courts.

Background: Military Commissions Act modified DTA:

o Allows President to try such alien unlawful enemy combatants by militarycommissions for any offense made punishable by the law of war.

o Allows removal of habeas corpus to all overseas enemy combatantdetainees, regardless of where they are being held.

o No court, justice, or judge shall have jurisdiction to bear or consider anapplication for a writ of habeas corpus filed by or on behalf of an alien

detained by the U.S. who has been determined by the U.S. to have been

properly detained as an enemy combatant or is awaiting such

determination Whereas DTA provided exclusive jurisdiction to USCA

DC Cir. Petitioners are aliens designated as enemy combatants detained at Guantanamo

Court:

Petitioners do have habeas corpus privilege. MCA is an unconstitutional suspension of writ. U.S. maintains de facto sovereignty over Guantanamo 3 factors are relevant in determining the reach of the Suspension Clause

Congress has not acted in accordance with Suspension Clause1. Citizenship and status of the detainee and the adequacy of the process

through which that status determination was made

a. Unlike petitioners inEisentrager, present petitioners deny they areenemy combatants2. Nature of the sites where apprehension and then detention took place

a. Unlike petitioners inEisentragerwhere U.S.s control over theprison in Germany was neither absolute nor indefinite,

Guantanamo is under constant jurisdiction of U.S.

3. Practical obstacles inherent in resolving the prisoners entitlement to thewrit

a. Not dispositive in this case. MCA is not an adequate substitute for the procedures for habeas corpus because

these courts have very limited remedial powers
http://en.wikipedia.org/wiki/Guantanamo_Bay_Naval_Basehttp://en.wikipedia.org/wiki/Cubahttp://en.wikipedia.org/wiki/Cubahttp://en.wikipedia.org/wiki/Guantanamo_Bay_Naval_Base


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10th

AMENDMENT LIMITS ON FEDERAL GOVT OVER STATES

1. Generala. 10thAmendment: The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.2. Key Issuea. Is 10thAmendment a judicially enforceable limit on Congress power

i. Can federal laws be declared unconstitutional as violating thisamendment?

b. One Approach:i. 10th is not a separate constraint on Congress but rather is simply a

reminder that Congress may only legislate if it has authority under

the Constitution.

1. Under this approach, a federal law would never be foundunconstitutional as violating the 10

th, but it could be

invalidated as exceeding the scope of Congress powersunder Art. I or for violating another constitutional

provision.c. Alt. Approach:

i. 10th protects state sovereignty from federal intrusion.1. 10this a key protection of states rights and federalism

a. Reserves a zone of activity to the states for theirexclusive control and federal laws intruding into

this zone should be declared unconstitutional by

courts (National League of Cities)3. Issues Concerning the 10th

a. How important is the protections of state sov and federalism?i. 3 benefits of protecting state govts from federal intrusion

1. Vertical division of power lessens the chance of federaltyranny

a. Double security to protect citizens against govtoppression

2. States are more responsive to the publics needs andconcerns

a. Local representatives are more accountable topublic and will be more responsive to their needs

3. States as Laboratories for Experimentationa. States may, directed by their citizens, try novel

social and economic experiments without risk to therest of the country

b. Is it the role of the judiciary or political process to enforce the 10 thamendment and protect state sovereignty?

i. One view: Judicial enforcement of federalism as a limit onCongress is unnecessary because the political process will

adequately protect state govt interests.


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1. Interests of the state are represented in the national politicalprocess and that the nature of that process providessufficient protection of state sovereignty, thus making it

unnecessary for the courts to enforce federalism as a limit

on Congress.

2.

Counter Arg: Popular election of senators doesntguarantee that states interests as states are adequately

protected in Congress.

4. Pre-1937: Hammer v. Dagenharta. General: Court held that 10th Am reserved a special zone of activities to

the States for their exclusive control.

i. Federal laws intruding into this zone were declaredunconstitutional

b. Child Labor Law: Prohibited shipment of goods produced in factoriesemploying children under 14.

i. Limited to regulating goods in interstate commercec.

Unconstitutionali. Congress power to regulate interstate commerce was the power to

regulate commerce, not to control States in their exercise of thepolice power over local trade.

ii. If Congress can regulate matters entrusted to local authority byprohibiting the movements of goods, all freedom of commerce willbe at an end and local authorities will be powerless.

5. 1937-1990sa. Court rejected the view that the 10 th Am is an independent limit on the

legislative power and instead viewed it simply as a reminder that Congressmay legislate only if there is authority in the Constitution.

b. U.S. v. Darbyi. A congressional law is constitutional so long as it is within the

scope of Congress powerii. 10th would not be used as a basis for invalidating federal laws.

6. National League of Cities v. Userya. Only case between 1937 and 1990s to find that a law violated the 10th Amb. Holding

i. There are limits upon the power of Congress to override state sov,even when exercising its otherwise plenary power to tax or toregulate commerce

ii. Requiring states to pay their employees the minimum wageviolated the 10

thb/c the law operates to directly displace the

States freedom to structure integral operations in areas of

traditional governmental functions.1. Forcing a state and local govt to pay their employees the

minimum wage would require that they either raise taxes orcut other services to pay these costs

a. This would displace decisions traditionally left tostates and may substantially restructure


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traditional ways in which the local govts have

arranged their affairs.iii. Majority did not attempt to define what is such a traditional

function; only holding that forcing payment of the minimum wage

was unconstitutional.

c.

Dissenti. Nothing in the Constitution mentions a restraint based on statesovereignty over congressional exercise of powers enumerated in

the Const.ii. Majority restructures federal system and unconstitutionally

enlarges the role of the judiciary to enforce the 10th

am against the

fed7. Garcia v. San Antonio Metropolitan Transit Authority

a. Overrules Useryi. 2 reasons

1. Usery approach proved unworkablea.

Unsound in principle and unworkable inpracticerule of state immunity from federal

regulation that turns on judicial appraisal of whether

a particular govt function is traditional orintegral

i. Judicial restraintany rule of stateimmunity that looks to the traditionalnature of govt functions inevitably invites an

un-elected federal judiciary to make

decisions about which state policies it favorsand which ones it dislikes.

2. Political Process is best method of protecting stateprerogatives

a. The principal and basic limit on commerce power isthat inherent in all congressional action

i. The built-in restraints that our systemprovides through state participation infederal govt action.

b. Political process ensures that the laws that undulyburden the states will not be promulgated

b. Dissenti. Powell: Defining traditional

1. Court could define the parameters of the 10th amendmentjust as the court has defined numerous other ambiguousconstitutional provisions.

ii. OConnor: Challenged the view that the political process wouldadequately protect the interests of state govts.

iii. Rehnquist: predicts that, in time, the conservatives position on theiv. 10th Am will prevail


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COMMANDEERING

1. New York v. United Statesa. Rule of Law: The Federal govt may not compel the States to enact or

administer a federal regulatory program.

b. Background: Federal law: Low-Level Radioactive Waste Policy Amds.i.

Created statutory duty for states to provide for safe disposal ofradioactive wastes generated within their borders

ii. Provided monetary incentives for states to comply with law1. Also allowed states to impose a surcharge on radioactive

wastes received from other states.

iii. Take Title1. To ensure effective state govt actions, the law provided that

states would take title to any wastes within their bordersthat were not properly disposed of by January 1, 1996 and

then be held liable for all damages directly or indirectly

incurred.

c.

Holding: Take title provision unconstitutional because it gave States thechoice between either accepting ownership of waste or regulating

according to the instructions of Congress.d. Reasoning: Forcing States to accept ownership of wastes would

impermissibly commandeer state govts

i. Requiring state compliance with federal regulatory statutes wouldimpermissibly impose on states a requirement to implement federal

legislation.

e. Policyi. Allowing Congress to commandeer State govts would undermine

governmental accountability because Congress could make

decision, but the states would take the political heat and be held

responsible for a decision that wasnt theirs.

f. Garcia?i. Rejects Garcias conclusion that the federal judiciary would not

use the 10th

Am to invalidate federal laws.

ii. New Rule: If federal law compels state legislative or regulatoryactivity, the statute is unconstitutional even if there is a compelling

need for the federal action.

g. Compelling Interest?i. Expressly rejects the argument that a compelling interest is

sufficient to permit a law that otherwise would violate the 10th Am.

h. Alternatives to Commandeeringi. Spending Power: Conditioning payment of relevant federal funds

ii. Commerce Power: Enacting federal legislation to directlyregulate, or imposing a federal tax

iii. Conditional Preemption: Threaten to pass federal legislation underthe Commerce Clause unless states choose to regulate according to

federal standards.

2. Printz v. United States


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a. Rule of Law: Congress cannot require state executives to regulateaccording to federal regulations

b. Backgroundi. Brady Handgun Violence Protection Act

1. Required state and local law enforcement officers toconduct background checks on prospective handgunpurchasers.

c. Holding: By forcing state executives to run background checks, theBrady Act commandeered state officials to do federal work.

d. Reasoningi. Historical: Congress has never exercised such a power that

involves Congress commandeering state executive officers toimplement federal mandates.

ii. Violates Separation of Powers1. Const. vests all executive power in the prez and that

Congress has impermissibly given executive authority to

implement the Brady Act to state and local officials.a. Brady transfers prez constitutional responsibility to1000s of state law enforcement officers toimplement the program

i. Prez loses his ability to control2. Unitary prez would be shattered if the prez power were

subject to reduction

a. If Congress could act as effectively without the Prezby requiring state officers to execute its laws.

3. Counter Arg: If compelling state sheriffs to enforce Bradyviolates some right of the prez to control all law

enforcement, isnt the prez power equally violated when

sheriffs voluntarily choose to enforce Brady?

3. Dissenta. StevensWhen Congress exercises the powers delegated to it by the

Constitution, it may impose affirmative obligations on executive and

judicial officers of state and local govts as well as ordinary citizens.i. Supported by Text, history, precedent, and structure of Fed govt

b. Stresses Importance of Bradyi.


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