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Constitutional Law [Maryland Law -Quint]
By: Penny22 Date: February 17, 2011, 9:58 pm
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Constitutional Law
I. JUDICIAL REVIEW
a. Origins
i. Historical Background
1. Federalists v. Republicans
a. Federalists: supported the constitution, prosperous,
centralized federal government, supported sedition act, hard
currency, creditors, etc.
b. Anti-Federalists: De-centralized government, farmers ,
supported debt alleviation, supported French revolution.
c. At the time of Marbury, republicans were on the rise and
federalists retained judicial stronghold.
2. Judiciary Act (1789): Pursuant to Article III, created three
levels of courts.
a. Note: Circuit courts comprised of district judges and a SC
justice “riding circuit.”
3. Judiciary Act (1801): Created 16 circuit court judges,
granted life tenure unless removed for treason, bribery, high
crimes, and other misdemeanors. No diminution of salary.
a. Alternative purposes:
i. Preserved the independence of the judiciary.
ii. Stack the court with Fed. Judges
4. Judiciary Act (1802): Repealed JA 1801.
a. Purpose: Republican response to federalist created enclave
declaring republican laws as unconstitutional.
b. Questions of constitutionality:
i. Can congress remove sitting judges?
ii. May the court declare statutes unconstitutional?
iii. Separation of powers: struggle between the legislative and
the judiciary
1. Note: At time, most viewed Marbury as a struggle between
executive and the judiciary.
ii. Marbury v. Madison
1. General Issues:
a. Has the applicant a right to the commission (justice of the
peace [5 year term by JA 1801])?
b. If he has a right, and that right has been violated, do the
laws of this country afford him a remedy?
i. Holmes view: no remedyno right.
ii. Marshall view: “the very essence of civil liberty certainly
consists in the right of every individual to claim the
protection of the laws, whenever he receives an injury.”
1. Exceptions:
a. Political questions
b. Questions submitted to the executive, functions which
include:
i. Execution of the laws
ii. Discretionary functions
c. If they do, is it a mandamous issued by this court?
i. Note: (C.L) Writ of Mandamous: An order requiring someone
to do something
ii. Marshall’s view:
1. An issuance of mandamus to a secretary of state is authorized
under Section 13 of JA 1789
2. This case falls within the judicial power of the united
states (Article II, Section 2 ”the judicial power shall
extend to all cases arising under…the laws of the United States
[organic act]”)
a. Theory of Federal Government: The federal government gets
all power from the Constitution.
3. This case does not fall within an enumerated category in
Article III, Section 2; therefore the grant of (original)
jurisdiction within the Judiciary act is unconstitutional.
a. Article III, Section 2: Grants USSC original jurisdiction in
all cases affecting Ambassadors, public ministers and consuls,
and those in which the state shall be a partyall dealing
with separate or quasi sovereigns.
b. Problem: Criminal cases where the state may be a party.
Marshall later resolves by making exception where there is
another state with jurisdiction.
4. Conflict between Section 13, JA 1789 and Article III, Section
2.
a. Alternative interpretations:
i. No Conflict – both no: Section 13, connected by semi-colon,
can be read to grant appellate jurisdiction.
ii. Conflict: Language before the semi-colon issues
jurisdiction. Language after issues power to issue writs;
power implied.
iii. No conflict: interpreting the language of Article III,
Section 2, which provides “with such exceptions…as the Congress
shall make” to create an exception for writs of mandamus…”to any
persons holding office under the authority of the U.S.”
2. Acts repugnant to the constitution: who gets to decide?
a. Alternatives
i. President through Article I, Section 7, [2]: veto power.
ii. Legislature by virtue of enactment (note: legislature
rarely holds hearing on constitutionality. Notable exception:
civil rights act)
iii. State legislatures. Rthey enacted constitution in
first place.
iv. Judiciary
1. Problems:
a. Legislature is closer to the people.
b. Judicial review deals with all statutes, even those passed by
a super majority.
c. Potentially un-democratic.
2. Benefit: In general, the court can focus on issues in a way
that the legislature cannot:
a. Minority protection (not always, but often)
b. Independence from political system
c. Adversarial system
b. Marshall’s approach: Judicial review by inference
i. Principles Argument: Note: Compare to McCulloch
1. The people have an original right to establish [the
constitution] and the authority from which it is established is
a very great exertion; nor can it, nor ought it, to be
frequently repeated.
a. R. Principles deemed fundamental.
b. R. Written constitutions embody rights and ideas that
are fundamental in nature; thus, the constitution.
2. “It is emphatically the duty of the judicial department to
say what the law is.” Anything else would have a practical and
real omnipotence to the legislature.
ii. Constitutional argument
1. Article III, Section 2,[1]: “the judicial power shall extend
to all cases, in law and equity, arising under the
constitution, the laws of the united states, and treaties
made..”; thus, the judiciary must be able to look into the
constitution itself.
a. Several provisions require judicial inquiry: passage of ex
post facto laws, raising of taxes (prior to 16th), bills of
attainder (I,9[2]), ex post facto treason provision (criminal
procedure in const.)
b. Berger’s approach: Distinction between cases arising under
law and under constitution. For there to be a case that arises
out of the constitution, it must be in a case in which some
governmental act is said to violate the constitution.
c. Alternative: some say judicial review applies only to cases
involving courts (e.g. Marbury)
2. Article VI, Section 2: Supremacy Clause: “[The]
constitution, and the laws of the US which shall be made in
pursuance thereof; and all treaties made…shall be supreme…and
the judges in every state shall be bound thereby”
a. Constitution listed first, thus laws repugnant must be void
and courts must adhere to this.
b. Waxler’s Approach: VI, 2 Indicates that state judges must
strike down statutes in conflict with the Constitution or the
laws of the US. In so doing, state courts must evaluate F. law
to determine whether it was made in pursuance thereof to the
Constitution. If it was not, the state courts don’t need to
follow. Viewed in conjunction with Article III, Section 2
(granting supreme court appellate jurisdiction), the Supreme
Court is authorized to exercise judicial review.
i. e.g. F. Law puts 10% tax ceiling. S. Law authorizes 17%.
ii. Note: treatment of treaties different because founders felt
need to preserve treaties.
3. Debates over the exercise of judicial review.
a. Hand: J.R. should be limited so as to not allow oligarchs to
rule our lives.
b. Wessler:
4. Contemporary Implications of Marbury
a. Vigorous use of J.R. is a product of the 20th century.
b. Since J.R. was the bi-product of an ordinary case, it is not
something that especially gives authority to courtsas a
practical matter, the court is limited to acting in a way that
looks sort of judicial.
b. Limits
i. Note: Can be seen as a separation of
powerrestricting courts to role of protecting
individuals and minorities against the impositions of the
majority. Scalia.
ii. Cases and controversies requirement, Article III, Section 2.
1. RAnti-majoritarian view that we don’t want to decide
what we don’t have to.
iii. Advisory Opinions
1. R Facts and parties missing.
a. The facts narrow the question. If answering questions in the
abstract, you are forced to consider possibilities that may
never occur.
b. Note: Some states permit
2. Distinguished from declaratory judgments
a. Declaratory judgments involve actual parties to a case.
iv. Standing
1. A party must be raising their own rights, cannot rest on
rights of third parties or generalized grievances.
a. e.g. person/group w/ no intent to purchase home brining
generalized grievance against exclusionary zoning. Warth v.
Seldin
2. The party bringing action must have some kind of actual or
threatened injuryinjury in fact.
a. e.g. person brings suit seeking injunction against government
project threatening a particular species of animal not covered
under endangered species act because overseas. Lujan v.
Defenders of Wildlife
i. Note: Scalia said that had person actually worked with this
particular animal, he/she would have standing. just
because there is no standing, doesn’t mean there won’t be later
litigation.
b. Citizen suit provisions
i. Defined: Congressional grant of standing to any person.
ii. Congress cannot grant standing beyond the case and
controversy requirement of Article II, Section 3.
3. Prudential considerations (close to being a case or
controversy, but wise to be prudent): where large numbers of
Americans suffer alike, the political process, rather than the
judicial process, may provide the more appropriate remedy for a
widely shared grievance.
a. General proposition: At some point, even if the claim is
valid, the claim may become too tenuous.
i. In these circumstances, where otherwise valid, Congress may
mandate that the cases be heard.
b. Generalized grievances
i. Funding/Benefits cases: one party files claim based on
benefit received by another at taxpayer expense.
1. Courts focus on individuals, not generalized grievances.
a. e.g. government passes statute seeking to reduce infant
mortality and provides grant to hospital. No standing:
i. R.  everyone as tax payers would have standing.
ii. R.  if plaintiff wins, she gets nothing; thus, no
injury.
iii. Distinguish from taxpayer suing IRS for over-bill. Tax
payer will receive $ in return: injury in fact.
2. Exception:
a. Funding of religions programs in violation of establishment
clause. R.  Historically, this issue is fundamental.
Flast
i. Exception to the exception: land grants to religious
programs. Must be actual $.
ii. Freedom of Information (except security info, trade secrets,
etc)
1. US v. Richardson, FEC v. Akins
a. Richardson: Court found no standing where plaintiff sought
to make CIA budget public. Rno injury.
b. Akins: Court found standing where plaintiff sought
disclosure of campaign expenses by a organization not classified
as a political committee. R  injury: not having
adequate voter information.
c. Distinguished. 2 possibilities:
i. Akins had a citizen suit provision. This was within power of
congress because voting is the most basic of political rights.
ii. Richardson may just be said to be a prudential decision, not
based upon the constitution.
iii. Legislative standing
1. Members of Congress had no standing (Rno injury in
fact) to challenge line item veto.
2. Hypo: Suppose Congress passed a statute prohibiting freshmen
from voting on appropriations bills? Standing? Unk.
v. Mootness and Ripeness
1. Every case runs along a continuum from unripe to moot.
2. Note: Relaxation of mootness doctrine after Roe. Otherwise,
these parties would never have a claim.
3. ExamTip!: Consider Padilla. Detainee released prior to
trial and case became moot. Can this be done continuously?
vi. Political Question Doctrine (note:
Deferencemculloch (N&P) commerce clause cases
1. General:
a. Narrow doctrinebasis: Is there a textual commitment
to another branch?
2. Factors (Baker)
a. Textually demonstrable constitutional committeemen of issue
to a coordinate political department.
b. Lack of judicially manageable standard
c. Impossibility of deciding without non-judicial policy
decisions.
d. Impossibility of court taking out without expressing lack of
respect to other dept
e. Unusual need for adherence to political decision already made
f. Potential of embarrassment
3. Cases
a. Baker v. Carr (Reapportionment of legislatures—valid)
b. Powell v. McCormick (house member, mis-used funds. House
refused to sit: Article I, §5 says each house sets
qualifications of its own mebers.
i. Qualification on Baker: An issue may be textually committed
to another branch, but the court decides how far it is committed
(e.g. )
1. Think: Impeachment trial (Article I, §3 7): treason,
bribery, high crimes. What is high crime/misdemeanor. Does
court decide?
c. Nixon (not P) v. US: (Senate, who has “sole” impeachment
power to “try”, delegated evidentiary hearings to committee. Ct
says PQ – work “try” lacks a judicially manageable standard.
Congress gave away, at expense of later having a check.
i. Keep in mind: Do we give away judicial power, or reserve as
a check?
vii. Congressional Stripping of Jurisdiction
1. ExamTip! Link to below about detainee treatment act.
2. Article III, 2 [2]: “In all cases affecting ambassadors,
other public ministers and consuls, and those in which a state
shall be a party, the SC shall have original J. In all other
cases before mentioned, the SC shall have AJ both as to law and
fact, with such exceptions and under such regulations as the C
shall make.
a. Congress may make any exceptions to the appellate
jurisdiction of the SC, regardless of their motives. Ex Parte
McCardle, Chase.
i. R cases can still be heard by lower courts.
1. Problems:
a. Split decisions.
b. No constitutional requirement for Circuit Courts.
i. But note: many cases can’t be heard by F. courts
anywaysdiversity requirement.
ii. Congress can’t restrict jurisdiction to force a result.
Kline.
1. e.g. Prior to Miranda, courts applied a voluntary/involuntary
test to determine admissibility of evidence. Congress passed a
statute eliminating SC jurisdiction over cases where the court
has entered into evidence the defendant’s record as voluntarily
made. Essentially, under the guise of jurisdiction, they forced
a result.
2. Practical problems with removing jurisdiction of subject
matter: If you take jurisdiction from something like Roe, it is
still good law and all states will follow. Backwards result.
3. Construction of the “exceptions clause.” Quint: “Is it the
string that, when you pull on it, allows you to unravel
completely the institution of judicial review?”
a. Exceptions clause can’t be exercised in a way interfering
with essential or core functions of the courtcongress
can’t take whole of jurisdiction, otherwise it wouldn’t be an
exception. Hart
i. ExamTip! Note link to removal of E officers.
b. Exceptions clause is meant to foster a dialogue, by
justifying J.R. Black.
i. This implies that since C hasn’t really exercised authority
under exceptions clause, J.R. has broad democratic support.
Thus, even though majorities may find some decisions
unpalatable, they favor J.R.
c. Since exceptions follow the word “fact,” its meant to allow
congress to make exceptions only to facts, preserving the right
to trial by jury. Berger.
II. SEPARATION OF POWERS: THE PRESIDENT AND CONGRESS
a. Executive Encroachment on Legislative Powers
i. Executive Authority Over Domestic Affairs
1. Analysis:
a. Black’s Approach: Is this lawmaking?
i. Article I, Section 1: “All legislative powers herein granted
shall be vested in a Congress of the United States.”
ii. The President is lawmaking when making a choice of policy
that is enforceable by the government. Black, writing for
majority in Youngstown.
1. Whether a decision is a choice of policy is determined by its
scale. Rthe greater the economic, social, or political
impact, the more likely we want congressional approval.
b. Vinson’s Approach: Is there a way of looking at this as
falling under executive authority?
i. e.g. Marshall shoots potential assassin of Justice Field. No
statute providing immunity, but claims protection under “take
care” clause in that he was ensuring Field could ride circuit
under JA 1789. In Re Neagle.
c. Jackson’s approach: “Over-simplified” Trichotomy
i. Express or Implied Congressional Approval: The President’s
acts are authorized unless the Federal Government as a whole
lacks constitutional authority.
1. R.  Doctrine of delegation: president is exercising
congressional authority also.
ii. No Congressional Approval or Prohibition (Acquiescence): The
President can only rely upon his own constitutional powers
 “Zone of Twilight” of concurrent authority.
iii. Express or Implied Congressional Prohibition: The
President’s power is at its lowest ebb, for then he can rely
only upon his own constitutional power minus any constitutional
powers of Congress over the matter  the authority must
be within the exclusive (insulated) presidential power.
1. Note: Jackson assumes that Congress prevails if there is a
confrontation between legitimate powers.
2. Government seizure of personal property. Youngstown
a. Federal Government authorized pursuant to 5th Amendment:
“…nor be deprived of…property without due process of law.” No
5th amendment claims because government takes indefinite
possession and makes “just compensation.”
b. Alternative sources of authority:
i. Congress: Powers to regulate commerce
1. Article I, Section 8, [3]: (powers granted to congress): to
regulate commerce with foreign Nations, and among the several
States, and with the Indian Tribes.
ii. President: Direct powers: Inherent and Implied
1. Article I says “all powers” herein granted whereas Article
II, Section 1 does not; thus, the founders intended to grant
powers to the president beyond those enumerated.
2. Article II, Section 2, [1]: “The President shall be commander
in Chief of the Army and Navy of the United States…”
3. Article II, Section 3: “…he shall take care that the laws be
faithfully executed (keep certain programs running).
4. Inherent powers: powers outside the constitution
a. May accrue by virtue of repeated exercise and congressional
acquiescence. (Recognized by frankfurter in concurrence)
c. Application of Approaches to Youngstown
i. Black (Majority): President cannot seize personal
commercial property without explicit congressional authorization
because he would be performing a lawmaking function.
ii. Vinson (Dissent): President seizes steel mills in order to
effectuate the Defense of Production Act or other inflation
programs.
iii. Jackson (Concurrence)
1. Youngstown falls in 3rd category. R.  The statutes
(Taft Hartle,y Selective Service, Defense Production) each give
power to seize, but only under certain conditions, none present
here.
2. Seizure power not exclusive in president.
a. “Herein granted” argument does not prevail because the
constitution enumerates powers.
b. “Commander in chief” argument does not prevail because this
power is shared and the President is not commander in chief of
the country.
c. “Inherent powers” argument fails because it would have no
beginning and no end and would lead to dictatorship
3. Modern Application: Warrantless surveillance
a. Statute: Authorized warrants are required by statute
pursuant to the 4th Amendment.
b. Arguments pertaining to Presidential Authority:
i. State: This falls within Jackson’s 1st Category: Congress
passed the Joint Resolution for the Authorization for Use of
Military Force granting authority “to use all necessary and
appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001…”
ii. Defense: This falls within Jackson’s 3rd Category because
provisions of the Foreign intelligence Surveillance Act (FISA)
says that anything not included requires a warrant.
1. State counter argument: AUMF passed subsequent to FISA.
Nevertheless, this is within the President’s direct and
exclusive presidential authority.
ii. Executive Authority Over Foreign and Military Affairs
1. Distinguished from Domestic Affairs:
a. Rehnquist’s observation: “Executive action in any particular
instance falls, not neatly in one of the three pigeonholes, but
rather at some point along a spectrum running from explicit
congressional authorization to explicit congressional
disapproval. “
b. “…failure of Congress to specifically to delegate authority
does not, “especially in the areas of foreign policy and
national security, imply congressional disapproval. On the
contrary, the enactment of closely related legislation may be
considered to invite independent presidential actions.”
Rehnquist.
i. R.  international affairs (and crisis) are
unpredictable. Congress cannot anticipate.
2. Executive Agreements
a. Characteristics:
i. Distinguishable from treaties, which, pursuant to Article II,
Section 2, [2] require 2/3 approval by the US Senate.
ii. Not mentioned in the Supremacy Clause of Article VI, Section
2; status unknown.
b. January 19, 1981 Executive Agreement with Iran; made pursuant
to the IEEPA. Dames & Moore
i. Components Analyzed under Jackson’s trichotomy:
1. Nullified all attachment orders on Iranian assets.
2. Required transfer of assets to the government of Iran, US
banks, and a claims tribunal also established by the Executive
Order.
a. Fall clearly within the first category pursuant to the IEEPA:
“P may [nullify], void, transfer…any acquisition, holding…”
3. Suspension of all claims pending in US Courts.
a. Not within IEEPA because the claims are not against specific
pieces of property.
i. Policy concern: if court found suspension unauthorized, US
would be seen in international law to have breached its
obligations.
b. Suspension authorized in broad sense because:
i. Several acts considered together (IEEPA, Hostage Act, etc)
indicate Congress’s intention to give broad authority to P in
this area.
ii. Congressional Acquiescence: Long practice of president
settling claims without action. In cases dealing with
international emergency, acquiescence doesn’t imply disapproval.
iii. Alternative justification: US v. Pink: Article II,
Section 3: “He shall receive Ambassadors and other public
ministers..”implies the authority to recognize foreign
governments and determine the circumstances under which they may
be recognized – including claims settlement agreements.
Note: This would have given P stronger authority. As decided
under Dames, congress really controls.
c. No due process concerns because of the availability of an
alternative forum.
d. Note: P does not possess plenary power to settle claim
except where it is a necessary incident to the resolution of a
major foreign policy dispute and congress has acquiesced to such
action.
b. Executive Discretion in Times of War or Terror
i. War Power
1. Sources of Authority:
a. Congress: Article I, Section 8, [11]: (power granted to
congress): “to declare War…”
i. R.  Decisions of war should not be made by one
person, but by an elected group.
b. President: Article II, Section 2, [1]: “The President shall
be Commander in Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called into the
actual Service of the United States…”
c. Note: In theory, it is somewhat parallel to executive
authority in domestic affairs: Congress passes statute,
President carries out.
d. Note: Most recognize an inherent power to defend from
“sudden attack.”
2. Modern application:
a. Emergency sending of troops by unilateral presidential action
absent declaration of war.
i. President may send forces absent declaration upon
“authorization” – even without a specified enemy.
1. Article I, Section 8, [18] (powers granted to congress –
necessary and proper clause): “To make all laws which shall be
necessary and proper for carrying into execution the foregoing
powers…” See McCulloch
ii. Examples: Korean War (pursuant to Security Counsel Res.),
Vietnam (slow increase of troops, no authorization, Congress
stuck)
3. War Powers Resolution of 1973:
a. Purpose: C attempt to assert greater authority over war
powers – Nixon era.
b. Provisions:
i. P must consult with C when entering hostilities or when
hostilities imminent & within 48 hours P must file a report that
troops be sent into hostilities & setting forth the
circumstances.
1. This provision mostly disregarded. Rcan’t consult
with all, so some, but who?
ii. If after 60 days from when the report is filed, or should
have been filed, P must withdraw troops unless C has enacted a
form of authorization.
1. This provision hasn’t been tested. Reither short, or
authorized.
iii. At any time, forces abroad shall be removed by P if C
directs by Concurrent Resolution.
1. Note: A concurrent Res. is essentially a statue.
2. After Chadha, this is likely unconstitutional since it does
not follow the structure outlined in Article I, Section 7 [2],
the “presentment clause.”
c. Note: Most say WPR unconstitutional. Rencroachment
on P “exclusive” authorityJackson’s 3rd category.
ii. Emergencies
1. Note: Comparatively, the Constitution does not have a
complex regime for emergencies.
2. Article I, Section 9, [2] “Suspension Clause:” 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.
a. Habeas Corpus (produce the body): Provides that you must
bring the prisoner before the court and justify, under the
Constitution & the laws, that he has violated them. You must
show: 1) Source of law, 2) Evidence justifying holding.
i. H.C. is the core of due process and is the remedy when the
state holds without justification.
b. ”Shall not be suspended.” implies a constitutional
right.
c. “Unless when in cases of rebellion.” ? Clarity on
what this means.
d. Who suspends?  the Const. doesn’t say.
i. Not within the enumerated powers of Article I, Section 8.
ii. Since the limitation is in Article I, Section 9, it follows
that it limits a power belonging to Congress.
1. Note: Lincoln suspended, but most say unconstitutional.
3. Note others: Article I, Section 8, [15], Article II, Section
2, [1], Article I, Section 10 [3].
iii. Executive Detention of Enemy Combatants.
1. Sources of Authority
a. Articles of War: Grant by C giving president the authority
to establish 3bunals.
b. Authorization for the Use of Military Force (AUMF): J.R.
giving P the authority to “use all necessary and appropriate
force against” those nations, organizations, or persons he
determines planned, authorized, committed, or aided the
terrorist attacks that occurred on 9/11 or harbored such
organizations or persons, in order to prevent any future acts of
international terrorism against the US.”
i. Note: Does not identify an enemy like most prior. Said to
satisfy WPR.
ii. Note: Doesn’t say anything about detention.
2. Trial by military commission/tribunal.
a. American citizens cannot be tried any other way than by a
civilian court.
1. e.g. Ex Parte Milligan (IN resident raiding weapons factory.
Tried by 3bunal.)
ii. Exceptions:
1. Members of the military/enemy belligerents (Quirin)
a. Belligerent: Part of war.
i. ExamTip! Does enemy belligerent require that there be a host
country for there to be a warAl Qaeda?
b. Note: Focus on status of the individual.
2. If courts are closed (e.g. invasion/insurrection, civilian
unav.)
iii. Rdeprivation of right to trial by jury [criminal
cases] (6th Amendment)
1. Note also: “dual state” concept characteristic of
totalitarian.
3. Detention of US Citizens on US Soil accused of being an Enemy
Combatant.
a. Arguments against:
i. President doesn’t have the authority under Youngstown.
ii. Detainee has a constitutional right as a US citizen not to
be held this way, when DPC viewed in conjunction with Article I,
Section 9, [2] (“Habeas Clause”)
b. Presidential Authority
i. President is authorized under AUMFYoungstown Cat 1.
(Hamdi)
1. Rthough no mention of detention mentioned in AUMF,
this practice is a fundamental incident of waryou can
detain certain enemy combatants for duration of war (even if US
citizens) to prevent from returning to fight.
a. Problem: What about indefinite war?
b. Note: No holding on direct presidential power, except Thomas
(5th vote).
2. Counter arguments (Sout, Gins, Hamdi ): (Scalia)
a. P is not authorized under force resolution, which requires a
clear enactment authorizing detentionGiving P authority
to decide under vague statute gives him the authority to
authorize & decideP can’t fairly weigh security against
liberty
b. This is in third category because of Non-Detention Act).
c. A US citizen held as an enemy combatant cannot be held
without a Congressional suspension of the write of Habeas Corpus
under Article I, Section 9, [2].
i. This may be practically impossible in war on terror since
9/11 does not qualify as a rebellion or an
invasionviolates due process.
3. Note: Possible distinction whether detainee must be captured
on battlefield as opposed to US soil. Stevens, Padilla.
4. Note: Suspension clause subject to Constitution. Can’t
suspend on basis of race.
c. Due process owed to citizens disputing enemy-combatant status
i. Plurality view (Hamdi )
1. A detainee is entitled to a hearing providing notice of the
factual basis for his classification, and a fair opportunity to
rebut the Government’s factual assertions before a neutral
decision maker
a. Can be a tribunal.
b. Can use hearsay.
c. Can be a presumption in favor of government.
2. After hearing, in review of habeas, the liberty interests are
balanced against the government interest that they not return to
the battlefield (citing Mathews)
d. Separation of Powers: Should courts be involved? Political
question?
i. To defer would to concentrate power in the executive. As in
Marbury, at the core of this issue is a law or statute giving
rights (DPC). In these areas, executive discretion removed.
O’Connor (Hamdi)
1. ExamTip! Quint- “Think about this.”
e. Other rulings:
i. Aliens detained in US territory who deny hostile acts and
don’t have access to any tribunal may file for habeas. Rasul.
1. ExamTip! Quint – “Bear in mind that C has purported to
withdrawal jurisdiction of habeas petitions of prisoners being
held in Guantanamo.
f. Graham Levin Amendment (left)
i. Pursuant to McCardle, it appears that court would follow
(note: may be subject to Kline and you can’t restrict J to
force a result)
1. Questions of constitutionality:
a. Does this qualify as a suspension of the Habeas?
i. Are the conditions met? Was 9/11 an invasion, was it just an
attack, does an attack require a large military force, attack
occurred 4 ½ years ago, can you still suspend?
b. There is no other way of getting habeas (but its
possible—how?)
c. Does it apply to present or just future detainees?
iv. Treason
1. Article 3, Section 3 [1] “Treason”: Treason against the US,
shall consist only in levying war against them, or in adhering
to their enemies, giving them aid and comfort. No person shall
be convicted of treason unless on the testimony of two witnesses
to the same overt act, or on confession in open court.
a. Purpose: To limit the law of treason, substantively and
procedurally, to very clear acts against ones country.
b. Enemies: You most likely need an enemy of a declared war to
trigger the provision.
c. Aid & Comfort: You must literally switch your loyalties.
d. Overt act: speech is not enough.
c. Congressional Encroachment on the Executive Power
i. Bicameralism & Presentment: Article I, 7 [2]: Every bill
which shall have passed through the House of Representatives and
the Senate shall, before it becomes a law, be presented to the
president of the US. If he approves it he shall sign it, but if
not he shall return it….”
1. Delegation, generally
a. Basis found in leanings of Youngstown: Congress can’t make
statutes specifically nuanced for everything they seek to
accomplish.
b. Argument against: by delegation, especially to agencies,
they perform a leg function.
c. Modern view: delegation proper where there is an
intelligible standard.
i. Note: In 60’s, Congress tired to pull back on this power
with veto.
2. Legislative veto provisions (one house, concurrent
resolutions)
a. Rule: Congress may delegate, but it may not reserve a one
house veto when doing so amounts to a lawmaking function.
i. Rlawmaking must meet requirements of the "presentment
clause" and the bicameral requirement of Article I, 7, [2]. INS
v. Chadha
ii. Note: This case probably makes the War Powers Res.
Unconstitutional. Rconcurrent resolution appears to be
a legislative veto.
iii. e.g. (C grants AG authority to permit citizenship to
deportees) Chadha.
1. Note: Narrower view says this amounts to leg. adjudication.
Powell, Id.
b. Theoretical Debate:
i. Formalist: Congress cannot act in ways not in Article I, 7.
ii. Functionalist Counter-arg: Workable government, sep of
powers flexible.
c. Severability: Invalid veto provisions may be severable from
otherwise valid delegations where court feels that C would have
enacted even if they knew veto not valid (Chadha)
3. Presidential Line Item Veto
a. The presentment clause uses the article “it”, implying that P
may either accept or reject a bill in its entirety – he can’t
pick and choose.
i. Note: Seen as a check on P power.
ii. Problem: Pork barrel spending + C’s inability to self
check.
b. Line Item Veto Act of 1996: P may within 5 days “cancel in
whole” 3 types of provisions (discretionary, new direct, limited
tax benefit) taking into consideration the deficit, essential
functions, and national interest. C may pass a disapproval bill
by both houses, which P could veto and C could override 2/3.
i. Return v. cancellation: Cancellation takes place after bill
becomes law.
ii. Majority Rule (formalist) Line item veto act
unconstitutional because it “authorizes P to create a different
law – one whose text was not voted on by either house or
presented to the P for signature” in violation of Article I,
Section 7. Clinton v. New York
1. Must view as two statutes: LVAct + statue being considered
a. e.g. balanced budget act, Clinton v. New York [note: standing
because NY getting benefit from vetoed statute]
iii. Counter arg (functionalist): this is nothing more than C
delegation of authority to decline to spend – the second statute
cannot be considered apart from the first, this is unjustified
formalism. (Scalia)
1. Limits to P’s authority are not in presentment, but the
doctrine of unconstitutional delegation
a. Note: If balanced budget act itself had granted P authority
to decline to spend, this would be ok.
iv. Counter-counter (Quint - hybrid): the statutes must be
considered apart, because maybe C hasn’t considered with respect
to any decision in particularthe problem is that the
delegation is too broad and lasting (note: not fully addressed
by Stevens, writing for majority in Clinton).
4. Bush’s proposed veto: Responds to earmarks & allows congress
to put them back by concurrent resolution.
a. Most likely to be successful if proposal provides that all of
a certain type of spending are discretionary, and the second
statute (budget act) makes clear what falls into these
categories.
b. Concurrent resolution provision likely unconstitutional under
Chadha as a legislative veto outside Article I, 7.
ii. Congressional Control Over Executive Officers
1. General Proposition (Morrison): The E branch is not
completely unlimited within its sphere of operations. There can
be limits with respect to appointment and removal of officers.
a. No insulation, but a sharing of functions.
2. Appointments
a. ExamTip! Analysis: 1) inferior officer? 2) congruency of
appointment
b. Article II §2, 2: “Appointments Clause”: “…and he shall
nominate, and by and with the advice and consent of the Senate
(typical method), shall appoint ambassadors, other public
ministers and consuls, judges of the SC, and all other Officers
of the US….but the Congress may by law vest the appointment of
such inferior officers (exceptions clause), as they think
proper, in the P alone, the courts of law, or in the heads of
departments.
i. “Exceptions” Rule: pursuant to explicit C authorization, C
may vest appointments in P alone, the courts, or heads of
dept’s.
1. C authority not carte blanche limited when appointing
incongruent appointments.
a. e.g (courts to appoint under secretary of state. Compare to
Morrison where courts appointed prosecutor)
ii. Ethics in Government Act of 1978: provided that upon
receipt of certain information, AG must, if there are reasonable
grounds, report to the DC COA Special Division (3 judges
appointed by CJ for this purpose), who appoints an independent
counsel and defines prosecutorial jurisdiction.
1. Note: Must be considered in wake of Watergate / Nixon’s
firing of special prosecutors. R point of statute to
try high officers through prosecutors insulated from political
pressures.
2. Held: Congress’s grant of power to DC COA pursuant to the
appointments clause does not violate separation of powers.
Morrison v. Olsen (Rehnquist)
a. Rationale:
i. Independent counsel congruent with courts.
ii. Independent counsel is an “inferior officer” pursuant to
Article 2 §2. R1) AG still has removal power, 2)
Authority limited to a particular task.
b. Arguments against:
i. Separation of Powers: Special prosecutors are Executive
Officers of the United States, and must be appointed by P or AG,
not the courts (formalistic)
Note: “Executive Officers” must be appointed by the executive
pursuant to Article 2 §2 (Buckley v. Valeo [statute providing
that C shall appoint FEC commissioners struck down])
ii. Not inferioronce appointed, he is insulated.
2. Removal
a. Problem: Constitution silent with respect to removal. The
only language in the constitution is the impeachment clauses
i. Article I, §2, 5 (HOR…shall have sole power of impeachment),
ii. Article 3 §3, 6-7 (Senate shall try…)
b. Alternative Possibilities.
i. One cannot be removed without conviction.
1. Counter - Congress cannot be expected to spend so much time
removing, especially if for policy reasons (e.g. WH employee
takes inconsistent opinion w/ Pnot treason, high crimes,
bribery, misdemeanor)
ii. Article II, § 3 “Take Care” Clause: It is inferred that if
P shall take care that the laws be faithfully executed that he
may, to this end, remove Executive Officers – if even for policy
reasons.
iii. Article II, §1, 1 “Vesting of Executive Powers” Clause:
“The executive power shall be vested in a P of the US…” It is
inferred that if all the executive powers are vested in P, so is
removal.
b. At-will removal and “good faith” requirements by Congress
1. RCertain regulatory matters require expertise and
should have independence from the political system
ii. Rule: In placing restrictions on P’s removal power, C
cannot interfere with P’s exercise of the “executive power” and
his constitutional duty to “take care” that the laws be
faithfully executed. Morrison.
1. ExamTip! Note link to idea that certain functions are core
functions – e.g. you can make exceptions to appellate J under
exceptions clause but can’t impair the core judicial function.
a. C exclusion of removal on basis of policy may not impede a
core executive function, depending on the nature of the
position.
i. (e.g. special prosecutors are inherently non-political, so
removal standards more app.)
b. Counter-Art (Scalia, Morrison)
i. All E power vested in president.
ii. Limiting E power unacceptable since we wouldn’t allow
leg/judiciary to give away (q-not true)
iii. Limiting impedes on constitutional duty to “take care”
iv. Individual Rights: By placing independent counsel outside
chain of command of P, he could make oppressive decisions and
there’d be no remedy. e.g. Kenneth Star, possibly.
2. Other factors not alone determinative:
a. Whether the position in question is “purely executive”
(Meyers, Morrison) or “quasi legislative/judicial” (Humphrey’s
Exec.)
b. Congressional intervention (e.g. does C insert themselves
into process by requiring later C approval?)
d. Executive Privilege & Immunities
i. Presidential Immunity
1. Criminal Trial Under the Impeachment Clause
a. Article I, §3, 7: Judgment in cases of impeachment shall not
extend further than to removal from office, and disqualification
to hold and enjoy any office…under the United States; but the
party convicted shall nevertheless be liable and subject to
indictment, trial, judgment, and punishment, according to law.
i. Perhaps this implied that before he is impeached he cannot be
tried for a criminal offense (note: this is why Nixon an
un-indicted co-conspirator)
1. Note: Unanswered
2. Civil Liability for Presidential Acts
a. The president is absolutely immune from tort liability for
actions taken in the “outer perimeters” of his office (e.g.
personnel). (Fitzgerald)
i. RCan’t have P worried about suit. It will distort
decision making.
3. Temporary Immunity from Civil Liability for Act Prior to
Taking Office (Clinton v. Jones)
a. Reasoning of Fitzgerald inapplicable”immunities are
grounded in the nature of the function performed, not the
identity of the actor who performed it.”
b. “The fact that a courts exercise of jurisdiction may
significantly burden the time and attention of P is not
sufficient to establish a violation of the Constitution.”
c. “If Congress deems it appropriate to afford the P stronger
protection, it may respond with appropriate legislation.”
i. This would be done under the N & P clause of Article I, §8,
18 in order to protect the president in the execution of his
office.
4. Presidential immunity from judicial process (P’s first
argument in Nixon)
a. Argument: Judicial process opens possibility of interrupting
executive workings.
b. Response: P not above the law (note: no holding, issue not
ripe in Nixon)
c. Can P just pardon himself?
ii. Executive Privilege
1. Privileged conversations between P and his advisors (P’s
second argumentcertain things not subject to FRCP
17(c)Subpoena)
a. Note: Courts often balance social values protected by
privileges (dr., atty.) against importance of thing divulged.
b. Argument: P must be able to get good advice. If
conversations not privileged, advisors will to be frank
c. Judicial review of Executive Privilege
i. Argument (Nixon): This is a political question not in J of
courts.
ii. Response (Burger): In this respect, “it is emphatically the
province and they duty of the court to say what the law is.”
Marbury the court has always reviewed exercises of
executive authority. Yongstown.
iii. Courts may review the implied P privilege, since it can
review the explicitly privilege granted to members of Congress
under:
1. Article I, §6, 1 “Speech & Debate Clause”: “The Senators
and Representatives shall…in all cases except treason, felony,
and breach of the peace, be privileged from…and for any speech
or debate in either house, they shall not be questioned in any
other place.”
a. Problem: Does it extend to press conferences, staff? The
court decides the scope, not C.
d. Determining the extent of Executive Privilege
i. Argument: When there is a recognized privilege, it should
always prevail.
ii. Response (Burger): P has a presumptive privilege, but with
the exception of military, diplomatic, or national security
secrets, broad claims of “public interest” must be balanced
against competing interests.
1. Since executive privilege is implied from Article II, not
explicit like the speech & debate clause, there may be
implications going the other way such as the court’s duty to
carry out, imply, and interpret criminal law under Article III.
a. No implication will automatically prevail, but courts must
“weigh the importance of the general privilege of
confidentiality of Presidential communications in performance of
his responsibilities against the inroads of such a privilege on
the fair administration of criminal justice.”
2. Note: Today, P’s go into office assuming everything will
become property of the gov’t.
3. Note: One could say the presumptive privilege is
unconstitutional, since others are express, C must decide,
otherwise it doesn’t exist (note: ct. seems to reject in
Clinton)
Executive Interest
0
Security, military, diplomatic
gopher.createaforum.com:70 /forums/kangarookort/p/65:936: port field too long