con law outline iii

7/28/2019 Con Law Outline III

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Contents

CHAPTER 3THE SCOPE OF CONGRESS POWERS: TAXING AND SPENDING, WAR POWERS,

INDIVIDUAL RIGHTS, AND STATE AUTONOMY ......................................................................................................... 1

A. Regulation Through Taxing, Spending, And The War Power....................................................................................... 11. The Taxing Powerp. 282-85.................................................................................................................................... 1

2. The Spending Power................................................................................................................................................... 2

B. Congresss Enforcement Power Under The Reconstruction Amendments - p. 300-12 ................................................. 2

Congressional Power to Regulate Private Action for Civil Rights Purposes .............................................................. 5

C. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power................................................. 5

CHAPTER 4 THE DISTRIBUTION OF NATIONAL POWERS.................................................................................. 10

A. Introduction p. 355-358Federalist Papers ................................................................................................................ 10

B. A Case Study: Presidential Seizure p. 359-371 YOUNGSTOWN, ............................................................................ 10

C. Foreign Affairs ............................................................................................................................................................. 12

1. Executive Authority .................................................................................................................................................. 12

2. Legislative Authority ................................................................................................................................................ 16

D. Domestic Affairs .......................................................................................................................................................... 18

1. Executive Authority p. 400-12 NIXON ................................................................................................................... 18

2. Legislative Authority p. 412-439 CHADHA, ........................................................................................................... 19

3. The Legislative Veto BOWSHER, MORRISON ..................................................................................................... 21

CHAPTER 3THE SCOPE OF CONGRESS POWERS: TAXING AND SPENDING, WARPOWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY

A. Regulation Through Taxing, Spending, And The War Power

1. The Taxing Powerp. 282-85

FRAMING THE ISSUE

Can Congress use its taxation power for non-revenue raising ends?o Can Congress purchase what it may or may not be able to do by way of direct regulationo What if the taxation is designed to affect conduct in a non-revenue capacity what if youre

trying to regulate conduct through taxation?

In theory, you could regulate conduct by taxing their conducto Case law vacillates on thisCongress can v. Congress cannot

Supplement Notehealth care statute (PPACA) includes individual mandate provision which says thatwith very narrow exceptions, unless a person is medically insured, he will have to pay a penalty

o Can you basically coerce people to buy insure on penalty of a tax consequence when the purposeof the tax consequence is NOT primarily revenue raising but instead seems that primary motiveis to affect conduct


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2. The Spending Power

WAS NOT ASSIGNED READING

B. Congresss Enforcement Power Under The Reconstruction Amendments - p. 300-12

Notedid not read p. 310-312 What is meant when 13th15th Amends authorize Congress to enforce by appropriate legislation?

o 13th Amend ends slaveryprohibits involuntary servitude / private property relationship involvinghumans

o 14th Amend overturnsDred Scott(which had ruled Afr-Amer is not citizen for purposes of diversityJx)

prohibit various forms of state actioncannot limit privilege and immunitieso 15th Amend Afr-Amer right to vote

prohibit various forms of state actioncannot prohibit voting based on race 13th Amendment is different than 14th and 15th Amends in critical respect

o 14th and 15th involve Congress regulating state actiono BUT 13thAmend enforcement authority deals with Congress ability to regulate conduct of private

individuals Why is there pressure on the 13th Amendment?

If you can squeeze something into involuntary servitude, Congress need not worryabout whether what is being proscribed is State conduct

514th Amendmentwhat does it mean to give Congress enforcement authority?o (1) Maybe Congress can expand who it gets to sue in order to find a violation under these provisionso (2) Maybe Congress has more subtle tools at its disposal to develop / provide remedies in doing so,

Congress is not limited to case-by-case adjudication Can decide if individuals are entitled to bring a lawsuit before waiting for the individuals to bring

a 14th Amend claim Maybe Congress can develop remedies that the courts would have difficulty developing on their

own

Complex remedies from Congresso Voting Rights Act 1965 (p. 301)Atty Gen can make factual determinations of whether literacy tests

decrease voter turnout in a particular Jx Preclearance processState cannot make changes to voting w/p prior approval from fed

authorities if prior tests were found discrim

Remedy precedes the violationoccurs before the violation occurso 1980City of Rome v. United States (Marshall) (p. 302)Congress act YES constl

Upheld preclearance provisions of VRA Romes proposed changes had discrim effect but not necessarily discrim purpose

15thAmend doesnt necessarily only prohibit intentional discrim There is a risk that in Jxs with long-standing history of discrim, these kinds of state

practice will be founded on past discrim purposes and should be struck down

o Issuewill USSC allow the regulation by Congress in advance advance even though no discriminatorypurpose? Will the USSC say there is a 15th Amend violation? YES

Rehnquist (dissent)Rehnquists problem with it is that Congress is able to give a remedyabsent any discrim purpose or intent

absent purpose, cannot provide remedy Preventative remedy is constl only if USSC agreed that risk of substantive violation was

substantial


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1966Katzenbach v. Morgan (Brennan) (p. 302)Congress act YES constl regarding the power of Congress, pursuant to 5 of the 14th Amend to enact laws which enforce and interpret

provisions of Const

o Congress may enact laws stemming from its 14th Amend enforcement power that increase the rights ofcitizens beyond what the judiciary has recognized.

Begins with 1959Lassiter v. Northampton Election Board (p. 302)held that fairly administered Eng langliteracy reqmt for prospective voters violate 14

th and 15th Amends

In responseCongress passed 1965 Voting Rights Act (inc. 4(e)was meant to enfranchise those whomigrated from Puerto Rico to NY b/c they completed 6th grade education but it was in Puerto Rico and thereforein SpanishNOT allowed to have literacy test

o Registered voters in NY brought suit challenging constlty under 10th Amend OutcomeUSSC upholds 4(e)Congress is permitted to ban the literacy test Problem is that 4(e) seems to cure a non-existent constl violation

o USSC inLassiterliteracy tests dont violate Const YET THEN Congress passes a statute banning thetests pursuant to its 4 and 5 powers under 14 th and 15th Amendswhere was the violation ifadministered constly?

Is Congress enforcing the Reconstruction amendments or is it defining the meaning of theamendments in a way that differs from what the USSC decided to be the interpretation?

USSC analysisCongress is viewed on rational basis testo we perceive a basis upon which Congress might predicate a judgmento NOTEUSSC doesnt generally defer to other institutions based on reasonable readings

NOTE: Chevron doctrine (1984Chevron U.S.A., Inc. v. Natural Resources Defense Council,Inc.)

in context of agency interpretation of statutes, USSC will permit / defer / follow contraryagency interpretation if there is a reasonable basis for it and it falls within a permissibleinterpretation

o 1. Has Congress clearly spoken?if so, defer to Congresso 2. If not, is agencys construction based on permissible interpretation?

Chevron is the USSC clearest articulation of the doctrine of "admin deference," to the point thatthe USSC itself has used the phrase "Chevron deference" in more recent cases

Why did USSC give deferential treatment to Congress interpretation?o b/c otherwise, Congress enforcement authority would not be meaningfulo construction of 5 that would require a jud determination that the enforcement of the state law

precluded by Congress violated the Amend, as a condition of sustaining the congress enactment, woulddepreciate both congress resourcefulness and congress responsibility for implementing the Amend...

would confine the leg power...to the insignificant role of abrogating only those state laws that the judbranch was prepared to adjudge unconstl (p. 303)

Brennan has often been credited with introducing the "ratchet theory" for congressional legislation enacted underSection 5. The "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court hadrecognized, but that Congress could not ratchet down judicially recognized rights.

BUTis there really no meaningful role for Congress if the case come out differently?o Congress can give prospective rules unless and until USSC overturns those rulesis not subject to the

timing limitations to which the USSC is subjected

o NOT the case that Congress wouldnt have a rule but it is the case that the role would be limited1997City of Boerne v. Flores(Kennedy) (p. 307)Congress act NOT constl

Case #1 What was Case #1proposition

New LawWhat did Congressdo?

Case #2How does USSCrespond to congressional action?

LassiterRuleliteracy tests dontviolate the 15th Amendment

Congress passes Voting RightsAct 4(e)bans literacy tests

Katzenbach4(e) upheldCongress can ban literacy test

Smithpeyote case Congress passes RFRA FloresRFRA struck down

Mirandaright to remain silent Congress passed 18 USC 3501 Dickerson3501 struck down


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Begins with 1990Employment Div. Dept. of Human Resources of Ore. v. Smith (Scalia) (p. 307) -NativeAmericans denied unemployment benefits b/c of basis for their unemployment (used peyote for religiouspurposes) by state statute

o USSC said it was oknon-discrim laws of general applicabilityo Free exercise challengeNative Amer population was involved in use of banned substance but did so for

relig. purposes claim: ban interferes w/ religion

o USSCRULElaw is constl if it is a generally applicable law that has an incidental effect on religiouspractice but that doesnt target religious practice, that is a presumptively okay law

deferential standard of scrutiny, not strict if we say that any generally applicable law that has an incidental effect on practice of

religion is subject to strict scrutiny, it would have a very negative effect on theadministrability power of States

o ResponseCongress passed RFRA took what was rational basis and turned it into strict scrutiny RFRA was intended to protect the right of citizens to the free exercise of their religion above and

beyond the degree to which the Court recognized it statutes "substantially burdening" a person's exercise of religion must further a compelling

governmental interest, and use the least restrictive means of furthering that compellinggovernmental interest

Boernelocal authorities in TX denied building permit to church, church challenged denial under RFRA OutcomeRFRA is struck down

o Congress claimed to be giving more protection than the USSC had given (more protection for votingrights before and more protection for religious exercise now)

o was ok for voting rights but NOT okay for religious exercise Not so much that RFRA violates the 14thAmend as it exceeds Congress enforcement power

o b/c there are MANY examples of neutral laws that could run up against some fairly uncommonreligious practice

Issuedoes RFRA exceed Congress authority to enforce 14th Amend, when USSC indicated in Smiththat the standard for judging state action is a fairly deferential standard and Congress sought to exceedthe rule with a less deferential standard

o USSCwe have already determined that when we have a law of neutral application that has anincidental effect on practice of religion and is called into question by 1st and 14th Amend wewill not allow Congress to interpret the 14th Amend in a way that has a restrictive effect on Statepolice powers

Gray areab/w congress acts that remedy / prevent unconstl actions and congress acts that make substantivechange in lawCongress should be given wide latitude BUT there is a distinction to be observed

TESTcongruence and proportionalitymust be congruence and proportionality b/w injury to be prevented orremedied and means adopted to that end

o ANDCongress does not have a substantive, non-remedial power under the 14th Amend RFRA is overkill Congress used a hammer when maybe a mallet would do

2000Dickerson v. United States (Rehnquist) (not in casebook)Congress act NOT constl Begins with 1966Miranda v. Arizona(Warren)USSC held that certain warnings must be given before a

suspects statement made during custodial interrogation could be admitted in evidence.

o ResponseCongress enacted 18 U.S.C. 3501 which laid down a rule that admissibility of suchstatements should turn only on voluntariness

o 3501 replacedMiranda with totality-of-the-circumstances test OutcomeUSSC said 3501 was struck down Distinguish Dickerson from Katzenbach and/or Flores

o Katezenbach ANDFlores Congress tried to increase constl protection relative to what USSC had done gave more

protection to what states could regulate wrt interference with religious practiceso DickersonCongress tried to revert back to narrower test


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REVIEW

emphatically province of the USSC to say what the law is, USSC will let Congress deal with issues of legislationBUT the exception is when the issue relates to criminal activity

When the USSC announces criminal procedure rules, those rules are subject to being supplanted by alternativerules that Congress may produce

o Up until Dickerson, people thought ofMiranda as constl C/L that Congress could supplanto Mirandamay not be a constl rule and Congress could supplant BUT there must be something that is

better than what the USSC has done (although maybe not to the extent that RFRA did b/c that wasarguably too much)

Congressional Power to Regulate Private Action for Civil Rights Purposes

p. 326-29

Differential application of 13th and 14th Amendmentas applied to private actionC. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power

p. 329-54, Missouri v. Holland, NY v. US, Printz v. US

Begins with the issue of treaty authority and 10th Amend as potential limit on authorization to entertreaties

10th Amend implicates other areas of the law other than commerce clause issues1920Missouri v. Holland(Holmes) (p. 329)Congress act YES constl

FACTSTreaty b/w U.S. and Great Britain designed to protect species of birds, Congress passedstatute that seeks to enact treaty

o USSCstatute does not exceed regulatory authority Issuedoes that statute unconstly interfere w/ rights reserved to States by 10th Amend and thus exceed

congress regulatory power?

Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treatiesare declared to be so when made under the authority of the US

o Treaties under Articles of Confederation are still valid b/c all treaties enacted under theauthority of the United States

We do not mean to imply that there are no qualifications to the treaty- making power; but they must beascertained in a different way

o There may be actions of sharpest exigency for national wellbeing that act of Congress could notdeal with but that treaty followed by such an act would

One way to read the casetreaties expand scope of delegated powerso Holmess formulation appears to imply that treaty power authorizes natlgovt to bind nations to

actions that it otherwise cant constlly takeo If something that Congress enacts pursuant to a treaty would not have been constl in the absence

of a treaty, does that mean that the treaty is therefore enhancing the constl regula tory powers?probably not

Doesnt seem that the intent of treaty clause is to enhance the scope of Congressregulatory authority

Another way to readtreaties inform the court in a way that the absence of treaties doesnto Treaties inform the court / provide information that may actually inform the intended scope of

regulatory powers

NOTE: compare toDames & Moore v. Reagan may be the case that observed long-termrelationships / longstanding practice provide some insight into the meaning of separation of powers

o There is an analytical parallel betweenDames & Moore andMissouri v. Holland2008Medellin v. Texas(Roberts) (p. 331)


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FACTSConsular notification treaty, Medellin (Mex. natl) convicted of murder and sentenced to death USSCconsular notification treaty is NOT a right created under Constitution

o Treaty is not self-enforcing 1829Foster v. Nelson (Marshall) (p. 331)treaty is S-E and thus equivalent to an act of the

legislature when it operates of itself w/o the aid of any legislative provision

o There are treaties that U.S. can enter into that are S-E in the sense that the treaty alone createsrights and responsibilities as if it is governing law

o BUTthere are also treaties that are structured to set up future action by pol branches of govtthat do not of themselves create an individually enforceable right

Stevens (concurring in judgment)admonish TX, TX has responsibility to comply with U.S. intlobligations created through treaties

Breyer, Souter, Ginsburg (Dissent)rejects notion of self-enforcing treaty MAIN POINT HERE10th Amend in a certain sense is NOW read IN as a source of limitation on

the implementation of the treaty in self-executing form

o Treaty is NOT a source of limitation on the internal procedural rules of states NOTE: Invisible radiations of 10th Amend will affect whether we look at this treaty as S-E whereas as in

Missouri v. Holland, the radiations did not affect the S-E issue

1957Reid v. Covert (Black) (p. 333) Missouri v. Hollandas applied to individual rights USSCwife has constl right to have protections in the course of her conviction that a military tribunal

would not have afforded her

Const supersedes intl treaties ratified by the SenateModern Revival of 10

thAmend Based Restraints on Fed Regulation of State and Local Govts

1976National League of Cities v. Usery (Rehnquist) (p. 334)Congress act NOT constl wrt state action

10

th

Amend, coupled with limits on CC limits scope of congress authority to regulate implementation ofFair Labor Standards Act to state govts IN AREAS OF TRADITIONAL GOVTL FUNCTIONS

In areas of tradit gov functions, which include structuring labor relations, Cong is limited in CC Authand 10th amend auth to impose generally applicable limitations/regulations on states in theserelationships (govt functs)

Congress is limited in its CC authority to impose generally-applicable regulations on states wrt these govtfunctions

1985Garcia v. San Antonio Metropolitan Transit Authority (Blackmun) (p. 334)

Landmark case overrulesNatl League v. Useryo The case probably warrants more attention than it actually received

any rule that is bound in the notion of tradl state functions would dishonor the meaning or value of federalismo by focusing on tradtl areas of state governance as the limiting principle, you impose a realm into which

Congress cant regulateo you are tying the States into something that they can and cannot doStates must be equally free to

engage in any activity that their citizens choose for the common weal

Applying federal labor standards to San Antonio Metro. Authority, would conflict with what San Antonio wouldhave implemented

o You get to experiment by being entirely compliant with federal law this is the ironyo we dont want to encourage the states to come up with new ideas / experiment, well let Congress do that

and then Congress is going to prevent experimentation

Justification


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o There are already safeguards in the procedural systemsafeguards through which states can protect theinterest of their sovereignty within the federal congressional lawmaking system as opposed to judiciallycreated limits on state power

Constl grant of authority to Congress to regulate IC was not qualified by any implied limitation on the right toregulate the activities of the states when they engaged in IC; on the contrary, the CC invalidates state regulationsthat interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflictwith federal law in this area.

OConnor (Dissent)does federalism have any content independent of law-making process?are theresubstantive provisions that limit what Congress can do wrt States?

o Natl League v. Userytradtlgovt functions test tried to get at the substantive provisions o OVERTURNINGNATLLEAGUEONLY LEAVES THE POL PROCESS WITH CONGRESS AT THE

HELMand Congress isnt great at slef-restraint

COMMENTSo Is the original Constitution the same as todays wrt the structural devices that might help States protect

their sovereign interests? 17th Amendment and direct election of senators

If you believe the authority of State legislatures to decide who gets into Congress protects theStates, then you might believe that taking that away might also take away the sovereign stateinterests

Blackmundont worry, States are good at protecting their interest in Congresso The fact that the Constitution has been amended to include direct election of senatorsseems to indicate

that new Framers of the Constitution though State election of senators wasnt as important as Framersthought

1992New York v. United States (OConnor) (p. 336) Congress act NOT constl

Disposal of low level radioactive waste Congress passed Low-Level Radioactive Waste Policy Act of 1985

o Designed amendments to make states become self sufficient, so that there would no longer be wastedisposal crisis

o ONLY NY did not comply, instead it sued Issueconstitutionality of amendments to congressional act that were designed to make states self-sufficient Congress created incentives for states to dispose of waste generated w/in their own borders

o1. Monetarystates with disposal states can impose surcharge on states who bring radioactive waste intotheir borders, surcharge is collected by Sec. of Energy, states that meet deadlines get surcharge moneyback

Not constly problematic Conditional exercise of Congress authority under the Spending Clause

o 2. Accessstates w/ disposal sites can limit access by producers of waste in other states who do not meetthe various compliance reqmts

Not constly problematic ok exercise of Congress' power to authorize the States to burden IC - CC has long been

understood to limit the States' ability to discriminate against IC but that limit may be lifted, as ithas been here, by an expression of the "unambiguous intent" of Congress

Whether or not the States would be permitted to burden the interstate transport of lowlevel radioactive waste in the absence of Congress' approval, the States can clearly do sowith Congress' approval, which is what the Act gives them.

Absent statute, states could not say we dont want your waste violation of DCC YET Congress says we are allowing states to limit access why is that ok?DCC is default

rule and Congress can change the ruleso 3. Take title provisionrequiring states to "take title" and assume liability for waste generated within

their borders if they failed to comply / be self sufficient

This is constly problematic provision Congressional conditions on the receipt of federal funds will be constl under Spending Clause if:

1. expenditure must be for the general welfare2. conditions imposed must be unambiguous (say what can and cannot be done)3. conditions must be reasonably related to the purpose of the expenditure


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4. conditions imposed by the Act must not violate any independent constl prohibition Take Title Provision is problematic b/c:

o Anti-commandeering Anti-commandeering

o What does commandeering have to do with any of this? Congress is telling the states that they HAVEto do something

critical option missing is the option to do nothing legislatures ought to have the ability not to act, is somewhat fundamental to what

legislatures ought to be able to doo Congress cannot use states as implements for fed regulation Congress cannot commandeer state

legislatures to regulate

o State legislative authorities MUST have the option to do nothing instead, Congress has expanded thefederal regulatory regime by commandeering state legislatures

Is OConnor right when she says Framers intended Constitution to prevent Congress from regulating throughStates?

o Says Const was meant to regulate the peopleo look to Stevens dissent inPrintz(p. 348) under Articles, Congress only had power to regulate the states

and it wasnt a particularly effective structure

i.e. if Congress wanted to tax, had to ask states to give it $$$ and the states decline question in this casewhether Congress ONLY has the power to regulate states directly as opposed to indirectly

(regulating states by regulating how they regulate)

o CC lets Congress to regulate IC but does not authorize Congress to regulate state govts regulation of IC o none of OConnors quotes support argument that Constitution was intended to do anything other than

enhance Congress power BUT history doesnt necessarily support this doctrine

statute creates a lack of accountability that fails to appreciate what federalism is abouto p. 344fed official, in choosing b/w choosing location or forcing States to choose, would prefer States to

choose b/c can shift responsibility for decision and vice-versao federalism is about preserving the importance of accountability, both state and federal, for the benefit of

the individuals

o anti-commandeering scheme has the consequence of shifting responsibility and underminingaccountability something to commend this argument in terms of policy although not as much in terms of history

White (Dissenting on take title)o NY complied until the system went southNY is forcing its neighbors to take on this burdeno "ultimate irony of the decision today is that in its formalistically rigid obeisance to 'federalism,' the Court

gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions tolocal problems."

1997Printz v. United States (Scalia) (p. 347)Congress act NOT constl

obligations under fed handgun statute to state law enforcement officers are prohibited by application of anti-commandeering doctrine

o Congress is NOT allowed to enforce the statute that reqs state officials to perform background checksbefore individual citizens can purchase guns - should this be the case though?o History of Federalist Papers (Souter opinion about Fed 27)

References that are contained in the Fed 27 typically contain jud officers State courts are req to comply w/ fed law

o Are executive officers more like judicial officers or more like legislators? Statute is impermissible under anti-commandeering Framers designed the Constitution to allow Federal regulation of international and interstate matters, not

internal matters reserved to the State Legislatures. The majority arrives at the conclusion that allowingthe Federal government to draft the police officers of the 50 states into its service would increase itspowers far beyond what the Constitution intends


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Stevens (Dissent)opposite of OConnor inNew York, when Congress exercises delegated powers, it may do soto impose affirmative obligations on exec and jud officers of state and local govts as well as ordinary citizens

Souter (Dissent)state regulatory bureaucracies were extremely underdeveloped at the time of Framerso What regulatory bureaucracies do today is that which jud officers did theno BUT think of how underdeveloped the federal bureaucracies were back then

Debate between Majority in Printzand Souters dissento Souter responded to majoritys reading of Hamiltons analysis USSC reads Hamilton's description of state officers' role in carrying out fed law as

nothing more than a way of describing the duty of state officials "not to obstruct theoperation of fed law," with the consequence that any obstruction is invalid...But I doubtthat Hamilton's English was quite as bad as all that.

Souter is sayingin Federalist 27, Hamilton makes plain that the federal govt canemploy states in various capacities

Federal govt with a rudimentary bureaucracy will be able to employ thebureaucracies that exist in more complex ways at the state level

o Majority reads it to mean that states cannot obstruct federal law Souter askswhy would the Majority need to say that, its already been established

Hamilton was not such a bad writer to express in such a bizarre way that federallaw was supreme P. 353debate over comparative law analysis

o Breyer (Dissent)what is going on in other parts of the world can inform our understanding2000Reno v. Condon (Rehnquist) (p. 349)Congress act YES constl

Unanimous decision Fed Drivers Privacy Protection Act does not violate anti-commandeering principle

o Obligations act to control disclosure of information State argument againstcannot compel executive branch compartments to act (seePrintz) USSC program involves the States collecting and distributing information, not in a regulatory

capacity but in an entrepreneurial capacity

Did not regulate states exclusively Introduces something akin to market participant doctrine as a limitation on the application of the

anti-commandeering doctrineo BUT, does this make any sense?

2006Gonzales v. Oregon (Kennedy) (p. 351)Congress act NOT constl 10th Amend and statutory interpretation FACTSchallenge to Controlled Substances Act

o Atty Gen made Interpretive Rule of CSA wrt assisted suicide we would not expect Congress to make this radical move unless it was clearly expressed that Atty

General intended to give this power to Congress

Not a question of whether, if Congress did this, it would lack the ability to do so, BUT rather, this is anarea in which states presumptively have been engaging in regulation and will assume that Congress didnot intend to upend that regulatory division of power

o CSA not meant to displace state regulation of medicine Dissent (Roberts, Scalia, Thomas) as a matter of statutory interpretation, Atty Gen construction is

reasonable

1995U.S. Term Limits v. Thornton (Stevens) (p. 353) 10th Amend and state power states cannot impose limits on congressional terms


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State argumentb/c this is not taken away from the states, this is a power that the states continue toholdmodel of federal govt is Stricken and granted

o mistake that the states are making supposition that by looking at the Const, nothing expresslyforbids states from imposing those limits and there is nothing in the Const says that states cannotadd to the list of reqmts for serving in Congress

USSCthere are some powers that states never had to begin with and therefore cannot bestricken

o look at this in connection toMcCulloch v. Marylandcase is better placed there Thomas (Dissent)this dissent argument doesnt seem to appreciate that argument fromMcCullochs

second holdingo Gives the exact argument that theMcCulloch court rejects

CONCLUSIONSo (from online) - anti-commandeering doctrine, announcedNew York v. United States andPrintz v. United

States,prohibits the fed govt from commandeering state governments: more specifically, from imposingtargeted, affirmative, coercive duties upon state legislators or executive officials.

o If whats going on inPrintzandReno, doesnt seem to undermine accountability in the sameway as a situation in which there is an ability to run back and forth and not know who to blame

Policy result seems likeNew Yorkis better reasonedo DOMINANT BLOC ON THE USSC TODAY HAS MUCH SYMPATHY FORUSERY PROJECT AND LESS

SYMPATHY FOR THE GARCIA DECISION THERE IS A REAL TENSION IN THIS AREA OF THE LAW

CHAPTER 4 THE DISTRIBUTION OF NATIONAL POWERSA. Introduction p. 355-358Federalist Papers

Federalist 47Madisono critiques anti-federalists proposition that powers of respective branches of govt must be sealed

to adhere to notion of separation of powerso

responsevirtually all Consts admit to some sort of overlapping functions to have the Constsurviveo clearly we dont want essential leg functions to reside in the person who will execute those laws

BUT that doesnt mean that there cant be some overlapping functions to make the systemmeaningful or functional

Federalist 48Madisono Cant just demarcate boundaries between brancheso Must create a jealousy between the branches to preserve the separation when each branch tries to

reach too far

TODAYo modern history seems to suggest that Madisons concern might be overexpressed in the modern

context at least in terms of comparative power with exec brancho we have highly interactive functioning among the 3 branches of govto However, the Framers did not anticipate the rise of the party system (noted in Youngstown),

which has increased the profile of the president in the political realm, outside of pres powers also did not anticipate the growth and development of bureaucracies and the regulatory

state

o NOTEthis is entirely consistent with Souters observation in the PrintzdissentB. A Case Study: Presidential Seizure p. 359-371 YOUNGSTOWN,

1952Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) (Blackmun) (p. 358)


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FACTSconcern that a strike at steel mill would have a security effect on U.S. national interests wrtKorean War

o Multiple but failed efforts to resolve strikeo Pres. Truman authorizes seizure of mills gave notice to Congress through executive order that

Sec of Commerce could seize millso Congress did not act and companies obeyed Congress orders under protesto Steel companies brought suit

limited the power of the Pres to seize private property in the absence of either specifically enumeratedauthority underArtII of Const or statutory authority conferred byCongress.

Dissent (Vinson, Reed, Minton)o We cant call this an instance of the Pres seizing power, b/c the pres could not have made more

plain that Congress has the ultimate decision-making authority and would listen to whatCongress wanted him to do

BUT Congress did nothingo why does the Majority not join this decision?

Its NY v. United Statesas applied to Congress instead of as applied to States????? PRESUMPTION IS THAT UNLESS CONGRESS HAS CHANGED THE EXISTING STATUS QUO,

THEN IT STILL EXISTS BUT Truman seems to want to flip the status quo and say Were changing the

state of the law unless you say no

THIS CASE STANDS FORFIRSTANDFOREMOSTEVENTHEPRESDOESNTGETTOSHIFTTHEBURDENOFCONGRESSIONALINERTIA

o Rejection of that principle, which is why Vinson is in dissent Majority

o Two ways for President to have authority to act 1. Through ConstitutionArticle II 2. Through Statute enacted in pursuance of Const

o Apply the two ways to act to this case 1. Constitutional clauses dont go as far as to authorize the action as expressly conferred

powers or as an issue of implied powers 2. Congress was silent so therefore it didnt intend to approve the President

Frankfurter (concurring)o Much more deferential to the Presidento Focuses on how history matters

History is important in interpreting the constitutioncan give meaning to text or supplymeaning

o systematic, unbroken, executive practice, long pursued to the knowledge of the Congress andneverbefore questioned...may be treated as a gloss on Exec power

history doesnt allow basis for violating the constitution, but a history of long unbrokenpractice gives us a gloss on the constitution and allows us to see how this may bepermitted

Much more full analysis than a strict textualism rigid textualism that Black embraces fails to observe that the Constitution is a structural

document

ANYTHING NOT PERMITTED IS PROHIBITED ANALYSISBLACK AND TODAY,SCALIA Blackcame on the USSC with a liberal agenda to further New Deal policies, BUT upon the movement

from policy-driven to rights-driven era, minimalism becomes a conservative issueo absolutist view, holding that the President had no power to act except in those cases expressly or

implicitly authorized by the Constitution or an act of Congress.
http://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitutionhttp://en.wikipedia.org/wiki/Congress_of_the_United_Stateshttp://en.wikipedia.org/wiki/Congress_of_the_United_Stateshttp://en.wikipedia.org/wiki/Congress_of_the_United_Stateshttp://en.wikipedia.org/wiki/Congress_of_the_United_Stateshttp://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution


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o Minimalism is liberal if your intuition is leave Congress aloneo Minimalism is conservative if your intuition is let the USSC find rights?????

Jackson (concurring)o three-tier test for evaluating claims of presidential power vis--vis Congress

1. Pres acts pursuant to implied or express authorization of Congressa. Pres authority at maxb. Overwhelming presumption in favor of Pres power being permissible

2. Twilight zonea. Pres and Congress have concurrent authority, or the zone is not clearly definedb. No congressional denial or grant

3. Pres acts incompatible with express or implied will of Congresso Pres authority at lowest ebbo Pres can only act upon his const powers minus and const powers of Congress over

the mattero Silence is tantamount to NOwe are in the acting incompatible case / category #3 case

relates very much to Frankfurter analysis but creates a framework for applying the Frankfurteranalysis into a broader opinion

But is it exactly?????just in this case? Douglas (concurring)legislative branch has the power of just compensation when it exercises the

seizure powero The institution that has the power to seize should be the institution that has the power of

compensation

C. Foreign Affairs

1. Executive Authority

p. 371-395 US v Curtiss-wright, Dames & Moore, Hamdi,

1936United States v. Curtiss-Wright Corp. (Sutherland) (p. 371)

concluded not only that foreign affairs power was vested in the national government as a whole, but thatthe President ofthe United States had plenary powers in the foreign affairs field not dependent uponcongressional delegation.

KEY POINTthe intuition that states reserve powers that relate to intl relations misunderstands thenotion of natl sovereignty

o When the U.S. became the U.S. and splits from Britain, the notion of the U.S. as a natlsovereign means that it takes its sovereignty from Britain

subsidiary states NEVER had international sovereignty in that way As a result, there were no powers for the states to reserve to prohibit the executive

from acting in the realm of foreign affairs

The stricken and granted model doesnt apply here sweeping language of Curtiss-Wright is regularly cited to support executive branch claims of power to

act without congressional authorization in foreign affairs, especially when there is no judicialintervention to interpret the meaning of that text.

1981Dames & Moore v. Regan (Rehnquist) (p. 373) -DAMES & MOORE v. REGAN

FACTS - 1979 Carter, pursuant to Intl Emergency and Eco Powers Act (IEEPA)blocks removal andtransfer of all property of Iranian govt in U.S.,

o Jan. 1981U.S. and Iran submit disputes to binding arbitration Reaganissued Exec Ordernullify attachments against Iranian property entered by U.S.

courts to secure any judgments against Iran, and to transfer such claims to IUSCT


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If claims pending in U.S. are discharged and the IUSCT awards recovery, thatsfine

Reagan does more than Carter tried to doo Does (1) nullify attachments and (2) authorize transfer of funds, BUT also (3) stays or suspends

any cases in which Iran is involved

ISSUE: Does Reagan have the authority not only to nullify and transfer, but also to suspend the existingclaims?

Connection to Youngstowno Relation to Jackson opinion

On the facts of the case in which Jackson developed the test, he inferred from Congresssilence the equivalent of Congressional NO

o Relation to Frankfurter opinion If the Pres has been acting a certain way and Congress has not enacted a statute

prohibiting it, then it seems that there has been consent

Application ofYoungstowno Must have some degree of flexibility and if Congress has consistently acquiesced, we can take

that historical set of practices as a sort of gloss (Frankfurter) that may shade the boundaries of

these three categories (Jackson) to say that long standing history of congressional acquiescenceto mean that there must be some play in the jointsthe stakes are too high to use rigidtextualism

2008Medellin v. Texas(Roberts) (p. 375) Arises in the context of a habeus proceeding Can only file federal habeus when state court denies

reliefo Civil challenge regarding legality of methods used to bring about a conviction

Particular piece of evidence on which Medellin relies Pres. GWB memoo GWB Memosays he would discharge U.S. intl obligations under ICJ decision and would have

State courts give effect to ICJ decision State courts are obligated to enforce the Vienna Convention

USSC Pres authority needs to come from Constitution or from Act of Congresso Prof Stearnsyou can throw me Youngstown, but I can throw youDames & Moore how

does Roberts resolve this tension?

Given the assumption that the treaty is NOT S-E and there is tension in case law b/w instances in whichPres has been foreclosed from seemingly unilaterally expanding authority and has not been foreclosedhow is it that this USSC gravitates toward Youngstown?

o Roberts puts GWB memo into Jacksons 3rdYoungstown category How does this get to be category #3 as opposed to category #2?

o criminal law issueis an area of core state function Why would the USSC be particularly sensitive to notion that Pres could unilaterally

interfere with state criminal law processes (by signing convention requiring notificationof consular rights)? concerned that if Pres has the authority to make treaty S-E, itmeans that Pres can redefine state criminal processes

gets right to the heart of state sovereignty issues no examples of a case in which the Pres has unilaterally interfered with state criminal

procedures based on the need to implement a treaty

not a single instance of Congressional acquiescence here BUT, did the USSC have to go this far?????? Couldnt it have stopped at S-E and said that

Congress must implement and Pres cannot?????

Allocation of Warmaking Authority


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Appears to be the case that the debates contemplated the authority of the Pres to REPEL an attack w/ogetting prior Congressional approval

BUT Congress is vested with power to declare war to INSTUTE military action HOWEVER, history has overtaken that general understanding

o Division b/w repelling attack and initiating a war no longer stands the test of time U.S. role in the world was far beyond the comprehension of Framers

Practices that occur do not match Constl language or more recently-created statutory languageWar of Terror

Joint Res of Congress Authorizing Use of Force (09/18/2001) authorizes Pres to use all necessaryand appropriate force

(1) What does it mean to say that the Pres has the authority to use all necessary does that includethe authority to detain enemy combatants for indefinite period of time?

(2) Authorization for Use of Military Force Against Iraq resolution2004Hamdi v. Rumsfeld (OConnor) (p. 381)

NON-MAJORITY CASE THIS MATTERS Nominal breakdown

o OConnor for plurality judgment of USSC, Rehnquist, Kennedy, Breyero Souter, Ginsburgconcurrence in judgmento Scalia, Stevensdissento Thomasdissent

FACTSHamdi is U.S. citizen and is declared enemy combatant by U.S.o If enemy combatant, can be held indefinitely w/o formal chargeso Enemy combatant = individual who govt alleges was part of or supporting forces hostile to the

U.S. or coalition forces in Afghanistan and engaged in armed conflict there

What is the claimed basis for the detention?Pres has authority pursuant to Act of Congress (AUMF)o BUT nothing of that nature is explicitly mentioned in AUMF

Is there anything special about these circumstances that strengthen Hamdis claim? this is a new kindof war that may not have an end, a bit like the war on drugs

o How does the USSC respond to this?kind of agrees with Hamdi on this respect Plurality opinion even though there in no express language in AUMF wrt detention, Congress has

authorized Pres to make the detentionso there is a new set of rules, process is only due when will be held indefinitely and in these cases

different things will apply Ordinarily we dont admit hearsay, but in this case we will general permit hearsay Burden of proof BRD is shifted Ultimately entitled to access to counsel

oHamdi is entitled to: 1. Notice

2. Confrontation right 3. Before a neutral decision maker (not before the Pres)

o Where do these rules come from? THE RULES ARE MADE UPTHEY ARE A CREATION OF HAMDI PLURALITY

o Whatever it is that the govt is doing has to at least accord with military tribunals (and weredoing less here) doesnt square entirely with courts of mil justice

Maybe the Plurality is right and maybe its fair, BUT does that make it controlling?o This may not be the holding that controls in the case

Souter (Concurring)


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o statutory authority preventing application of the holdingNon Detention Acto How broadly or narrowly to read Non Detention Act the tone of which is severeo Plurality responseclaims AUMF 4001(a) satisfies the ActBUT not clear it gives right to

hold indefinitely

Difference between Souter and Plurality?o Souterdo these circumstances warrant an exception to the reqmt of express congressional

authorization there is 1 exception (clear ticking time bomb)

This is not the case here Hamdi was entitled to full extent of due process

Opinions that afford Hamdi reliefwhich is narrower b/w plurality and concurrence?o OConnor entitled to some due process but not all, modified DP rights

Modified DP allows the Pres more latitude going forward whereas under Souters regimeyou have to treat Hamdi as any other criminal D

o Souterentitled to all due process except for 1 exception, unmodified DP rights NARROWEST GROUNDS

o Which is narrowerunmodified or modified DP rights? OConnor gives govt more latitude therefore it is the NARROWEST opinion b/c

restraints on govt control are narrower

o What makes it narrower is the operation of the rule as a matter of precedento MARKSwhich has the least impact on the law? that is the basic idea

Under the application ofMarksto Memoirswhich allows govt most latitude toprosecute individuals?the plurality opinion

NARROWEST = WHEN LATITUDE IS HIGH BUT RESTRAINT IS LOWo Generally, if a plurality decision sustains a challenged statute, then the opinion consistent with

the judgment that would sustain the fewest statutes is the narrowest ground. Conversely, if thedecision strikes down a statute as unconstitutional, the opinion consistent with the judgment thatwould strike down the fewest statutes is the narrowest ground opinion.

Thomas (Dissent)o In a time of war, Pres should not have to think about due processo If Thomas Dissent is starting point, then it makes sense that OConnor is the narrowest, but this is a case

of first instance

Scalia & Stevens (Dissent)o Congress has a choice to suspend habeus or not, which did not happen in this case, so the U.S. govt m ust

let Hamdi goo Are they right to dissent?

WRONG LABEL FOR THE OPINION Seems quite obvious that you cant be dissenting all the way on the left and all the way on the

right

There is no doubt that this was a concurrence in the judgment (although it was on the broadestpossible grounds)

o Scalia called this a dissent b/c he was angry at the Plurality opinion In terms of breadth of relief, could have concurred in the judgment in part that the opinion below

should not be affirmed could have said I would go further

HAMDI WON IN THIS CASEDIDNT GET EVERYTHING HE WANTED, BUT HE WON

Thomas (Dissent) OConnor (Plurality of4)

Souter (concur injudgment)

Scalia (Dissent)

Jail him forever Modified DP Unmodified DP Let Him Go


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2006Hamdan v. Rumsfeld (Stevens) (p. 390)

2001 executive order establishing military tribunals overturned by USSC UCMJ does allow mil tribunals but cannot violate general processes of mil commissions

o Brings in terms of Geneva Conventions Plurality opinion from Stevens (Souer, Ginsburg, Breyer)

oConspiracy charge not punishable under laws of war

Attempted fix toHamdi that the USSC did not sign off on Not directly hitting the constl issues but suggests the possibility that those issues might be implicatedfootnote

about presidential power (p. 391)

Responses from Congresso Detainee Treatment Act (DTA)Provided limited review in U.S. Court of Appeals for the D.C.

2008Boumediene v. Bush (Kennedy) (p. 391)

Response to Detainee Treatment Acto DTA unconstly restricted writ of habeus corpuso Deficiencies in combatant status review tribunals (CSRTs)

Rejects govt argument that case conforms to reqmts fromHamdi USSCB/C PLURALITY,HAMDI PLURALITY DOES NOT CONTROL

o USSC NOT BOUND BY PRECEDENT IN NON-MAJORITY DECISIONSDONT NEED A MAJORITY TOREJECT PLURALITY B/C USSC IS NOT BOUND TO ADHERE TO PLURALITY OPINIONSFINAL CONCLUSIONS

Were all of these rules meant to constitutionalize occasional exceptions to stringent constl requirements?o Notes seem to reflect an infinite regress problem

Jackson p. 394is getting at inKorematsu, there are moments that arise in the real world in which the execbranch will, for good reasons and motives, violate constl requirements due to exigent circumstances, and IF the

USSC signs off on it, then it is creating constl permissibility to do the thing that violated the constitution ineffect, this is constl b/c the USSC is ok-ing it

DO WE ACKNOWLEDGE THAT SOME INDIVIDUALS SOME OF THE TIME MAY VIOLATE RULESAND INTERNALIZE THE COSTS?OR- DO WE WANT TO LIVE IN A WORLD IN WHICH WE

RETROACTIVELY AUTHORIZE SOMETHING AFTER THE FACT?

2. Legislative Authorityp. 395-400

1974United States v. Nixon (CJ Burger) (p. 400) right to the production of all evidence at a crim trial similarly has constl dimension (p. 403 second full

paragraph)

FACTS6 indicted and 1 unindicted (Nixon) co-conspiratorso Subpoena duces tecum issued by Special Prosecutor to Pres. Nixonordering a named party to appear

before the court and produce documents or other tangible evidence for use at a hearing or trial

Basis of Presidents Argumento Generalized interest in confidentiality respecting Nixon as President

Risks and dangers associated with absence of recognizing privilege based on that interesto Embarrassmentbad things will happen if I have to disclose the documents(i.e. Marshall, not having a

Bank during War of 1812country was not able to operate during time of crisis)

affirmsMarburyemphatically the province and duty of the jud department to say what the law iso IsMarbury doing any work in this instance? could say it is emphatically the province to say what the

law is, BUT that doesnt tell us what the law actually is, so we need to figure out what the law is couldbe that the law is for Nixon to define the scope of executive privilege

o is it possible and consistent withMarbury to reach the opposite holding inNixon and allow Nixon todefine the limits of executive power?YES

o RendersMarbury window dressing in this instance has NOTHING to do with the case Rejects notion of absolute privilegethere is a privilege but its not unqualified


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o argument against the unlimited executive privilege is the right to the production of all evidence andwould impair functioning of judicial system

o Whatever embarrassment concerns might be, the documents will be subject to in camera inspection byArticle III judge under extraordinarily controlled security measures

Is there anything ironic going on here?o Govt is seeking the right to produce evidence b/c it wants incriminating evidence against six co-

conspirators This isnt exculpatory evidence that Ds would have right to have produced

o Who has a right?Burger is saying that its essentially the govts right to produce evidenceo BUT the Constitution is essentially a guarantee of individual rights

THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW SO, what is this case?o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS

-OR-o Has everything to do with the appearance that the President is not above the law

POINTS OF THE CASEo This case was a political statement, but not a legal statemento Precedent of the case the President now has a limited executive privilegeo FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGECONSTITUTION DOESNT MENTION IT AT

ALLo Executive privilege is implied, but there are limits on it

NOTESExecutive Privilege and Presidential Immunity

1867Mississippi v. J ohnson (p.404)maybe doesnt survive underNixono Immunity from injunctive reliefo prevented crim process against Johnson during Reconstructiono President has two kinds of task: ministerial and discretionary. Discretionary tasks are ones the president

can choose to do or not do. Ministerial tasks are ones required by his job, in fact if he fails to do them hecould be violating the Constitution. The court ruled that by enforcing reconstruction Johnson was actingin an "executive and political" capacitya discretionary rather than a ministerial oneand so he couldnot be sued.

1982Nixon v. Fitzgerald (p. 404)o Damages for misconduct while in office

o discharged govt Eee who claims violation of free speech rights does not get to sue Pres for dischargeo pres occupies unique position w/in constl schemesingular importance of Pres dutiesjuxtapose

with Clinton v. Jones

1982Harlowv.Fitzgerald(p. 405)presidential immunity does not extend to pres aides 1997Clintonv. J ones (Stevens) (p. 405)

o Damages for claims unrelated to service in officenone of the events giving rise to the initial suit are theproduct of activities engaged in while Clinton was pres

o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YESo USSC view seems almost navesaid if district court is appropriately deferential to pres schedule it

shouldnt take up too much time

HOWEVER, the case did occupy a lot of Clintons time and ended up providing information forimpeachment

NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could haveordered Atty Gen to fire the Special Prosecutor inNixon

o Narrow class of potential Ps that would raise such a claim against the Pres although the Majority doesseem to be wrong on the scheduling side

2004Cheney v. U.S. District Court(p. 406)o Scope of executive privilegeo Involves question of access to info

When have committees meeting w/ non-gov Ees on them committee has only gov EE's on it but USSC treats non-gov attendees as de-facto members


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o Civil litigation is diff from Crim litigation - so not same kind of information that can be revealed socommittee meetings protected from disclosure

o civil litigation for disclosure no restraints in civil litigation for filtering out insubstantial legal claims as there are in crim

justice system

o USSCconcerns raised inNixon criminal adjudication does not allow disclosure of evidence in this case Nixon was narrow subpoena order and Cheney was broad discovery request

NOTES on Impeachment (p. 407)

What does high crimes and misdemeanors actually mean? Clinton defined sexual relationship to include his particular relationship Famous Gerald Ford quote impeachable offense is whatever Majority of House thinks it is at a given moment

in history

P. 411Klarman certitude with which politicians and academics espoused wide variety of constl interpretationsnotwithstanding the thinness of constl law governing impeachment Prof Stearns, this quote is absolutely righ

o Everyone thought they were right, but no one had any constl basis for itD. Domestic Affairs

1. Executive Authority p. 400-12 NIXON1974United States v. Nixon (CJ Burger) (p. 400) right to the production of all evidence at a crim trial similarly has constl dimension (p. 403 second full

paragraph)

FACTS6 indicted and 1 unindicted (Nixon) co-conspiratorso Subpoena duces tecum issued by Special Prosecutor to Pres. Nixonordering a named party to appear

before the court and produce documents or other tangible evidence for use at a hearing or trial

Basis of Presidents Argumento Generalized interest in confidentiality respecting Nixon as President

Risks and dangers associated with absence of recognizing privilege based on that interesto Embarrassmentbad things will happen if I have to disclose the documents(i.e. Marshall, not having a

Bank during War of 1812country was not able to operate during time of crisis)

affirmsMarburyemphatically the province and duty of the jud department to say what the law iso IsMarbury doing any work in this instance? could say it is emphatically the province to say what thelaw is, BUT that doesnt tell us what the law actually is, so we need to figure out what the law is couldbe that the law is for Nixon to define the scope of executive privilege

o is it possible and consistent withMarbury to reach the opposite holding inNixon and allow Nixon todefine the limits of executive power?YES

o RendersMarbury window dressing in this instance has NOTHING to do with the case Rejects notion of absolute privilegethere is a privilege but its not unqualified

o argument against the unlimited executive privilege is the right to the production of all evidence andwould impair functioning of judicial system

o Whatever embarrassment concerns might be, the documents will be subject to in camera inspection byArticle III judge under extraordinarily controlled security measures

Is there anything ironic going on here?o Govt is seeking the right to produce evidence b/c it wants incriminating evidence against six co-conspirators

This isnt exculpatory evidence that Ds would have right to have produced o Who has a right?Burger is saying that its essentially the govts right to produce evidenceo BUT the Constitution is essentially a guarantee of individual rights

THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW SO, what is this case?o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS

-OR-o Has everything to do with the appearance that the President is not above the law

POINTS OF THE CASEo This case was a political statement, but not a legal statement


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o Precedent of the case the President now has a limited executive privilege. President is not above thelaw.

o FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGECONSTITUTION DOESNT MENTION IT ATALL

o Executive privilege is implied, but there are limits on itNOTESExecutive Privilege and Presidential Immunity

1867Mississippi v. J ohnson (p.404)maybe doesnt survive underNixono Immunity from injunctive reliefo President has two kinds of task: ministerial and discretionary. Discretionary tasks are ones the president

can choose to do or not do. Ministerial tasks are ones required by his job, in fact if he fails to do them hecould be violating the Constitution. The court ruled that by enforcing reconstruction Johnson was actingin an "executive and political" capacitya discretionary rather than a ministerial oneand so he couldnot be sued.

1982Nixon v. Fitzgerald (p. 404)o Damages for misconduct while in officeo discharged govt Eee who claims violation of free speech rights does not get to sue Pres for dischargeo pres occupies unique position w/in constl schemesingular importance of Pres duties juxtapose

with Clinton v. Jones

1982Harlowv.Fitzgerald(p. 405)presidential immunity does not extend to pres aides 1997Clintonv. J ones (Stevens) (p. 405)

o Damages for claims unrelated to service in officenone of the events giving rise to the initial suit are theproduct of activities engaged in while Clinton was pres

o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YESo USSC view seems almost navesaid if district court is appropriately deferential to pres schedule it

shouldnt take up too much time

HOWEVER, the case did occupy a lot of Clintons time and ended up providing information forimpeachment

NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could haveordered Atty Gen to fire the Special Prosecutor inNixon

oNarrow class of potential Ps that would raise such a claim against the Pres although the Majority doesseem to be wrong on the scheduling side

2004Cheney v. U.S. District Court(p. 406)o Scope of executive privilegeo civil litigation for disclosure

no restraints in civil litigation for filtering out insubstantial legal claims as there are in crimjustice system

o USSCconcerns raised inNixon criminal adjudication does not allow disclosure of evidence in this case Nixon was narrow subpoena order and Cheney was broad discovery request

NOTES on Impeachment (p. 407)

What does high crimes and misdemeanors actually mean?

Clinton defined sexual relationship to include his particular relationship Famous Gerald Ford quote impeachable offense is whatever Majority of House thinks it is at a given moment

in history

P. 411Klarman certitude with which politicians and academics espoused wide variety of constl interpretationsnotwithstanding the thinness of constl law governing impeachment Prof Stearns, this quote is absolutely righ

o Everyone thought they were right, but no one had any constl basis for it2. Legislative Authority p. 412-439 CHADHA,LEGISLATIVE AUTHORITY -

Background / Introduction

Question of Const delegation


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Leading up to 1937 switch in time that saved ninethere were series of doctrines that interfered with New Dealreform projects

o Included in this was nondelegation doctrine Congress ability to convey lawmaking authority to external institutions is limited by intelligible

principle

Ultimately, USSC declares end to intelligible principle test - never used this to strikedown delegation except in Schecterand other case

HOWEVER, USSC has used nondelegation principles to interpret statutory delegations so as to avoid Const non-delegation argument

o If ambiguous delegation and construe it narrowly, can avoid nondelegation challenge to the delegation federal courts have done this

o Other contexts in which nondelegation concerns arise outside of formal nondelegation doctrine Issue w/ shifting responsibility concerns all over the place

o concern is Cong delegates power to agency; takes responsibility if it goes well, if not go well blamesagency

o New York v. U.S.that concern about responsibility shifting b/w state and federal legislatures is similarto nondelegation

o Even inLujan - delegated to private litigants to litigate cases in cts, blame judiciary if it goes poorly andtake responsibility if go well not formally nondelegation doctrine, but there seems to be a consistency of shifting accountability

concerns

1998Clinton v. City of New York (Stevens) (p. 416)o strikes down line-item veto act that allowed pres to veto tax provisions or expenditures

lets pres decline to spend allocated sums benefitting narrow classes or expenditures Raines v. Byrd(1st case to address line-item veto but struck down on stranding)

o ISSUE: does line item veto act violate Art. 1 Sect. 7 and reqmt of bicameralism and presentment? YESis NOT constl

line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause ofConst because it impermissibly gave Pres the power to unilaterally amend or repeal parts ofstatutes that had been duly passed by Congress

oanalyzes under Art 1 Sec. 7, so doesnt address balance of powers This analysis was satisfactory BUT could also have rested on separation of powers argument

Stevens could have done this but he opted not to do soo construed the silence of the Constitution on the subject of such unilateral Presidential action as equivalent

to "an express prohibition", agreeing with historical material that supported the conclusion that statutesmay only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure"andthat a bill must be approved or rejected by the President in its entirety.

o Dissent (Scalia)if you have an appropriations statute that contains the authority of the Pres not to spendsums, that would be ok, the line item veto act accomplishes the same resultProf. Stearns says thatScalia is wrong b/c line item veto act is a default rule that applies across all legislation whereas theappropriations statutes are particular to individual statutes

1983INS v. Chadha (Burger) (p. 417)

RULE: 1 house veto is unconstl b/c violates separation of powers FACTSChadha would suffer serious personal hardship if he was subjected to deportation

o Immigration and Nationality Actone house of Congress can veto the suspension of deportation of thosewho have stayed in the U.S. past the expiration of their visas

WHY struck down?o Violation of Art. 1, Section 7bill must be presented to Pres for signature, and to create a law must have

bicameralism (signed off by both houses of Congress)

How do we know if something is a law?o 1. essentially legislative in purpose and effect

Chadhaaffects people who are outside the chambers of Congress, congressional action alteredChadhas status


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There are 4 examples of when there is no need for bicameralism, but this isnt one of themo 1. House power to nitiate impeachmentso 2. Senate power to conduct trials following impeachmento 3. Senate power over presidential apptso 4. Senate power to ratify treaties

Possible to reach opposite result and be consistent withMarbury? - YESo very statute that set up the one house veto satisfied the requirements of bicameralism and presentment

so begs the question of whether the use of said veto must also satisfy those requirements.

Debate b/w Powell and Burgero Powell (concurring)this is quasi-legislative authority, is not ordinary lawmaking, Congress seems to

be acting in an adjudicative mannershould be kept out of the Houses of Congresso BurgerPowells decision is that 1 house veto is judicial act, we agree there is some judicial cast since it

purports to review executive action, not really judicial b/c doesnt include all judicial protections

Is this an argument in support of or against Powell?it in fact SUPPORTS Powells analysis The fact that something is an imperfect judicial process does not bolster the argument that

something is unconstl

Dissent (White)o Majority is failing to recognize that the rise of the bureaucratic state is ultimately the function of

allocation from Congress to other agencies of regulatory capacity and we want Congress to at least beable to pull back when the agencies go too far to say were preventing separation of powers by limiting congressional review of regulatory

agencies is a bizarre assertiono Majority has just prevented Congress from maintaining a check on the exercise of lawmaking power that

originates with Congresso constl ruling strikes more provisions of fed law than any other single case in the history of the USSC

These are all invalidated underChadha b/c of the rigid wooden formalism of Majority opinion3. The Legislative Veto BOWSHER, MORRISON

NOTESAdministrative Agencies and Separation of Powers (p. 424)

1926Myers v. United States (p. 424)

can Congress impose limitations on removal authority of Pres wrt a Cabinet Member?NO Pres has the exclusive power to remove exec branch officials, and does not need the approval of the Senate or any

other legislative body.

USSCCJ Taftlimitation on Pres removal authority is unconstl, is executive function, take care clause vestsauthority to execute laws in the Pres

DissentCongress could eliminate an agency USSCgreater does not necessarily include lesserit is not a greater v. lesser issue but a different issue

1935Humphreys Executor v. United States (p. 425)

removal for inefficiency, neglect of duty, malfeasance Vitally important case b/c the FTC engages in quasi-judicial / quasi-legislative functions, it performs functiosn independent of the

executive branch

is an independent agency and as such, Congress CAN impose limitations on Pres removal authority wrt FTCcommissioners distinguished b/w exec officers and quasi-leg or quasi-jud officers. The latter may be removed only with

procedures consistent with statutory conditions enacted by Congress; the former serve at the pleasure of thePresident and may be removed at his discretion. The Court ruled that the FTC was a quasi-legislative bodybecause of other powers it had, and therefore the President could not fire an FTC member solely for politicalreasons; thus, Humphrey's firing was improper.

WHAT THESE 2 CASES MEAN

wrt core executive functionsPres cannot be limited wrt quasi-legislative functionthe independence of the agency permits Congress to interpose limits on the

removal authority of the President


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1958Wiener v. United States (1958) (p. 425)

where statute is silent on removal, the functioning of the war claims commission and the fact that the commissionengages in adjudicative functioning implies a limitation on the Pres power to remove

This case reasons backward relative to other two caseso other 2 caseslook at removal provisions and ask if in light of functions, are the provisions permissible?o This caselooks at the function and ask if, in light of removal authority, is pres allowed complete

authority to removew/ no answer, there are limits

Implies limitations on pres removal authAppointments clause

...Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presidentalone, in the Courts of Law, or in the Heads of Departments.

ISSUE: what does inferior office meanwhat is distinction b/w inferior and the alternative (principal)? USSCeven in 2010 noted the lack of clarity on the distinction Morrison (1988)dissent b/w Scalia (Dissent) and Rehnquist Majority

1976Buckley v. Valeo(p. 426)8 member Federal Election Commission, unusual composition

Pres is not doing the appointing of the commissioners whose functions would be regarded as executive USSCnot going to say that commission is unconstl BUT certain of the designated functions cannot be

performed by commission with such a composition, BUT it is OK to perform advisory functions

1986Bowsher v. Synar (Burger) (p. 427) FACTSUltimate authority over Comptroller Generals job security nominated by Pres and subject to removal

by impeachment or joint resolution of Congress subject to Pres. veto

o All meant to balance the federal budgeto The Comptroller General...made a recommendation to the President, who was then required to issue an

order effecting the reductions required by the Comptroller General unless Congress made the requiredcuts in other ways within a specified amount of time. The Comptroller ... is removable only byimpeachment or a joint resolution of Congress (which requires majority votes in both houses and is

subject to the veto). OUTCOME: struck down the Gramm-Rudman-Hollings Act as an unconstitutional usurpation of executive power

by Congress because the law empowered Congress to terminate the United States Comptroller General for certainspecified reasons, including "inefficiency, 'neglect of duty,' or 'malfeasance.'"

ISSUE: is automatic sequestration provision constl? NO Congress cannot control the execution of its laws; since it doesnt possess this power, it cant delegate it to its

agents.

Does this scheme create incentives to bring federal budget into balance?o NOb/c Congress could pass responsibility bucko NOmembers of Congress want everyone else to observe constraint while they themselves do not

exercise constraint

If budget doesnt come into balance there would be automatic across the board cut SO theresult would be to raise the budget as high as possible b/c you know that it will inevitably be cut

CourtComp Gens duties are executive what is best argument for executive duty?Comp Gen would have towork to reconcile inconsistent views on the cuts exercising such a level of discretion would be tantamount toexecutive decision making process

Stevens (Concurring) legislative power issue b/c Comp Gen is assigned functions that would require him tomake policy decisions that affect the country

o Comp Gen performsexecutiveo Fallback provisionlegislative functiono Assume its legislative argument in its best light, is still unconstl

Congress cannot delegate to a subunit of itself a lawmaking provision that binds the nation as awholecomes from Chadha


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White (Dissent)o Expediency pointapplying mechanical separation of powers rules to limit ability of Congress to come

up with practical solutions to problems Congress has power to control administration through imposing duties or substantive restraints on

executive officerso Fallback provision problemit does not work politicallyo Classic Justice White opiniono Removal of Comp Gen satisfies bicameralism and presentment laid down in Chadha

Cant violate Chadha b/c removal requires both Houses of Congress and President to be involved Problem with this analysisif we assume that the Comp Gen is performing exec

functions, then the question isnt whether Pres is involved in removal BUT ratherwhether anyone BUT the Pres is involved in removal

1. If executive officer performing executive function, THEN must call into question anything that limits removalpower

2. If legislative function, then there is Chadha problemo That is why there was a fallback provision

This holding was NOT a surpriseo Majoritystruck down automatic sequestration provision and said do it through the fallback provision

statute

1988Morrison v. Olson (Rehnquist) (p. 430) Independent Counsel Actindependent counsel can only be removed by impeachment or by personal action of

Atty Gen

What does our present considered view mean? its a way of saying we need to re-write history b/c history isnot helping us in our decision

o This case against that framework isnt going to work IF we are going to sustain the challenged provisiono IF the USSC were to strike down the provision, then the framework would be super helpful

Rehnquists analysiso Good cause removal provision does not impermissibly burden the Pres powero contend that the Clause does not contemplate congressional authorization of "interbranch appointments,"

in which an officer of one branch is appointed by officers of another branch. The relevant language of theAppointments Clause is worth repeating. It reads:. . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, inthe President alone, in the courts of Law, or in the Heads of Departments.

o On its face, the language of this "excepting clause" admits of no limitation on interbranch appointments.Indeed, the inclusion of "as they think proper" seems clearly to give Congress significant discretion todetermine whether it is "proper" to vest the appointment of, for example, executive officials in the "courtsof Law."

Scalia (Dissent)accuses Rehnquist of using a balancing test when must look exclusively to Constitutiono Not only are the answers to the 2 part test YES, but the majority doesnt agree that the answer is NOT yes

1. Is conduct of a crim prosecution the exercise of purely exec power? 2. Does statute deprive Pres of U.S. exclusive control over that power?

o Inferior v. principal argumentindependent counsel is at least a principal officer and not an inferiorofficer Independent prosecutor has EXLCUSIVE investigatory authority, which removes the authority

from DoJso that implies it is principal function

o Pres has the ENTIRE executive authority, which includes the removal of officers who perform coreexecutive functions

o Could be partisan issue wrt prosecutors function BUT also an issue that normally prosecutors are subjectto political considerations BUT the independent prosecutor is not subject to such constraints

May be a peripheral violation in the real world but be a core violation in the world of theindependent counsel / prosecutor

o NOTEConnection toMartin v. Hunters Lesseewherever you vest final decisional authority, itssubject to abuse its true that final decisional authority is always subject to abuse HERE, Scalias


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point is that argument in favor of counsel is do we trust the executive branch to investigate itself? executive branch may not investigate itself so therefore subject to abuse BUT creating an independentcounsel isnt the best idea b/c could also be subject to abuse

Does replacing a clear cut doctrinal rule with a balancing test make good sense or not?interesting question Congress let Independent Counsel provision lapse after Clinton impeachment

2010Free Enterprise Fund et al. v. Public Company Accounting Oversight Board (supplement)

Multilevel protection from removal in context of indep agency that is subject to limits on pres removal Limits of removal authority on members of SEC by the board Does this trigger separation of powers violation b/c triggers 2 levels of removal?

o YESviolates the law Dissentproblems for civil service system and for any agencies in which agency can appoint people and give

some job security (also military)

o What about the need for expertise and independent judgment?o Good job of showing potential huge problemso Majoritysays that military analogy is attenuate

Whereas CJ Roberts says youre panicking Nesting doll analogy pres shouldnt have to keep opening up the dolls Classic example of not knowing what a case means until its applied will it be limited or not? Case rests on - Pres should not have to go through numerous layers to remove

o can be subject to one degree of removal and not two until USSC distinguishes it This is a new rule - double removal protection rule

1989Mistretta v. United States (Blackmun) (p. 437) U.S. Sentencing Commission

o Independent commission located w/in the judicial brancho Purposelook at particular offenses for which people were convicted under federal law and the

background of people who committed offenses there was GREAT disparity that was considered unfairo Proposal for mandatory sentencing guidelineswould be binding unless overturned by Congress

LATER CASESUSSC struck down guidelines as violating jury rightBLAKELY Interesting argumentleveled in favor of constlty of commission by Justice Blackmun

o Is the commission exercising powers that are non-judicial and that are specifically legislative? placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority. Prior to

the passage of the Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to theCommission: what sentence is appropriate to what criminal conduct under what circumstances. It was theeveryday business of judges

Accordingly, in placing the Commission in the Judicial Branch, Congress cannot be said to have aggrandized theauthority of that Branch or to have deprived the Executive Branch of a power it once possessed.

Thus, although Congress has authorized the Commission to exercise a greater degree of political judgment thanhas been exercised in the past by any one entity within the Judicial Branch, in the unique context of sentencing,this authorization does nothing to upset the balance of power among the Branches.

Argumentprior to commission individual judges gave sentences, added up there were ranges of sentences thecommission does the same thing but it in the aggregatethe aggregation of individualized sentencingdeterminations is no different

Is Blackmun right? o Maybe not because this is pretty removed from case or controversy keep in mind that state and federal

legislatures provide sentencing ranges all the timeo prospectivity may be the thing that draws the line b/w judicial and legislative function

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