Constitutional Law Final Exam

Ex parte Quirin (1942) (note case) - p. 296

*(From Book)*: In Ex parte Quirin (1942) the justices unanimously upheld the government's authority to try these men by military tribunal. Why did the Court reach a decision seemingly inconsistent with the precedent set in Milligan? According to the justices, the Nazi saboteurs were unlawful combatants. Contrary to the laws of war, they secretly and illegally entered the country without uniform for the purpose of gathering military information or destroying life and property. As such, the saboteurs had no right to be treated as prisoners of war but could be subject to trial by military tribunal. Milligan, by comparison, was an American citizen, permanently residing in the United States, and not a military combatant in service to the enemy. The Quirin Court also emphasized that Congress had explicitly approved of the use of military commissions in the Articles of War. In a case we discuss later in this chapter, in Hamdan v. Rumsfeld (2006), Justice Stevens took issue with the Quirin Court's conclusion that Congress gave its approval to the military commissions, deeming it "controversial." *Facts:* Ex Parte Quirin (1942) (Stone, C.J.) (Note Case) German saboteurs plotted to blow up railroads, bridges, and other U.S. infrastructure. There were seven German nationals and one dual U.S-German national (divided into two teams), who were trained in Berlin for the operation. Once they landed on U.S. beaches, they shed their German uniforms. One of the saboteurs, Mr. Dasch, betrayed the German saboteurs' cause and contacted the FBI. After their arrest, FDR issued an order establishing a military commission (which had a lower burden of proof than a criminal trial and only required a 2/3 vote of the military officers for conviction) and proclaimed its jurisdiction to try nationals of enemy states or other individuals who violate the laws of war. Congress later ratified this military order. *Issue:*· Under the CINC and the Articles of War, does the President have the authority to order the trial of citizens of an enemy nation by military commission for violations of the Articles of War? *Holding:* Yes, the Court held that, under the circumstances, the President may order a trial by military commission, consistent with the Articles of War and CINC (As such, the Constitution does not require a right to trial by jury in the military commissions for these saboteurs). *Reasoning:* 1) German Citizens -- These men are unlawful combatants. They are nationals of a country with whom the U.S. is at war who are without uniform and who entered the country with the intent to destroy civilians and property. This is a violation of the laws of war eligible for trials by military tribunals and has long been the case in the United States. 2) As to the one saboteur with duel US-German citizenship, the saboteur's citizenship is immaterial when it comes to violations of the laws of war. Citizens who associate themselves with the enemy have violated the laws of war and are enemies of the United States, and thus may be tried by military tribunal. *The Court does not attempt to craft a broad rule for future adjudications:* In this case, the Court notes that the petitioners were charged as "enemies," who entered the Nation, without uniforms, for the purpose of destroying infrastructure - an offense against the law of war.

Nixon v. Fitzgerald (1982) - p. 245

*Facts:* In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a congressional committee about inefficiencies and cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which President Nixon took responsibility. Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded that his dismissal was unjust. *Issue:* Was the President immune from prosecution in a civil suit? *Holding:* Yes, the President of the United States is entitled to absolute immunity from civil liability damages linked to his official acts. *Reasoning:* The Court held that the President "is entitled to absolute immunity from damages liability predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history." *See My Brief*

South Dakota v. Dole (1987) - p. 552

*Facts:* In 1984 Congress passed a statute, 23 U.S.C. 158, directing the secretary of transportation to withhold a portion of federal highway funds from any state that did not establish a minimum age of twenty-one years for the legal consumption of alcoholic beverages. The purpose of the law was to decrease the number of serious automobile accidents among young people. The legislators correctly believed that withholding federal dollars would be an effective way of encouraging the states to comply with the federal program. South Dakota argued that Congress was infringing on the rights of the states because the Twenty-first Amendment repealed Prohibition and gave the states full authority to regulate alcoholic beverages. South Dakota, therefore, claimed that Congress had no authority to set a minimum drinking age. According to the state, the federal government was using its considerable spending power to coerce the states into enacting laws that were otherwise outside congressional authority. *Procedural History:* The state sued Secretary of Transportation Elizabeth Dole, asking the courts to declare the law unconstitutional. Both the district court and the court of appeals ruled against the state and upheld the law. *Rule of Law:* Article 1 Section 8 Clause 1 grants Congress the enumerated power to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." *Issue:* 1.) Did Congress exceed its spending powers by passing legislation conditioning the conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking age? 2.) whether the Twenty-first Amendment constitutes an "independent constitutional bar" to the conditional grant of federal funds? *Holding:* No, the Court held that Congress acting indirectly to encourage uniformity in states' drinking ages was within constitutional bounds. *Reasoning:* On Issue 1.) The Court held taht the spending power is not unlimited, and is restrained by three powers: a.) It must be in pursuit of the 'the general welfare of the United States?" b.) if Congress desires to condition the States' receipt of federal funds, it "must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation. c.) Third, our cases have suggested (without significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated "to the federal interest in particular national projects or programs." The court held that consitent with the general welfare provision, the restriction of federal funds was constitutional under Congressional spend powers. "We can readily conclude that the provision is designed to serve the general welfare, especially in light of the fact that "the concept of welfare or the opposite is shaped by Congress. . . ." Congress found that the differing drinking ages in the States created particular incentives for young persons to combine their desire to drink with their ability to drive, and that this interstate problem required a national solution." On issue 2 (Coercion): The Court found that the statute was not coercive. The Court reasoned that if "a grant of federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and unusual punishment would be an illegitimate exercise of the Congress' broad spending power. But no such claim can be or is made here. Were South Dakota to succumb to the blandishments offered by Congress and raise its drinking age to 21, the State's action in so doing would not violate the constitutional rights of anyone." The Court furthered that "Congress has directed only that a State desiring to establish a minimum drinking age lower than 21 lose a relatively small percentage of certain federal highway funds. Petitioner contends that the coercive nature of this program is evident from the degree of success it has achieved....When we consider, for a moment, that all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs, the argument as to coercion is shown to be more rhetoric than fact....the enactment of such laws remains the prerogative of the States not merely in theory but in fact."

National Federation of Independent Business v. Sebelius (2012) - p. 485 / p. 556

*Facts:* In 2010 Congress passed the Patient Protection and Affordable Care Act (ACA) with the goal of increasing the number of Americans covered by medical insurance and decreasing the cost of health care. The constitutionality of the law was challenged by the National Federation of Independent Business. Two provisions of the ACA provoked the most significant constitutional attacks: 1. The first was the "individual mandate" that directs most Americans to purchase "minimum essential" health insurance coverage for themselves and their dependents if they do not receive such coverage from their employers. 2. The second provision in this controversy called for an expansion of Medicaid. This program, administered by the states but jointly funded by state and federal governments, provides health care for the poor.... The expansion laws that were part of the ACA did not require the states to participate in the expanded program, but nonparticipating states would face the loss of all of their federal Medicaid dollars. The states involved in this litigation claimed that Congress had abused its spending powers by using financial coercion to force the states to accept the new Medicaid provisions. *Procedural History;* The Eleventh Circuit Court of Appeals upheld the Medicaid expansion but struck down the individual mandate. The Supreme Court granted review. *Issue:* 1. Is the Individual Mandate provision constitutional under the Commerce Clause, considering such precedents as Lopez, Morrison, Wickard, and Raich? 2. Is the individual mandate constitutional under Congress's Power to Tax? 3. Does the Medicaid expansion exceed Congress's power under the Spending Clause? *Holding:* No, Yes, and Yes. *Reasoning:* On Issue 1.) · "[t]he power to regulate commerce presupposes the existence of commercial activity to be regulated." Here, the individual mandate does not regulate existing commercial activity, but it compels individuals to become active in commerce by purchasing a product. Applying aggregation principles to an individual's decision not to purchase a product would expand the substantial effects doctrine to one of unlimited scope. In Wickard, the Chief Justice reasons, Farmer Filburn was actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. See also Raich (defining commerce as "the production, distribution, and consumption of commodities"). According to the Chief Justice, the Government's logic would justify a mandatory purchase to solve any problem. · Like Lopez and Morrison, the Chief Justice concludes, there is too much attenuation. "The individual mandate's regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity." That is, the proximity between the mandate and the subsequent commercial activity is lacking. On Issue 2.) · The Chief Justice, writing for a majority, concludes that the individual mandate lawfully imposes a tax on those who decline to purchase health care. Here, the failure to purchase health care is just another thing that triggers a tax, like earning income or buying gasoline. · Applying the criteria of the Drexel Furniture case, the Court concludes that the individual mandate is a lawful tax rather than an impermissible penalty under Article I of the U.S. Constitution. For most Americans, the payment of the "tax" will be less than the cost of purchasing health insurance. Second, the individual mandate contains no scienter (i.e., knowledge) requirement. Third, the payment is collected by the IRS through normal means of taxation and not by criminal prosecution. Here, the imposition of the tax leaves an individual with a lawful choice: to obtain or not obtain health care, as long as she is willing to pay a tax. This makes the statutory provision more of a civil statute than criminal statute. · Other Issues. The Chief Justice reasons that it is immaterial as a constitutional matter that Congress labeled the individual mandate payment as a "penalty" rather than a "tax." Moreover, unlike the Commerce Clause issue, the Chief Justice says, the Constitution does not protect individuals from being taxed simply through inactivity. After all, the Constitution contemplates "capitations," taxes paid by every person. On issue 3: ·The majority concludes that the Medicaid expansion exceeds Congress's authority under the Spending Clause. That is, Congress violates the anti-commandeering principle (i.e., an independent constitutional bar under Dole) by coercing the states to adopt changes Congress wants by threatening to withhold all of the State's Medicaid grants, unless the State accepts the expanded funding and complies with the accompanying conditions. A State that opts out of the Medicaid expansion, the Chief Justice says, stands to loss all of its Medicaid funding, not a small percentage of federal government funds, like in South Dakota v. Dole. ("The threatened loss of over 10 percent of a State's overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion"). · Congress may offer states grants and require states to comply with the accompanying conditions, but states must have a genuine choice as to whether to accept the offer, which they do not here. · The joint opinion of Justices Scalia, Kennedy, Thomas, and Alito points out that, given the significance of the annual federal Medicaid subsidy, states that are forced out of the federal program would lose a huge sum, and would have to find some significant way, likely at the state legislative level, to increase health-care expenditures.

United States v. Lopez (1995) - p. 464

*Facts:* In the Gun-Free School Zones Act of 1990, Congress made it a federal offense for anyone to knowingly possess a firearm in a place that the individual has reason to know is a school zone. Mr. Lopez brought a .38 caliber handgun and ammunition with him to school. He was convicted of violating the Act. *Issue:* Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause *Holding:* No, unconstitutional. *Reasoning:* 1) Intrastate, non-economic activity: Most importantly, the law regulated only local (i.e., intrastate) non-economic activity. (e.g., criminal activity), and thus, did not require the gun to be connected to interstate commerce. 2) Jurisdictional Hook: There is not any jurisdictional nexus. That is, Congress did not require in the statute that the firearm possession and interstate commerce be connected in some way. Practically, that meant, that the law did not place a burden on U.S. government prosecutors to enter evidence in a defendant's trial demonstrating that the gun at issue had some connection to interstate commerce. 3) Legislative Findings: Congress did not make any legislative findings as to how gun possession in a school zone affects interstate commerce. 4) Attenuation: The possession of guns in schools is really a local problem, removed from interstate commerce, and to uphold the statute at issue would lead to the creation of a general, federal police power.-In sum, the majority's attitude is if Congress can regulate guns in local school zones under the Commerce Clause, then Congress can regulate virtually anything over which states typically exercise their police power:

INS v. Chadha (1983) - p. 275

*Facts:* Jagdish Chadha was granted a six year student visa to study in the US. A year after his visa expired, he was ordered by the Immigration and Naturalization Service (INS) to show cause why he shouldn't be deported in Court. An immigration judge ordered a suspension of Chadha's deportation, which meant that Chadha could stay in the United States, because he was of "good moral character" and would "suffer extreme hardship" if deported. Acting under a provision of the Immigration and Nationality Act, the U.S. attorney general recommended to Congress that Chadha be allowed to remain in the United States in accordance with the judge's opinion. Congress, in turn, had the authority to veto—by a resolution passed in either house—the attorney general's decision. For a while it appeared as if Chadha's suspension of deportation was secure, but at the last moment Congress asserted its veto power. Succinct: In accordance with the Immigration and Nationality Act (INA), the Attorney General (AG) had the authority to suspend deportation of an alien if certain hardships were present. However, pursuant to the INA, Congress had the authority to "veto" by a resolution passed (in either House) the AG's decision. The AG suspended Chadha's deportation. But, at the last instant, Congress "vetoed" the AG's decision, as provided for by the INA. In essence, Congress now has the power to deport people. Chadha (joined by the Carter administration) filed suit, arguing that the INA's legislative veto provision was unconstitutional. ·In accordance with the Immigration and Nationality Act (INA), the Attorney General (AG) had the authority to suspend deportation of an alien if certain hardships were present. However, pursuant to the INA, Congress had the authority to "veto" by a resolution passed (in either House) the AG's decision. The AG suspended Chadha's deportation. But, at the last instant, Congress "vetoed" the AG's decision, as provided for by the INA. In essence, Congress now has the power to deport people. Chadha (joined by the Carter administration) filed suit, arguing that the INA's legislative veto provision was unconstitutional. *Issue:* · Under the Bicameralism and Presentment Clause of Article I, section 7, does Congress have the authority to veto the decision of the AG - to whom it delegated power - to suspend deportation? *Holding:* · No. The legislative veto provision of the INA violates the Bicameralism and Presentment Clause (Article I, section 7). *Rule of Law:* The Immigration and Nationality Act states: Upon application by any alien who is found by the Attorney General to meet the requirements of . . . this section the Attorney General may in his discretion suspend deportation of such alien. If the deportation of any alien is suspended . . . a complete and detailed statement of the facts and pertinent provisions of the law in the case shall be reported to the Congress with the reasons for such suspension. Such reports shall be submitted on the first day of each calendar month in which Congress is in session. *Reasoning:* 1) Congressional act was legislative in nature. Why? The House took an action that affected rights, duties, and obligations outside of the Legislative Branch. Accordingly, the Court defines "legislative power" as congressional action that affects rights, duties, and obligations outside of the legislative branch. 2) Article I, section 7 provides for a "single, finely wrought and exhaustively considered, procedure," which was not followed in this instance. Neither bicameralism nor presentment is being followed here. (A) Importance of Presentment - The President's veto was designed to guard against legislative aggrandizement and as a check on unwise policy. (B) Importance of Bicameralism - The bicameralism requirement was to ensure that congressional action was deliberate and appropriate. *NOTE:* Congress had given a lawful delegation to the Executive Branch through a delegation to the AG, and now sought to take it back. Congress was effectively able to deport people, and this certainly affects individual rights; accordingly, the House was attempting to exercise "legislative power," which requires adherence to the procedures set forth in Article I, section 7. *Take-Away* - Why is this procedurally unusual case important? Congress sought to alter the legal situation of a particular individual. When Congress acts to change the legal status quo, then Congress must follow the requirements of bicameralism and presentment. Moreover, the Court's majority believed that Congress aggrandized power in a matter affecting individual rights.

Clinton v. Jones (1997) - p. 249

*Facts:* Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state employee, she suffered several "abhorrent" sexual advances from then Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Following a District Court's grant of Clinton's request that all matters relating to the suit be suspended, pending a ruling on his prior request to have the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity. *Issue:* Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office? *Holding:* No, a sitting president is not entitled to obsolete immunity from civil litigation for events which transpired prior to taking the office. *Reasoning:* In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.

Humphrey's Executor v. United States (1935) - p. 232

*Facts:* President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." Since Humphrey died shortly after being dismissed, his executor sued to recover Humphrey's lost salary. *Issue:*Did section 1 of the Federal Trade Commission Act unconstitutionally interfere with the executive power of the President? *Holding:* No, the act was constitutional. *Reasoning:* The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president. Justice Sutherland dismissed the government's main line of defense in this case which relied heavily on the Court's decision in Myers v. United States (1926). In that case the Court upheld the president's right to remove officers who were "units of the executive department." The FTC was different, argued Sutherland, because it was a body created by Congress to perform quasi-legislative and judicial functions. The Myers precedent, therefore, did not apply in this situation. *See My Brief.*

Trump Hawaii (2018) (note case) - p. 332

*Facts:* President Trump issued an order under the Immigration and Nationality Act (INA), restricting people from eight countries from entering the United States, arguing that these countries had "inadequate systems for managing and sharing information about their national," and therefore, presented national security threats. · Trump claimed he had the authority to issue the order based on an INA provision authorizing the president to restrict the entry of aliens whenever he finds their entry "would be detrimental to the interests of the United States." In the "travel ban case," the plaintiffs sued, arguing that the order violated the First Amendment because most of the countries covered by the proclamation were Muslim-majority countries, and the president's own Tweets supporting the ban single out Muslims for disfavored treatment. *Issues:* *Holdings:* *Majority Reasoning:* · Chief Justice Roberts held, for the 5-4 majority, that the order falls "squarely within the scope of Presidential authority under the INA," a law that provides the president with broad discretion. The Chief Justice rejected the First Amendment claim, because the proclamation had other legitimate purposes besides an alleged "bare . . . desire to harm a politically unpopular group." Notwithstanding the president's Tweets, the majority would defer to this exercise of presidential power, which is does not seem to view as atypical. In the course of the majority opinion, the Chief Justice overrules Korematsu *Other Opinion:* · Justice Sotomayor, however, likened the holding to Korematsu, arguing that, in the travel ban case, there is "strong evidence that impermissible hostility and animus motivated the Government's policy." The dissent would not have ignored the president's Tweets and other racial inflammatory statements. *Book Gives Pretty Much Similar Summary, Can check for more information*

Bowsher v. Synar (1986) - p. 280

*Facts:* Due to rising government budget deficits during the first term of the Reagan Administration, Congress passed the Gramm-Rudman-Hollings Deficit Control Act of 1985. The act was designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect. Triggering the cuts involved steps to be taken by several government officials. First, the director of the Office of Management and Budget (OMB) and the director of the Congressional Budget Office (CBO) would independently estimate the projected deficit with program-by-program calculations. Second, these estimates would be jointly reported to the comptroller general of the United States. Third, the comptroller general would review the OMB and CBO reports and issue a final report with recommendations. Fourth, the comptroller general would send the report to the president, who would issue an order mandating the automatic budget cuts recommended by the comptroller. Congress and the President sought to control the federal deficit through the Graham-Rudman-Hollings bill, which imposed automatic budget cuts, if the deficit in a particular year exceeded the amount allowed. How does the statute work? (1) OMB and CBO were to make independent estimates of the possible budget deficit. (2) The Comptroller General (CG), the head the GAO, responsible for auditing executive agencies, would evaluate their estimates and submit a report to the President outlining budget cuts. (3) Based on the CG's report, the President was required to issue an order mandating the automatic budget cuts "recommended" by the CG, unless Congress made the cuts in other ways within a certain period of time. Accordingly, the President is required to do that which the CG says, and it appears that the CG is executing the law. *Issue:* Does the assignment by Congress to the CG of certain functions under the Graham-Rudman-Hollings Act violate the doctrine of separation of powers? *Holding:* Yes, based on the removal power over the CG and the CG's responsibilities under the Act. *Reasoning:* ·The two core problems here are removability of the CG and the nature of the CG's functions. First, the CG is removable only at the initiative of Congress by impeachment or a joint resolution of Congress "at any time" on several grounds. (The legislative history demonstrates that Congress intended for the CG to be removed fairly easily, e.g., for poor performance. And, although it is not dispositive, other statutes classify the CG as an agent of the Legislative Branch). Second, under the Act, the CG has been assigned executive functions. The court defines executive power here. (A) Interpreting the law enacted by Congress is the "very essence of law execution." Here, Congress has empowered the CG to interpret the law to implement the legislative mandate, i.e., the budget cuts. (B) The CG commands the President to make certain budget cuts. Accordingly, Congress has aggrandized the President's executive power. - This is a problem of aggrandizement. Under Chadha, once Congress enacts legislation, its participation ends. Now Congress has sought to carry out a significant executive function.

Clinton v. City of New York (1998) - p. 209

*Rule of Law:* The Line Item Veto Act holds that "[T]he President may, with respect to any bill or joint resolution that has been signed into law pursuant to Article I, section 7, of the Constitution of the United States, cancel in whole—(1) any dollar amount of discretionary budget authority; (2) any item of new direct spending; or (3) any limited tax benefit; if the President— a.) determines that such cancellation will—(i) reduce the Federal budget deficit; (ii) not impair any essential Government functions; and (iii) not harm the national interest; and b.) notifies the Congress of such cancellation by transmitting a special message . . . within five calendar days (excluding Sundays) after the enactment of the law [to which the cancellation applies]. This case consolidates two separate challenges to the constitutionality of two cancellations, made by President William J. Clinton, under the Line Item Veto Act ("Act"). In the first, the City of New York, two hospital associations, a hospital, and two health care unions, challenged the President's cancellation of a provision in the Balanced Budget Act of 1997 which relinquished the Federal Government's ability to recoup nearly $2.6 billion in taxes levied against Medicaid providers by the State of New York. In the second, the Snake River farmer's cooperative and one of its individual members challenged the President's cancellation of a provision of the Taxpayer Relief Act of 1997. The provision permitted some food refiners and processors to defer recognition of their capital gains in exchange for selling their stock to eligible farmers' cooperatives. After a district court held the Act unconstitutional, the Supreme Court granted certiorari on expedited appeal. *Issue:* Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I? *Procedural History:*A federal district court consolidated the cases, determined that at least one of the plaintiffs in each case had standing under Article III, and ruled that the Line Item Veto Act violated the presentment clause (Article I, Section 7, Clause 2). - It also held that the law was an unconstitutional delegation of legislative powers to the president—an argument lawyers opposed to the line-item veto made before the Supreme Court. A majority on the Court thought it "unnecessary" to address this claim, but at least one of the justices, Kennedy in concurrence, seemed sympathetic. *Holding:* Yes, the cancellation procedures set forth in the Act violate the Presentment Clause, Art. I, Sec. 7, cl. 2, of the Constitution. *Reasoning:* Yes. In a 6-to-3 decision the Court first established that both the City of New York, and its affiliates, and the farmers' cooperative suffered sufficiently immediate and concrete injuries to sustain their standing to challenge the President's actions. The Court then explained that under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect "amended" the laws before him. Such discretion, the Court concluded, violated the "finely wrought" legislative procedures of Article I as envisioned by the Framers.

Korematsu v. United States (1944) - p. 297

*Facts:* Fred Korematsu was arrested May 30, 1942, by San Leandro, California, police for being on the public streets in violation of the government's evacuation orders. Korematsu was a native-born American whose parents had immigrated to the United States from Japan. He grew up in the San Francisco area. Rejected for military service for health reasons, he worked in the defense industry as a welder. When arrested, he tried to convince police that he was of Spanish Hawaiian origin. He had undergone plastic surgery to make his racial characteristics less pronounced in an effort to avoid the anti-Japanese discrimination he feared because of his engagement to an Italian American woman.17 After the arrest, representatives of the American Civil Liberties Union approached Korematsu and offered to defend him and challenge the validity of the evacuation program. *Background:* .): Following the bombing of Pearl Harbor and America's entry into World War II, the Roosevelt Administration and military leaders were concerned that the Japanese American population on the West Coast might aid the Empire of Japan in launching an invasion of the West Coast of the United States. FDR issued an executive order placing all Japanese Americans under a tight curfew and then, pursuant to that execute order, the the Secretary of War permitted the commanding general of the Western Defense Command, to issue another even harsher order evacuating Japanese Americans and moving them to inland "detention centers." Under these orders, there was no mechanism to distinguish the loyalty from the disloyal and no showing of aid to the enemy was required. *Facts (Ericson):* Fred Korematsu, a native born American and welder, who had previously been rejected for military service for health reasons, was arrested for being on public streets contrary to the evacuation orders. After his arrest, Mr. Korematsu was represented by the ACLU, who, on his behalf, challenged the constitutionality of the evacuation and detention program under the Equal Protection component of the Fifth Amendment. *Majority Reasoning:* · The Court rejected Korematsu's equal protection challenge. Under the Equal Protection Clause, classifications based on race or national origin receive strict scrutiny and are only upheld if the classification is "narrowly tailored" to address a compelling government interest. · However, and despite the lack of evidence as to Mr. Korematsu's alleged disloyalty, the Court relied upon national security as a "compelling government interest" and deferred to the military authorities. ("Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage"). The Court declined to review the evidence underlying the military finding. *Dissent (Justice Murphy and Justice Jackson):* ·ustice Murphy calls the order "an obvious racial discrimination" and points out that no evidence of impending public danger supports support such a sweeping and broad restriction inconsistent with constitutional rights. Justice Murphy also demonstrates that the relevant order includes information on stereotypes and other unflattering generalizations. ("A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations"). Therefore, Justice Murphy dissents "from this legalization of racism." Justice Jackson's dissent argues that the Court should not "confine military expedients" by the Constitution and also should not distort the Constitution to approve all the military may deem expedient. Even if the orders may have military sense, which Justice Jackson does not concede, he argues that they cannot be constitutional. He also points out that was no real evidence supporting the evacuation order, which amounted to an order finding "inheritable guilt," which is inconsistent with the Constitutional design. Justice Jackson is concerned that the Court "has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of urgent need."

Youngstown Sheet & Tube Co. v. Sawyer ("The Steel Seizure Case") (1952) - p. 305

*Facts:* In 1951 a labor dispute began in the American steel industry. In December the United Steelworkers union announced that it would call a strike at the end of that month, when its contract with the steel companies expired. For the next several months the Federal Mediation and Conciliation Service and the Federal Wage Stabilization Board tried to work out a settlement, but without success. On April 4, 1952, the union said that its strike would begin on April 9. President Harry S. Truman was not about to let a strike hit the steel industry. The nation was engaged in a war in Korea, and steel was needed to produce arms and other military equipment. Only hours before the strike was to begin, Truman issued an executive order commanding Secretary of Commerce Charles Sawyer to seize the nation's steel mills and keep them in operation. - Sawyer ordered the mill owners to continue to run their facilities as operators for the United States. Truman's seizure order cited no statutory authority for his action because there was none. Federal statutes allowed government seizure of industrial plants for certain specified reasons, but the settlement of a labor dispute was not one of them. In fact, the Taft-Hartley Act of 1947 rejected the idea that labor disputes could be resolved by such means. Instead, the act authorized the president to impose an eighty-day cooling-off period as a way to postpone any strike that seriously threatened the public interest. Truman, however, had little regard for the Taft-Hartley Act, which Congress had passed over his veto. The president ignored the cooling-off period alternative and took the direct action of seizing the mills. The authority vested to him as president and commander in chief was enough, in Truman's view, to authorize the action. Congress might have improved the president's legal ground by immediately passing legislation authorizing such seizures retroactively, but it did not (nor did it take any action to stop the president's seizures). The mill owners complied with the seizure orders under protest and filed suit in federal court to have Truman's action declared unconstitutional. *Background from Ericson:* Hours before a strike begins in the steel industry, President Truman ordered Secretary of Commerce Sawyer to seize the steel mills and run them as property of the U.S. Government. There is no statutory authority allowing the President to take this action and it appears that the Taft-Hartley Act rejected the resolution of labor strikes and stoppage by such extraordinary means. The mills complied with the seizure order but some sued in federal court, arguing that the seizure was unconstitutional - that it exceeded the President's powers under Article II - and amounted to a taking of private property. *Procedural History:* The district court ruled in favor of the steel industry, enjoining the secretary from seizing the plants, but the same day the court of appeals stayed the injunction. *Issue:* Whether the President was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills? *Holding:* No. the President's actions were unconstitutional. *Majority Reasoning:* · Majority Opinion (Black, J.) - The majority held that the President did not have the authority to seize the steel mills. Why? (Truman argued that as CINC, he had to maintain operational steel mills to prosecute the Korean War, which was authorized by the UN and funded by Congress). First, the President's action was a legislative-type act, which was not authorized by Congress. Second, as CINC, the President does not have constitutional authority to resolve labor disputes. Third, the Take Care Clause refutes the idea that the President is to be a lawmaker, Justice Black reasoned. *Concurring Opinion (More Important in Ericson's mind than the Majority):* Tier 1. The President's power is at its "zenith." This is when the President acts pursuant to an express OR implied authorization of Congress. Accordingly, the President has his power plus that of Congress. Tier 2. This is when Congress is "silent" and the President's power may be uncertain. ("Zone of Twilight"). Congressional silence, as a practical matter, may invite independent presidential action. Presidential custom is relevant here. Tier 3. This is where the President's power is at its "lowest ebb." This is where there is a congressional prohibition on presidential action. This category is a "pure" separation of powers dispute. *Where does the instant case fall in Jackson's "tiers" of presidential power?* Jackson concluded that this is a Tier 3 case. The Taft-Hartley Act and similar statutes reject the kind of control that President Truman assumed. Justice Jackson said that we must be aware of the "normal" balance between liberty and authority. *Dissent:* · The Chief Justice argues in dissent that the Majority should have been more cognizant of the context in which the case arose. Truman's decision was necessary to the war effort; the UN authorized the Korean War, and Congress continues to support it through appropriations. The steel industry is a mess, and the problem at hand required definitive Executive action.

The War Against Terrorism:(Pretty sure Everything Below is not On Midterm)

*A. The Authorization for Use of Military Force, 9/18/01 ("AUMF"):* In Pertinent Part - Authorizes the President 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." *Military Order No. 1. 11/13/2001 (not on Final according to Review Sheet)* - Under Article II of the U.S. Constitution, President George W. Bush authorized the creation of military commissions for the "trial of certain non-citizens in the War On Terrorism." - This permitted the trial of non-citizens for violations of the laws of war and other applicable laws by military tribunals. Includes individuals who have engaged in, aided or abetted, or conspired to commit, acts of international terrorism as well as those who have harbored such individuals. (Section 2(a)). - Select Procedures (Section 4(c)): Military Commission sits as triers of both fact and law. Evidence is admissible that has probative value to a reasonable person (This is the same standard that is applicable to administrative agency proceedings, which is a lower standard than federal court proceedings). Conviction occurs only upon the concurrence of two-thirds of members of the commission. Sentence occurs only upon the concurrence of two-thirds of members of the commission. The President or Secretary of Defense can review the trial record and issue a final decision.

Introduction of War Powers

*Distribution of War-making Powers: Article I, section 8 and Article II, section 2:* The President is the Commander-in-Chief, but Congress, for example, has the power to declare war, grant letters of marquee and reprisal (i.e., a government license to capture vessels and bring them before admiralty courts for sale as prizes), prescribe rules for the armed forces, and call forth the militia to execute the laws of the Union and repel invasions. (Congress has delegated the militia power to the President). As a general proposition, Congress initiates the use of force in many circumstances, and then the President is in charge of waging war. The President is the strategic decision-maker once war has been authorized and also has the power to repel sudden attacks. See Madison's Constitutional Convention Notes and The Prize Cases. · As a practical matter, we know that the President acts quickly - and often without congressional authorization when launching certain military operations. These are often in the form of police or defensive actions. (Presidents have interpreted their power to launch such actions broadly (e.g., President Clinton in Kosovo or President Reagan and later President Obama in Libya or President Trump in Syria). President Bush "43" articulated the doctrine of pre-emptive war - in a world in which pariah states or non-state actors have access to the world's worst weapons and cannot be deterred as a presumptively rational state could be, the President's defensive authority must be broad. · Congress rarely issues formal declaration of wars, and typically relies upon authorization of use of military force resolutions (i.e., an AUMF). Congress also may provide implied authorization to the President to use force through its Appropriations Power or by other legislative means. *The War Powers Resolution* President is required to file a formal report with Congress within forty-eight hours of the commencement of hostilities, and without specific authorization, military action is theoretically limited to sixty days (with a thirty day re-authorization provision). At that point, Congress then could pass a concurrent resolution to order the President's removal of forces. (This provision probably violates U.S. Supreme Court precedent and may violate the CINC). Courts typically have avoided addressing the constitutionality of the War Powers Resolution (passed over President Nixon's veto), and generally have found war powers questions to be non-justiciable. Courts prefer that political branches, who engage in national security policy-making, to work through these issues.

Shreveport Rate Case (1914) (note case) - p. 417

*Facts*: The Houston, East and West Texas Railroad and the Texas and Pacific Railway were railroad companies operating rail lines between Shreveport, Louisiana and points in Texas. The Texas Railroad Commission mandated that they charge higher rates on freight travelling between Louisiana and Texas than on freight travelling solely within Texas. The Interstate Commerce Commission (ICC) found that the interstate rates were unreasonable and illegally discriminated against freight traffic originating in Shreveport.The motive behind these lower rates was clear: the Texas commission wanted to encourage intrastate trade and to discourage Texas companies from taking their business to Shreveport- These intrastate rates placed the Shreveport railroad at a distinct disadvantage in competing for the Texas market. In response, the ICC ordered the intrastate Texas rates to be raised to the interstate levels. *Issue:* Can Congress regulate intrastate commerce in specific situations? *Holding:* Yes, The Court held that the federal government had the power to regulate intrastate commerce when a failure to regulate would cripple, retard, or destroy interstate commerce. According to Justice Charles Evans Hughes's opinion for the Court. *Reasoning:* the regulatory power of the federal government extends to those aspects of intrastate commerce that have such a close and substantial relation to interstate traffic that control is essential to protect the security and efficiency of interstate commerce.- Yes. In a 7-2 decision, the Court affirmed the Commerce Court and upheld the ICC order. Congress was granted the power to regulate interstate commerce, which it chose to do through the ICC. This power extended to "matters having such a close and substantial relation to interstate traffic," Justice Charles Evans Hughes wrote for the majority. Since the price discrimination adversely affected interstate commerce, "it is immaterial...that the discrimination arises from intrastate rates as compared with interstate rates." Therefore, the railroads' intrastate rates were subject to regulation and the ICC order was valid.

The Prize Cases (1863) - p. 287 (I. Presidential Power during the Civil War)

*Facts:* Abraham Lincoln was elected president in November 1860. Before his inauguration on March 4, 1861, seven Southern states seceded from the Union, and Lincoln knew that he had to act quickly and decisively to preserve the nation. Beginning in mid-April, shortly after the first shots were fired at Fort Sumter, Lincoln imposed a naval blockade of Southern ports. He took this action unilaterally, without seeking the prior approval of Congress, which did not enact a formal declaration of hostilities until July 13 and did not ratify Lincoln's blockade until August 6. -Prior to July 13, Union war vessels seized four ships trading with the Confederacy. The owners of the captured ships brought suit to recover their property, claiming that Lincoln had no authority to institute a blockade in the absence of a congressional declaration of war and that the seizures were illegal. *Background and Facts:* After the confederacy fired on Fort Sumter, President Lincoln imposed a blockade on southern ports - that is, no ships could get in or out unless authorized by the Union, to cripple the confederate economy and restrict access to munitions. Lincoln ordered the blockade without congressional authorization. Congress did not ratify the blockade until several months later. Under the blockade, the Union seized four ships for trading with the confederacy, and the owners of the captured ships brought suit to recover their property in the admiralty court, arguing that the President had no authority to institute a blockade absent congressional authorization. Lincoln argued that once the shots were fired on Fort Sumter, war had ensued, and the President had not only the authority, but also the responsibility, to protect the Nation. *Issue:* (Ericson) Under the Commander in Chief Clause (CINC), absent congressional authorization, does the President have the authority to order the blockade of rebel ports following the initiation of hostilities? - (Book) Among other matters, the justices confronted this important constitutional issue: Did the president have the right to institute a blockade of ports under the control of persons in armed rebellion against the government before Congress had acted? Lincoln believed he did, on the grounds that a state of insurrection existed as a result of the shots at Fort Sumter and that he had the responsibility, under various constitutional provisions and existing laws, to protect the country. *Holding:* Yes, Under the CINC, the President had the authority to order the blockade following the initiation of hostilities by the confederacy. Important binding proposition -- That is, the President has the power to repel sudden attacks without congressional approval. Once war has been thrusted upon the Nation, the President must determine how to respond. *Reasoning:* · A) Unilateral War Rationale - The Court explains that following secession and initiation of hostilities, it is obvious that a state of war existed. B) President can repel force with force. The Confederacy, through secession, has declared war on the United States; accordingly, under the Constitution, the President is "bound to resist force by force." C) President's strategic authority. Moreover, as CINC, it is up to the President to determine strategically how to respond to the hostilities; the response is a military decision entrusted to him.

United States v. Morrison (2000) - p. 471

*Facts:* After alleging that she had been sexually assaulted by two other Virginia Tech students, who were football players, and after obtaining little recourse through the University, Christy Brzonkala sued the two students and the University through the civil remedy provision of the Violence Against Women Act (VAWA), which provides a federal remedy for victims of gender-motivated violence. *Issue:* Whether the VAWA falls within Congress' Power under Article 1, Section 8, of the Constitution? *Holding:* No, unconstituional. *Reasoning:*- The Court reasoned that gender-motivated crimes of violence are not economic activity and asserted that it has never upheld Commerce Clause regulation of purely non-economic, intrastate activity. The Court also noted that, like in Lopez, the Act did not contain a jurisdictional hook to interstate commerce. But, unlike in Lopez, Congress made extensive legislative findings addressing how gender-motivated violence affects interstate commerce. The Court paid those findings little heed and concluded that, to credit the findings and sustain the civil remedy provision, would amount to permitting Congress to regulate any crime as long as there might be some showing of a nationwide, aggregate impact. (In sum, the Court declined to apply Wickard's aggregation theory to intrastate, non-economic activity).

Morrison v. Olson (1988) - p. 215

*Facts:* During the Watergate scandal of the 1970s, existing laws allowed the attorney general to appoint a special prosecutor (today called a special counsel) to investigate alleged wrongdoing in the executive branch. Because of the problems encountered by the special prosecutor (detailed later in this chapter, in Nixon v. United States), Congress included a provision in the Ethics in Government Act of 1978 establishing the Office of Independent Counsel to investigate and, when necessary, to prosecute high-ranking officials of the government for violations of federal criminal laws. The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to recommend to that court the appointment of an "independent counsel" to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws. *Issue:* Did the Act violate the constitutional principal of separation of powers? 1.) The initial question is, accordingly, whether appellant is an "inferior" or a "principal" officer. 2.) whether the Act is invalid under the constitutional principle of separation of powers 3.) whether the Act, taken as a whole, violates the principle of separation of powers by unduly interfering with the role of the Executive Branch. . . . *Reasoning:* The Court addressed a number of constitutional issues in this case and upheld the law. The near-unanimous Court held that the means of selecting the independent counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch we conclude today that it does not violate the Appointments Clause for Congress to vest the appointment of independent counsel in the Special Division; that the powers exercised by the Special Division under the Act do not violate Article III; and that the Act does not violate the separation of powers principle by impermissibly interfering with the functions of the Executive Branch. The decision of the Court of Appeals is therefore reversed.

Myers v. United States (1926) - p. 227

*Facts:* Prior to its replacement by the United States Postal Service in 1970, the U.S. Post Office Department was a cabinet-level department but considered something of a patronage agency. In July 1917 President Woodrow Wilson, with the advice and consent of the Senate, appointed Frank S. Myers to be a first-class postmaster in Portland, Oregon, for a four-year term. -An 1876 law provided that postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval. - Because Wilson had not received the Senate's approval for the dismissal, Myers claimed he had been unlawfully fired. He sued for his unpaid salary from the date of his removal to the expiration of his four-year term, a claim of $8,838.71. During the period at issue, Myers accepted no other employment, and the Senate confirmed no other nominee for the position. After Myers died, his widow continued the legal action. *Issue:* whether under the Constitution the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate *Holding:* Yes, the president has the power to remove executive officers without consent of the senate if appointed. *Procedural History:* During the period at issue, Myers accepted no other employment, and the Senate confirmed no other nominee for the position. After Myers died, his widow continued the legal action. The court of claims rejected Myers's suit, and an appeal came to the Supreme Court. *Rule of Law:* he basis for his argument was an 1876 federal law that said, "Postmasters of the first, second and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law." Wilson strongly believed that his right to remove individuals from appointed office was not to be shared with Congress, and he had engaged in some bitter fights with Congress over this point." *Reasoning:* After tracing legislative debate of the First Congress in 1789 which dealt with the interpretation of the President's appointment power, Chief Justice Taft concluded that the power to remove appointed officers is vested in the President alone. According to Taft, to deny the President that power would not allow him to "discharge his own constitutional duty of seeing that the laws be faithfully executed." - We find our conclusion strongly favoring the view which prevailed in the First Congress, we have no hesitation in holding that conclusion to be correct; and it therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so. For the reasons given, we must therefore hold that the provision of the law of 1876, by which the unrestricted power of removal of first class postmasters is denied to the President, is in violation of the Constitution, and invalid. This leads to an affirmance of the judgment of the Court of Claims.

Swift & Company v. United States (1905) (note case) - p. 418

*Facts:* Ranchers sold their livestock to the stockyards where the animals were packed and shipped to customers after the stockyard took a commission based on where they decide to direct the livestock. (Meatpacking trusts acquired control of the stockyards, and could direct where the ranchers sent their stock and fixed prices.) The government argued that this was a restraint in trade violation of the Sherman Antitrust Act, but the meatpackers argued that their control of the stockyards was an intrastate matter. *Issue:* Is the manufacturing interstate commerce, and thus regulatable under the Commerce Clause? *Holding:* yes, under the stream of commerce doctrine. *Reasoning:* Under the stream of commerce doctrine, regulation is permited from the point of orgination to the point of termination. Hence, the shipping is considered interstate commerce and regulateable

In re Neagle (1890) - p. 202

*Facts:* Suspecting a plot against Justice Stephen J. Field's life, the U.S. Attorney General appointed Neagle, a U.S. Marshall, to protect him. Acting as Field's bodyguard, Neagle shot and killed a man who appeared about to attack the justice. After California officials arrested and jailed Neagle, the U.S. sought his release by a writ of habeas corpus. *Issue:* whether the president, without congressional action, could issue an executive order through the U.S. attorney general to authorize a bodyguard to protect Justice Field? If he did, then Neagle likely had authority to act as he did; if not, he could be tried for murder in California. *Reasoning:* In Neagle the Court adopted the "general grant" perspective of executive power. The justices held that the president has the constitutional power to take those actions necessary to enforce the laws of the nation, even if the Constitution does not provide an explicit authorization for doing so. The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was justified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the judgment of the Circuit Court authorizing his discharge from the custody of the sheriff of San Joaquin County.

Heart of Atlanta Motel v. United States (1964) - p. 458

*Facts:* The 1964 Civil Rights act prohibited discrimination in public accommodations. The motel owner, which advertises out of state, sued the US government as he intended to continue not servicing black people. *Issue:* Under the Commerce Clause, can Congress remedy discrimination by places of public accommodation? *Holding:* Yes, Congress can regulate activities that affect interstate commerce. *Reasoning:* 1. Congress can regulate personal movement of interstate commerce, and the channels of interstate commerce.- African-Americans could not find hotel rooms when traveling interstate, and consequently, there was evidence that many African Americans discontinued travel due to not having anywhere to stay. 2. It does not matter if a moral wrong was the reason for the regulation, if the regulation was motivated by morality at fitst.

Hamdi v. Rumsfeld (2004) - p. 325 (The War against Terrorism Case)

*Facts:* The Northern Alliance detained Hamdi on a battlefield in Afghanistan and delivered him to U.S. forces. He is a U.S. citizen. U.S. military authorities transferred him to Guantanamo and then to a military brig in Norfolk. The Government claimed that he is an "enemy combatant," (i.e., unlawful combatant) and thus, he could be held without access to counsel, formal charges, and without the commencement of any court proceedings. The government allegations were supported by a DoD official's affidavit (the "Mobbs Declaration"). *Issues:* 1.) First, does the Government have the authority, either by statute or under the Constitution, to detain a U.S. citizen on American soil as an "enemy combatant"? 2.) Second, if such authority does exist, what process is owed to such an "enemy combatant," under the Constitution, who wishes to challenge this classification? *Holdings:* The Court held that, under the AUMF, Congress authorized the detention of U.S. citizens on U.S. soil as enemy combatants. However, under the Due Process Clause of the Fifth Amendment, an enemy combatant, under Hamdi's circumstances, must receive notice of the factual basis of his classification and the opportunity to rebut the basis supporting that classification before a neutral decision-maker. *Majority Reasoning:* On Issue One: First, detention of individuals such as Hamdi is incidental to war-making power. Detention falls within that which is "necessary and appropriate force." Second, the President must be able to prevent those fighting against us from returning to the battlefield. (But, under the laws of war, detention may last no longer than the hostilities, and that amount of time is uncertain in this unique conflict against non-state actors). (The Court seems to think this case is more like Quirin than Milligan). On Issue Two: We have to balance the Government's interest and the private interest here (as well as the value of additional safeguards to avoid erroneous deprivation of rights). The government interest involves the protections of our soldiers as well as civilians. The private interest pertains to the desire of the detainee, an American citizen, to be free from involuntary confinement. The Court explains that the way to accommodate both interests is for the government to have an opportunity to put forth evidence and then permit the detainee to rebut the Government's evidence with "more persuasive" evidence. (The Court expects the Congress and the President to create the applicable procedures, which they eventually did). *Justice O'Connor's* "Take-Away" Points: 1) The political branches - and not the Court - must create the relevant procedures. 2) War is not a "blank check" for the Executive when it pertains to the rights of our Nation's citizens. 3) The Government has not sought the suspension of the writ of habeas corpus. 4) Finally, the detainee must be permitted access to counsel, which did occur prior to the Supreme Court's decision. *Other Opinion:* Other Opinions: Justice Scalia argues that the AUMF is not a suspension of habeas corpus under Article I, § 9, clause 2 and therefore, the President does not have the power to detain a United States citizen without charges. Scalia thinks that Milligan governs this case. Justice Thomas was the only Justice who agreed entirely with the Bush Administration's position. (Therefore, the case was 8-1 with respect to the second issue).

National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937) - p. 443

*Facts:* The Steel company fired 10 workers for unionizing. The workers sued under the NLRA, and the NLRB ordered there employment reinstated. The steel company refused to reinstate, and challenged the NLRB authority under the Commerce Clause. *Issue:* Whether, under the commerce clause, Congress can regulate labor unions? *Holding:* Yes, the employment should be reinstated. *Reasoning:* 1.) Congress can legislate to protect and advance interstate commerce 2.) If intrastate activites have a substantial relation to interstate commerce, Congress can regualte to advance and protect.- Labor disputes and unions can have a large effect on the interstate, national, economy. Wickard v. Filburn

Train v. City of New York (1975) (note case) - p. 207

*Facts:* The case concerned the e Federal Water Pollution Control Act Amendments of 1972, which Congress passed over President Nixon's veto. The act made billions of dollars in federal money available to local governments for sewers and clean water projects. After losing the legislative battle, the president instructed the administrator of the Environmental Protection Agency (EPA) not to allot to local governments the full funds authorized by Congress. For example, for fiscal year 1973 Nixon directed officials to spend no more than $2 billion when Congress authorized as much as $5 billion for that year. *Issue:* Was President Nixon's instructions to not allocate local governments the funds authorized by Congress unconstitutional? *Holding:* Yes, the Court held that the funds must be distributed according to the intent of Congress? *Reasoning:* - In interpreting the legislation, the Supreme Court in Train found no congressional grant of discretion to the president that would allow him to decide how much of the appropriated money to allocate. In the absence of such a grant, the president's obligation was to carry out the terms of the statute: the funds - The Court ruled that a president cannot "frustrate the will" of Congress by destroying a program through impoundment; he must enforce and administer the policies enacted by the legislature (even if he opposes them) to fulfill his constitutional requirement to execute the laws.

Wickard v. Filburn (1942) - p. 454

*Facts:* Under the Agricultural Adjustment Act, Congress limited the total supply of wheat becasue the market was depressing. Filburn grew more wheat than his allotment, for exclusive home consumption, and refused to pay the excess fee. *Issue:* Whether the 1938 Agricultural Adjustment Act violated the Commerce Clause? *Holding:* No, Congress has the authority to regulate the planting by an individual of crops on his own property for home consumption. *Reasoning:* Even if Filburn's growing of wheat is intrastate, when taken together home consumption affects interstate commerce. Filburn and similarly situated individuals will have an effect, on commerce, in the aggregate, so Congress has a rational basis to enact the legislation. "That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation, where, as here, his contribution, taken together with that of many other similarly situated, is far from trivial."- Created the aggregate theory of substantial affect.

United States v. Nixon (1974) - p. 237

*Facts:*A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States. *Issue:*Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review? Issue: Should the subpoena compelling President Nixon to produce tapes and documents relating to the Watergate Scandal be quashed on executive privilege grounds? *Holding:* No, the subpoenaed materials must be transmitted to the District Court. *Reasoning:* The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes. *See My Brief*

Commerce Review

*Instrumentalities (Or Persons or Thngs in Interstate Commerce):* Regulation of the means of interstate commerce (i.e., "planes, trains, and automobiles"). Example of regulating goods "in" interstate commerce - cattle in Swift. Also, in Gibbons (boats) and Shreveport (trains), Congress's regulation of instrumentalities was at issue. *Channels of Commerce:*Think "conduits" or the roads through which "commerce" travels (i.e., highways, airspace, waterways, telephone lines, railroad tracks, the Internet, etc.) - Congress often regulates the channels of interstate commerce in order to keep goods or activities of which it disapproves out of interstate commerce. Shreveport Rate Case and Gibbons could be placed here as well - regulations that impacted railroads and waterways, respectively. Heart of Atlanta may fall into this category too. In a sense, Congress sought to keep the channels of interstate commerce free of race-based discrimination, so African-Americans could travel and not be invidiously denied entry into places of public accommodation. As discussed above, Raich may fit into this category. *EFFECTS TESTS (DIRECT-INDIRECT / SUBSTANTIAL EFFECTS TEST - Intrastate economic and intrastate non-economic activities):* Sick Chicken Case (direct-indirect analysis - no longer good law); Jones & Laughlin Steel (intrastate / economic), Wickard (intrastate / economic - regulation related to an interstate market); Lopez (intrastate / non-economic); Morrison (intrastate / non-economic); Raich (intrastate / economic - regulation related to an interstate market).

Bush v. Gore (2000) - p. 184

*Issue:* 1.) Did the Florida Supreme Court violate federal law by altering the election procedures in place prior to the election? 2.) Did the Florida Supreme Court violate the equal protection clause of the Fourteenth Amendment when it ordered a recount to take place without setting a single uniform standard for determining voter intent? *Holding:* Yes. *Reasoning:* Noting that the Equal Protection clause guarantees individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment," the per curiam opinion held 7-2 that the Florida Supreme Court's scheme for recounting ballots was unconstitutional. Even if the recount was fair in theory, it was unfair in practice. The record suggested that different standards were applied from ballot to ballot, precinct to precinct, and county to county. Because of those and other procedural difficulties, the court held, 5 to 4, that no constitutional recount could be fashioned in the time remaining (which was short because the Florida legislature wanted to take advantage of the "safe harbor" provided by 3 USC Section 5). Loathe to make broad precedents, the per curiam opinion limited its holding to the present case. Rehnquist (in a concurring opinion joined by Scalia and Thomas) argued that the recount scheme was also unconstitutional because the Florida Supreme Court's decision made new election law, which only the state legislature may do. Breyer and Souter (writing separately) agreed with the per curiam holding that the Florida Court's recount scheme violated the Equal Protection Clause, but they dissented with respect to the remedy, believing that a constitutional recount could be fashioned. Time is insubstantial when constitutional rights are at stake. Ginsburg and Stevens (writing separately) argued that for reasons of federalism, the Florida Supreme Court's decision ought to be respected. Moreover, the Florida decision was fundamentally right; the Constitution requires that every vote be counted.

Individual Mandate

*What is it?* - The individual mandate—officially called the individual shared responsibility provision—requires virtually all citizens and legal residents of the United States to have health insurance *How does it work?* - Some people are exempt from the individual mandate, but the majority of Americans fall under its mandate and were subject to a penalty for non-compliance if they were uninsured between 2014 and 2018. People who were uninsured—and who didn't qualify for an exemption—during that time frame had to pay the shared responsibility payment when they filed their federal income taxes. *What is Medicaid expansion?* - gives funds to the States on the condition that they provide specified health care to all citizens whose income falls below a certain threshold. . . . *Is it Constitutional under the rule established in National Federation of Independent Business?*

Discussion on FDR's Court-Packing Plan - p. 439

- The Court entered its summer recess in 1936 having completed a year and a half of dealing with Roosevelt's legislative program and striking down several of the New Deal's most important programs. The Four Horsemen constituted a solid bloc, and in major cases these justices could count on the support of at least one other—usually Owen Roberts .- Roosevelt was understandably frustrated with what he viewed as the Court's obstructionism; he was also impatient that no vacancies had occurred that he might fill with appointees sympathetic to the New Deal.- Roosevelt faced reelection, in which he won by a massive landslide receiving 98% of electoral votes... "With such an impressive mandate from the people and such strong party support in Congress, Roosevelt was willing to proceed with his planned attack on the Court. If no vacancies on the Supreme Court occurred naturally, Roosevelt would try to create some."What is the Plan: His idea was to expand the number of lower court judgeships; streamline federal jurisdiction, especially with respect to cases having constitutional significance; and adopt a flexible method of temporarily moving lower court judges from their normal duties to districts with case backlogs.To many observers these administrative reforms were little more than a smoke screen for Roosevelt's proposals concerning the Supreme Court. The president asked Congress to authorize the creation of one new seat on the Court for every justice who had attained the age of seventy but remained in active service. Up to six new justices could be appointed in this way, bringing the potential size of the Court to a maximum of fifteen. At the time of his proposal, six sitting justices were older than seventy. - Reaction was not favorable.11 Public opinion polls taken during the course of the debate over the plan reveal that at no time did a majority of Americans support Roosevelt's proposal..Even with large Democratic majorities in both houses of Congress, Roosevelt had difficulty selling his proposal to the legislature. - The battle in Congress over the president's plan was closely fought.13 A continuation of the confrontation, however, was averted in large measure by the actions of the justices themselves. On March 29, 1937, just twenty days after the president's broadcast, the Court signaled that changes were in the making. The first indication was the 5-4 decision in West Coast Hotel v. Parrish "What is the switch in time that saved nine: Justice Roberts, so long an ally of the Four Horsemen, deserted the conservatives and voted with the liberal bloc to approve the legislation. Just months earlier Roberts had voted with the conservatives in a 5-4 decision striking down a New York law that was nearly identical to the one he now approved....Two weeks later Roberts proved that his West Coast Hotel vote was not an aberration. On April 12 the Court issued its ruling in National Labor Relations Board (NLRB) v. Jones & Laughlin Steel Corporation. Once again Roberts joined Hughes, Brandeis, Cardozo, and Stone to form a majority, this time upholding a major piece of New Deal legislation. The decision may be the most important economic ruling of the twentieth century. In it the Court announced a break from the past and ushered in a new era in the constitutional relationship between the government and the economy."

What is Stream of Commerce?

-Holmes's opinion develops what has become known as the "stream of commerce doctrine," which allows federal regulation of interstate commerce from the point of its origin to the point of its termination. Interruptions in the course of that interstate commerce do not suspend the right of Congress to regulate.

Professor Ericson's Separation of Powers Framework (available on electronic reserve)

1) Does the Constitution explicitly answer the question (e.g., The President has the exclusive power to pardon or the exclusive power to make appointments of principal officers) or is the authority inferable from the text of the Constitution (e.g., Neagle, United States v. Nixon, Nixon v. Fitzgerald, The Prize Cases, Quirin)? 2) Is a branch exercising authority that it has "customarily" exercised (without objection from another branch) over many years (Tier 2 of power in Justice Jackson's Steel Seizure concurrence)? 3) Is one branch exercising authority that is typically associated with another branch (e.g., Clinton v. City of New York, Chadha)? 4) Is one branch aggrandizing power at the expense of another branch or individual rights (e.g. Morrison, United States v. Nixon, Bowsher, Milligan, The Steel Seizure Case, Hamdi)? 5) Are there any appointment or removal issues that affect the separation of powers analysis (e.g., Buckley, Morrison, Myers, Bowsher)?

Impacts of Gibbons v. Ogden

1.) First, commerce involves more than buying and selling: it also includes the commercial intercourse between nations and states, and therefore transportation and navigation clearly fall within the definition of commerce. 2.) Second, commerce among the states begins in one state and ends in another; it does not stop when the act of crossing a state border is completed. Consequently, commerce that occurs within a state may be part of a larger interstate process. 3.) Third, once an act is considered part of interstate commerce, Congress, according to the Constitution, may regulate it. The power to regulate interstate commerce is complete and has no limitation other than what may be found in other constitutional provisions.Note: Marshall rejects Ogden's argument that the Tenth Amendment serves as such a limit. In line with his opinion in McCulloch, Marshall does not find that the amendment creates an "enclave" of state power. Instead, he emphasizes that Congress is limited to its delegated powers,in this case, the power to regulate interstate commerce, however broadly defined. 4.) fourth point: because the text of the commerce clause limits congressional power to regulate commerce among the states, the power to regulate commerce that occurs completely within the boundaries of a single state and does not extend to or affect other states belongs to the states.Gibbons v. Ogden was a substantial victory for national power. It broadly construed the terms regulate, "Commerce," and "Commerce . . . among the several States" (or interstate commerce)....The opinion asserts only that Congress has complete power to regulate interstate commerce and that federal regulations are superior to any state laws. The decision does not answer the question of the legitimacy of states regulating interstate commerce in the absence of federal action. That controversy was left for future justices to decide.

Gonzalez v. Raich (2005) - p. 478

2.*Facts:* This case involved California's Compassionate Use Act. This was a state law exemption from drug prosecutions for certain categories of persons. For instance, Ms. Raich had two caregivers who cultivated and provided marijuana for her, and her doctor testified that her use of marijuana amounted to a "matter of life and death." Ms. Monson grew about six cannabis plants to maintain a supply for her individual, local, and non-commerce use. Based on information from the local sheriff's office, the Federal DEA confiscated and destroyed both women's cannabis plants - consistent with that Agency's federal authority - but did not arrest them. Raich and Monson sued the Attorney General Alberto Gonzalez in his official capacity. This is an "as-applied challenge" to the Federal Controlled Substances Act ("CSA"). - The plaintiff's argument was, to the extent that the CSA prevents the use of homegrown, non-commercial marijuana for an exclusively medical purpose, it exceeds Congress's authority under the Commerce Clause. *Issue:* Whether Congress Power to Make all laws Necessary and Proper to its authority to regulate interstate commerce, permits Congress to prohibit the local cultivation and use of marijuana in compliance with applicable state law? *Holding:* Yes, Congresss can regulate the local cultivation and use of marijuana, even if that activity complies with applicable state law. *Reasoning: Citing to Wickard, · Congress can regulate purely intrastate activity that is not in and of itself commerce if failure to regulate under the circumstances would undercut effective market controls of an interstate product. 1. home-consumed marijuana out of the purview of federal control could affect market conditions. If the price of marijuana increases, homegrown marijuana might be diverted into the market, just like the homegrown wheat in Wickard. 2. given enforcement difficulties, to not permit regulation could allow for a gaping hole in the regulation of the market. 3. The CSA may be a criminal statute, but its provisions purport to regulate an interstate market, even if the market is an illegal one. Accordingly, it was rational for Congress to seek to keep the marijuana at issue out of the interstate commercial market. That is, Congress may seek to keep the channels of interstate commerce clean from marijuana that could get diverted into the market for non-medical use. And when Congress is concerned about the regulation of a national market, Wickard, rather than Lopez, arguably controls. *Dissent:* This does not fall under substantial effects, " Under the majority's definition, Congress could regulate the production and distribution of commodities that may (or may not) enter the interstate market. Basically, she reasoned that anything could be "economic" or "commercial" under this approach. - This is a good example of dual federalism.

Gibbons v. Ogden (1824) - p. 407

Facts: In New York, a monopoly on steamboat shipping was created. Ogden had the monopoly, and Gibbons had a federal permit under the 1789 Coastal Licensing Act. Ogdens sued Gibbons, Gibbons raises Federal permit defense .issue: 1. Can the federal government regulate navigation (a channel of commerce) under the Commerce Clause? 2. Under the Supremacy Clause, is the NY monopoly constitutional? Holding: Yes, and No. Reasoning: On 1. Interstate Commerce is broad and includes interstate navigation of channels (begins in one state, and terminates in another) On 2. Article 6 of the Constitution nullifies any law that contradicts with the Supreme law of the land. Hence, the monopoly is pre-empted.

A.L.A. Schechter Poultry Corp. v. United States (1935) ("Sick Chicken Case") - p. 420

Facts: Under the NIRA, a NY slaughterhouse was found in violation of numerous wage and health codes. The slaughterhouse sued claiming that the NIRA was a congressional overeach of Commerce authority.Issue: Is the NIRA constitutional if it regulates "intrastate economic action"? *Holding:* No, Congress cannot regulate intrastate commerce. *Reasoning:* 1.) There was no interstate commerce, as becasue it did not regualate the transportation of chicken from State A to State B, involve two states, or a channel of commerce. 2.) The activities did not directly affect interstate commerce or have the intent to disrupt interstate commece.

Justice Jackson's Tiers of Presidential Power - (Be sure to know Jackson's concurrence in the Steel Seizure case)

Tier 1 - The President acts pursuant to an express or implied authorization of Congress. Here, the President's power is at its "apex." (Presidential Power + Congressional Power) Tier 2 - Congress is silent, so the President is acting in the absence of either a grant or denial of authority. This is the so-called "zone of twilight." Here, congressional "acquiescence" or "indifference" may invite independent presidential policy-making. Presidential customary activities are relevant here. Tier 3 - Here, there is a congressional prohibition. The President's power is at its lowest level or "ebb." (Presidential Power - Congressional Power). Tier 3 has been characterized as a "pure" separation of powers dispute, that is, presidential power vs. congressional power. Accordingly, we must figure out who wins under the circumstances. Justice Jackson concluded that the Steel Seizure Case falls into Tier 3, because the Taft-Hartley Act rejected the kind of control of the steel mills ordered by President Truman, instead giving the President the power to prescribe a temporary "cooling off" period between the sides in a labor dispute. Justice Jackson also argued that we must be aware of the "normal" balance between "liberty" and "authority."

Buckley v. Valeo (1976) (in footnote) - p. 214

ee also Buckley v. Valeo (1976) for other questions relating to the appointment power. In this case, the justices heard a challenge to the constitutionality of the 1974 amendments to the Federal Election Campaign Act, which created the Federal Election Commission (FEC). The FEC was to enforce the law, conduct civil litigation, issue advisory opinions, and maintain records, among other responsibilities. Because of the Watergate scandal, Congress did not want the president alone to appoint the commission's eight members. Instead, the secretary of the Senate and the clerk of the House were ex officio members without the right to vote, and the president pro tempore of the Senate, the Speaker of the House, and the president each appointed two members, one Democrat and one Republican. Both houses of Congress had to confirm the six voting members.