New Constitutional Powers - Exam 1 (POLS 3223)

Did the Constitution protect civil rights?

No, in fact there are very few rights guaranteed in the Constitution. That's where the Bill of Rights came into play.

The Prize Cases

(1863) The Supreme Court's decision declared constitutional the blockade of the Southern ports ordered by President Abraham Lincoln. This was without a declaration of war because congress was not in session.

Sources of Congressional Power

1.) Enumerated Power (Ex. Article 1, Section 8) 2.) Implied Powers - Necessary and Proper Clause (McCulloch example, Federal banks) - Power to Investigate (Killbourn, McGrain, Watkins, etc.) 3.) Inherent Power - U.S. v. Curtiss-Wright Export Co. (1936)

Powers of the Executive Branch

1.) Negotiate treaties 2.) Nominate people for federal office 3.) Enforce laws passed by Congress 4.) Conduct wars 5.) Pardon people

Methods of Constitutional Interpretation (Legalistic methods)

1.) Originalism 2.) Textualism 3.) Structural Analysis 4.) Stare Decisis 5.) Pragmatism 6.) Polling Jurisdictions

Polling Jurisdictions (rarely done)

Examines practices in the United States and even abroad

NLRB v. Canning (2014) (Breyer, 9-0)

Facts of the case The National Labor Relations Act (NLRA) established the National Labor Relations Board (Board) to decide labor disputes among employers, unions, and employees. Parties first file unfair labor practice allegations to a Regional Office, which then conducts an investigation and, if necessary, files a complaint. An Administrative Law Judge (ALJ) presides over the hearing on the complaint and issues a recommendation to the Board. Unless a party to the dispute files a timely appeal, the ALJ's recommendation becomes the final order of the Board. To hear a case and issue a ruling, the Board must have at least three of its five members present. The NLRA allows parties to appeal a Board ruling to the U.S. Court of Appeals for the area where the alleged unfair labor practice occurred or to the U.S. Court of Appeals for the District of Columbia Circuit. Board members are appointed by the president and serve five-year terms. In 2010, Noel Canning, a bottler and distributor of Pepsi-Cola products, was engaged in negotiations with its employee union, the International Brotherhood of Teamsters Local 760 (Union). During the final bargaining session that December, Noel Canning agreed to submit two wage and pension plans to a vote by the Union membership. The membership approved the union's preferred proposal. However, Noel Canning argued that the discussions did not amount to a binding agreement and refused to incorporate the changes into a new collective bargaining agreement. The Union filed a complaint with the Board alleging that Noel Canning's actions constituted an unfair labor practice in violation of the NLRA. An ALJ determined that the agreement was binding and ordered Noel Canning to sign the collective bargaining agreement. The Board affirmed the ruling against Noel Canning. Noel Canning appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which held that the Board's ruling was invalid because not enough members of the Board were present. The panel that heard the Noel Canning case consisted of one member who was appointed by President Barack Obama and confirmed by the Senate in 2010 and two members whom President Obama appointed without Senate confirmation in January 2012. Although the Recess Appointments Clause allows the president to fill vacancies that occur while Congress is in recess, between December 2011 and the end of January 2012, the Senate met in pro forma meetings every three business days. Therefore, the Court of Appeals determined that the Senate was not in recess on the days the Senate did not meet because, for the purpose of the Recess Appointments Clause, recess is defined as the time in between sessions of Congress. Issues: - Whether recess appointments include intrasession periods? - Whether any vacancy may be filled with a recess appointment or only those that occur during the recess? - Whether the Senate was in session or in recess during the period in question? Holdings: - Recess appointments do include intrasession periods and any period in which the Senate is not capable of performing its business. - Any vacancy may be filled during a recess of Congress regardless of when the vacancy accrued. - The Senate is "in session" whenever the Senate claims to be in session and capable of performing its business. Reasoning: Justice Stephen G. Breyer delivered the opinion for the 9-0 majority. The Court held that a pro forma session does not create a recess long enough to trigger the Recess Appointments Clause. While the term "recess" in the Clause refers both to inter-and intra-session recesses, its legislative history and historical context indicate that the term should be presumed to mean a recess of substantial length. The Court held that the three-day break that occurs during pro forma sessions does not represent a significant interruption of legislative business and therefore cannot justify the exercise of the Clause. Additionally, a pro forma session cannot be viewed as a single, long recess because the Senate retains its capacity to conduct business during such sessions. Because recess appointments made during a recess that was shorter than ten days have been so historically rare, the Court held that ten days was the appropriate presumptive lower limit to place on the exercise of the Clause. The Court also held that the Clause applies to vacancies that occur during a recess as well as those that originally occur before a recess but continue to exist at the time of the recess. Although a plain reading of the Clause does not require such an interpretation, the historical context of the wording favors the more broad reading because a vacancy can be considered a continuing state. Concurrence (Scalia) - Justice Antonin Scalia wrote a concurrence in judgment in which he argued that the Recess Appointments Clause was only meant to cover breaks between congressional sessions rather than breaks within them. Therefore, the appointments in question are invalid because they were made during the session. Justice Scalia argued that a plain reading of the text as well as the historical meaning of the term "recess" clearly places it in opposition to the term "session," and it is therefore illogical to interpret the Clause as allowing appointments while Congress is in session. In offering a broader reading of the Clause, the majority opinion disregards the Clause's purpose: to preserve the balance of power between the President and the Senate regarding appointments. Justice Scalia also argued that the majority's ten-day rule cannot stand because it is based purely on judicial interpretation of historical practices without any textual basis. For these same reasons, the Clause should be read as only granting the President the power to fill vacancies that originally occurred during a recess. Chief Justice John G. Roberts, Jr., Justice Clarence Thomas, and Justice Samuel A. Alito, Jr. joined in the concurrence in judgment.

Rasul v. Bush

Foreign nationals held at Guantanamo have right to access U.S. courts

Rejected Proposed Veto over State Legislation

Founding fathers rejected the idea that Congress could veto State Legislation and this created tension between state and federal laws when they regulate the same areas. The Supremacy clause however solves a lot of the problems caused by this tension, but the problem still exists.

Judiciary Act of 1789

In 1789 Congress passed this Act which created the federal-court system. The act managed to quiet popular apprehensions by establishing in each state a federal district court that operated according to local procedures.

Powers of the Judicial Branch

Interprets the constitution and other laws; reviews lower courts decisions and make sure they are being constitutional

Equal Representation of States

Proposed by the New Jersey Plan

Broad Overview of Article 1 (The Authority of Congress)

Section 1 - Establishes the House and Senate (how they operate) Section 2 - The House, Its Membership Qualifications & Organization Section 3 - The Senate, Its Membership , Organization & Special Powers Section 4 - The Process for Congressional Elections and Meeting Requirements (Does not dictate how elections are conducted, but how the results are tallied) Section 5 - The Internal Operation of Each House Section 6 - Compensation and Privileges of Congressional Office Section 7 - Process of the Passage of Bills Section 8 - The Powers of Congress Section 9 - Limitations on Congressional Power Section 10 - Congressional Power over the States

Schechter Poultry v. US

Sick chicken" case enforcing the nondelegation doctrine that Congress cannot delegate its legislative powers to the Executive Branch. Wage, hour, and production regulations set by the Executive Branch under the NIRA violated the separation of powers

Commutation

The power to reduce (commute) the length of a sentence or fine for a crime (Only at the state level)

Congressional Power to Investigate

This power is restrained under the Kilbourn Test (Kilbourn v. Thompson, 1881)

Stewardship Theory

A theory that argues for a strong, assertive presidential role, with presidential authority limited only at points specifically prohibited by law. Supported by Alexander Hamilton

Originalism

A view that the Constitution should be interpreted according to the original intentions or original understanding of the Framers. Original Intent: Asks what the framers wanted to do Original Understanding: Considers what a clause meant to those who enacted it

Textualism

An approach to interpreting the Constitution that relies on a literal, "plain words" reading of the document

There is a _______________ election of all congressman

Direct

Article II

Executive Branch

Ex parte Endo (1944)

Forbade the internment of Japanese-Americans born in the U.S.

Constituency Based Representation

Founding fathers believed that representation should be direct and that legislative members should answer directly to their constituents and so this form of representation was one where members of the legislature were elected by the people.

Article I

Legislative Branch

Was the Principle of Judicial Review Accepted?

Meh, kinda, but not really.

The Debate Over Civil Rights and the Role of State Constitutions

State constitutions can give its people more rights, but it cannot take away any rights guaranteed by the federal government.

Article IV

States

The President and Foreign Policy

Power to determine foreign policy given by Article 2, Section 2

Federal Pardon is reserved and limited to the __________

President Can only be used for federal crimes, except impeachment

The Revolutionary War Example

In class we went over the new government that the colonists were attempting to create and how it contrasted with what they had dealt with with the Monarchy. They did not want all the power to be with one person and some way to limit the authority of government.

Jurisdiction to Hear Appeals from State Courts

Mandatory v. Discretionary Jurisdiction - Mandatory jurisdiction means that the appeals court must hear every appeal that originates from the courts within its purview. This doesn't mean that it reviews every decision the lower courts render, but if a party to any lower court decision submits an appeal, it must review it. In 1988, Congress eliminated these mandatory appeals giving the Supreme Court nearly complete discretion over all state court decisions involving federal law. - Discretionary jurisdiction is a circumstance where a court has the power to decide whether to hear a particular case brought before it. Murdock v. City of Memphis (1875) - The Court had said that it will not review decisions interpreting state statutes and constitutional provisions unless the state court's interpretation implicates issues of federal law. Instead, the justices believe state courts should interpret their own state laws and constitutions.

Presidential Power to Remove

REMOVAL, EXECUTIVE POWER OF. Article 2, section 2 of the Constitution states that "by and with the Advice and Consent of the Senate," the president can appoint judges, ambassadors, and executive officials. ... As a consequence, Congress and the courts have had to define the president's legal authority to remove officials. (Solidified by Myers v. United States, but limited by Humprey's Executor v. U.S.)

Where were some beliefs made by the framers when designing the Constitution?

Recognition by the Federalists of the Need for Experience Rather than Theory John Locke/Harrington/Founders Concur on the Need for Limited Rule

State Response to Supervision

States continue to challenge the Court's authority to interfere with their laws through various methods including: - Speech - New legislation - The Southern Manifesto (in the case of Brown v. Board of Education) - Threats of violence

Who is the Ultimate Interpreter of the Constitution? Are there limits on the court's ability to interpret?

The Court as Sole Interpreter →→→→→→ Clear Constitutional Roles and Authority Each Branch as an "Influencer" of Constitutional Interpretation →→→ May be More Accurate Yes, the court is limited to only certain cases and cannot just go around interpreting any law they wish. A process is in place and they must exercise without their jurisdiction (whether original or appellate)

The Thorny Problem of Abuse of Power - How to Trust a Central Federal Government

The Answer - Separation of Powers

United Public Workers v. Mitchell

The Court held that plaintiff's challenge to an act that prevented federal employees from taking any active part in political management on political campaigns was not ripe for review since the plaintiffs were seeking an advisory opinion.

Seminole Tribe of Florida v. Florida

The Court held that provisions of the Indian Gaming Regulatory Act providing that Indian tribes may bring suit against states in federal court were unconstitutional as a violation of the 11th Amendment because Congress did not act pursuant to a valid grant of constitutional authority.

Obligation to Enforce the Law (Train v. City of New York, 1975) (Myers v. United States, 1926)

Train v. City of New York (1975) - The Environmental Protection Agency (EPA) did not have to allot federal funds in their entirety to states according to the Federal Water Pollution Control Act Amendments of 1972. Myers v. United States (1926) - Facts of the case 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. Question Did the Act unconstitutionally restrict the President's power to remove appointed officials? Conclusion Yes. 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."

Article 2, Section 1

- "The executive power shall be vested in the President of the United States" (Doesn't say exactly what this is) - Electoral College established - Qualifications for President (be a natural-born U.S. citizen of the United States; be at least thirty-five years old; and be a resident in the United States for at least fourteen years) - Term of Office Set at 4 years according to Article 2, Section 1 (However, it did not say how many terms could be served by the same individual) - Compensation cannot be affected during the presidency

Presidential Immunity from Suit

1.) Executive Privilege v. Presidential Immunity 2.) Presidential Immunity v. Sovereign Immunity

Presidential Powers

1.) Succession - Article 25 says that the vice president shall become president if the president were to resign or die. President shall always fill the vacancy of vice president with the approval of both houses of Congress (With other appointments, the president only needs approval from the Senate, but with the vice president he needs approval for both houses) - If the president becomes too ill to serve than the vice president assumes his powers - If both the vice president and the president cannot assume control of the presidency than Congress shall decide who is next in line. 2.) Powers? Sections 2 and 3 - President shall be the Commander in Chief - Call people for military service - Get opinions from department heads - Power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment - Appointment of Ambassadors, public ministers and consuls, justices, and other government positions (Needs approval from the Senate) 3.) "He shall take care that the laws be faithfully executed" 4.) The problem of Presidential Electoral Reform - What would be the effect of a nationwide popular vote (One state would decide the outcome) - What would be the effect of a statewide popular vote (Smaller population counties might have their votes go unheard)

Aftermath of Katzenbach (South Carolina v. Katzenbach which upheld that the federal government could intervene in states elections if racial discrimination was possible present)

1.) Upheld VRA which was a dramatic impact on voter registration 2.) Amendment enforcing power became an implied power of Congress corollary to the necessary and proper clause 3.) City of Boerne v. Flores (1997) - Congress tried to pass laws that interpreted the 1st amendment in a certain way (The Court ruled that Congress can pass laws to help enforce amendments, but they cannot pass laws to make the amendments be interpreted in a certain way.) 4.) Shelby County v. Holder (2013) - Court considered whether Shelby County, Alabama needed clearance to change their voting process which they had in the past due to their past discriminatory laws. Shelby County did not obtain pre-clearance, but the Court ruled that these pre-clearance laws of the VRA were no longer appropriate and so Shelby County did not need pre-clearance like it did in the past.

Voting Rights Act of 1965

1965; invalidated the use of any test or device to deny the vote and authorized federal examiners to register voters in states that had disenfranchised blacks; as more blacks became politically active and elected black representatives, it brought jobs, contracts, and facilities and services for the black community, encouraging greater social equality and decreasing the wealth and education gap Banned all acts and procedures that barred voting on the basis of race.

Presidential Signing Statements

A formal document that explains why a president is signing a particular bill into law. These statements may contain objections to the bill and promises not to implement key sections. 1.) Binding Constitutional Interpretation 2.) The Court typically does not favor signing statements because they are often viewed as a way of the President modifying the interpretation of the law and its enforcement 3.) Is the President's Constitutional Understanding Important - Yes, if the President does not understand the Constitution then they may have unconstitutional reasoning when writing a signing statement.

United States v. Brewster

Appellee, a former United States Senator, was charged with the solicitation and acceptance of bribes in violation of 18 U.S.C. §§ 201(c)(1) and 201(g). The District Court, on appellee's pretrial motion, dismissed the indictment on the ground that the Speech or Debate Clause of the Constitution shielded him "from any prosecution for alleged bribery to perform a legislative act." The United States filed a direct appeal to this Court under 18 U.S.C. § 3731 (1964 ed., Supp. V), which appellee contends this Court does not have jurisdiction to entertain because the District Court's action was not "a decision or judgment setting aside, or dismissing" the indictment, but was instead a summary judgment on the merits based on the facts of the case. Held: 1. This Court has jurisdiction under 18 U.S.C. § 3731 (1964 ed., Supp. V) to hear the appeal, since the District Court's order was based upon its determination of the constitutional invalidity of 18 U.S.C. §§ 201(c)(1) and 201(g) on the facts as alleged in the indictment. Pp. 50507. 2. The prosecution of appellee is not prohibited by the Speech or Debate Clause. Although that provision protects Members of Congress from inquiry into legislative acts or the motivation for performance of such acts, United States v. Johnson, 383 U.S. 169, 185, it does not protect all conduct relating to the legislative process. Since, in this case, prosecution of the bribery charges does not necessitate inquiry into legislative acts or motivation, the District Court erred in holding that the Speech or Debate Clause required dismissal of the indictment.

Structure of Congress

Bicameral: House of Representatives and Senate

Background of Speech or Debate Clause

Created so that the legislative branch can operate in an unrestrained fashion. Allows free range of ideas

Was Government to Solve All Societal Ills?

No, but it can be used to solve some of the bigger problems we face in a society.

Board of Trustees of the University of Alabama v. Garret

Facts of the case After Patricia Garrett, Director of Nursing for the University of Alabama in Birmingham, was diagnosed with breast cancer, her treatment forced her to take a substantial leave from work. Upon her return, her supervisor informed her she would have to give up her position. Milton Ash, a security officer for the Alabama Department of Youth Services, who suffers from chronic asthma, requested that his employer modify his duties to accommodate him. Ultimately, none of Ash's requested relief was granted and his job performance evaluations fell. Both Garrett and Ash filed discrimination suits against their Alabama state employers, seeking money damages under Title I of the Americans with Disabilities Act of 1990 (ADA), which prohibits the States and other employers from "discriminating against a qualified individual with a disability because of that disability... in regard to... terms, conditions, and privileges of employment." The District Court disposed of both cases by ruling that the ADA exceeds Congress' authority to abrogate the State's Eleventh Amendment immunity. The Court of Appeals reversed. Question May an individual sue a state for damages in federal court under the Americans with Disabilities Act of 1990? Conclusion No. In a 5-4 opinion delivered by Chief Justice William H. Rehnquist, the Court held that suits in federal court by state employees to recover money damages by reason of the state's failure to comply with Title I of the ADA are barred by the Eleventh Amendment. The Chief Justice wrote for the majority that "in order to authorize private individuals to recover money damages against the States, there must be a pattern of discrimination by the States which violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation." Rehnquist added that none of these requirements had been met. Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Justice Stephen G. Breyer's dissent.

Barenblatt v. U.S. (1959)(Harlan, 5-4)

Facts of the case During hearings of the House Committee on Un-American Activities, Lloyd Barenblatt, a university professor, refused to answer questions concerning his political and religious beliefs along with his associational activities. He was found in contempt of Congress for failing to cooperate with the committee investigation. Question Did the House Committee's investigation into Barenblatt's affiliations with the Communist Party transgress his First Amendment protections which limit congressional inquiries? Conclusion The divided Court found that the Committee's actions did not violate the First Amendment and, thus, upheld Barenblatt's conviction for contempt of Congress. Justice Harlan noted that the First Amendment does not protect a witness from all lines of questioning. As long as the Congressional inquiry is pursued to "aid the legislative process" and to protect important government interests, then it is legitimate.

Why do we have Executive Privilege?

It allows for executive branch officers and the president to speak with a sense of security and candor.

Nevada DHR v. Hibbs

Facts of the case William Hibbs, an employee of the Nevada Department of Human Resources, sought leave to care for his wife under the Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave annually for the onset of a "serious health condition" in the employee's spouse. The Department granted Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted that leave, informed him that he must report to work by a certain date. When Hibbs failed to do so, he was fired. Pursuant to FMLA provisions creating a private right of action "against any employer" that "interfered with, restrained, or denied the exercise of" FMLA rights, Hibbs sued in Federal District Court, seeking money damages for FMLA violations. The District Court concluded that the Eleventh Amendment barred the FMLA claim. The Court of Appeals reversed. Question May an individual sue a State for money damages in federal court for violation of the Family and Medical Leave Act of 1993? Conclusion Yes. In a 6-3 opinion delivered by Chief Justice William H. Rehnquist, the Court held that State employees may recover money damages in federal court in the event of the State's failure to comply with the FMLA's family-care provision. The Court reasoned that Congress both clearly stated its intention to abrogate the States' Eleventh Amendment immunity from suit in federal court under the FMLA and acted within its authority under section 5 of the Fourteenth Amendment by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic [section] 5 legislation," wrote Chief Justice Rehnquist. Justices Antonin Scalia and Anthony M. Kennedy, who was joined by Justices Clarence Thomas and Scalia, filed dissents.

State pardon is reserved and limited to the ____________

Governor For state crimes

Reminder about the Role of Limited Government

How would anti-federalists feel about the role of Congress today? How are implied and inherent powers consistent with a limited federal government?

The compromise between the Virginia Plan and the New Jersey Plan left the following controversies:

Is the federal government empowered by the people or by the states? (The people do the voting, but the states run the elections) How should proportional representation be achieved and what, if any restrictions should be placed upon that process

Article III

Judicial Branch

Clemency

Lenience granted at the state level by Governors A pardon excuses the conduct whereas clemency does not excuse the conduct but still releases you based on mercy

Why we don't have direct election of the President and instead have the electoral college?

More populated states would be the sole deciders in the presidency and least populated states wouldn't have a voice.

US v. Comstock

NECESSARY AND PROPER SCOTUS upheld a law giving the AG the power to place a sex offender in a federal treatment facility until either the prisoner is deemed to no longer be a danger or until the state assumes responsibility for his custody. N&P gives broad authority to enact legislation, long history of federal involvement in this area, reasonable extension of longstanding civil-commitment system, statute properly accounts for state interests, and statute isn't too narrow or too broad.

Can Congressional qualifications be modified?

No Congress cannot modify them according to the decision in Powell v. McCormack And the States cannot modify them according to the decision in U.S. Term Limits v. Thornton Only Constitutional amendments can change it (Just like the 22nd amendment did which limited term limits for presidents)

Does Congress have an enumerated enforcing power of amendments?

No, it is implicit, but it is enumerated in some of the amendments that Congress can enforce the amendment through legislation. The 15th amendment says that "the right of citizens of the United States shall not be denied on account of race and the Congress shall have power to enforce this article by appropriate legislation." What does "appropriate" mean? It is whatever legislation Congress thinks is necessary to enforce the amendment so long as the legislation is appropriate. To help enforce the 15th Amendment, Congress passed the Voting Rights Act of 1957 which got rid of a lot of unconstitutional voting laws that disenfranchised black Americans Congress also passed the Voting Rights Act of 1965 that had a broader focus to get rid of discrimination in voting and didn't just mention specific devices like the Voting Rights Act of 1957 (It was a general catch all for racist voting laws)

Pennsylvania v. Union Gas Company

Respondent's predecessors operated a coal gasification plant, which produced coal tar as a byproduct, along a creek in Pennsylvania. Shortly after acquiring easements in the property along the creek, and while excavating to control flooding, the State struck a large deposit of coal tar which began to seep into the creek. Finding the tar to be a hazardous substance, the Environmental Protection Agency declared the site the Nation's first Superfund site, and the State and the Federal Government together cleaned up the area. The Government reimbursed the State for cleanup costs and sued respondent to recoup those costs under §§ 104 and 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9604 and 9606, claiming that respondent was liable because it and its predecessors had deposited the tar in the ground. Respondent filed a third-party complaint against the State, asserting, inter alia, that it was liable as an "owner and operator" of the site under § 107(a) of CERCLA. The District Court dismissed this complaint on the ground that the State's Eleventh Amendment immunity barred the suit. The Court of Appeals affirmed, finding no clear expression of intent to hold States liable in monetary damages under CERCLA. However, after this Court vacated that decision and remanded for reconsideration in light of subsequent amendments to CERCLA made by the Superfund Amendments and Reauthorization Act of 1986 (SARA), the Court of Appeals held that the statute's amended language clearly rendered States liable for monetary damages, and that Congress had the power to do so under the Commerce Clause. Held: The judgment is affirmed, and the case is remanded.

Speech or Debate Clause

The Speech or Debate Clause provides immunity from prosecution to members of Congress for "legislative acts" * Applicability--Applies to legislators and aides who perform acts that would be immune if performed by the legislator >> Not applicable to STATE legislators Scope--Provides immunity for activities occurring in the regular course of the legislative process * E..g voting, preparing committee reports, conducting hearings, hiring staff * Outside Scope--Speeches and publications made outside Congress, republication of defamatory statement made in Congress, accepting bribes are not legislative acts

Reconciling Watkins and Barenblatt (Stare Decisis or Change of Course)

There was a massive change in course between Wakins (which found that the House couldn't hold him in contempt) and Barenblatt (which found that the House COULD hold Barenblatt in contempt) despite only being two years apart. Why did this happen? McCarthyism happened! - McCarthyism is the term associated with Senator Joseph McCarthy who led the search for communists in America during the early 1950s through his leadership in the House Un-American Activities Committee and in Barenblatt the Court found that the inquiries were more useful than in Watkins especially since Barenblatt was on a college campus. Congress believed that there was a balancing test between protecting someone's first amendment rights and aiding in the legislative process. Dissent: Justice Black objected to the use of a judicial balancing test and believed that the congressional committee was not acting for a legitimate legislative purpose.

Use of Judicial Review Quick Facts

1500 governmental acts struck down - fewer than expected The threat of judicial review - may deter the passage of laws, may affect the drafting of laws, etc. Judicial review is constrained by Article III

Writs of Mandamus

Orders issued by a higher court to a lower court, government official, or government agency to perform acts required by law

What is the Role of Government?

To provide legal structure, maintain competition, redistribute income, and reallocate resources

Wayman v. Southard

(1825), affirmed the constitutional right of Congress to delegate legislative authority, thus laying the basis for the creation of the administrative state. In a unanimous opinion, the Court stated that once policy has been set by Congress according to the procedures set forth in the Constitution, the administration of that policy—the detailed making and application of rules—may be delegated to an authorized agent of the government. Thus was born the role of the federal administrator and government regulatory agencies.

National League of Cities v. Usery

(1976) The court found that determinations of state employee wages, and compensations, as well as the hours they may work, are "functions essential to separate and independent existence" and are state plenary powers protected from Congressional infringement. To allow otherwise, the majority reasoned, would be to neglect the federal system of government embodied by the Constitution.

Government Organization and Structure (Rights and Limitations Handout)

(HANDOUT NOT ON BLACKBOARD)

Articles of Confederation vs. The Constitution

(State-controlled unicameral government v. Federal-controlled divided power)

Quiz 2 Notes (Starts Here)

-

Primary Weaknesses of the Articles of Confederation

- Federal government was broke because was only allowed to requisition funds and not to tax. This was a problem due to all the debt from the Revolutionary War - Congress lacked any concrete way to regulate foreign commerce making treaties between the US and other countries of limited value. Some European nations (England and Spain) took advantage of this by imposing restrictions on trade that made it difficult for America to export goods. - Because the government lacked coercive power over the states, mutual cooperation among the states quickly dissipated. - Approval from 9 states were required for most national authority and unanimity was required for amendments to be made. and because the states were rarely cooperative this made it difficult for Congress to pass anything. One of the only real successes the Articles accomplished was that it helped end the Revolutionary War to an end and paved the way for the 1783 Treaty of Paris which made the US a presence on the international scene and prevented the states from going their separate ways until a better system could be put into place.

Realism - What are the real world influences on judges?

- Politics - Public Opinion - Personal Opinions

James Harrington - Oceana (1656)

- Separation of Power as a limiting principle of government - Separation of Powers primarily between Executive and Legislative Branches - Minimalist Government limited by ascribed powers Harrington's magnum opus, Oceana is an exposition on an ideal constitution, designed to allow for the existence of a utopian republic. The details of this ideal governing document are set out, from the rights of the state to the salaries of low officials. Its strategies were not implemented at the time. As a practical issue he lays down the rule of rotation by ballot. The executive or senate are voted out by ballot every year, and may not be elected again for three years. Harrington explains very carefully how the state and its governing parts are to be constituted by his scheme.

Charles Louis de Secondat, Baron Montesquieu - Del l'Espit des Loix (1748)

- Study of the Political Form of Government - Separation of Powers as a Hedge against abuse (Montesquieu)- Separation of Powers-the doctrine that the individual branches of government (executive, legislative, judicial) have separate and unique powers the others cannot impinge upon

The Powers of Congress under Article 1, Section 8:

- To collect taxes, duties, imposts and excises - To pay debts - To provide for the common defense and general welfare - To borrow money - To regulate interstate commerce - To establish rules for naturalization - To establish rules for bankruptcy - To coin money and regulate currency and measures - To provide penalties for counterfeiting - To establish post offices and roads - To provide for trademark, patent & copyright laws - To establish inferior federal courts - To define and punish piracy and crimes on the high seas - To raise and support armies (for no more than a 2-year period at a time) - To provide and maintain a navy - To make rules to govern and regulate the armed forces - To institute a draft and quell both insurrections and invasions - To provide for the training of the military - To govern the District of Columbia - To make all laws necessary and proper to execute these powers (The Necessary and Proper Clause, allows Congress to have implied powers and is very controversial)

Summary of Brennan's conception of the political question doctrine:

1. "Textually demonstrable constitutional commitment of the issue to a coordinate political department;" as an example of this, Brennan cited issues of foreign affairs and executive war powers, arguing that cases involving such matters would be "political questions" 2. "A lack of judicially discoverable and manageable standards for resolving it;" 3. "The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;" 4. "The impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;" 5. "An unusual need for unquestioning adherence to a political decision already made;" 6. "The potentiality of embarrassment from multifarious pronouncements by various departments on one question."

Presidential Appointment Power

1.) Article II, Section 2 gives the president his appointment powers 2.) Recess Appointments - Presidential action to temporarily fill executive branch positions without the consent of the Senate; done when Congress is adjourned or in recess 3.) Judicial Appointment Process - First, the President makes a nomination. Then the nomination is investigated by the White House Staff and the FBI, and rated by the ABA. The nomination is sent to the Senate where the Senate judiciary committee holds hearings, the committee sends the recommendation to the Senate for the final vote. 4.) Appointment of Executive Branch Officers - There are no provisions in the Constitution that explicitly give the President the power to appoint Executive Branch officers so it might be an implied power.

Differing Sources of Political Power

1.) Congress - elected by local and state election and for limited term (by representation and by state - hedges against majoritarian rule) 2.) President - elected by national election and for limited term (hedge against strong regional preference or bias) 3.) Justices - chosen by Executive with the advice and consent of Congress (life tenure and not answerable to political processes - hedge against majoritarian rule)

Rocket Review of Supreme Court Jurisprudence (take POLS 3204 for more)

1.) Court receives requests for review (7,000-9,000). These can come in the form of: - Appeals - Certification (requests by lower courts for answers to legal questions) - Petitions for writ of certiorari (most common request for review) - Requests for original review 2.) Cases are docketed (original or appellate) 3.) Justices review the docketed cases 4.) Conferences are held to select cases for review (Thursdays or Fridays) (About 80 cases are heard of the 7,000 to 9,000 petitions) 5.) Announcement of action on cases (Mondays after conference) 6.) Clerk sets date for oral arguments 7.) Attorneys file briefs 8.) Oral arguments 9.) Conferences to discuss cases and tentative votes 10.) Assignment of majority opinion 11.) Drafting and circulation of opinions 12.) Issuing and announcing of opinions 13.) Reporting of Opinions

Challenges to the Constitutionality of the VRA

1.) Is this appropriate legislation under the 15th amendment? - South Carolina v. Katzenbach said that it was. 2.) How is Congress' amendment enforcing authority balanced against the state's rights to conduct elections?

The Case for Judicial Review (4 Primary Points)

1.) Needs to be recognized because any other reading of Article 3 is too narrow (one which would exclude virtually any controversy from review) 2.) It is necessary because it is unreasonable to think that the other branches of government share a common understanding of the Constitution, across political parties and other dividing lines 3.) It is necessary to ensure that there is a process or procedure to address unconstitutional acts of Congress or the President 4.) It is necessary because otherwise, the Congress would operate without any significant check on its power, potentially passing unconstitutional laws.

Constraints on Judicial Power: Article III

1.) Prerequisites deny: - Jurisdiction (Case can't be heard unless SCOTUS has standing matter jurisdiction and personal jurisdiction) - Justiciability (concerns the limits upon legal issues over which a court can exercise its judicial authority) - Standing to Sue (petitioner must have a standing to sue for a case to be heard) 2.) Jurisdiction (court must have subject matter jurisdiction and personal jurisdiction) - Jurisdiction = Door - Defined by Article III, Section 2 - Appellate Jurisdiction v. Original Jurisdiction (can these constraints be changed? Yes, Congress can pass a law establishing appellate jurisdiction) 3.) Ex parte McArdle (1869) - Facts = In 1867, William McCardle was arrested by military authorities for publishing a series of editorials criticizing the Reconstruction in his Mississippi newspaper. McCardle sought a writ of habeas corpus on the ground that the Reconstruction Acts under which he was arrested were unconstitutional. The judge sent him back into custody, finding that military actions legal under Congress's law. McCardle appealed to the Supreme Court under an 1867 congressional statute that conferred jurisdiction on appeal to the High Court. After hearing arguments in the case, but prior to announcing a decision, the Congress withdrew its 1867 act conferring jurisdiction. - Issue = Whether the court has appellate jurisdiction to hear the case? Whether Congress may remove the court's jurisdiction after a case has already been accepted for consideration - Holding = The court does not have jurisdiction of the matter because the act granting it appellate jurisdiction was repealed by an act of Congress. Congress may remove the court's jurisdiction at any point, concerning any matter that has not been concluded. - Reasoning = The basis for this repeal was the Exceptions Clause of Article III Section 2 - Disposition = Case dismissed (but as in Marbury, original jurisdiction of the court remains) Aftermath of McArdle - Court's authority can be limited, BUT see the Judiciary Act of 1789 - But what if Congress amended the acts establishing the judiciary and set forth such rules as to eliminate the appellate authority of the court altogether? Would that pass constitutional muster? Would the Court retain some authority by virtue of the general grant of authority in the Constitution? - McArdle does not really signal a significant shift in power between the branches of government Is McArdle a sign of things to come or an anomaly in U.S. history? (See Table 2-2 on Page 90)

Important Principles Underlying Constitutional Authority

1.) Separation of Power/Checks and Balances Doctrine: which governs relations among the branches of government 2.) Federalism: which governs relations between the state and national government 3.) Principle of Individual Rights and Liberties: which governs relations between the government and the people.

Boumedienne v. Bush

2008; detainees have a constitutional right to challenge their detention in civilian courts

Transition from Unicameral Congress under the Articles of Confederation to _____________________

A bicameral Congress under the US Constitution

Justiciability as a Constraint

A case must be the type of case that a court can solve before SCOTUS can hear it. 1. "Cases and Controversies" - A case must be a case in controversy where someone is being harmed for the Court to hear it 2. Advisory Opinions (Washington letter, Washington asked SCOTUS for advice on a treaty) - "Advice" v. an Advisory Opinion - Courts will not issue advisory opinions because there is no case in controversy 3. Collusive Suits = Actual Controversy (Court will not hear suits that are Collusive in nature where both parties are in collusion. The parties must be in conflict for the court to hear the case) 4. Mootness (Court isn't going to hear cases where the controversy is not longer alive) - DeFunis v. Odegaard (1974) (Petitioner sued because he was denied acceptance to a law school, but the court ruled it was moot because by the time it reached them the petitioner had already gone to a different law school and was about to graduate) - Roe v. Wade (1973) (Court agreed that Roe v. Wade was not moot because it was "Capable of Repetition, but evading review") 5. Ripeness (The compliant must be a person who was harmed NOW and it can't be a believed harm to come. - United Public Workers v. Mitchell (1947) (Only worker who had ripeness was the man who was actually fired for helping a political campaign, not the workers who believed they might be fired) - International Longshoreman's Union v. Boyd (1954) (There was no complainant who was actively affected by the law and so the court agreed that it was not ripe) 6. Political Question (Court won't decide on cases where the issue should be resolved by executive and legislative branches) - Luther v. Borden (1849) - The Court held that "the power of determining that a state government has been lawfully established" did not belong to federal courts, and that it was not the function of such courts to prescribe the qualifications for voting in the States. - Colegrove v. Green (1946) - In a plurality opinion, Frankfurter declined to involve the Court in the districting process, arguing that the political nature of apportionment precluded judicial intervention. (Decision was reversed in Baker v. Carr)

Virginia Skullduggery

After a convention was called to reevaluate the Articles of Confederation, Virginia arrived on May 1787 and they were the only state there along with Pennsylvania. Virginia used the opportunity to start crafting a series of proposals that called for a wholly new government structure composed of a strong three-branch national government Known as the Virigina Plan, these proposals were formally introduced to all the delegates on May 29, just four days after the convention began. This set the tone for the convention and was quickly met with a counter-proposal by New Jersey. Four months later after many debates the new constitution was framed.

Specifics of Federal Court Establishment - Article III

Agreement Concerning the Supreme Court (For its creation, not its operation) (Sec. 1) Lifetime Tenure During Good Behavior (Sec. 1) Delay in Establishment of Lower Federal Courts Original and Appellate Jurisdiction of the Supreme Court Authority to Establish Inferior Federal Courts ("may" not "must") (Sec. 1) Protection of Judicial Salaries (Sec. 1) General Jurisdiction of the Federal Courts (Sec. 2) (More notes on this on next card) The Original and Appellate Jurisdiction of the Courts (Sec. 2) (More notes on next NEXT card) Treason Provisions Omitted (Section 3) Power to Appoint Judges Among Article II Powers of the President

(UNFINISHED) Judicial Review

Allows the court to determine the constitutionality of laws or government actions As the Primary Power of the Courts: As an Anti-democratic Function: As a Function Limited in Scope:

The Articles of Confederation (see structural chart - Figure 1-1, Page 4)

Although it ran the country from 1774 through 1781, the Continental Congress had no formal authority and so they passed the Articles of Confederation in March 1781 to institutionalize the practices they had already developed. The Articles of Confederation rested on strong notions of state sovereignty Structure of the Articles of Confederation: - One-house legislature with members appointed by state legislatures - No formal federal executive or judicial branch - Legislature had some powers but it derived its authority from the states. States were mostly in control and Congress had limited powers. Congress lacked the power to: - Draft soldiers - Regulate commerce (States had to set up their own tariff systems) - Collect taxes (States had to collect them) - Compel states to pay government costs - Provide for effective treaty-making power (could not compel states to respect treaties) - Maintain a monetary system or issue paper money Congress was given the power to: - Declare war and make peace - Enter into treaties - Establish armed forces - Borrow money - Create a postal system - Adjudicate disputes between states - Regulate coinage The Executive work was done by officers who were appointed by Congress The Committee of the States ran Congress between session and they were a group of state representatives

Why was the Judiciary Act of 1789 an anti-federalist's nightmare . . . or was it?

Anti-federalists were terrified of the notion that the federal government would gain more power and that it would mean less power for the states. By establishing inferior federal courts, many anti-federalists saw this as the state judicial systems losing power. However, it wasn't as bad as they had though since this only dealt with federal issues and states issues were still kept within the states unless a constitutional issue was at play or SCOTUS had appellate jurisdiction

Comparison of Article 3 v. Article 1

Article 3 (Judicial): - One page long - simple and straightforward Article 1 (Legislative): - Six pages long (twice as long as article 2) - Very specific in nature, but still somehow spawns a lot of disputes

Constraints on Judicial Power and Separation of Powers

Article 3 Constraints: - Court may only act if it has jurisdiction over the person and the matter. - Court can only hearing cases in controversies with a live dispute and only with parties harmed by those controversies - Court can only have jurisdiction that article 3 intends. Appellate jurisdiction may be changed by Congress if it deems it necessary, but not original jurisdiction. Limiting rules of Construction - Rules that the court has decided to enforce on its opinions so that it limits its intrusion on the powers of the other branches. Self-Imposed (see Ashwander 7 rules of justiciability)(p. 119) Justice Brandei's rules: 1. "The Court will not decide upon the constitutionality of legislation in a friendly, non-adversary, proceeding ..."; 2. "The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.'" 3. "The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.'" 4. The Court will not decide upon a constitutional question, although properly presented by the record, if there is also present some other ground upon which the case may be disposed. 5. The Court will not decide upon the constitutionality of a statute unless the plaintiff was injured by operation of the statute. 6. "The Court will not decide upon the constitutionality of a statute at the instance of one who has availed himself of its benefits." 7. Even if "serious doubt[s]" concerning the validity of an act of Congress are raised, the Court will first ascertain "'whether a construction of the statute is fairly possible by which the question may be avoided.'" The Court does not decide on matters unless it absolutely has to because it knows that it is subject to Checks by the Other Branches Congressional Constraints - Salaries of the sitting federal judges (can't decrease salary, but can choose not to give a raise) - Impeachment (Power to impeach judges) - Amend Jurisdiction (Remove the Court's authority to act on certain matters.) - Hamdan v. Rumsfeld (Congress could decide whether the Court had authority over military tribunals) Executive Branch Constraints - Enforcement (Executive is needed to enforce the Court's ruling) - INS v. Chadha Example (Court rejected the use of the Attorney General's authority for a student visa case.) Do these Checks work? To some degree, but the Court's use of the self-imposed constraints is the best way that the Court avoids coming in dispute with the other branches.

The Constitution as an Living Document

As opposed to originalism, this method of constitutional interpretation sees it as an evolving document that changes as our society changes. As new problems arise, our constitution must change to find solutions.

Extent of Congress' delegation of authority

Authority can be delegated to another branch, but only if the congressional act guides them in some manner like it did in the Curtiss Wright case Congress gave the President some authority in that case, but it guided the President's actions so he wasn't given full authority

What is a Constitutional Question?

Constitutional question refers to any legal issue that requires the interpretation of the Constitution to resolve an issue rather than the interpretation of a statute. The interpretation of the constitution is usually done by courts.

Origins of Separation of Powers/Checks and Balances

Due to the fear that one branch might become to powerful, the framers of the Constitution instituted Separation of Powers and Checks and Balances to circumvent this fear.

Virtual Representation

British governmental theory that Parliament spoke for all British subjects, including Americans, even if they did not vote for its members

The First Bank of the United States

Championed by Hamilton in 1791 Caused debate between Federalists and Anti-Federalists. Hamilton felt that it was in the implied powers of the Constitution that the government could establish the bank to strengthen the economy, but Jefferson felt that while it would be helpful, the government did not have the power to create it. Washington ultimately sided with Hamilton

City of Boerne and Dickerson Cases - As Examples of Separation of Powers and Judicial Review

City of Boerne v. Flores (1997): - Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) in response to a 1990 Court decision, Employment Division v. Smith. RFRA directed the court to adopt a particular standard of law in constitutional cases involving the free exercise clause of the First Amendment (a standard that the Court rejected in Smith). - The Court struck down Congress's effort at constitutional interpretation and cited Marbury v. Madison Dickerson v. United States (2000): - Congress enacted a law in 1968 that was designed to overturn the Court's decision in Miranda v. Arizona (1966). The decision established the now -famous Miranda warning - The justices held that the 1968 law was unconstitutional and that "Congress may not legislatively supersede the decisions of the Court in interpreting and applying the Constitution.

Necessary and Proper Clause

Clause of the Constitution (Article I, Section 8, Clause 3) setting forth the implied powers of Congress. It states that Congress, in addition to its express powers, has the right to make all laws necessary and proper to carry out all powers the Constitution vests in the national government

What to do about the Articles of Confederation?

Congress called for a convention that was scheduled for May 14th, 1787 to reevaluate the current Articles of Confederation and make changes (However, they made clear that they had no intention of scrapping the Articles of Confederation)

Sources of Legislative Powers

Enumerated Powers of Congress= US Constitution, Article I, Section 8 Implied Powers of Congress = Necessary and Proper Clause (Although this clause is in the Constitution it allows Congress to have some implied powers not enumerated in the Constitution) Amendment enforcing powers =

U.S. Dept. of Commerce v. Montana

Facts = Article I, 2, of the Constitution requires apportionment of Representatives among the States "according to their respective Numbers." A 1941 federal statute provides that after each decennial census "the method known as the method of equal proportions" shall be used to determine the number of Representatives to which each State is entitled. Application of that method to the 1990 census caused Montana to lose one of its two seats in the House of Representatives. If it had retained both seats, each district would have been closer to the ideal size of a congressional district than the reapportioned single district. The State and several of its officials (hereinafter Montana) sued appropriate federal defendants (hereinafter the Government) in the District Court, alleging, inter alia, that the existing apportionment method violates Article I, 2. A three-judge court, convened pursuant to 28 U.S.C. 2284, granted Montana summary judgment on this claim, holding the statute unconstitutional because the variance between the single district's population and that of the ideal district could not be justified under the "one-person, one-vote" standard developed in Wesberry v. Sanders, 376 U.S. 1 , and other intrastate districting cases. Issue = Did Congress have the authority of apportionment? Holding = Yes, Congress exercised its apportionment authority within the limits dictated by the Constitution. Reasoning = An Act of Congress passed in 1941 provides that, after each decennial census, "the method known as the method of equal proportions" shall be used to determine the number of Representatives to which each State is entitled. Disposition = Case Reversed

Baker v. Carr (1962)

Facts = Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state's General Assembly was virtually ignored. Baker's suit detailed how Tennessee's reapportionment efforts ignored significant economic growth and population shifts within the state. Issue = Whether the Petitioner presents a justiciable issue? Holding = Yes, the case presents a justiciable issue. Reasoning = The Equal Protection Clause of the 14th amendment allows the Court to interject into this case. Dissent = The dissenting justices held that it was a non-justiciable issue because they believed that their wasn't a constitutional issue at question here. Aftermath of Baker v. Carr - The Baker v. Carr case forms the foundation for later cases establishing the one man, one vote principle. But gerrymandering has had a troubled history since Baker v. Carr.

Flast v. Cohen (1968)

Facts = Florence Flast and a group of taxpayers challenged federal legislation that financed the purchase of secular textbooks for use in religious schools. Flast argued that such use of tax money violated the Establishment Clause of the First Amendment. A district court held that the federal courts should defer when confronted with taxpayer suits directed against federal spending programs. Issue = Whether the parties had standing as taxpayers to challenge the constitutionality of the act? Holding = The taxpayers in this case have standing. Reasoning = In an 8-to-1 decision, the Court rejected the government's argument that the constitutional scheme of separation of powers barred taxpayer suits against federal taxing and spending programs. In order to prove a "requisite personal stake" in such cases, taxpayers had to 1) establish a logical link between their status as taxpayers and the type of legislative enactment attacked, and 2) show the challenged enactment exceeded specific constitutional limitations imposed upon the exercise of Congressional taxing and spending power. The Court held that Flast had met both parts of the test. (The difference between Frothingham v. Melon's decision and Flast v. Cohen's decision is that in Frothingham the Court ruled that taxpayers had no standing on whether or not it was a good idea for tax money to be spent a certain way, whereas in Flast, the Court ruled that taxpayers did have standing on whether or not their tax money COULD be spent on something that was unconstitutional) Disposition = Reversed Harlan Dissent = The case only recognized a generalized grievance and that there was no specific harm to the taxpayers in this case. Flast Post-Script =

Hollingsworth v. Perry (2013)

Facts = In 2000, the citizens of California passed Proposition 22, which affirmed a legal understanding that marriage was a union between one man and one woman. In 2008, the California Supreme Court held that the California Constitution required the term "marriage" to include the union of same-sex couples and invalidated Proposition 22. Later in 2008, California citizens passed Proposition 8, which amended the California Constitution to provide that "only marriage between a man and a woman is valid or recognized by California." The respondents, a gay couple and a lesbian couple, sued the state officials responsible for the enforcement of California's marriage laws and claimed that Proposition 8 violated their Fourteenth Amendment right to equal protection of the law. When the state officials originally named in the suit informed the district court that they could not defend Proposition 8, the petitioners, official proponents of the measure, intervened to defend it. The district court held that Proposition 8 violated the Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed. Issue = Whether the Petitioner had standing? Holding = No, they did not have standing. Reasoning = The Supreme Court held that federal courts only have the authority to decide cases in which there is an "actual controversy," which means that the complaining party must have suffered a "concrete and particularized injury" that can be redressed through court action. In this case, because the petitioners had only a generalized grievance in the form of a desire to defend Proposition 8, they did not have standing under Article III. The Court also held that the petitioners could not invoke the standing of the state to appeal because a litigant must assert his/her own rights and cannot claim relief through the intervention of a third party. Because the petitioners did not have standing to appeal to the U.S. Court of Appeals for the Ninth Circuit, that court did not have jurisdiction to reach a decision on the case. Disposition = Affirmed Kennedy Dissent = Justice Anthony M. Kennedy wrote a dissent in which he argued that the Supreme Court should defer to states' rights in defining what parties may have standing. Because California law allows a third party to assert the state's interest when state officials decline to do so, the California Supreme Court's decision regarding the petitioners' standing is binding. He also argued that the majority's decision does not take into account the particularities of California's initiative system and the dynamics that may lead the state to allow proponents of an initiative to stand in for the state. Article III does not interfere with a state's rights to allow such proponents to support an initiative in court. Justice Clarence Thomas, Justice Samuel A. Alito, Jr., and Justice Sonia Sotomayor joined in the dissent.

Zitovsky v. Clinton (2012)

Facts = Menachem Binyamin Zivotofsky is a United States citizen born on October 17, 2002 in Jerusalem. In December 2002, Zivotofsky's mother filed an application for a Consular Report of Birth Abroad and a United States passport for petitioner, listing his place of birth as "Jerusalem, Israel." United States diplomatic officials informed petitioner's mother that State Department policy required them to record "Jerusalem" as petitioner's place of birth, which is how petitioner's place of birth appears in the documents he received. On his behalf, Zivotofsky's parents filed this suit against the Secretary of State seeking an order compelling the State Department to identify petitioner's place of birth as "Jerusalem, Israel" in the official documents. The United States District Court for the District of Columbia initially dismissed the complaint after concluding that petitioner lacked standing, and that the complaint raised a nonjusticiable political question. United States Court of Appeals for the D.C. Circuit reversed and remanded, concluding that petitioner had standing and that a more complete record was needed on the foreign policy implications of recording "Israel" as Zivotofsky's place of birth. On remand, the State Department explained, among other things, that in the present circumstances if "Israel" were to be recorded as the place of birth of a person born in Jerusalem, such "unilateral action" by the United States on one of the most sensitive issues in the negotiations between Israelis and Palestinians "would critically compromise" the United States' ability to help further the Middle East peace process. The district court again dismissed on political question grounds. The court of appeals affirmed, holding that Zivotofsky's claim is foreclosed because it raises a nonjusticiable political question. Issue = Does this case present a non-justiciable political question? Holding = No, the court can rule without invading the province of Congress or the Executive. It did present a justificiable issue. Reasoning = There was no language in the Constitution that barred multiple branches from ruling on this issue. Court ruled that this was not a political issue. Disposition = Reversed

Nixon v. U.S. (1993)

Facts = Walter Nixon, a Federal District Judge, was convicted of a felony, making false statements to a grand jury. The House of Representatives voted three articles of impeachment; impeachment in the Senate followed. In accordance with Senate Rule XI, a Senate committee heard the evidence and reported its findings. The full Senate convicted Nixon and sought to remove him from office. Nixon challenged Senate Rule XI in federal court on the ground that the rule violated the impeachment clause of the Constitution, which declares that "the Senate shall have the sole Power to try all Impeachments." The lower courts deemed the issue nonjusticiable and declined to intervene in the dispute. Issue = Whether the court should review Congress' conduct of impeachment proceedings or whether this is a non-justiciable political question? Holding = This is a non-justiciable political question. Reasoning = Impeachment clause expressly granted that the "Senate shall have sole Power to try any impeachments." Concurrence : Justice Souter agreed with the decision but also s/t the Court must have someway to address the constitutionality of political acts performed by the other branches of government. Disposition = CASE DISMISSED

U.S. V. Nixon (1974) (Burger, 8-0)

Facts of the case 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. Question Could Nixon could claim executive privilege to refuse the release of the White House tapes? Conclusion: No, executive privilege must yield to the Article III authority of the courts, so long as the Court does not intrude into areas traditionally reserved to the President, such as diplomatic, military or top secret matters. 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.

Powell v. McCormack (1969)

Facts of the case Adam Clayton Powell pecked at his fellow representatives from his unassailable perch in New York's Harlem. Powell had been embroiled in controversy inside and outside Washington. When Powell failed to heed civil proceedings against him in New York, a judge held him in criminal contempt. His problems were only beginning. He won reelection in 1966 but the House of Representatives voted to exclude him. Speaker of the House William McCormack alleged that Powell misappropriated funds and had legal issues and so McCormack excluded Powell from his office. Question May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence as articulated in Article I Section 2 of the U.S. Constitution? Conclusion: No. The Court noted that the proceedings against Powell were intended to exclude and not expel him from the chamber. That is an important distinction to recognize since the House does have the power under Article I, Section 5 to expel members. However, expulsion was not the purpose of the proceedings in this case. After analyzing the Framers' debates on this issue, Chief Justice Warren concluded that since Powell had been lawfully elected by his constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him. (This is a political question doctrine case because it was argued whether there was a justiciable issue here, but there is because the Constitution lays out the qualifications needed to be elected as a House member and so the Court did have a standing to rule on this issue of whether Powell had a right to not be excluded from the House.)

Vieth v. Jubelihrer

Facts of the case After the 2000 census reduced the size of the Pennsylvania Congressional delegation by two members, the Republican-controlled state legislature passed a redistricting plan that clearly benefitted Republican candidates. Several members of the Democratic party sued in federal court, claiming that the plan was unconstitutional because it violated the one-person, one-vote principle of Article I, Section 2 of Constitution, the Equal Protection clause, the Privileges and Immunities clause, and the freedom of association. The district court dismissed all but the Article I, Section 2 claim. It held that the voters bringing the suit had not proved that they would be denied representation, only that they would be represented by Republican officials. Because the plaintiffs (those bringing the suit) were not denied the right to vote, to be placed on the ballot box, to associate as a party, or to express their political opinions, their political discrimination claims failed. However, the court found the act unconstitutional because it created districts with different numbers of voters, thereby violating the one-person, one-vote principle. Because the plaintiffs had shown that it was possible to create districts with smaller differences, and because the defendants had failed to justify the disparities resulting under their plan, it was therefore unconstitutional. Question Can voters affiliated with a political party sue to block implementation of a Congressional redistricting plan by claiming that it was manipulated for purely political reasons? Does a state violate the Equal Protection clause of the 14th Amendment when it disregards neutral redistricting principles (such as trying to avoid splitting municipalities into different Congressional districts) in order to achieve an advantage for one political party? Does a state exceed its power under Article I of the Constitution when it draws Congressional districts to ensure that a minority party will consistently win a super-majority of the state's Congressional seats? Conclusion In a split decision that had no majority opinion, the Court decided not to intervene in this case because no appropriate judicial solution could be found. Justice Antonin Scalia, for a four-member plurality, wrote that the Court should declare all claims related to political (but not racial) gerrymandering nonjusticiable, meaning that courts could not hear them. Because no court had been able to find an appropriate remedy to political gerrymandering claims in the 18 years since the Court decided Davis v. Bandemer, 478 U.S. 109, which had held that such a remedy had not been found yet but might exist, Scalia wrote that it was time to recognize that the solution simply did not exist. Justice Anthony Kennedy, however, wrote in his concurring opinion (which provided the deciding fifth vote for the judgment) that the Court should rule narrowly in this case that no appropriate judicial solution could be found, but not give up on finding one eventually.

Myers v. United States (1926) (Taft, 6-3)

Facts of the case 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. Question 1.) Did President Wilson have authority to remove Myers without the advice and consent of Congress? 2.) Did the Congressional Act in question violate the separation of powers? Conclusion Wilson did have authority as President to remove executive branch officers without the advice and consent of Congress. The Act exceeded Congressional authority by adopting a provision that exceeded Congressional authority by violating the inherent power of the President to remove. 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." Dissent (Brandeis): -

Formalistic v. Functional Approaches to Separation of Powers

Formalist - Legislative passes laws only, Judiciary interprets laws only, Executive enforces laws only Functional - Government as Collaborative - Executive may employ some legislative rule-making, Legislative may oversee some enforcement mechanisms, and Judiciary may engage in some legislative policy-making in the context of issuing opinions.

Cohens v. Virginia (1821)

Facts of the case An act of Congress authorized the operation of a lottery in the District of Columbia. The Cohen brothers proceeded to sell D.C. lottery tickets in the state of Virginia, violating state law. State authorities tried and convicted the Cohens, and then declared themselves to be the final arbiters of disputes between the states and the national government. Question Did the Supreme Court have the power under the Constitution to review the Virginia Supreme Court's ruling? Conclusion: In a unanimous decision, the Court held that the Supreme Court had jurisdiction to review state criminal proceedings. Marshal believed that the 11th amendment which protected states from civil suits by its citizens was not applicable if a law risked violating constitutionality. Chief Justice Marshall wrote that the Court was bound to hear all cases that involved constitutional questions, and that this jurisdiction was not dependent on the identity of the parties in the cases. Marshall argued that state laws and constitutions, when repugnant to the Constitution and federal laws, were "absolutely void." After establishing the Court's jurisdiction, Marshall declared the lottery ordinance a local matter and concluded that the Virginia court was correct to fine the Cohens brothers for violating Virginia law.

Mistretta v. US

Facts of the case Congress created the United States Sentencing Commission under the Sentencing Reform Act of 1984. This Commission was to attack the wide discrepancies in sentencing by federal court judges by creating sentencing guidelines for all federal offenses. It was to be part of the judicial branch, with members appointed by the President and approved by the Senate. John Mistretta (convicted of three counts of selling cocaine) claimed that the Act violated the delegation-of-powers principle by giving the Commission "excessive legislative powers." This case was decided together with United States v. Mistretta. Question Did the Act violate the nondelegation doctrine of the Constitution? Conclusion The Court found the Act to be valid because although Congress cannot generally delegate its legislative power to another Branch, the nondelegation doctrine does not prevent Congress from obtaining assistance from coordinate Branches. The test of validity is that an "intelligible principle" must be established by the legislature where the agency of the delegated authority must adhere to specific directives that govern its authority. The delegation to the Commission was sufficiently detailed and specific to meet these requirements. The Commission was given substantial authority and discretion in setting the guidelines; however, Congress established a classification hierarchy for federal crimes that the Commission was to use as an outline for its work.

Bowsher v. Synar (1986)(Burger, 7-2)

Facts of the case 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. This case was decided together with O'Neill v. Synar and United States Senate v. Synar. Question Did the functions assigned by Congress to the Comptroller General of the United States under the Gramm-Rudman-Hollings Deficit Control Act of 1985 violate the doctrine of separation of powers? Conclusion The Court found that the duties which the Congress delegated to the Comptroller General did violate the doctrine of separation of powers and were unconstitutional. A two step process led Chief Justice Burger to arrive at this conclusion. First, in exploring the statute defining the provisions of the Comptroller General's office relating to the Congress's power of removal, it was clear to Burger that this officer was subservient to the legislative branch. Second, in examining the functions that this officer would carry out under the Deficit Control Act, Burger concluded that the Comptroller General was being asked to execute the laws and, thus, was intruding on the prerogatives of the executive branch.

Coleman v. Court of Appeals of Maryland

Facts of the case Former Maryland Court of Appeals employee Daniel Coleman filed a lawsuit under the self-care provision of the Family and Medical Leave Act, alleging that he was fired after requesting sick leave for a documented medical condition. The lower court dismissed Coleman's claim and the U.S. Court of Appeals for the Fourth Circuit affirmed, holding that the claim was properly dismissed because his employer is a state agency. Question Did Congress constitutionally abrogate states' Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act? Conclusion No, in a 5-4 decision. In the plurality opinion, written by Justice Anthony Kennedy, the Court held that the self-care provision, standing alone, did not validly abrogate Maryland's immunity from suits for damages. Justice Kennedy argued that Congress' evidence failed to show a pattern of state constitutional violations when it wrote the self-care provision; instead, Congress considered evidence that men and women are on medical leave in roughly equal numbers. In contrast, Congress often referred to its concerns about discrimination against women when constructing the family-care portion of the act. Hence, the self-care leave provision was not a congruent and proportional response to discriminatory conduct under § 5 of the Fourteenth Amendment and did not abrogate Maryland's sovereign immunity. Justice Clarence Thomas concurred, arguing that Congress also failed to show a pattern of state discriminatory practice when it enacted the family-care provision.

Chisholm v. Georgia (1793)

Facts of the case In 1792, Alexander Chisholm attempted to sue the State of Georgia in the U.S. Supreme Court over payments due to him for goods that Robert Farquhar had supplied Georgia during the American Revolutionary War. The defendant, Georgia, refused to appear, claiming that as a sovereign state, it could not be sued without consenting to the suit. Question Can state citizens sue state governments in federal court? Conclusion In a 4-to-1 decision, the Court ruled for the plaintiff, reasoning that Article 3, Section 2, of the Constitution abrogated the states' sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and states. Thus, state conduct was subject to judicial review. Justice Iredell dissented, reasoning that under Common Law, each state was sovereign, and could not be sued without consent. This opinion eventually became law with the passage of the Eleventh Amendment to the Constitution, which provides that "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any foreign state."

McCulloch v. Maryland (1819) (Marshall 6-0)

Facts of the case In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. The state appeals court held that the Second Bank was unconstitutional because the Constitution did not provide a textual commitment for the federal government to charter a bank. Question 1.) Did Congress have the authority to establish the bank? 2.) Did the Maryland law unconstitutionally interfere with congressional powers? Conclusion: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Pursuant to the Necessary and Proper Clause (Art. I, Section 8), Chief Justice Marshall noted that Congress possessed powers not explicitly outlined in the U.S. Constitution. Marshall redefined "necessary" to mean "appropriate and legitimate," or "useful and beneficial" covering all methods for furthering objectives covered by the enumerated powers. Marshall also held that while the states retained the power of taxation, the Constitution and the laws made in pursuance thereof are supreme and cannot be controlled by the states.

Mississippi v. Johnson (1867) (Chase, 9-0)

Facts of the case In 1867, Congress passed the Reconstruction Acts. Although President Andrew Johnson vetoed the Acts, Congress overrode the veto. In an attempt to delay or prevent Reconstruction, the state of Mississippi appealed directly to the Supreme Court. Mississippi asked the Court for an injunction preventing the President from enforcing the Acts on the ground that they were unconstitutional. Question May the President be specifically enjoined from enforcing the law or be held accountable for his decision to enforce the law? Conclusion No, the judicial branch may not interfere with the exercise of executive branch authority to enforce the laws. In a unanimous decision, the Court held that it had "no jurisdiction of a bill to enjoin the President in the performance of his official duties...." The Court held that the duties of the President as required by the Reconstruction Acts were "in no sense ministerial," and that a judicial attempt to interfere with the performance of such duties would be "an absurd and excessive extravagance." The Court noted that if the President chose to ignore the injunction, the judiciary would be unable to enforce the order.

Ex Parte Grossman (1925)

Facts of the case In 1920, legal action was taken against Philip Grossman for selling liquor at his place of business in violation of the National Prohibition Act. He violated a federal court injunction by continuing to sell alcoholic beverages. He was found guilty of criminal contempt of court and sentenced to one year in prison and a $1,000 fine. In 1923, President Calvin Coolidge issued a pardon that reduced Grossman's sentence to payment of the fine. Question Did the president have the constitutional authority to commute a sentence for criminal contempt of court? Conclusion In a unanimous decision, the Court found that a presidential pardon for a criminal contempt of court sentence was within the powers of the executive. There is nothing in the words "offenses against the United States" that excludes criminal contempts in the Constitution. Actions that violate the dignity or authority of the federal courts violate the law of the United States, making these contempts offenses against the United States. The president's pardon authority includes such offenses. Without destroying the deterrent effect of judicial punishment, the president's powers are to act as checks against undue prejudice or needless severity in such sentencing by the judicial branch.

Panama Refining Company v. Ryan

Facts of the case In 1933, the President issued Executive Order 6199 via the National Industrial Recovery Act (NIRA). The order prohibited transporting petroleum and petroleum products in interstate and foreign commerce if they had been produced in excess of the amounts permitted by states. Panama Refining Co. operated an oil refinery and sought an injunction against enforcing the regulations that were created under the NIRA. It succeeded in the lower court, but the intermediate appellate court removed the injunction. Question Was the executive order regulating petroleum commerce constitutional? Conclusion Writing for the 8-1 majority, Chief Justice Charles E. Hughes concluded the order was not constitutional. Supreme Court held that in enacting the order, the President subsumed legislative powers that Congress does not have the power to delegate. Congress cannot delegate legislative powers to other branches of government in order to sustain the democratic system of government. When it allows the executive branch to make rules, Congress must provide policies and standards for formulating them. This was not the case in the regulation of oil transportation. The lack of any limits on executive discretion concerned the Court and rendered the order unconstitutional.

Watkins v. United States (1957) - (Warren, 6-1)

Facts of the case In 1954, John Watkins, a labor organizer, was called upon to testify in hearings conducted by the House Committee on Un-American Activities under rule 11 of the house rules. Watkins agreed to describe his alleged connections with the Communist Party and to identify current members of the Party. Watkins refused to give information concerning individuals who had left the Communist Party. Watkins argued that such questions were beyond the authority of the Committee. Question Did the activities of the Un-American Activities Committee constitute an unconstitutional exercise of congressional power (Did Congress have a Proper Legislative Purpose)? Conclusion In a 6-to-1 decision, the Court held that the activities of the House Committee were beyond the scope of congressional power. The Court held that both the authorizing resolution of the Committee and the specific statements made by the Committee to Watkins failed to limit the Committee's power. The Court found that because Watkins had not been given sufficient information describing the pertinency of the questions to the subjects under inquiry, he had not been accorded a fair opportunity to determine whether he was within his rights in refusing to answer. The Due Process Clause of the Fifth Amendment thus invalidated Watkins' conviction.

Nixon v. Fitzgerald (1982) (Powell, 5-4)

Facts of the case 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. Question Whether the President may be sued for civil damages resulting from official acts taken while in office? Conclusion: No, the President has absolute immunity from suit for official acts taken while in office. 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."

Gravel v. US (1972)

Facts of the case In 1971, Senator Mike Gravel received a copy of the Pentagon Papers: a set of classified documents concerning U.S. involvement in the Vietnam war. Gravel then introduced the study, in its entirety, into the record of a Senate Subcommittee meeting. Gravel also arranged for the private publication of the papers by the Beacon Press. A federal grand jury subpoenaed Leonard Rodberg, one of Gravel's aides, to testify about his role in the acquisition and publication of the papers. Question Did the subpoena of Senator Gravel's aide violate the Speech and Debate Clause of Article I of the Constitution? Were Senator Gravel's arrangements protected by the Speech and Debate Clause? Yes. The Court held that because the work of aides was critical to the performance of legislative tasks and duties, they were nothing less than legislators' "alter egos" and thus immune from subpoenas by the Speech and Debate Clause. Aides were exempted from grand jury questioning so long as Senators invoked the privilege on their behalf. The Court held that the protections of the Speech and Debate Clause did not extend beyond the legislative sphere, ruling that Senator Gravel's arrangements with the Beacon Press were not constitutionally protected. Dissent: Stewart dissented and said that what Gravel did should be protected and that he wouldn't compel the Senator to testify.

Congressional limitations on Executive Power (Youngstown Steel v. Sawyer (1952))

Facts of the case In April of 1952, during the Korean War, President Truman issued an executive order directing Secretary of Commerce Charles Sawyer to seize and operate most of the nation's steel mills. This was done in order to avert the expected effects of a strike by the United Steelworkers of America. Question Did the President have the constitutional authority to seize and operate the steel mills? Conclusion: In a 6-to-3 decision, the Court held that the President did not have the authority to issue such an order. The Court found that there was no congressional statute that authorized the President to take possession of private property (The executive argued that article 2 did not grant the president the implied power to seize steel mills during times of war). The Court also held that the President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes. The Court argued that "the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker."

Hutchinson v. Proxmire (1979)

Facts of the case In early 1975, Senator William Proxmire implemented what he called the "Golden Fleece Award of the Month." The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the "nonsense" of Hutchinson's research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire's statements defamed his character and caused him to endure financial loss. Question Were Proxmire's activities and statements against Hutchinson's research protected by the Speech and Debate Clause of Article I, Section 6 of the Constitution? No. The Court affirmed the decision of the lower court and held that Proxmire's statements in his newsletters and press releases were not protected by the Speech and Debate Clause. However, in upholding this ruling, the Court also found that Proxmire's statements were not made with "actual malice" and thus, were not libelous. Chief Justice Burger, relying on the Court's finding in Doe v. McMillan (1973), concluded that while speeches in Congress and discussions with staff were protected by Section 6, statements in newsletters and press releases were not because they were not "essential to the deliberations of the Senate" nor were they part of the legislature's "deliberative process."

Logan Act

George Logan went as private citizen to negotiate with France after XYZ Affair; resulting in the release of a few prisoners and a promise to send a dignitary to american. However he also caused this act that declared that no private citizen would be allowed to negotiate with foreign countries in the name of the US, so someone could not act as Logan did

Korematsu v. US (1944)

Facts of the case In response to the Japanese attack on Pearl Harbor during World War II, the U.S. government decided to require Japanese-Americans to move into relocation camps as a matter of national security. President Franklin Roosevelt signed Executive Order 9066 in February 1942, two months after Pearl Harbor. A Japanese-American man living in San Leandro, Fred Korematsu, chose to stay at his residence rather than obey the order to relocate. Korematsu was arrested and convicted of violating the order. He responded by arguing that Executive Order 9066 violated the Fifth Amendment. The Ninth Circuit affirmed Korematsu's conviction. Question Did the President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans of Japanese descent? Conclusion In an opinion written by Justice Black, the Court ruled that the evacuation order violated by Korematsu was valid. The majority found that the Executive Order did not show racial prejudice but rather responded to the strategic imperative of keeping the U.S. and particularly the West Coast (the region nearest Japan) secure from invasion. The Court relied heavily on a 1943 decision, Hirabayashi v. U.S., which addressed similar issues. Black argued that the validation of the military's decision by Congress merited even more deference. Justice Frankfurter concurred, writing that the "martial necessity arising from the danger of espionage and sabotage" warranted the military's evacuation order. Justice Jackson dissented, arguing that the exclusion order legitimized racism that violated the Equal Protection Clause of the Fourteenth Amendment.

Cook v. Gralike (2001)

Facts of the case In the wake of U.S Term Limits v. Thornton, Missouri voters adopted an amendment to Article VIII of their State Constitution, which "instructs" each Member of Missouri's congressional delegation "to use all of his or her delegated powers to pass the Congressional Term Limits Amendment" set forth in section 16 of the Article. The Article also directs the Missouri Secretary of State to determine whether a statement reflecting a candidate's position on term limits should be placed by his or her name on the general election ballot. Don Gralike, a non-incumbent House of Representatives candidate, brought suit to enjoin the Secretary from implementing the Article. The District Court, granting Gralike summary judgment, found that Article VIII infringed upon the Qualifications Clauses of Article I of the Federal Constitution by creating additional qualifications for Congress and that the Article burdened a candidate's First Amendment right to speak freely on the issue of term limits. The Court of Appeals affirmed. Question Is Article VIII of the Missouri Constitution, as amended in 1996 to prompt the adoption of a "Congressional Term Limits Amendment" to the Federal Constitution, consistent with the Elections Clause of the U.S. Constitution (Art. I, Section 4, Clause 1)? Conclusion No. In an opinion delivered by Justice John Paul Stevens, the Court held that Article VIII of the Missouri Constitution, which required the placement of negative labels next to state candidates for federal office, who failed to comply with voter-mandated support of federal term limits, was an unconstitutional attempt to regulate electoral outcomes, rather than a permissible regulation of state elections. Justice Stevens explained for the Court that Article VIII is designed to favor candidates who are willing to support a term-limits amendment and, "[t]hus, far from regulating the procedural mechanisms of elections, Article VIII attempts to 'dictate electoral outcomes.' Such 'regulation' of congressional elections simply is not authorized by the Elections Clause."

Gibson v. Florida Legislative Investigating Committee (1963)

Facts of the case In the wake of the Supreme Court's ruling in Brown v. Board of Education, the National Association for the Advancement of Colored People (NAACP) received much criticism from state legislators as it pushed ahead with litigation to combat segregation. The State of Florida, in 1959, established a Legislative Investigation Committee to study what were called "subversive organizations." Gibson, president of the Miami branch of the NAACP, was subpoenaed before the committee and asked to produce a membership list of his organization. He refused and was found in contempt. Question Did the Florida Committee, in attempting to inform itself about activities of subversive organizations, violate Gibson's right to free speech and association as protected by the First and Fourteenth Amendments? Conclusion Yes. In a close decision, the Court found that Gibson's rights had been violated. In his opinion, Justice Goldberg recognized the important right of states to inform themselves on "legitimate and vital interests." However, even though inquiring about the actions of a group such as the Communist Party may have been one of these legitimate interests, argued Goldberg, Florida did not prove that a "substantial connection" between the Miami NAACP and Communist Party activities existed. Thus, a "compelling and subordinating governmental interest" would not have been served by forcing Gibson to disclose his group's membership list.

Ex parte Milligan

Facts of the case Lambden P. Milligan was sentenced to death by a military commission in Indiana during the Civil War for engaging in acts of disloyalty. Milligan sought release through habeas corpus from a federal court. Question Does a civil court have jurisdiction over a military tribunal? Conclusion Writing for the Court, Justice David Davis held that trials of civilians by presidentially created military commissions are unconstitutional. Specifically, it is unconstitutional to try civilians by military tribunals unless there is no civilian court available. The military commission therefore did not have jurisdiction to try and sentence Milligan, and he was entitled to discharge.

Clinton v. Jones (1997)

Facts of the case 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. Question 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? Conclusion No. 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.

Clinton v. Jones (1997) (Stevens 9-0)

Facts of the case 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. Question 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? Conclusion: No, because immunity extends only to official acts committed while in office. 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.

Humprey's Executor v. U.S. (1935)(Sutherland, 9-0)

Facts of the case 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. Question Whether Humphrey, as a quasi-legislative, quasi-judicial officer could be removed from office by the President without cause? Conclusion No, the power of the President to remove Humphrey was limited to removal in accordance with the terms of the Federal Trade Commission Act, since Humphrey was not a purely executive branch officer. 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.

Hamdan v. Rumsfeld (2006)

Facts of the case Salim Ahmed Hamdan, Osama bin Laden's former chauffeur, was captured by Afghan forces and imprisoned by the U.S. military in Guantanamo Bay. He filed a petition for a writ of habeas corpus in federal district court to challenge his detention. Before the district court ruled on the petition, he received a hearing from a military tribunal, which designated him an enemy combatant. A few months later, the district court granted Hamdan's habeas petition, ruling that he must first be given a hearing to determine whether he was a prisoner of war under the Geneva Convention before he could be tried by a military commission. The Circuit Court of Appeals for the District of Columbia reversed the decision, however, finding that the Geneva Convention could not be enforced in federal court and that the establishment of military tribunals had been authorized by Congress and was therefore not unconstitutional. Question May the rights protected by the Geneva Convention be enforced in federal court through habeas corpus petitions? Was the military commission established to try Hamdan and others for alleged war crimes in the War on Terror authorized by the Congress or the inherent powers of the President? Conclusion: Yes and no. The Supreme Court, in a 5-to-3 decision authored by Justice John Paul Stevens, held that neither an act of Congress nor the inherent powers of the Executive laid out in the Constitution expressly authorized the sort of military commission at issue in this case. Absent that express authorization, the commission had to comply with the ordinary laws of the United States and the laws of war. The Geneva Convention, as a part of the ordinary laws of war, could therefore be enforced by the Supreme Court, along with the statutory Uniform Code of Military Justice. Hamdan's exclusion from certain parts of his trial deemed classified by the military commission violated both of these, and the trial was therefore illegal. Justices Scalia, Thomas, and Alito dissented. Chief Justice John Roberts, who participated in the case while serving on the DC Circuit Court of Appeals, did not take part in the decision.

Defining the Faithful Execution of the Laws (In re Neagle (Miller, 6-2)

Facts of the case Suspecting a plot against Justice Stephen J. Field's life, the U.S. Attorney General appointed Neagle, as a U.S. Marshall (Through the order of the President), 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. Question Does the President, without congressional action, have the authority to issue an executive order through the attorney general, to authorize the protection of Supreme Court Justice? Conclusion Yes, the President has authority under Article II to see that the laws are faithfully executed and threats to sitting judges threaten the ability of the courts to operate. The Court held that the Attorney General acted appropriately since assigning Neagle as Field's bodyguard assured that the nation's laws would be faithfully executed. Furthermore, Neagle's actions were consistent with a congressional statute which provided U.S. Marshalls with "the same powers, in executing the laws" as state sheriffs and deputies (who would have been allowed to deter an attack on Field's life). Dissent (Lamar): - Lamar expressed his conviction that the authority of the federal executive is limited to the powers specifically granted by the Constitution and statutes.

U.S. v. Curtiss-Wright Export Company

Facts of the case The Curtiss-Wright Export Corporation, a weapons manufacturer, sold fighter planes and bombers to Bolivia during the Chaco War, during which Paraguay and Bolivia contested control of a semi-arid region. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt, which banned U.S. weapons manufacturers from aiding either side of the war. Challenging its indictment, Curtiss-Wright argued that Congress had violated the non-delegation doctrine in allowing the executive branch to make decisions that were properly left to the legislature. Question In the Joint Resolution, did Congress unconstitutionally delegate legislative power to the President? Conclusion: In an opinion written by Justice Sutherland, the majority upheld the Joint Resolution. The Court reasoned that the federal government could not exceed its enumerated powers regarding internal issues but had a much broader scope of discretion in foreign affairs. Because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically. Roosevelt thus had the discretion to determine what impact a certain policy might have on foreign affairs and make decisions accordingly, even had Congress not authorized him.

Morrison v. Olson (1988) (Rehniquist, 7-1)

Facts of the case 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. Question Does the law's appointment of a special prosecutor violate the principle of separation of powers? Conclusion: No, the appointment authority does not violate separation of powers, exceed the authority of Article III, or impermissibly interfere with the exercise of executive authority. 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.

South Carolina v. Katzenbach (1966) (Warren, 8-1)

Facts of the case The Voting Rights Act of 1965 prevented states from using a "test or device" (such as literacy tests) to deny citizens the right to vote. Under the Attorney General's jurisdiction, federal examiners were empowered to intervene to investigate election irregularities. South Carolina argued that they were only being investigated because their voter turnout was low and that wasn't a justified reason for the federal government to intervene in their elections. Question Was the VRA appropriate legislation and was the federal government in its right to intervene in South Carolina's elections? Holding: Yes, the VRA represents appropriate legislation to enforce the provisions of the 15th amendment. Reasoning: In an 8-1 decision authored by Justice Warren, the Court upheld the Act as constitutional. Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full remedial powers" to prevent racial discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the right to vote since the Fifteenth Amendment's adoption in 1870. Dissent (Black): - No case or controversy - The overall limits of congressional authority apply to all legislation and constitutional amendments. (He argued that certain provisions of the VRA were beyond the scope of Congress' powers)

Hampton & Company v. US

Facts of the case The Tariff Act of 1922 delegated the authority to set and impose customs duties on articles of imported merchandise. When, under a proclamation of the President, J.W. Hampton & Company was assessed a higher customs duty than was fixed by statute, the company sought relief in the courts. Question Did the Tariff Act's delegation of commerce power to the Executive Branch violate the Separation of Powers principle? Conclusion In a unanimous decision, the Court held that Congress, within "defined limits," could vest discretion in Executive officers to make public regulations and direct the details of statutory execution. The Court argued that the same principle that allowed Congress to fix rates in interstate commerce also enabled it to remit to a rate-making body under the control of the Executive branch.

Domestic Powers of the President (Clinton v. City of New York, 1998)

Facts of the case 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. Question Does the line item veto violated Article I Section 7 Clause 2 (the presentment clause) of the constitution? Conclusion: Yes, the live item veto violates the presentment clause because the President's changes to the law creates a new law that has not been presented to the Congress and voted upon as required. 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.

McGrain v. Daugherty (1927) (Van Devanter, 8-0)

Facts of the case This case was a challenge to Daugherty's contempt conviction. He failed to appear before a Senate committee investigating the failure of Daugherty's brother (Harry Daugherty, the former Attorney General)to prosecute wrongdoers in the Teapot Dome scandal (Scandal surrounding the illegal leasing of federal oil reserves by the secretary of the interior, Albert Fall to private businesses in return cash and no interest loans. Harding died before the full extent of the crimes had been determined. Scandal revealed the corruption of his cabinet, which was involved in other crimes as well). Question Was the Senate committee out-of-bounds in issuing its contempt order since the purpose of the investigation had nothing to do with the committee's legislative purpose? Conclusion The Court upheld Daugherty's contempt conviction, establishing a presumption that congressional investigations have a legislative purpose. This presumption was not overcome by showing that the committee also had another purpose, such as exposure of wrongdoing. The Court found that this investigation passed the Kilbourn Test. Congress may do whatever is necessary and property to exercise their authority. Congress must be able to investigate to create necessary and proper legislation. Aftermath Developed the Proper Legislative Purpose Test. Congress's use of its investigative authority must be related to some proper legislative purpose. This allowed some witnesses the right to refuse testimony and although they may be charged with contempt, Congress may not imprison them or fine them without going through the Court system. This presumption would later restrict the Court's hand in clear cases of congressional overreaching while investigating communists after World War II. Congress was doing this under rule 11 of the House rules (Watkins v. US, 1957). Daughtery had argued in his case that the power of Congressional investigations might be abused, but the Court ruled that the potential for abuse does not mean they don't have the power to investigate.

Bush v. Gore (2000) (5-4 decision along party lines)

Facts of the case = Following the U.S. Supreme Court's decision in Bush v. Palm Beach County Canvassing Board, and concurrent with Vice President Al Gore's contest of the certification of Florida presidential election results, on December 8, 2000 the Florida Supreme Court ordered that the Circuit Court in Leon County tabulate by hand 9000 contested ballots from Miami-Dade County. It also ordered that every county in Florida must immediately begin manually recounting all "under-votes" (ballots which did not indicate a vote for president) because there were enough contested ballots to place the outcome of the election in doubt. Governor George Bush and his running mate, Richard Cheney, filed a request for review in the U.S. Supreme Court and sought an emergency petition for a stay of the Florida Supreme Court's decision. The U.S. Supreme Court granted review and issued the stay on December 9. It heard oral argument two days later. Question = Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Should there be a recount? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution? Conclusion: = 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. Dissent = 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.

Federalism vs. Anti-Federalism (Virginia Plan vs. New Jersey Plan)

Federalism: - A system in which power is divided between the national and state governments - Promoted by the Federalist papers which were a collection of 85 articles written by Alexander Hamilton, John Jay, and James Madison under the name "Publius" to defend the Constitution in detail. - Federalism guaranteed three constitutional guidelines: 1.) Powers not granted to the three branches are reserved for the states 2.) The national government is supreme over the states 3.) The Constitution denies some powers to both state and national government Anti-Federalism: - A political system where states have more power - After the constitution was framed, it was sent to the states to be ratified, but by January 1788 only four states had ratified because most feared the Constitution's new balance of powers which shifted power back towards the federal government - These anti-federalists believed that strong state governments provided the best defense against the accumulation of too much power by the national government.

U.S. Term Limits v. Thornton (1995)(5-4)

Facts of the case = On November 3, 1992, Arkansas voters adopted Amendment 73 to their State Constitution. The "Term Limitation Amendment," in addition to limiting terms of elected officials within the Arkansas state government, also provided that any person who served three or more terms as a member of the United States House of Representatives from Arkansas would be ineligible for re-election as a US Representative from Arkansas. Similarly, the Amendment provided that any person who served two or more terms as a member of the United States Senate from Arkansas would be ineligible for re-election as a US Senator from Arkansas. Question = Can states alter or add those qualifications for the U.S. Congress that are specifically enumerated in the Constitution? Conclusion = No. The Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution. A state congressional term limits amendment is unconstitutional if it has the likely effect of handicapping a class of candidates and "has the sole purpose of creating additional qualifications indirectly." Furthermore, "...allowing individual States to craft their own congressional qualifications would erode the structure designed by the Framers to form a 'more perfect Union.'" Concurrence (Kennedy) - Kennedy s/t the state may not interfere with the process for federal congressman since those are meant to be elected by the people Dissent (Thomas) - The Federal government owes its existence to the states and that since the power comes from the states that the states should be allowed to add qualifications the reasoning of the Court in this case guts the existence of the 10th amendment

Goldwater v. Carter (1979)

Facts of the case = President Jimmy Carter acted without congressional approval in ending a defense treaty with Taiwan. Question = Did Congress have a constitutional role to play in the termination of the treaty? Conclusion = Without oral argument, the divided justices found that the case was not justiciable. Rehnquist led a group of four others who believed that the issue involved a political question, namely, how the President and Congress would conduct the nation's foreign affairs. Justice Powell did not find the case ripe for judicial review. He reasoned that since Congress had not formally challenged Carter's authority, technically there was no conflict for the Court to resolve. The dissenters were prepared to hear the case.

Murphy v. Ford (1975)

Facts: Ford pardoned Nixon after Nixon resigned after the Watergate Scandal. Question: Whether President Fords pardon of Richard Nixon was a constitutional use of the pardon? Can the president pardon crimes not yet charged? Holding: No, because President Nixon had yet to be charged for the Watergate Scandal and so it made no sense to pardon him. However, the power to pardon would be allowed if Nixon had been charged with any federal crime except for impeachment

Political Question Doctrine

Federal Courts won't decide issues that should be resolved by executive and legislative branches. Major examples = challenges to the President's conduct of foreign policy, challenges to the impeachment and removal process

General Jurisdiction of the Federal Courts (Sec. 2 of Article III of the Constitution)

Federal courts have jurisdiction in cases: - Arising under the Constitution - Arising under U.S. Laws - Arising under Treaties - Affecting Ambassadors, Public Ministers, and Consuls - Involving Admiralty and Maritime Matters - Involving the U.S. as a Party - Involving Controversies between Two or More States - Involving a Controversy between a State and Citizens of Another State - Involving a Controversy between Citizens of Two States - Involving a Property Dispute Over Property in Two States - Involving a Controversy between a State/Its Citizens and Foreign States

Establishment of the Federal Judiciary

Historical Considerations Against Establishment of the Federal Judiciary System - There were already well established court systems - There was a lack of prior federal judicial system Historical consdierations in favor of establishing a federal judiciary system - Lack of Prior Federal Judiciary Prevented Resolution of Disputes - Delegates to the Continental Congress Were Familiar with the Law - General Agreement on the Need for at Least a Supreme Court

The Chadha Example

INS v. Chadha was a SCOTUS case where one-house legislative vetoes were ruled invalid because they should be considered an exercise of legislative power, which makes them subject to the bicameralism and presentment requirements in Article I of the Constitution This is just a prime example of how the Court can use judicial review to control the actions of the other two branches of government

Judicial Review: Some Controversies

Is judicial review a controversial idea today? What are the "cons" of USSC review of state action? What happens when the court proceeds beyond what is necessary to adjudicate the issue in front of them? (Jefferson and the concept of dicta) Some key controversies: Originalism: whether judicial review was intended Judicial Restraint: self-imposed limitation on judicial power by judges deferring to the policy judgments of elected branches of government. Does this work better than judicial review (Eakin v. Raub) Democratic checks: Are democratic checks and balances sufficient to rein in judicial review? Judicial Supremacy: Should the USSC be the final arbiter about what the Constitution means? Public Opinion: Is judicial review affected by or responsive to public opinion? Is it a check on judicial review? Protection of Minority Rights: Is the right of judicial review really intended to be a counter-majoritarian hedge? If not, what was intended? Those who support judicial review asset that the Court must have this power if it is to protect minority rights. Supporters believe that the legislative and executive branch are often elected and so their priorities reflect that of the majority in America where as the Court is not elected and so they have no incentive to reflect their decisions on that of the majority and instead protect the minorities like when they ruled against Southern segregation laws. Some argue however that the court has not always used its power in this way to protect minorities.

Lingering Questions - The Aftermath of Constitutional Ratification

Is that our Constitution? What Did the Constitution Mean? What Concrete Guidance Does the Constitution Provide?

Governor John Hancock's influence on the creation of the Bill of Rights

John Hancock was the governor of Massachusetts and he agreed to endorse the Constitution's ratification if a series of amendments be drawn up for consideration by Congress. John Hancock's only condition was that he would become president if Virginia failed to ratify or if George Washington refused to serve. The Federalist leaders agreed and Massachusetts was the sixth state to ratify the Constitution. This compromise began the call for the Bill of Rights and 7 of the 9 states who agreed to ratify recommended amendments. New York and Virginia might not have agreed to ratify without it. The Bill of Rights would later be ratified on December 15th, 1791.

The Judiciary Act of 1789 - The Birth of the Inferior Federal Judiciary (Inferior here just means less powerful than SCOTUS)

Judicial Act of 1789 - Federalists IMMEDIATELY establish inferior federal courts with jurisdiction defined by Article III. Judicial Act more specifically established the system we have today: - District Courts as trial courts of first impression - Circuit Courts at that time were also trial courts with jurisdiction to hear cases involving citizens of different states, major federal civil and criminal cases and appellate authority to hear admiralty and major civil suits. (strictly appellate courts today) - Granted the USSC additional jurisdiction to hear civil appeals and to issue writs of mandamus. It also established the jurisdiction of the court to hear appeals of State Supreme Court decisions which violate the constitution or the laws, treaties of the federal government

Arguments Against Judicial Review

Judicial review usurps legislative authority Absence of specific authority to strike down congressional enactments (There is nothing in the constitution directly granting the power for SCOTUS to strike down acts of Congress) Counter-Majoritarian: The process of courts undermining legislative or other popular majorities by invalidating statutes, ordinances, and ballot initiatives.

What Should Government Do?

Maintain a national defense, provide public services, preserve order, educate the young, and collect taxes

Judicial Review of Legislative and Executive Action is Well Established thanks to which court case?

Marbury v. Madison

Judicial Review of State Court Decisions

Marbury v. Madison addressed only the power to review acts of the federal government, but some wondered if the Court could also exert judicial review over the states. Section 25 of the 1789 Judiciary Act suggested that it could. Congress had authorized the Court to review appeals from the highest state courts if those tribunals upheld state laws against challenges of unconstitutionality or denied claims based on the Constitution. However, In Marbury, The justices told Congress that it could not interpret Article III to expand the original jurisdiction of the Court. Would they say that same thing about Section 25? Also to be considered was the potentially hostile reaction of the states. This issue was answered in Martin v. Hunter's Lessee

Does vice-president immunity exist?

No

The Case of Marbury v. Madison

PETITIONER: William Marbury RESPONDENT: James Madison, Secretary of State Court CITATION: 5 US 137 (1803) ARGUED: Feb 11, 1803 DECIDED: Feb 24, 1803 Facts of the case: Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of State. William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions. Issues: Do the plaintiffs have a right to receive their commissions? Can they sue for their commissions in court? Does the Supreme Court have the authority to order the delivery of their commissions? Conclusion: MAJORITY OPINION BY JOHN MARSHALL Though Marbury was entitled to it, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void. The Court found that Madison's refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury's commission via writ of mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court's original jurisdiction beyond that which Article III, Section 2, established. Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.

Eakin v. Raub, 12 Sargent & Rawle 330 (Pa. 1825)(Gibson, dissenting)

Plaintiffs sued to eject defendants from land. The trial court found for defendants, finding that a change in the relevant statute of limitations barred plaintiffs' action. The Pennsylvania Supreme Court reversed and ordered a new trial. In dicta, the Pennsylvania Supreme Court expressly adopted the concept of judicial review from Marbury v. Madison, 5 U.S. 137 (1803): whereby the judiciary may strike down a law that is inconsistent with the constitution — in the state context. In dissent, Justice Gibson provided one of the finest rebuttals to Chief Justice Marshall's reasoning in Marbury. Justice Gibson maintained that the constitution does not expressly give the judiciary the power to void laws duly passed by the legislature. Rather, the people possess the ultimate power to pressure their representatives to repeal offensive acts of the legislature. That political process should not be circumvented or appropriated by the judiciary. The Key Points: 1.) Judicial review usurps legislative authority 2.) No branch of the federal government should intrude on others 3.) Each branch of government has its own separate duty to act constitutionally 4.) Independence of each branch is more important than judicial review 5.) A court does not act unconstitutionally in enforcing a law that has been constitutionally passed 6.) What are the weaknesses of this argument? 7.) Doesn't this argument elevate the Legislature over the other branches of government, as the legislature can pass laws legally constraining the authority of the other branches?

Per Capita Representation of States

Proposed by the Virginia Plan

Article I Provisions Concerning Internal Operations

Qualifications to Serve (P. 125) - Senator must be 30 years old and have been a citizen of the US for no less than 9 years - House member must be at least 25 years old and been a citizen for no less than 7 years - Every member of Congress must be an inhabitant of the state that you want to represent when elected - No one may be a member of Congress while hold another office under the United States Article I, Section 5 - Each House shall be the judge of the elections, returns and qualifications of its own Members." What does that mean? - Plain language s/t each house should be able to decide if those election results are valid and if its members meet its qualifications. Historical Acts to Exclude Elected Members - Table 3-2 (P. 127) - Need the concurrence of 2/3 to expel a member of Congress - Some excluded on the basis of loyalty and disorderly behavior - Some excluded for meeting the citizenship requirements - Table 3-2 gives some examples of Congressmen who were expelled Powell v. McCormack (1969) - Famous case dealing with the exclusion of Congressional members. Powell s/t he met the qualifications of a House member, but Congress s/t Article 1, Section 5 gave them the power to determine qualifications and they believed Powell was unqualified and deserved to be excluded. Congress also said that the issue was non-justiciable because they believed they were the sole decider on the qualifications of House members and it did not require interpretation by the Court. The Court ruled in favor of Powell and that Congress could not add additional qualifications for House members. Congress could still expel a member by 2/3 vote, but it couldn't exclude him just because it had a majority. The Court also held it was a justifiable matter because the Constitution was involved with regards to qualifications and interpretation was necessary. How do we distinguish the Court's willingness to intervene in this case from its unwillingness to intervene in the Nixon case? - In Nixon v. US the Constitution said simply that the Senate had sole authority and there was nothing else for the Court to interpret from the Constitution. However, in Powell the Constitution also set specific qualifications and the Court had a justiciable reason to intervene.

Standing to Sue

Requirement that parties before the Supreme Court have standing (concrete injury or imminent danger of injury as a result of government action) in order to sue Court has very traditionally said that the petitioner must be the person who was harmed Standards: There must be injury, causation, and redressibility Examples of cases where the petitioner didn't have standing: - Worth v. Seldon (or Zeldon???) (Low income housing case) - Frothingham v. Melon (Taxpayer case where the taxpayer hadn't been harmed yet by the new proposition) Taxpayer Suits: - One hard decision faced by the Court is which taxpayers had standing to sue the government for a proposition for spending tax dollars. - Flast v. Cohen helped to decide who had standing to sue

The Original and Appellate Jurisdiction of the Federal Courts (Sec. 2 of Article III of the Constitution)

SCOTUS Original Jurisdiction - cases affecting ambassadors, other public ministers and consuls - cases in which a state is a party SCOTUS Appellate Jurisdiction - All other cases (in which it has jurisdiction) - Under such regulations as Congress shall make (why?) When people have a Right to Trial by Jury (This is for federal criminal cases) - For criminal cases (except impeachment) - To Be Held in the State of Commission - Should be Distinguished from State Criminal Trials

The Court as Supervisor of State Courts

Section 25 extension of USSC appellate jurisdiction to state decisions involving federal question, federal constitution, or international treaties. The Court will ONLY review decisions concerning state laws and state constitutions if there are federal implications. State Supreme Courts are like the USSC - each supreme within its own domain. Congressional Act of 1914 allows review of state court decisions granting rights under federal law. Why? States may grant rights that infringe on the rights of others or the Court feels that these rights should be applied to all states. Administration of Justice Improvements Act of 1988 - allowed the USSC the discretion to decide whether to review state court decisions involving federal law USSC has the power to issue injunctions against state officials to prevent unconstitutional enforcement of state law. Osborn v. Bank of the United States (1824). Later limitations primarily have to do with the required showing necessary to justify injunction. Habeas corpus petitions - Petitions challenging the conditions or fact or confinement. All must have a federal constitutional basis. Exceptions to state immunity under the Eleventh Amendment - Court could abrogate the 11th amendment immunity from suit when attempting to enforce the 14th amendment - Commerce clause of Article I permitted Congress to make an exception to the 11th amendment's grant of immunity stating that the power to regulate interstate commerce would be incomplete without the authority to render States liable in damages however this was overturned in Seminole Tribe of Florida v. Florida - Court also ruled that Congress cannot subject non-consenting states to private suits for damages, even in their own courts

Responses to Marbury v. Madison

Should the Court have acted at all? - Jefferson: The court's opinion went beyond what was necessary - The Jurisdictional Argument: if the court had no original jurisdiction, how could it have heard the case at all? - The Counter-Majoritarian Problem: The process of courts undermining legislative or other popular majorities by invalidating statutes, ordinances, and ballot initiatives. - The Originalism Question: did the framers intend for the Court to have the power of review?

Alden v. Maine

State employees could not sue to force state compliance with federal fair-labor laws.

Justice Marshal shifted in his belief that the ____________ affect the power of the federal government to the belief that the ________________ affect the power of the federal government

States; People

Pragmatism (pragmatic approach which considers the effect of certain interpretations)

Suggests that courts should adopt the interpretation that avoids bad consequences

Structural Analysis

Suggests that interpretation of particular clauses should be consistent with or follow from overarching structures or governing principles established in the Constitution - for example, the democratic process, federalism, and the separation of powers.

The Constitution's Clear Guidance - Governmental Structure and Organization

The Constitution has three main functions. First it creates a national government consisting of a legislative, an executive, and a judicial branch, with a system of checks and balances among the three branches. Second, it divides power between the federal government and the states. And third, it protects various individual liberties of American citizens.

Recap of what Marbury v. Madison established

The Court as the Preeminent Authority about "What the Law Is" The Court as a Constitutionally-limited Branch of Government The Court as a Coordinate Branch with the Authority of Judicial Review

Kimel v. Florida Board of Regents

The Court held that the Age Discrimination Act, which prohibits state employers from discriminating based on age, was unconstitutional under the 14th Amendment because age is not a protected class. Congress failed to identify widespread age discrimination by the states.

Fitzpatrick v. Bitzer

The Court held that when Congress authorized federal courts to award money damages to private individuals against state governments that subjected them to employment discrimination, they were acting constitutionally under the 14th Amendment. (States did not have immunity from suit in cases involving employment discrimination

Congressional Delegations to Agencies

The Food and Drug Administration: - Monitors the manufacture, import, transport, storage, and sale of $1 trillion worth of food, drugs, and cosmetics annually - Regulates the manufacture and distribution of food and drugs given to farm animals and pets National Labor Relations Board: - Adjudicates charges of unfair labor practices on the part of employers or unions - Enforces collective bargaining agreements Federal Energy Regulatory Commission: - Regulates the transmission of gas, electricity, and oil in interstate commerce - Licenses and inspects private, municipal, and state hydroelectric projects

Power over Foreign Affairs

The President has an inherent power over foreign policies and this is inherent because he is the commander and chief and needs to enforce policies that protect national security However, Article 2, Section 8 says that Congress shall set the immigration policy of the United States so there is a conflict where the president argues he has power over the borders because it is a national security issue. But Congress has the explicit power to set immigration policy and can determine if they will appropriate money for border funding and policy.

The Importance of Each Branch in Governance - See Figure 11-1 on Page 53 (corrected)

The Supreme Court as a Strategic National Policy Maker When the Supreme Court interprets a federal law, the Congressional Committees can seek to override the Court's decision or do nothing and let the court's decision stand. If they seek to override the decision then they can go to Congress to pass legislation. If legislation is able to be passed then the court's decision can be overridden, but this process is very time consuming and it is more likely that the court's decision will stand.

Martin v. Hunter's Lessee (1816)

The Supreme Court can review the decisions of the highest state courts if they involve a federal law or the federal Constitution Facts of the case: During the American Revolution, Virginia created laws allowing the state to seize property of Loyalists. In 1781, Denny Martin, a British subject, inherited land from his uncle, a Loyalist. The following year, the Virginia legislature voided the land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter. A federal treaty dictated that Lord Fairfax was entitled to the property. The Virginia Supreme Court upheld Virginia's law permitting the confiscation of property, even though it conflicted with the federal treaty. The US Supreme Court reversed and remanded, holding that the treaty trumped state law. Question: Did Virginia's law trump the federal treaty? Decision: Article III, Section 2, Clause 2 of the US Constitution (the Supremacy Clause) gives federal courts the power to review state court decisions that interpret federal law or the Constitution. The Court rejected the claim that Virginia and the national government were equal sovereigns. Relying on the Supremacy Clause, Justice Story held that federal interpretations of federal law should supersede state interpretations. He reasoned that there should be uniform and predictable outcomes across all states.

The Legacy of John Marshall

The decision in Marbury v. Madison helped to establish him as perhaps the greatest justice in Supreme Court history and it was the first of many great decisions from Marshall to come.

The Nature of Judicial Review

The delegates to the Congress had to know that the courts might pass on the constitutionality of Congressional acts or to review other congressional action. Yet Article III is largely silent about it - "The judicial power shall extend to all cases, in law and equity, arising under this Constitution." Although there were earlier cases in which the court considered the constitutionality of a Congressional act - See Hylton v. United States, 3 U.S. 171 (1796)(involving the constitutionality of a carriage tax) - the Court didn't overturn a congressional act until the case of Marbury v. Madison, 5 U.S. 137 (1803).

Powers of the Legislative Branch

The legislative branch is made up of the House and Senate, known collectively as the Congress. Among other powers, the legislative branch makes all laws, declares war, regulates interstate and foreign commerce and controls taxing and spending policies.

The Principle of Stare Decisis

The policy of courts to abide by or adhere to principles established by decisions in earlier cases.

Nondelegation Doctrine

The principle in administrative law that congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an "intelligible principle" on which to base their regulations.

The Appellate Process

The process to have a higher court review the result of a trial court or lower court. The Supreme Court is mainly an Appeals Court

Ex Parte Quirin (1942)

These cases concern Operation Pastorius, a failed attempt in June 1942 by Nazi agents to sabotage various U.S. targets. Following the declaration of war between the United States and Germany, eight German residents, Richard Quirin, Ernst Burger, George Dasch, Herbert Haupt, Heinrich Heinck, Edward Keiling, Herman Neubauer, and Werener Thiel, received training on sabotage at a school near Berlin. The men traveled to the United States via submarine. On the night of June 13, 1942, Burger, Heinrich, Quirin, and Dasch landed near Long Island, New York wearing German uniforms and carrying explosives. On the night of June 17, 1942, the remaining four came ashore in similar fashion at Ponte Vedra Beach, Florida. Shortly after the landings, Burger and Dasch backed out of the mission. Dasch turned himself in to the Federal Bureau of Investigations. All eight conspirators were subsequently arrested and, on the orders of President Franklin Roosevelt, tried by military commission. The commission found all eight men guilty and sentenced them to death. Because of their confessions and cooperation, President Roosevelt later commuted Burger and Dasch's sentences to life in prison. Arguing that the President exceeded his power in ordering the commission and that the Fifth and Sixth Amendments to the Constitution protect their rights to a regular trial, seven of the eight conspirators, not including Dasch, filed petitions for a writ of habeas corpus in Federal District Court. Their claims were denied, and they appealed to the U.S. Court of Appeals for the District of Columbia. Before the court ruled, however, they filed for hearing before the Supreme Court and, separately, filed petitions for habeas corpus directly with the Court. The Court, sitting in a special term, agreed to hear the cases. Lawful combatants are subject to capture and detention as POW's by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.

How Should It Be Limited?

This is a much harder question because some state activists believe the federal government should be limited heavily and federalists believe the state governments should be kept in check by the federal government

The Growing Power of the Presidency

Vague Description of Power in Article 1 (Describes how Congress and President work together to pass legislation) How does Indirect Election (Electoral College) affect Constitutional voting rights? - Some people feel that their right to vote for president is denied when there is no guarantee that the elector they voted for will follow the will of the people. The elector could choose to ignore the votes of the people and this is a problem because no people don't really get to say that they have the right to vote for president. Growing Role of Foreign Policy - President is exceeding more control over foreign police, but still must follow the proper channels guaranteed by the Constitution. (Must get treaties approved by Congress) Growing Federal Executive Branch - In the beginning there was only 6 Cabinet members - 15 Cabinet members and 7 Cabinet-level officers today

The Virginia v. New Jersey Plans (see Table 1-1, Page 8)

Virginia Plan: - Two house legislature - Both houses based on population - Veto authority over state legislation - Single executive elected by legislature for a single term - National judiciary elected by legislature New Jersey Plan: - One house legislature - Equal legislative representation for each state - Authority to levy taxes and regulate commerce - Plural executives who are removable by majority of state legislatures - No provision on Judiciary The Constitution (Great Compromise): - Two houses - One house based on population and another based on two votes from each state - Authority to levy taxes and regulate commerce; authority to compel state compliance with national policies - Single executive, chosen by the Electoral College and removable by national legislature - Supreme Court appointed by Executive, confirmed by Senate The Constitution was framed on September 1787 and ratified in 1788

Legalism vs. Realism

Why do Supreme Court justices reach particular decisions and what forces play a role in determining their choices? The responses to these questions are many, but they can be categorized into two groups The First group focuses on the role of law, broadly defined, and legal methods in determining how justices interpret the Constitution. Judge Posner and his coauthors have referred to this as a legalistic theory of judicial decision making The Second group is what is called realistic theory of judging. This theory focuses on non-legalistic factors that influence decision making such as politics and mood of the public. Legalism vs. Realism is sometimes referred to as "Should vs. Do"

Kilbourn v. Thompson (1881) - The "Kilbourn Test" (4 Part)

a United States Supreme Court case that dealt with the question whether or not the United States House of Representatives may compel testimony. Hallet Kilbourn was subpoenaed to testify before a Special Committee established by the House of Representatives to investigate the bankruptcy of Jay Cooke & Company. Though he appeared, he refused to answer any questions and did not tender requested documents. John G. Thompson, Sergeant-At-Arms for the House, took Kilbourn into custody. Kilbourn continued to refuse to testify and provided no explanation for his refusal. The House resolved that Kilbourn was in contempt and should be held in custody until he agreed to testify and produce the requested documents. The Court found that the House did not have the power to punish for contempt. However, House members could not be sued for false imprisonment as they were exercising their official duties and protected by the Speech and Debate Clause The Kilbourn Test (deals with what Congress can subpoena a person on and compel testimony for): (1) Inquiries must not "invade areas constitutionally reserved to the courts or the executive" (2) Inquiries must deal "with subjects on which Congress could validly legislate" (3) The resolution authorizing the investigation must specify " a congressional interest in legislating on that subject." (4) Where the inquiry can result in "no valid legislation," then the "Private affairs of individuals" are not valid targets for inquiry