145C cases/terms to know

In scheme of government incorporated into the Constitution, the legislative, executive and judicial powers resided in

separate branches of government a. Each branch was limited to the political function granted to it, and that function could not be exercised by either of the two other branches b. each system has had ebbs and flows in respect to its own power

Interest groups try to influence Court's decisions by

submitting amicus briefs

Realism

this ideology argues that justices, like all of us, have strong and pervasive political biases and partisan attachments

Because war and conditions of national emergency customarily demand quick action, they rarely afford

those involved sufficient time for the dispassionate considering of legal questions

Presidential Signing Statements

usually consists of a. Expresses the president's interpretation of the language of the law b. Announces constitutional limits on the implementation of some of the laws provision or c. Some presidents will state they think some laws are unconstitutional when they issue signing statements because they argue take care clause gives them ability to not executive a law they see as unconstitutional

Because of its slow, deliberative procedure, the judicial branch is less capable than other branch in taking the leading role in matters of

war and national security

Zivotofsky v. Kerry, Secretary of State

2. 2015 3. After a long history of disputes over Jerusalem, state department officials listed on passports under the country the person was born in as "Jerusalem," even though many objected to say their country was Israel. To address this issue, Congress passed Foreign Relations Authorization Act, which contained Section 214d that stated a US citizen born in Jerusalem should have "Israel" listed on their passport as county of birth. President W. Bush, when singing bill, cautioned the bill could go against US foreign policy, which he had deemed to keep country of birth listed as Jerusalem. 4. Menachem Zivotofsky was born to US citizens living in Jerusalem in 2002. When family requested a passport, they objected to listing country of birth as "Jerusalem" and not "Israel." Zivotofsky claimed 214 (d) gave him the right to have Israel recorded as country of birth. The secretary of state responded that the case presented was a non-justiciable political question 5. Presidential Foreign Policy Authority 6. Did Section 214(d) violate the Constitution by interfering with the president's constitutional power to "receive Ambassadors and other public ministers," which embraced the power to recognize a foreign sovereign. 7. 6-3, in favor of Kerry. 8. Writing for the majority, Justice Kennedy Held a. Court addresses two questions i. It must determine whether the President has the exclusive power to grant formal recognition to a sovereign nation. ii. If he has that power, the Court must determine whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition. iii. The Reception Clause has receiving ambassadors --> recognizing nations iv. President has sole power over foreign policy because US needs to speak with one voice on global scale. v. President, however, can be bounded by Acts of Congress here. vi. The flaw with Section 214(d) is that its purpose infringes on the recognition power, which is solely executive power. vii. Case confined solely to the executive power of the President to control recognition determinations 9. Legal Doctrine a. It provides direct evidence that Justice Jackson's 3rd category will not always lead the Court to nullify presidential action. Here the president was able to demonstrate that his power to recognize foreign governments belonged exclusively to him; overturned Section 214(d). b. Justice Kennedy acknowledged the role that Congress plays in foreign affairs c. provides an opportunity to consider different approaches to the balance of power between the president and Congress in the real world of foreign policy. 10. Other POVs a. Justice Breyer, concurs i. says thinks its a political question, Court shouldn't rule b. Justice Thomas, concurring in the judgment in part and dissenting in part i. Thinks Court distorts President's recognition power to hold section 214(d) unconstitutional, he dissents in rest of opinion but still thinks Section 214 (d) in unconstitutional. ii. President's longstanding practice of exercising unenumerated foreign powers reflects a constitutional directive that the President has primary responsibility over foreign relations. iii. Makes a difference between passports, which are totally under presidential authority, and consular reports, which fall under congressional power of naturalization. iv. Because passports do not fall under Congress enumerated powers, presidential authority is justified. c. Chief Justice Roberts, whom Justice Alito joins, dissents i. This is too great an expanding of executive power, the Court has never accepted Executive Defiance of Congress. ii. Whatever "recognition power" is, it isn't harmed by Section 214 (d) iii. They are making up some reason, and missing big picture of executive over legislative. d. Justice Scalia, with whom the Chief Justice, and Justice Alito join, dissent i. The congressional power of naturalizations gives Congress power to papers to verify citizenship, i.e. consular reports or passports, says this is included from necessary and proper clause ii. Section 214(d) has nothing to do with recognition says making a notation in a passport does not encumber Republic with any international obligations. iii. Says Section 214 (d) does not make US say Israel is sovereign over Jerusalem iv. Says unconstitutional to think executive policy preempts law, says not chief magistrate under which American people agreed to live.

Art. III and Judiciary Act of 1789 create foundation

of federal justice system, had to coordinate between Feds and states

Korematsu v. US

2. 1994 3. President Roosevelt, after Pearl Harbor and the anti-Japanese ferver that followed, issued Executive Order 9066 and Civil Exclusion Order 34, which commanded all Japanese Americans on the West Coast to stay in their homes between 8:00pm and 6:00am and moved/evacuated Japanese Americans from the Pacific Coast to inland detention center, respectively. 4. Fred Korematsu was arrest by San Leandro Policy for being on the public streets in violation the government's evacuation orders. He was born in the US, parents were Japanese immigrants, rejected from the military for health reasons, and workers in the defense industry as a welder. 5. Presidential War Powers Doctrine 6. Can presidential war powers trump citizen's rights to due process under 5th Amendment? 7. 6-3, in favor of the US 8. Justice Black, writing for the majority held a. All legal restrictions which curtail the civil rights of a single racial group are suspect to he most rigid scrutiny, but may not be unconstitutional. b. Believes it not beyond war powers doctrine of Congress and President to exercise this authority. c. "All citizens alike, both in and out of uniform, feel the impact of war in greater of less measure" d. This isn't sentencing to a concentration camp "but an exclusion order" e. Korematsu not excluded because of his race, but because we were at war with Japan 9. Legal Doctrine a. Decision has been severely criticized and in 1988 approved $20,000 in reparations for each living Japanese American who was interned during the war. 10. Other Views a. Justice Frankfurter concurs i. The validity of action under the war powers must be judged wholly in the context of war. ii. The tribunals are an exercise of war powers explicitly granted by the Constitution for safeguarding the nation b. Justice Murphy dissents i. "Such exclusion goes over the "very brink of constitutional power" and falls into the guy abyss of racism ii. There has to be definite limits to military discretion iii. Judicial test for government, under military, deprivation of rights is whether the deprivation is reasonably related to the a public dangers that is so :immediate, imminent and impending" as to not to admit of delay and not permit the intervention of ordinary constitutional process to alleviate danger" iv. No "immediate, immune, and impeding public danger" is evident and support Executive Order 9066 v. Order relies on assumption all persons of Japanese ancestry have a tendency or commitment to Japanese enemy c. Justice Jackson dissents i. Constitution does not discriminate again you for who your bloodline is but for who you are ii. Must confine military orders to Constitution iii. This order harms due process and fundamental liberty of the country.

Two forms of Originalism

Original intent and Original Understanding

Immunity

Protecting the President from lawsuit 1. The extent to which the president is protected from lawsuits while in office

Source of Constitution's power is the

people, "we the people"

Stare decisis, pros and cons

"let the decision stand" 1. Jurist should decide cases on the basis of previously established rulings, or precedent 2. Proponents of this theory argue its allows for stability and predictability in the law. 3. The Court rarely reverses itself, it has done so less than 300 times in its entire history 4. Many allege appeal to precedent is used to cloak ideologies and values, rather than substantive form. a. One reason for his allegation is it usually possible for justices to find precedent to support any conclusion b. Another reason is it is often difficult to locate the rule of law emerging in a majority opinion, and thus requires "ratio decidendi" or the process of "establishing the principles of the case" to expose basic reasons for SCOTUS decision c. Justices often don't apply the precedent when the precedent was established over their dissent. d. Many justices recognize limits of stare decisis, i.e. constitutional issues apply vaguely with precedent

Two reasons for Private Conference

(1) SCOTUS suppose to base its decisions on factors other than public opinion (2) Court may reach tentative decision in conference but releasing/knowing part of a decision early could have unwanted consequences

Political Factors

(1) US Solicitor General - when US SG files a petition, Court is very likely to hear it - SG represents interest of administration and US (2) Amicus Curiae (friend of the Court) brief - Usually filed by interest groups and other third parties after the Court makes it decision to hear case, but they can also be filed at the certiorari stage, can increase likelihood of case being heard (3) The ideology of the Justices affects actions on petitions

Invoking appellate jurisdiction

(1)Appeal as a matter of right - aka "on appeal," involves issues that Congress has determined are so important a ruling by SCOTUS is necessary - in 1988, Court virtually eliminated "mandatory" appeals (2) Appeal as a matter of certification - lower appellate Courts asking the justices to respond to questions aimed at clarifying federal law - Very few cases appear this way (3) Appeal as a matter of certiorari (Latin for "to be informed"), most common appellate path - litigants desiring Court's review by requesting lower court send up the record - court grants "cert" to less than 1 percent of petitions

Strategic approaches

1. Concludes Justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of other relevant actors. a. human interaction amongst the justices can be very influential

Legal Considerations, Deciding a Case

- Rule 10 - the Court emphasizes "conflict," as the Court will grant certiorari in cases where a Court of Appeals decision conflicts with another Court of Appeals decision Rule 10's stress on conflict in lower Courts may act as a constraint on the justices behavior

Cases get to the Supreme Court

- by a request of review under the Court's original jurisdiction (original = not heard by another Court) - by three appellate routes --appeals --certification --petitions for writs of certiorari

Written arguments

- called "briefs," major vehicles for parties to SCOTUS to document positions - The appealing party (known as the appellant or petitioner), opposing party (known as appellee or respondent)

Oral Arguments

- in modern times, each side has 30 minutes to argue - some scholars have questioned the effectiveness of oral arguments

Articles of Confederation were a failure

- no Chief Executive - no taxing power, problems to be solved was America a loose confederation or a nation, confederation of sovereign states —> sovereign nation

Notable Flaws of the Constitution

1) Art. 1 Section 9 prohibits Congress from banning slave trade until 1808 2) 3/5 Clause Art. 1 Section 2 3) Fugitive Slave Clause Art. 4, Section 2

Restraints on Federal Judiciary

1) Court must have jurisdiction to hear cases ("jurisdiction") 2) the case must be appropriate for judicial resolution ("justiciability") 3) the appropriate party must bring the case (standing to sue)

every decision has 3 aspects

1)judgment about specific lawsuit, resolution of the dispute (winner + loser), resolves lawsuit, and SCOTUS leaves final judgement, or could remand to lower courts identify who the parties are 2) every decision effects the "legal issues" issues: "statutory interpretation," 1st Amendment, etc. interpretation of legal issues 3) SCOTUS effects an important political decision, public policy issues

5 Instances of In-Justiciability

1. Advisory Opinions 2. Collusive Suits 3. Mootness 4. Ripeness 5. Political Questions

Veto Powers

1. Art. 1 Section 7 - presentment clause, if Bill is passed by Congress and sent to President, President can a. Sign it b. Veto it c. Do nothing i. If do nothing for 10 days while Congress is in session, the bill becomes law ii. If do nothing for 10 days and Congress is not in session the whole time, bill is "pocket-vetoed" but bill can be re-introduced 2. Of 1,500 vetoes since 1789, only 110 overridden 3. Line-Item veto - allowed president to cancel particular taxing and spending provision after they are signed into law.

Executive Privilege: Protecting Presidential Confidentiality

1. Article 2 is silent on whether president can refuse to supply other branches with information about his activities 2. Article 2 is also silent on immunity - whether and to what extent the President is protected from lawsuits while in office 3. The executive privilege argument asserts act certain conversations, documents, and records are so closely tied to the sensitive duties of the precedent that they should remain confidential.

Baker v. Carr

1. Case Name. Baker v. Carr 2. Year Cased Decided by Supreme Court. 1954 3. Facts the Triggered the Dispute. As a result of Colegrove v. Green, states that had not reapportioned since 1900 were under no federal constitutional mandate to do so, and disparities between the voting powers of urban and rural citizens continued to grow. 4. Statute. Citizens and organizers argued that failure to reapportionment led to unequal treatment of voters. 5. Provision of the Constitution. Citizens and organizers argued the Equal Protection clause of the 14th Amendment protected this behavior from happening. 6. Legal Question. Can the Court hear an apportionment case and does it constitute a political question? 7. Outcome. In a 6-2 ruling, the Court held for Baker. 8. Legal Reasoning of Majority. In delivering the opinion of the Court, Justice Brennan held that The challenge to apportionment presented in this case did not present a non-justiciable "political argument." The claim pleaded does not rest upon the Guranty Clause, and justiciability is thus not foreclosed upon it. Since the enactment of the 14th Amendment, the Courts have the ability to determine that a discrimination reflects no policy but simply arbitrary and capricious action, even within state political systems. The complaint's allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to trial and a decision. 9. Legal Doctrine Opened the window for judicial resolution of reapportionment cases. Established elements for determining whether a dispute presented a political question, contains six characteristics under two rubrics. Court will look to Constitution to see if there is a "textually demonstrable commitment" to another branch Justice also consider whether particular questions should be left to another branch of government as a matter of prudence. This is where factors such as lack of judicially discoverable standards, embarrassment, and so on come into play Points Lebow said to know (pg. 101) "A textually demonstrable constitutional commitment of the issue to a coordinate political department A lack of judicially discoverable and manageable standards for resolving it" 10. Other Points of View Justice Frankfurter (joined by Justice Harlan) dissented: "apportionment battles are overwhelmingly party or intra-party contests," claims case is about which competing bases of representation are appropriate framework for Tennessee, same as a debate over political philosophy. Reluctant to draw the Supreme Court into the "political thicket" (Colegrove v. Green) Class Notes Baker v. Carr - 1 person 1 vote 1962 - Civil Rights Movement, post-Brown apportionment, or lack of, was done to suppress black vote - Baker v. Carr thought about by some lawyers from Brown case, idea to challenge districting on buses etc. - make it an equal protection issue, people are not getting same representation - Brennan makes strong points about justifiability --Lists important criteria --does the Constitution commit this dispute to another branch --can SCOTUS come up with standards, resolved in such a way that there is criteria, standards that could apply again --Court decides it can decide case because it knows equal protection --Baker v. Carr - does not decide about districts, but decides standing in the suit, main part comes a part of a later issue political question issue doesn't necessary mean political question --Frankfurter saw this as inherently political said reapportionment was wrongfully skewed, but didn't want Court to get involved in politics of apportionment --difficulties of future cases, some of the most complicated cases in SCOTUS docket gerrymandering --political decision, enormous political decisions --ie Gil v. Whitford - partisan gerrymandering, how to deal with extreme gerrymandering --Justice Kennedy turned down case before, but said hard evidence could persuade him Baker v. Carr - whole line of cases, --Frankfurter understood equality at issue, but felt cautious about SCOTUS being involved considering issues about apportionment is justiciable, and Court can not hear cases

Justiciability

1. Cases brought before federal courts must be appropriate or suitable for a pearl tribunal to hear or solve. 2. 5 instances of injusticiability: advisory opinions, collusive suits, mootness, ripeness, and political questions

Constitutional War Powers

1. Root of the problem is that the legislative and executive branches both have powers that can be interpreted as controlling the commitment of military forces to combat

Standing to Sue

1. The party must have suffered a concrete injury or be in imminent danger of suffering such a loss 2. The injury must be "fairly traceable" to the challenged action of the defendant (usually the government in constitutional cases) 3. The party must show that a favorable court decision is likely to provide redress

Constitutional Fidelity

1. to preserve the constitution's meaning and democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations. 2. Brandeis in Olmstead v. US "we have likewise held that general limitations on the powers of government do not forbid the US or states from meeting modern conditions by regulations" 3. Ideas the Constitution's meaning is capable of evolving over time is not license to disregard text or precedent or to undermine rule of law 4. "Faithful application of constitutional principles to new and specific circumstances demands attention to evolving social context" 5. Describing Constitution as a "living document," unduly minimizes the fixed and enduring characters of its texts and principles

Marbury v. Madison

2. 1803 3. 4 - 0 4. In order to compensate for losses in 1800 election, Federalist tried to maintain control of judiciary. Circuit Court Act of 1801 created six new circuit courts and several district courts. This creation led Presidents Adams to appoint 200 nominations (200 nominations). John Marshall also succeed Oliver Ellsworth as Chief Justice, while still serving as secretary of state. Organic Act of 190 authorized Adams to appoint 42 justices of the peace for DC. 5. In last days of Adams administration, Marshall failed to deliver commissions for last justices. Madison, as Jefferson's new Secretary of State, refused to deliver commissions. In 1801, William Marbury and 3 others were denied their commissions and went directly to SCOTUS to issue writ of mandamus ordering Madison to deliver commissions, did so because Section 13 of Judiciary Act of 1789 gave Court authority to issue writ of mandamus. Chief Justice Marshall in tough position - against Madison, but doesn't want to wage war against Jefferson administration. 6. Marbury argues because the commission was signed and sealed, it was effectively complete, and secretary is wrong for holding commission, and that Court has ability to issue writ and thus should do so. 7. 4 - 0, holding for Madison 8. CJ Marshall asks for the following questions to solve case. i. Has the applicant a right to the commission he demands? ii. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? iii. If they do, is it a mandamus issuing from this Court? Answers: i. Yes, because commission was signed, Marbury did have right to commission, he was confirmed, etc. ii. Yes, if this right was violated, because it was a legal office within government, a refusal to deliver commission was violation iii. Marshall argues that Section 13 of the Judiciary Act of 1789 is unconstitutional because if gives Court authority, under original jurisdiction, not expressly given in the Constitution. Because of this, and because Marbury came to the SCOTUS initially under original jurisdiction, Court ruled it could not issue a writ of mandamus under original jurisdiction, effectively striking down Section 13 of Judiciary Act of 1789. Marshall says this authority is given to Court, and that Constitution is higher than laws around it. Class Notes - day before Jefferson inaugurated, Marshall gives to his brother the delivery of justice of the peace commissions - Marbury filed suit in SCOTUS - Section 13 of Judiciary Act of 1789 tired to amend Art. 3, Section 2, which defines original v. appellate jurisdiction - excludes writs of mandamus, tried to fix that by legislation - Republican Congress (1801) stopped 1802 term of Court, did to stop Alien and Sedition Acts - SCOTUS would lose legitimacy if Jefferson didn't obey order - Marshall was a loyal Federalist, strong, federal government but also wary of Jefferson's actions - one of the most brilliant decisions remedy is in Marbury would be writ of mandamus - 3. Question: Does Court have jurisdiction over this dispute to issue a writ of mandamus - Marshall said it was unconstitutional of Congress to add Section 13 of Judiciary Act of 1789 to Constitution - Marshall struck it down because if you could change Constitution with just another statute, it made Constitution with just another statute, it made Constitution same as another law, not Supreme Law of the Land to be constitutional, issuing writs of mandamus had to be a part of the appellate, not original, jurisdiction - Chief Justice Marshall held that Section 13 of Judiciary Act of 1789 was unconstitutional implemented idea of Judicial Review, this particular provision was unconstitutional

Martin v. Hunter's Lessee

2. 1816 3. 6-0, Justice Story Opinion 4. Denny Martin inherited land from uncle Lord Fairfax upon his death. Fairfax was loyalist , and because Virginia law stated that inheritance could not inherited by "enemies," so Virginia collected the land, and sold it to David Hunter. Court reached Supreme Court and Court struck down Virginia law because found it violated Treaty of Paris of 1783 which Congress promised to recommend to the states that they restore confiscated loyalists their property. 5. In response to SCOTUS ruling, VA Court, which did not consider itself subordinate to SCOTUS, held hearings and eventually declined to follow SCOTUS ruling. This court decision was appealed to SCOTUS in case of Martin v. Hunter's Lessee 6. Denny Martin contends Constitution exerts this judicial power, and US government as a national government, gives it authority in this case. Hunter's Lessee contends SCOTUS can only review decisions of lower federal courts, and that if SCOTUS does have this jurisdiction the sovereignty and independence of the sates is materially impaired. 7. Justice Story's opinion discusses how Constitution and federal government derives its powers not from the states but from the people. Says powers of states are unimpaired, as long as powers were not also given to the federal government. Argues that the appellate jurisdiction is not limited by Article to any particular court. "It is the case, not the Court, that gives the jurisdiction" -- all about which specific type of case - Justice Story says if SCOTUS was only suppose to have appellate jurisdiction over cases in federal courts, then it would exclude state courts --if can't hear from state court, appellate jurisdiction is gone, SCOTUS ruled its own supremacy in matters of constitution jurisdiction -makes case if states can run rough-shot over Constitution, or has equal legitimacy. Constitution is dead. 8. The Court confirmed its previous ruling, upheld Section 25 of Judiciary Act of 1789. 9. Constitution gives Court power to hear case derived in US dealings with concerns of Constitution, in any Court, regardless of title. Justice Story argues Art. 1 Section 10 outlines specific limits on state sovereignty - says if state courts had same ability to interpret Constitution as federal judge, this method would be inadequate for maintaining uniformity - makes the case if there were to be restrictions for state courts, term "all cases arising under" would not have been used - "The Constitution has presumed that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice..." Class Notes - Martin inherits properly from English Uncle Lord Fairfax, believed he had title to that property and sold lots to people; VA following Revolutionary War, passed law that no enemy could inherit land, Martin had been former enemy, was a British subject, VA confiscated his land, said he was not entitled to property - first case to SCOTUS --VA Supreme Court had upheld the VA statute --SCOTUS said VA statute was unconstitutional because it was in conflict with treaty of Pairs --VA Court refused to enforce SCOTUS order, and struck down Section 25 as unconstitutional --Section 25 said SCOTUS had appellate jurisdiction to review decision of state supreme courts that was in conflict with federal law or treaty -Second Case to SCOTUS --SCOTUS is considering validity of Section 25 --Question: Did Congress misread Article 3? Could the SCOTUS exert judicial review over the states? --Section 25 gave SCOTUS authority to hear cases with claims under constitution if its appears in the states --ultimate bedrock decision allows Court to review state court decision that deal with federal issues --Marshall did not write decisions --Justice Story wrote the decision --guts of the case are on pg. 74 and beginning of page 75

The Prize Cases

2. 1863 3, After the Southern states seceded, President Lincoln imposed a naval blockade of Southern ports. 4. Union War Vessels seized four ships trading with the Confederacy. The owners of ships filed suits to recover property, saying Lincoln had no authority to issue blockade without congressional approval and the seizures were illegal. 5. Presidential war powers 6. What powers may the President pursue without a formal declaration of war? 7. 5-4, in favor of President Lincoln 8. Justice Griep, writing for the majority, held a. The Acts of Congress of 5/28/1795 and 3/3/1807 gave president authority to call out military in case of invasion by foreign nations, to suppress insurrection agains the government of a state or of the US b. President has authority to act unilaterally when states in rebellion c. Court must be governed by decisions and acts of the political department of the government to which the war powers is entrusted d. Lincoln can instill a blockade. 9. Legal Doctrine a. Expands the right of the President to take military action without waiting for congressional approval. b. The state of war comes into existence when certain conditions are expressed, not when legislatures declares so. 10. Justice Nelson (joined by the Chief Justice Taney, Justice Catron, and Justice Clifford) dissent. a. The seizure of the vessel as a war-prize cannot be legitimate unless declared by the war-making power of the government. b. Constitution says in order to institute a war, even a civil war, it must be recognized or declared by the sovereign power which by our Constitution is lodged in Congress c. President cannot unilaterally take action to declare war, but must rely on Congress's intuition before it can start its own action. d. War didn't start on 7/13/1861 when Congress declared so, thus blockade seizures before it are illegal.

Ex parte Milligan

2. 1866 3. President Lincoln, concerned with Southern sympathizers in North (aka Copperheads) gave military commanders broad powers to arrest civilians suspected of engaging in traitorous behavior, suspects to be tried in military courts. Before tired in military court, martial law had to be declared, which required habeas corpus to be suspended. However, suspension of habeas corpus was an Art. 1 power, and if non armed hostilities happening in the North and civilian courts were fully operational, public safety probably doesn't warrant a suspension of habeas corpus procedures. 4. Lambdin Milligan was arrested for sympathizing with South and allegedly hatching plans to raid POW camps in Illinois, Indiana, and Ohio, was ordered to be hung by military tribunal. Circuit Court unsure of hot interpret law, asked SCOTUS 5. Presidential War Powers 6. Were such actions constitutional under the war powers doctrine? 7. 9-0, in favor of Milligan 8. Justice Davis wrote for the majority a. No doctrine was severed intended by the framers to evade the provisions of the Constitution and its right to trial by jury b. The military court was not granted power by Congress, and thus Milligan was violated here. c. Privilege of trial by jury is a vital principle d. Under war powers broad powers, martial law destroys every gurantee of the Constitution and renders military over civilian power. e. Suspension of habeas corpus is necessary in some circumstances f. Marital law cannot be instituted in places with no invasion or rebellion. 9. Legal Doctrine a. Court unanimous Milligan's imprisonment was illegal, justices split on the power of government to suspend habeas corpus in circumstances presented. b. Majority said neither nor Congress or president could institute suspension of writ of habeas corpus if civilian courts were operational and not in combat zone. c. Justice Miller, Swayne, and Chief Justice Chase argued although president didn't have right to establish military tribunal, Congress can. 10. Chief Justice Chase, held. a. When writ is suspended, President is authorized to arrest, as well as detain and Congressional may institute military tribunals in case where civilian courts were good and not in combat zone b. Thus, tribunal in Indiana was constitutional c. Where peace exists, laws of peace must prevail. But, in war, Congress may deem what areas are and are not subject to threat and thus suspension of habeas corpus.

Mississippi v. Johnson

2. 1867 3. The Radical Republican Congress passed the Reconstruction Acts of 1967 which imposed military rule over the Southern states until Republicans could fully control them. The bill was initially vetoed by President Johnson, but overridden 2/3 vote in Congress. 4. Mississippi sued President Johnson, asking the justices to issue an order prohibiting him from enforcing the laws, which the state argued were unconstitutional. 5. President Immunity Powers 6. Can the President be compelled and told by a Court what his duty is? 7. 9-0 in favor of Johnson 8. Chief Justice Chase writes the opinion stating a. "The single point which requires consideration is this: can the President be restrained by injection form carrying into effect an act of Congress alleged to be unconstitutional? b. President's position is purely executive and political, not ministerial c. The fact that judicial order to the President was never done before shows this order was never promoted d. The president cannot be restrained by injunction. 9. Legal Doctrine a. President cannot be sued to prevent carrying out of executive responsibilities. b. But leaves open, if an incumbent engages in activities that allegedly cause damage to private individuals, may the president be held accountable in Court? or is President immune? 10. No other opinion listed.

Ex Parte McCardle

2. 1869 3. William McCardle was arrested for publishing editorials opposing Reconstruction laws that were "libelous," held before a military tribunal, not a civilian court. 4. The 1867 Habeus Corpus Act, which gave federal courts ability to hear cases dealing with writs of habeas corpus, was repealed. 5. The SCOTUS authority to hear a case after Congress has removed this jurisdiction from the Court. 6. Does the jurisdiction of the Court come from the Constitution or the Congress in appellate cases? 7. Supreme Court acceded and declined to hear the cases. 8. The majority reached the decision because "without jurisdiction, the Court cannot proceed at all in any cause." And since Congress has removed this appellate jurisdiction, and had the authority to do so, they obeyed. 9. McCardle suggests Congress has the authority to remove Court's appellate jurisdiction, did stir up questions to the length at which Congressional power over appellate jurisdiction could go. 10. Dissidents: Does Congress have this limiting of an authority over the Courts?

In re Neagle

2. 1890 3. A lot of sh*t but a bodyguard, commissioned without consent of the Senate by a President, was arrested 4. After shooting the sworn desired to be assassin of Justice Field, Judge David Terry, David Neagle was arrested and charged with Murder 5. The "Take Care" clause and implied powers invested in the presidency 6. Does the president, without congressional action, have the authority to issue an executive order through the US attorney general to authorize a body guard to protect Justice Field? 7. Holding. 7-2 in favor of Neagle 8. Justice Miller, writing the Opinion, states a. We have no doubt that Justice Field was engaged in discharge of his duties as a judge when assaulted and entitled to protection under which the law could give him b. Because filing a writ of habeas corpus, and this must be shown to have a connection to "an act done or omitted in pursuance of a law of the US," makes it necessary that the Act for which Neagle is imprisoned was done by virtue of an act of Congress, and no law exists c. But, from the Take Care Clause, and roll President plays as Commander-in-Chief and head of Executive Branch, it is reasonable too ay President can take measures to protect judges d. Against claims that Neagle should be charged in state court, his execution of his role in a federal position makes him under the jurisdiction of federal law, and thus the discharge to release Neagle is authorized 9. Legal Doctrine a. Court adopted the "general grant" perspective of executive power, that President has power to enforce necessary law even without consent of Congress 10. Other Viewpoints, Justice Lamar (with whom Chief Justice Fuller joins) dissenting a. Think that Neagle was not acting in capacity as bodyguard at the time, and thus federal court has no jurisdiction over the case b. Since there is no law he was acting with, Neagle is guilty. Class Notes - a US marshall, in defense of SCOTUS Justice, Justice Field, shot and killed Justice Field, as Marshall, when Justice Field was about to take a trip through Circuit courts, have protection of a body guard, no congressional authority to do so - raises question of implied powers of president, did president have rich to appoint bodyguard? - if this wasn't an implied power, this was murder and could be tried - if he was authorized, then habeas corpus petition would be granted, and he couldn't be tried - deals with themes of presidential power - did US Attorney General have power to authorize - approved of steward position of president, ultimately, Neagle is important decision about US president, there's an "unnecessary and proper" clause for the executive - inherent powers of the President, expansive view of presidential power

Ex Parte Grossman

2. 1925 3. Philip Grossman was imprisoned and fined for selling alcohol during Prohibition 4. Grossman violated the National prohibition Act. President Coolidge tried to commute his sentence, but district judge refused to acknowledge pardon. 5. The Presidential pardon power 6. Does the President have the power to pardon a criminal contempt of Court 7. 8-0, in favor of Grossman 8. Chief Justice Taft writes the opinion a. Language of Constitution must be interpreted in reference to common law and British institutions b. Pardon powers of the King and the President are relatively similar in this case c. Nothing in the ordinary meaning of the words "offenses against the US" excludes criminal contempts d. Says pardon is "a check entrusted to the executive in special cases" e. If President abuses pardon power, it's best to impeach him rather then have injunction f. Courts have "qualified independence" 9. Legal Doctrine a. Demonstrates strong authority of legal power 10. No other opinions listed.

1. Myers v. United States

2. 1926 3. A first-class postmaster (Myers) was removed from office at the request of President Woodrow Wilson to Postmaster General Albert Burelson. 4. Myers complained his removal was illegal because under 1876 federal law "postmasters of the first, second, and third classes shall be appointed and may be removed by the President by and with the advice and consent of the Senate and shall hold their offices for four years unless sooner removed or suspended according to law" 5. Presidential discretion in exercising the removal power 6. Does Article 2 Section 2 give Congress discretion to allow congressional participation in the removal of officers? 7. 6-3, in favor of the US 8. Chief Justice delivered opinion of the Court a. Presidential appointments are inherent executive powers, not the exercise of legislative or judicial powers b. "The power to prevent the removal of an officer...is different from the authority to consent or reject his appointment" c. The authority to "take care" that laws be enforced includes the necessity for exclusive power of removal d. "To require him of file charges and submit them to the consideration of the Senate might make impossible that United and coordination in executive administration essential to effective action" 9. Legal Doctrine a. Established a "Myers Principle" that president has discretion over the removal of principal officers 10. Other Opinions: a. The separate opinion of Justice McReynolds i. President can remove officials from office, but cannot do so over declared intention of Senate ii. Presidents have authorized limited authority over officer removal in the past, so "all executive power" doesn't hold weight b. Justice Brandeis, dissents i. The words of the statute demonstrate congressional intent to preclude a removal without senatorial consent. Class Notes - opinion originally by Taft (in one of them) was president's removal subjected to Senate consent - in Myers, dealing with postmaster - Chief Justice Taft - right of removal not shared with Congress, President needed confidence in subordinates, need to have power to remove

Humphrey's Executor v. US

2. 1935 3. William Humphrey was removed from his position in the second term as FTC commissioner by FDR, because he did not approve of his positions on policy matters related to the jurisdiction of the FTC. 4. The statute that created the FTC said president could only removed commissioners for inefficiency, neglect of duty, or malfeasance in office. 5. The presidential removal power. 6. Did the Federal Trade Commission Act restrict the President's removal power to those grounds cited in the statute? And if so is such restriction constitutional? 7. 9-0, in favor of_________ 8. Justice Sutherland delivered Court's opinion. 9. Legal Doctrine. a. The intention of the act was to limit the executive power of removal, but the cause of removal in question is not discussed here, so not relevant b. In Myers, the position discussed was exclusively executive. In the case of the FTC, it acts in part quasi-legislative and quasi-judicial functions c. The president does not have power of removal of officers operating in the realm of a separate branch or under the powers granted to another branch. d. The precedent established in Myers affirms President's alone power to remove purely executive offices. 9. Legal Doctrine a. Court distinguished between officials who exercise purely executive powers and those who cary out quasi-legislative and quasi-legislative and quasi-judicial functions. The former serve at the pleasure of the president and may be removed at his discretion. The latter may removed only with procedures consistent with statutory conditions enacted by Congress. 10. No other opinions listed. Further Notes - deals with FTC - both quasi-legislative and quasi-judicial, 3-appointed by President, 2 appointed by opposing party - FDR wanted to get rid of a commissioner because was blocking FDR's agenda was Myers good precedent? - Court says Myers decision was restricted to executive officers, said FTC effects other branches, must be free of executive control, quasi-legislative intervenes - In Humphrey's Executor, President did not have free hand, because also legislative influence - unitary president thinks this is wrong, and that President has broad authority over those people - Weiner v. US - dismissal of War Claims commission, decision uphold Humphrey's Executive

Youngstown Sheet and Tube v. Sawyer

2. 1952 3. After the United Steelworkers Union went on strike when its contract with the steel companies expired, President Truman, in order to make sure steel industry did not take a hit during Korean War, issued an order to Secretary of Commerce Charles Sawyer to seize the steel mills and keep them in operation. Sawyer ordered the mill owners to continue to run their facilities as operators for US. 4. The mills owners complied with the order, but field suit in federal court to have Truman's actions declare unconstitutional. 5. Truman argued the inherent powers of the Chief Executive game him the authority to commit this action. No statutory authority granted this action, and Taft-Hartley Act rejected idea that labor dispute could be solved by such means, and instead the Act authorized president to impose 80 day cooling off period as a way to postpone any strike that seriously threatened public interest. Truman ignored it. 6. Is there a valid reason, under the constitutional function of the Chief Executive, for disregarding the Taft-Hartley Act and seizing the steel mills? 7. 6-3, holding for Youngstown Sheet and Tube Co. 8. Justice Black, writing opinion of the Court a. The President's powers to issue the order must stem from an act of Congress or from the Constitution itself. Neither applies here. b. Under Constitution, Commander in Chief does not have ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. That power lies with Nation's lawmakers, not military authority. c. President's order directs that a presidential policy be executed in a manner described by the President, not a congressional policy executed in a manner described by Congress d. The Congress does not subject lawmaking power of Congress to presidential or military supervision. 9. Legal Doctrine a. Justices sharply divided over issue/nature of executive power. i. Douglas and Black adopted "mere designation" or enumerated approach, writing "The President's Powers, if any, to issue the order must stem from an act of Congress or the Constitution itself" ii. Vinson, Stanley Reed, and Sherman Minton thought the Take Care Clause provided president with a sufficient constitutional basis for actions: taking steps that were in best interest of the country while Congress could act. iii. Frankfurter, Jackson, Harold Burton, and Tom C. Clark settled in between a. Although Jackson reads vesting clause as mere designation of office, Jackson concedes other clauses in Art. II can and should be interpreted flexibly to accommodate the modern presidency b. But, said Truman couldn't seize mills because he acted against "implied" interest of Congress b. Second Point: Legal Analysts regard Jackson's concurrence as the most important statement of the case, some say the most important concurrence ever written, because Jackson provided a useful framework for dealing with presidential power vis-a-vis Congress 10. Other Viewpoints a. Justice Jackson, concurring in judgement and opinion i. Need to consider "the ending consequences upon the balanced power structure of our Republic" ii. Too good not to quote "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers in a workable government. It enjoins upon its branches separateness but interdependent, autonomy but reciprocity. Presidential powers are not fixes but fluctuate depending upon their disjunction or conjunction with those of Congress. Explanations of Presidential Power - When action with Congress, power of the president is at its highest ebb - When President acts in absence of or against congressional grant of authority, he can only rely upon his own independent powers, but there is an area of concurrent authority, and rightful possessor of power could be dependent on contemporary situation. - When president takes measures incompatible with expressed will of Congress, his power is at its lowest ebb, and he can only rely upon own constitutional powers minus constitutional powers of Congress over whatever the matter is. iii. Executive seizure of mill industry is option III iv. Because of constitutional structure and basic ideas of governance, believes in giving to the enumerated powers the scope and elasticity afford by what seems to be reasonable, practical implications instead of the rigidity dictated by a doctrine of textualism. v. Except for suspension for writ of habeas corpus in war time or rebellion, Framers made no expression for exercise of extraordinary authority because of crisis. vii. "Congress can grant and has granted large emergency powers, certainly amply to embrace this iris, I am quite unimpressed with the argument that we should affirm possession of them without statute. b. Chief Justice Vinson (joined by Justice Reed and Justice Minton) dissent. i. In Defense Protection Act of 1950, Congress granted the powers requested and, in addition, granted powers to stabilize prices and wages and to promote for settlement of labor disputes arising in the defense program. ii. Committee emphasized shortage of steel presented grave danger of disastrous inflation. iii. Presidents have, in the past, acted promptly and resolutely to enforce legislative programs, at least to save those programs until Congress could act. iv. "A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but most independently determine for itself whether the President was acting, as required by the Constitution, to "take care that the laws be faithfully executed."

1. Flast v. Cohen

2. 1968 3. 7 taxpayers sought to change federal expenditures made under the Elementary and Secondary Education Act of 1965. 4. Under this, states could apply to Feds for grants to assist in the education of children from low-income families. Taxpayers said some of the funds disbursed were used for "instruction in reading, arithmetic, and other subjects and for guidance in religious and sectarian schools." 5. The appellants argued this violated the 1st Amendment prohibition on religious establishment. 6. Does a plaintiff need to have standing other than "solely on their states as federal taxpayers" to have standing to sue? 7. 8 -1, Court held for Flast. 8. In delivering the opinion of the Court, Chief Justice Warren held that a. In order for a federal taxpayer to show a connection between the status asserted and the claim sought to be adjudicated, it must show i. The taxpayer must establish a logical link between its status and the type of legislative enactment attacked, only can be congressional powers under Art. 1 Section 8. ii. Taxpayer must establish a nexus between status and the precise nature of constitutional infringement exceeds specific constitutional limits upon the exercise of congressional taxing and spending power. b. The appellants in the case have satisfied both nexuses by i. Constitutional challenge is made to Congress's power under Article 1 Section 8 as a substantial expenditure of federal tax funds for general welfare. ii. The challenged expenses violates the Establishment and Free Exercise Clauses of 1st Amendment. c. The taxpayer's allegation in such cases that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power, then judicial redress is acceptable. 9. Legal Doctrine. The majority. a. New Precedent from Frothingham v. Mellon: If taxpayers could identify a logical link between their status and a specific constitutional infringement, they they might have standing b. Symbolized lowering barriers to access for federal courts. 10. Justice Harlan, dissented. Says the new set-forth criteria for standing does not accurately measure the plaintiffs interest in the outcome of the suit; this gives too much unrestricted allocation of authority to the federal judiciary to hear such cases. Class Notes - SCOTUS opened case up, standing for taxpayers lawsuits, had to be nexus between taxpayer and precise nature of constitutional infringement being alleged - Scalia is critical about not overturning Flast in Hein, because Court still leaves Flast somewhat in tact - important to public interest law - do some organizations (Sierra Club, etc.) have direct injury to claim in Court?

United States v. Nixon

2. 1974 3. After the Watergate Break-In and the Saturday Day Night Massacre, newly appointed special counsel Leon Jaworski demanded the secret audio tapes of Nixon's conversations in the Oval Office. 4. When Nixon refused to turn over the tapes, and then turned over highly edited tapes, both the US and Nixon requested the SCOTUS review the case. 5. Presidential Executive Privilege 6. To what extent can executive privilege be invoked? 7. 8-0, in favor of the US 8. Chief Justice Burger delivered the opinion of the Court a. Neither the doctrine of separation of powers, nor the need of confidentiality of high-level communications, without more reasons, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. b. Claiming broad, unqualified privilege who halt Court form doing primary constitutional duty to do justice in criminal prosecution. c. We conclude that the legitimate needs of the judiciary process may outweigh presidential privilege d. "To ensure that justice is done, it is imperative to the function of Courts that compulsory process be available for the production of evidence needed either by the prediction of the defense" 9. Legal Doctrine a. The people's interest in fair administration of justice outweighed the president's interest in confidentiality 10. No other opinions listed. Class Notes - US v. Nixon - concerns Watergate, "excellent explanation in casebook," 2nd Special Prosector past Saturday Night Massacre, 2nd special prosecutor, after learning about tapes, subpoenaed tapes for prosecution of other officials, Leon Jaworksi wanted the, Nixon refused, then refused again but submitted tapes with edits (18.5 minutes) - Nixon's principle argument was executive privilege that allowed him not to turnover tapes, not have to turn over certain tapes idea of president to keep some things between president and staff secret nothing in Art. 2 about executive privilege, so president can get candid advice - certain conversations require secrecy, tied to sensitive duties of president - are these tapes subject to subpoena Nixon authorized absolute executive privilege Subsequent Questions 1) is there executive privilege 2) is it absolute 3) what other balances could be exert against it SCOTUS Answers 1) Yes, president does have this inherent right 2) No, not absolute, might only be with national security, not with generalized assertion with operation of criminal justice system some limits 3) Overvailing interest is operation of Art. II, absolute privilege would getting way of Court's to do justice in criminal prosecution unanimous decision, 8-0, decision by CJ Burger, executive privilege jus exerted over Kavnaugh decision

Murphy v. Ford

2. 1975 3. Ford pardons Nixon 4. F. Gregory Murphy filed suit against President Ford that pardon was unconstitutional and wanted it declared void. 5. Presidential Pardon Power 6. Did President Ford have the Constitutional power to pardon former President Nixon for the latter's offenses against the US? 7. Decision of the US District Court for the Western District of Michigan, Noel P. Fox, Chief Judge 8. Chief Judge Fox delivered opinion a. Under circumstances of Watergate era, President Ford concluded that the public interest required positive steps to end vision caused by Watergate. b. Ford was taking steps to "restore the tranquility of the commonwealth" by "well-timed offer of pardon" (Hamilton Federalist 74) c. Presidential pardon power, according to Ex Parte Garland (1867) is "unlimited" except in cases of impeachment 9. Legal Doctrine a. Very Limited hamstrings attached to presidential pardon power 10. No other opinions listed.

Dames and Moore v. Regan

2. 1981 3. After the Iranians took hostage Americans at the embassy in Tehran in 1979, President Carter invoked the International Economic Emergency Powers Act and froze all assets of the Iranian government and its agencies within jurisdiction of the US. Dames and Moore Company filed suit in federal court against the government of Iran, the Atomic Energy Organization of Iran, and a number of Iranian banks, suit claimed the Iranians still owed the company almost $3.5 million and asked the Court to grant it the bank payment plus interest. 4. As a part of settlement agreement to release hostages, US agreed to terminate all American lawsuits involving frozen Iranian assets. The district Court denied attachments against the Iranian assets to pay Dames and Moore. The company then filed suit against Secretary of Treasury Donald Regan. 5. Presidential Foreign Policy Power 6. Could the Presidential seize the Iranian assets and use them as bargaining chip to help resolve an international stalemate? 7. 9-0, in favor of Regan. 8. Justice Rehnquist, writing in the majority, held a. The "general tenor" of the Congress legislation with this issue in trying to determine whether the President is acting alone or at least with the acceptance of Congress, which seems to support this executive authority. b. "Crucial to decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement." c. Prior cases of the Court have also recognized that the President does have some measure of power to enter into executive agreements without advice and consent of the Senate. d. Concludes Congress acquiesced in the President's actions, and the President does not lock power to settle those claims 9. Legal Doctrine a. The President is the primary government authority over matters of foreign policy b. Yet powers are limited, and president stands on stronger footing when acting in assent of Congress 10. No other opinions listed

Morrison v. Olsen

2. 1988 3. Ted Olsen, assistant AG at the time, failed to cooperate with a special counsel over allegation he provided false and misleading statements to House Judiciary Committee, as under investigation. 4. The Special Counsel was appointed provisions of the Ethics in Government Act that stipulated special counsel could be chosen by panel of 3 federal judges, who would be appointed by Chief Justice, who would decide jurisdiction of each counsel's investigation. Once appointed, counsel would have all powers of Justice Department, could be removed but only for cause or disabilities that would substantially impair counsel for completing duties. 5. The Constitution's appointment clause - Art. 2 Section 2. 6. Is the independent counsel an "inferior officer" and thus does not have to be appointed by the President or a principal officer, and does have to be appointed? 7. 7-1, in favor of Morrison 8. Chief Justice Rehnquist, writes the opinion of the Court a. The special counsel is an "inferior officer" b. She is removable by AG, thus below that position c. She is empowered by the Act to only perform certain, limited duties. d. Her office is limited in jurisdiction e. Her office is limited in tenure f. The appointment of the independent counsel by the Court does not run a foul of the constitutional limitation on "incongruous" inter-branch appointments. 9. Legal Doctrine a. In 1994, a new independent counsel statute became law i. Revised law has counsel's open-ended term of office, loosely, constrained powers of prosecutorial power, and large expense pools, making "Scalia's dissent in Morrison proved prophetic" b. Morrison remains an important standard for determining whether an officer is an inferior officer. 10. Scalia's dissent a Argues all executive power is in executive branch, and that independent counsel's description fits an executive role b. The special counsel's actions are not fully in control of the president's supervision c. Because this is a misallocation of executive power, it violates separation of powers and is unconstitutional.

1. Clinton v. Jones

2. 1997 3. Governor of Arkansas Clinton was accused of making sexual advances towards Paula Jones 4. Jones's filed suit claiming she was treated rudely by superiors for not allowing Clinton's sexual advances. 5. Presidential immunity powers 6. Can a private citizen file civil litigation against a sitting president? 7. 9-0, in favor of Jones 8. Justice Stevens writes opinion a. Immunity was needed to avoid rendering the President "unduly cautious in the discharge of his official duties," and President wasn't performing official duties in this cases and unprecedented case b. Separation of powers would not be violated by hearing this case c. It seems unlikely this litigation will place harsh, undue burdens on the president's ability to exercise power, as Clinton contends d. The fact that a federal court's exercise of its traditional Art. 3 jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of Constitution. e. Congress could provide president with its protection power with legislation, just not applicable now. 9. Legal Doctrine a. SCOTUS's ruling that president's while in office may be sued for unofficial conduct is meaningful addition to law of immunity. 10. Justice Breyer concurs a. The Constitution permits a judge to schedule a trial in an ordinary civil damagers action only within the constraints of constitutional principles. b. Good to emphasize that President does have some protection against Court, just not in this case.

Clinton v. City of New York

2. 1998 3. When President Clinton used his powers under the Line Item Veto to strike down a provision of the Balanced Budget Act of 1997 that provided NYC Hospitals with money and s section of the Taxpayer's Relief Act of 1997 that gave tax breaks to potato growers in Idaho. 4. The Line Item Veto Act which holds that 1) the President has the power to rescind expenditures, with a congressional check on this ability by cancelling veto and 2) members of Congress or anyone affected by the act could file suit in DC Circuit Court 5. The presentment clause - Act. 1 Section 7 Clause 2 6. Is the Line Item Veto Act altering the constitutional balance of powers between legislative and executive powers in an improper way? 7. 6-3, in favor of City of New York 8. Justice Stevens wrote opinion of the Court a. The Act's cancellation procedures violate Art. 1 Section 7, Clause 2 b. Although the Constitution expressly authorizes the President to play a role in the process of enacting statutes, it is silent on the subject of unilateral presidential action that either repeals or amends parts of duly enacted statutes c. Procedures authorized by Line Item Veto Act are not authorized by constitution. 9. Legal Doctrine a. President Clinton disappointed with decision, but unlikely to change 10. Other Viewpoints a. Scalia, concurring an dissent i. Presidents have had discretion of what to spend and not to spend since nation's founding ii. If law had said "declined to spend" would be constitutional iii. Says although technical difference, action is same since nation's founding b. Breyer, dissenting i. Act does not violate separation of powers ii. Act authorizes novel approach to have Congress and President work better together, sees it as constitutional Class Notes - specific litigants who challenged expertise by Clinton of Line Item Veto - Line Item Veto exercised by Clinton to do with tax break, awarding tax breaks to special interests - Courts said New York children hospitals and farmers that were effected by the tax break had suffered an injury - concrete injury was present Further Class Notes - items cut items for hospitals spending and potato farmers tax breaks (which considered spending) - plaintiffs were hospital's in NY, and potato farmers, saying Line Item Veto Unconstitutional - President to notify Congress of "X" out; Congress could produce cancellation bills, that were subject to president's veto - In this case, President taking away power of the purse in different separation of powers violates presentment clause (Art. 1 Section 7), line item veto legislative was rewrite of how law are made, President can't j line something out - Line Item Veto, effectively rewriting bills Congress has passed

Bush v. Gore

2. 2000 3. In the Florida election for President in 2000, a large number of undercounted ballots in a elect number of traditionally Democratic counties, due to undercounting or machine malfunction, Gore forces demanded a recount 4. 3 statutory deadlines imposed obstacles a. Florida Law directed Secretary of State to certify the election results but Nov. 18 b. Federal law provided that if all controversies and contests over a state's electors were resolved by Dec. 12, the state's slate would considered conclusive and beyond challenge c. Federal law set December 18 as the date electors would cast their ballots 5. The Equal Protection Clause of the 14th Amendment 6. a. Did the Florida Supreme Court violate federal law by altering the election procedures in place prior to the election? b. And did the Florida Supreme Court violate the Equal Protection clause of the 14th Amendment when it ordered a recount to take lace without setting a single uniform standard for determining voter intent? 7. 5-4, in favor of Bush. 8. Writing for the majority, per curiam holds that a. The recount process is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single-state judicial office. b. The recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. c. Because the Florida Supreme Court has ordered the "intent" of the voters be discerned from the ballots, the recount mechanisms implemented do not satisfy the minimum requirement of non-arbitrary treatment of votes necessary to secure fundamental rights 9. Legal Doctrine. Not only was there a question of whether the SCOTUS should have heard the case in the first place, but also many believed that the justices voters were excessively influenced by their own partisan preferences. 10. Other Views. a. Chief Justice Rehnquist (with whom Justice Scalia and Justice Thomas joins) concurs, saying Art. II gives the SCOTUS special authority to manage the election of the president. b. Justice Stevens (joined by Justice Ginsburg and Justice Breyer) dissents, saying that nothing in Art. II presents the Florida legislature from applying its own methods of how to select its electors. c. Justice Souter (with whom Justice Breyer joins) dissents, saying that the Court's decision transcends the authorities of the state legislature in a realm of no constitutionally allocated authority to do so d. Justice Ginsburg, dissents, saying this intrusion violates the split sovereignty of state to the federal government and this "untested prophecy" should not decide the election e. Justice Breyer, dissents saying majority's claims of overrate counting and partial vote counting were unfounded and falsely supported. However, Breyer does give credence to the accusation that the lack of a uniform, specific standard to guide recounts is problematic. Class Notes - case about equal protection is solution of dilemma applicable to another branch, in this case yes - were there standards here the lower courts could apply - SCOTUS had problem that 1) recount was only in Democratic districts and 2) Florida SCOTUS did not have standard for how to re-count votes - SCOTUS said weren't treating all votes equally, voting recount process varied SCOTUS terminated recount - political decision as monumental as this was, RBG said this was political - per curiam decision - done because make it seem less politically charged and it lacked precedent - Bush v. Gore could happen again, is a justiciable question - RBG dissent - objects overriding state court statutory interpretation of state law - Breyer dissent - Florida Supreme Court should give out uniform voting procedures, decision embroils Courts, undermines public respect of Court, self-inflicted wounds

Hollingsworth v. Perry

2. 2013 3. CA Voters passed Prop 8 that only marriage between a man and a woman is valid in CA. 4. Kris Perry and Sandy Stier, a same sex couple, challenged Prop 8. 5. The appellants claimed Prop 8 violated due process and equal protection clause of the 14th Amendment. 6. Do official proponents (state officials) have authority to assert the state's interest in defending the constitutionality of the initiative when public officials refused to do so? 7. 5- 4, holding in favor of Hollingsworth. 8. Writing for the majority, Chief Justice Roberts holds that a. The petitioners do not have standing because they do not possess a personal stake in the outcome of their appeal, and their only interest in having the District order reversed was to vindicate the Constitutional valid of a generally applicable CA law. b. No matter how deeply committed petitioners may be to upholding Prop. 8, that is not a "particularized" interest sufficient to create a case or controversy under Article III. c. The case is remanded with instructions to dismiss the appeal for lack of jurisdiction. 9. Legal Doctrine a. Did not resolve same-sex marriage issue. b. The divergent opinions in Perry show that standing doctrine continues to remain open to interpretation. c. Perry shows although Art. III places certain limits on the power of the federal judiciary, its language is vague enough to allow for a good deal of judicial latitudes. 10. Justice Kennedy (with Justice Thomas, Justice Alito, and Justice Sotomayor) dissenting a. The officials did have standing because they had gone through great lengths to enact on initiative, they have a stake in the outcome and the necessary commitment to provide zealous advocacy for the status of standing.

National Labor Relations Board v. Canning

2. 2014 3. NLRB found that Noel Canning had unlawfully refused to execute a collective bargaining agreement with a labor union. 4. Noel Canning asked Court of Appeals for DC Circuit to set order aside because no quorum on Board was reached because 3 of 5 members were invalidly appointed by President Obama. 5. President Obama invoked the Recess appointment clause to appoint 3 members to the board. 6. 1) Whether "the recess" excludes intra-sessions, 2) whether "may happen" refers only to vacancies that arise during the recess and 3) whether the Senate was in session or in recess during the pro forma sessions 7. 9-0, in favor of Canning 8. Justice Breyer wrote the Opinion of the Court a. Finds "the recess" applies to both inter and intra-sessions of Congress b. Finds the clause applies to both vacancies that first came into existence during a recess and vacancies that arise prior to a recess but continue to exist during a recess. c. Finds the pro forma sessions was the Senate in session d. Finds the President (Obama) lacked the power to make the recess appointments e. Says recess is secondary mode to advice and consent, and should not be sued to go around Senate 9. Legal Doctrine a. Disputed over whether case was actually a major loss for presidential power 10. Scalia, concurs (but not really) a. Finds the Court's conclusion that "recess" includes "breaks in the midst of a session" is "inconsistent with Constitution" b. Says strict guidelines to this clause, and that it is up to Court's discretion is absurd c. Says "judicial adventurism" to find right answers is incorrect d. Not plausible that Constitution authorizes President "to make unilateral appointments during any break in Senate hearing" e. Power to wait until Senate is out out session to appoint impairs separation of powers f. Recess appointment is supplemental method, not preferred

Judiciary Act of 1789 and how/why it was passed

Because first Congress was Federalist controlled, passed the Judiciary Act of 1789 a. outlined two types of jurisdiction: cases brought by individual and cases brought by parties b. Defined jurisdiction of US in terms of original and appellate jurisdiction First goal: establish Federal Court structure i. Accomplishing by providing for SCOTUS and circuit and district courts ii. Created 13 district courts, 1 for each state, presided over by 1 judge iii. 3 circuit courts created geographically Second goal: specify the jurisdiction of the federal courts i. Defining parameters of authority for each new Court; fixed salaries based on business of the Court ii. Congress gave them limited appellate authority to hear major civil and admiralty disputes coming out of district courts iii. Section 13 gave SCOTUS authority over suits in first instance (original jurisdiction) and appellate jurisdiction in major civil disputes. a. Section 13 - writs of mandamus, command a public official to carry out a particular act or duty, Marbury v. Madison b. Section 25 - SCOTUS can review certain cases coming out of states, could hear appeals from state courts iv. Judiciary Act of 1789 proved way for 3 landmark cases - Marbury v. Madison, Martin v. Hunters' Lessee, and Cohens v. Virginia

How Congress gives approval of president in respect to military

Congress can give indirect approval to the president in the form of continuing congressional appropriations to support military actions.

In constitutional war powers, The Framers wanted

Congress to raise and support military forces and provide general rules governing forces; once raised, executive power becomes dominant.

Political Questions

Court will not address a class of questions because they are better suited and served by another branch a. i.e. Baker v. Carr (1954) if Constitution directs commitment of problem to another branch - goes to, originally, Marbury v. Madison, "province of Court to inquiry on individuals,, not how executive and executive officials perform their inherently political duties in "executive discretion" Court will not decide the case - Luther v. Borden - existing Rhode Island government, rebelling group, rebellion wrote new state constitution, rebellion said Rhode Island violated Article 4 Section 4, SCOTUS declined jurisdiction in case, - said states have large discretion

Executive Vesting Clause, General Grant of Power

Hamiltonian - inherent powers approach - President has all powers listed in Art. II plus those additional powers needed to run the nation i. As long as Congress hasn't restricted it, President can use it ii. "Take Care" Clause and Common Sense propels advocates to support this position

Executive Vesting Clause, Mere Designation of Office

Madisonian idea, President is limited to those specific grants of power contained in Section 2+3 of Art. II, supporters says listing specific powers is meant to restrain president

Constitution is a

Political Document - act of interpreting it is inherently a political act - Felix Frankfurter - "constitutional law is applied politics" - need to have awareness of US History to see how effects, impacts the Court - precedent is important - foundation, precedent, precedent, precedent - respect fundamental ruling, shows a part of exceptionalism of our way of law, gives consistency to the law --reflects back on history of decisions being made

Court is not the only group to interpret the Constitution

President can, Congress can - Jefferson, Jackson, and Lincoln were not willing to concede that they or Congress were obligated to accept SCOTUS ruling as legally binding

How the Court Decides: The Case Selection Process

Rule of Four - Court grants certiorari to those cases receiving the affirmative vote of at least 4 justices

Constitutional Convention

Summer 1787 - met from May 27 - Sept. 17, 1787 - Washington up in Front - Ringleaders of Convention were Madison and Hamilton

Collective Suits

The Court will not decide the case in which the litigants 1) want the same outcome 2) evidence of no real adverts between them 3) are merely testing the law - Muskrat v. US proves case brought before SCOTUS must have a "case" or "controversies"

Structural Reasoning

i. Suggests that interception of these clauses should follow from, or at least be consistent with overarching structure or governing principles established in the Constitution, most notably federalism and separation of powers ii. Proposes that these structures are so important that judges and lawyers should read the Constitution to preserve them

Recess Appointments

a. Article 2 Section 2 allows presidents "to fill up all the vacancies that my happen during the Recess of the Senate," with the provision that these appointments expire at the end of the next session i. Done in an effort to keep government running at full capacity b. Some say reason for use is to sidestep the Senate.

Public Opinion

a. Because justices are political appointees, nominated and approved by popularly elected officials, it is logical that they should reflect, however subtly, the views of the majority b. The Court, at least occasionally, views public opinion as a legitimate guide for decisions c. Because Court depends on its reputation for credibility, it needs to maintain it for support in decisions

The Power of Appointment

a. Constitutional offers guidelines on President's appointment power, but is silent on the removal power b. Principal v. Inferior Officers i. Art. 2 Section 2 - appointments clause - specifics presidents authority to appoint major administrative and judicial officials, but it also allows Congress to allocate the authority to other bodies from minor administrative positions

Removal

a. Framers agreed on removal - if an incumbent president or VP abuses their office, the Constitution provides for impeachment as method of removal b. Can only occur under charges or "treason, bribery, or other high crimes and misdemeanors" c. Vote in House --> Trial in Senate --> Removal d. Chief Justice Presides only over President's hearing, so could VP preside over his/her own hearing?

Art. III

a. Hamilton calls judiciary "least dangerous branch" because it cannot rely on sword or purse like other branches b. Need for judicial independence --> lifetime tenure, "good behavior" c. Framers disagreed on structure of the lower courts, agreed on SCOTUS d. President gets to appoint judges, advice and consent of the Senate

Justice Marshall, amongst others, oppose originalism

a. Many saw it as highly politicized (i.e. Bork, Meese) b. Brennan argues originals has constitution lose its applicabitliy saying "constitution rests not in any static meaning it might have had in a world that is dead and gone, but in adaptability of its great principles to cope with current problems and current needs. " iii. Another criticism is Constitution embodies not one intent, but many, and supporting documents often fail to provide a single clear message.

The Role of the President in Foreign Policy

a. Perhaps most significant authority given to the president is power to create and carry out the nation's foreign policy Reasons why In charge of foreign policy i. Art. 2 Section 2 assigns president the role of commander in chief of the army and navy, foreign policy clearly is tied to its military ii. Art. 2 gives President the sole authority to make treaties on behalf of the US iii. The president selects the individuals to represents the US in contacts with other nations iv. Art. 2 Sect. 3 provides that president is appropriate official to receive ambassadors and ministers from foreign nations

The Power of Removal

a. President has discretionary right to remove administrative officials from office b. Short of impeachment, Constitution does not delicate procedures for removal c. Hamilton, and others, argued Senate approval to removals would be more credible removal d. At times, such as the Tenure of Office Act in 1867, Congress has asserted a right to participate in the removal process; done in an effort to prevent President Johnson from removing President Lincoln's appointees

Advisory Opinions

a. Request advice from the Court to the Executive branch

General Grievances Suits, Two types

a. Taxpayer Suits, which are brough by parties whose only injury is that they do not want the government to spend tax money in a particular way b. Government induced suits which arises when legislators who voted against a law challenge its constitutionality or when the executive branch will not defend law because it thinks law violates Constitution. i. Legislators who vetoed against the law bring suit to challenge the law's constitutionality or ii. When the executive branch declines to defend a law because it believes the law is unconstitutional

The Power to Pardon

a. The Executive stands as the last source, capable of sparing a person when extraordinary circumstances warrant such action b. Legally, it is if the individual had never committed the crime c. Art. 2 restrict the president's authority to crimes against the US.

Why do groups go to court

a. influence court decisions b. set institutional agenda, often through amicus briefs, bringing cases to judges attention c. publicize their group and their case

Constitutional Powers of the President

a. the powers of the president are the same today as they were when drafted by the Philly Convention. b. Wording is specific ("make treaties," "nominate, advice and consent" and vague ("executive power") i. Did Framers mean "executive power" as a mere designation of office or as a general grant of power"

War Powers Resolution of 1973

acknowledged the right o fit president to undertake limited military action without first obtaining formal approval from Congress but requires president to file a formal report within 48 hours of initiating hostiles.

Because Court relies on bureaucracy to enforces decisions, it must

act strategically and respond accordingly to avoid a confrontation that could threaten its legitimacy

Realistic Theory

also considers non legalistic factors, like politics, politics could mood of public, justices, etc.

Art. III authorizes original jurisdiction in suits involving

ambassadors from foreign countries and those to to which the state is a party - But, because legislation permits lower courts to exercise concurrent authority over most cases under Art. III requirements, SCOTUS does not have sole authority - As a result, SCOTUS normally accepts cases on original jurisdiction only where 1 state sues another, rest left to lower Court's initially

Most cases reach Court under

appellate jurisdiction Appellate = lower court has already rendered a decision and one of the parties is asking SCOTUS to review decision

Restraint judges

believe there Court should not become involved in operations of another branch unless absolutely necessary, benefit of the doubt should be given to elected officials, and Court should impose narrow remedies that are narrowly tailored - yet, it is virtually impossible to separate roles from attitudes

Activist Judge

believes proper role of the Court is to assert independent positions in deciding cases, review actions of the other branches vigorously, strike down acts seen as unconstitutional, and to impose far-reaching remedies for legal wrongdoings

Ripeness

case is "insufficiently gelled" is premature for review a. Union v. Boyd (1954) - a Union challenged a law requiring aliens seeking admission to US through Canada be examined dismissed because no controversy has been committed yet

Groups can also sponsor

cases - this is, provided litigants with attorneys and the money necessary to pursue their cases

Mootness

decide cases in which the controversy is no longer live by the time it reaches the Court's doorstep - Defunis v. Odegaard - Defunis's case was dismissed because it was regarding a racial discrimination case of his rejection from law school, while he was in his final term at another law school

Critics point out that knowing that justice is liberal or conservative

does not tell us much about the Court's policy positions

Orignal Intent

emphasizes the intent of the Framers i. First invoked in Hylton v. US (1796) saying it was obviously the intention of the Framers..." ii. Proponents assert Framers acted in calculated manner, and thus "The language they chose meant something. It is incumbent upon us to determine what that meaning was." iii. Proponents argue orignal intent can lead to deducing "constitutional truths" that can apply to cases, which creates neutral principles of law and eliminates value laden decisions iv. Proponents also argue it creates stability in the law, provides principles justices can consistently follow.

Pragmatism

entails appeasing alternative rulings by forecasting their consequences i. Justices select among plausible constitutional interpretations the one that has the best consequences and rejects those that have the worst.

Legalistic Theory

focuses on role of law, broadly defined, and legal methods in determining how justices interpret Constitution including also American history, tradition, precedent

Preference Based Approaches

sees justices as rational decision makers who hold certain values they would like too see reflected in the outcomes of Court cases

Pure Textualists or LIteralists

justices ought to consider only the words in the Constitution's text, and the words alone, aka Justice Hugo Black - "Seen as value - free form of jurisprudence" ~Justice Black - Critics complain it can lead to odd position (i.e. 1st A), inconsistent outcomes, it presupposes a false notion about the precision of the English language (i.e. what if a word has two meanings) and some phrases (i.e. 35 years old) may not be exactly intent, but merely a rough estimation)

Original Meaning or Understanding

look at the words of whatever constitutional provision and interpret them in line with what the words would have ordinarily meant to the people of the time they were written. i. AKA "Textualism" - Scalia ii. "The meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. at the time the particular provision was adopted." iii. Nixon v. US provides ex.

Judicial Attitudes

maintains that when a case comes before the Court each justice evaluates the facts of the dispute and arrives at a decision consistent with his or her personal ideology

Judicial Role

norms that constrain the behavior of jurists - beliefs that each justice has a view of his or her role, less on political ideology and more on fundamental beliefs of what a good judge should do r what ht proper role of the Court should be

Tenure and Succession

originally unlimited terms, - 22nd Amendment - no person could run for president after for more than six years in that office. Ratified 1951. b. VP --> House Speaker --> ..., line of succession

25th Amendment

provided when a vacancy occurs in the office of VP, president nominates new VP who takes office upon majority vote in both Houses, also clarified procedures governing times when out of the duty of the office.