a)Questions to Consider:

  1. Should the court have reached the constitutional question?

(a)generally, federal judges don’t touch constitutional issues if they don’t have to; they avoid it if they can b/c the constitution is a sacred document, stare decisis and dicta (if it isn’t relevant, its not law)

(1)John Marshall, however, had a goal of what he wanted to do, so he stuck with it

(b)other avenues Marshall could have taken to avoid the issue:

(1)recuse himself – conflict of interest in dealing with presidential commission b/c he is the one who was previously responsible for delivering it

(2)commission wasn’t actually delivered – could have made that essential

(3)no jurisdiction – could have said the Act authorized appellate jurisdiction and not original (but to get to the constitutional issue in the first place, Marshall mis-read the act – the semi-colon – in such a way to allow it)

  1. original vs. appellate
  2. exclusive vs. concurrent
  3. some cases must go to federal or must go to state, some you can choose – no matter which you choose, the case starts in the original jurisdiction
  4. limited vs. general
  5. federal courts have limited jurisdiction – only those cases spelled out in Article III
  6. presumption when lawsuit arises that it will go to state court; must prove you have right to be in federal court

(4)judicial review

(5)discretionary

(6)act not unconstitutional

(7)exceptions

  1. Was the Act of 1789 unconstitutional? Yes.

(a)Marshall interpreted the Art III Exceptions Clause as limiting the power of Congress to expand the Supreme Court’s scope of original jurisdiction (setting the ceiling to its jurisdiction)

(1)so b/c the Act allowed Supreme Court original jurisdiction for writ of mandamus, it is unconstitutional

(2)Rush, however, disagrees with his interpretation, saying the Exceptions Clause is just the floor, and Congress has the authority to expand Court’s original jurisdiction

(b)Marshall is ruling about the constitutionality of his own interpretation of the Act

(1)ignores the “exceptions clause” b/c it doesn’t fit into his argument

  1. “unless we read it my way, it has no meaning” – wrong (see below)

(c)Alternative reading:

(1)Article III: Supr Ct has to have original jurisdiction over cases where a state is a party and where ambassadors, etc, are parties – doesn’t say its exclusive

  1. so, it could be concurrent w/lower federal courts and still not violate Art III

(2)John Marshall is wrong in saying words have to be taken literally

  1. look at 1st Amendment … can imply that no ‘unreasonable’ law abridging freedom of speech will be allowed
  2. we don’t allow someone to yell ‘fire’ in a crowded theatre … its abridging free speech, but that rule is reasonable
  3. its all about interpretation
  1. Can the Supreme Court declare laws unconstitutional?

(a)Yes:

(1)limits imposed on govt powers are meaningless unless subject to judicial enforcement

  1. Const. is the expression of the ‘popular will’ and, therefore, properly controlled the exercise of all govt power, including Congress

(2)inherent to judicial role to decide the constitutionality of the laws it applies

(3)authority to decide ‘cases’ arising under the constitution implies power to declare unconstitutional laws conflicting with the basic legal charter

(4)judges take oath of office and would violate that oath if enforce unconstitutional laws (don’t all other officers of govt take same oath?)

(5)Art. VI Supremacy Clause

(b)Marshall set up very important points with this case (a case that was very trivial):

(1)Congress can not increase federal judicial power

(2)gives federal courts power to review executive conduct

(3)gives federal courts power to strike down congressional statutes (acts)

(4)Constitution is regulatory???

  1. When may judiciary review executive conduct?

(a)political questions – discretionary questions up to the President; Court has no business reviewing these decision

(b)ministerial questions – judiciary will review when law imposes a duty on people

  1. Power and Method of Constitutional Interpretation

a)Marshall: constitution is not legal code, instead “its nature requires that only its great outlines should be marked, its important objects designated … We must never forget that it is a constitution we are expounding … A constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs”

b)United States v. Nixon

  1. facts: President Nixon claimedexecutive privilege from turning over taped conversations and other documents in a conspiracy trial against him
  2. Who gets to decide what an executive privilege is?

(a)Court said they do in a unanimous decision (Nixon said executive branch should)

  1. Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, w/out more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances

(a)separate powers were not intended to operate with absolute independence

(b)a generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial

c)Clinton Case … counsel’s argument was that a sitting president is immune from service of process … Court again said it decides scope of executive privilege’ it will acknowledge when a president is immune

  1. Division of Power b/n Executive and Legislature (Inherent President Power)
  2. Youngstown Sheet & Tube Co., v. Sawyer

a)facts: during Korean War, Truman ordered the Commerce Department to keep striking steel mills operating to supply arms

  1. commerce secretary contended President had power vested in Art II – “executive power vested in the President … he shall take care that the laws be faithfully executed … and shall be Commander in Chief of the Army and Navy”
  2. question of authority; who gets to decide the constitutionality of the order? Court says it will

b)Does the President have inherent executive powers not specifically given by constitution or statute but implied from several clauses?

  1. Model #1 – no inherent presidential power

(a)Black’s ‘majority’ opinion

(b)President may act only if there is express constitutional authority or statutory authority

(c)here, seizure of steel mills was unconstitutional b/c constitution doesn’t permit and there is no statute that allows for seizure of private property to stop labor disputes

(d)check on the president:

(1)Court

(2)Congressional act

  1. Model #2 – president has inherent authority unless he interferes with the functioning of or usurps power from another branch

(a)Douglas’ concurrence

(b)here, this order interferes with Congress, who has spending power

(1)seizure of property must be compensated (5th Amend.); President can’t order Congress to pay

(2)it would have been OK to make the order if Congress had later backed Truman, but it didn’t

(c)check goes to the courts

  1. Model #3 – legislative accountability

(a)President may exercise powers not mentioned in the Const. so long as he doesn’t violate a statute or the constitution itself

(b)Frankfurter concurrence

(1)inherent power exists

  1. unless Congress stops the president, he can act
  2. check obviously is Congress

(c)Jackson concurrence:

(1)Three-part test: analysis of presidential power often starts here

  1. Most power – president acts pursuant to an express or implied congressional grant
  2. possesses his own power and that of Congress
  3. middle ground -- President acts in absence of a grant or denial of authority
  4. relies only on his own independent powers
  5. Least power – president takes measures incompatible with will of Congress
  6. relies on his own power minus any Congressional powers
  7. this case would fall here
  1. Model #4 – broad inherent authority

(a)President may act unless he violates an explicit constitutional provision

(b)gives a lot of power to President b/c Congress cant stop him unless explicitly stated in Constitution

(c)may take on a life of its own in rare circumstances

(1)if I am president and I invoke the power not explicit in constitution, I could be looked at as abusing my power which is interrupting separation of powers

(2)more popular a president, more likely he is to get away with invoking his inherent powers

(d)Dissent:

(1)implied in Congress’ order to wage war

(2)yes, President has inherent power

  1. it’s a given; its always been done this way
  2. but cannot violate specific constitutional provision
  3. precedent set when Roosevelt claimed emergency powers during WWII to seize business (as did other presidents)
  4. check is on the Court

(3)this view gives the president the most power

c)HYPO

  • Congress allocates $$$ for Project X
  • President vetoes project
  • Congress overrules veto with a 2/3 vote
  • President impounds funds… is this constitutional?
  • Model 1: No. there was no power to do this in Constitution or a congressional order giving this power
  • Model 2: No. funding is Congress’ job and President can’t take it over.
  • Model 3: No. overruling veto was Congress’ way of saying you cant do this (no overruling and it might be ok)
  • Model 4: Yes. has the power to do this at his own risk (likely never get in this situation b/c one branch would back off; they want to pick their fights)
  1. Congressional Delegation of Power
  2. prior history: Non-delegation Doctrine – cannot delegate congressional power to executive branch

a)congress created administrative agencies (as part of executive branch) to handle the daily activities that it takes to run government

  1. conflict with separation of powers? each agency has legislative power to make rules, executive power to enforce them and judicial power to adjudicate them

b)out of need, though, now delegations are upheld wherever Congress furnishes an ‘intelligible principle’ that rulemakers are bound to follow

c)Why would Congress give away power?

  1. expertise
  2. efficiency
  3. doesn’t have to be accountable

d)Yakus v. United States

  1. delegation of power OK as long as:

(a)states legislative objective

(b)prescribes the method of achieving that objective

(c)laid down standards to guide administrative determination of both the occasions for the exercise of the price fixing power and the particular prices to be established

  1. essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct
  2. Chevron v. Natural Resources Defense Council

(a)if Congress has explicitly left a gap for the agency to fill, the agency’s interpretations of its governing statute are valid “unless they are arbitrary, capricious, or manifestly contrary to the statute”

(b)if delegation is implicit, agency’s interpretation is valid if “reasonable”

  1. Legislative Veto

a)INS v. Chadha

  1. facts: House passed a resolution pursuant to a statute, overriding Attorney General’s decision to allow a deportable alien to remain in the U.S.

(a)issue: Congress wants to delegate all of their power except what they want to retain in the legislative veto

(b)legislative veto :: device which enabled Congress to monitor actions of executive branch and federal agencies; usually was included in the statute

(1)enabled one or both houses to veto w/out approval of President

  1. [Burger] legislative veto unconstitutional b/c violated two distinct constitutional requirements: bicameralism (passage by both House and Senate) and presentment (giving bill to president for signature or veto)

(a)four instances where one House can act alone: Art. 1, §7

(1)House’s power to initiate impeachment

(2)Senate’s power to…

  1. try impeachment
  2. approve presidential appointments
  3. ratify treaties
  1. court invalidates the legislative vetob/c:

(a)even though Congress originally delegated its authority over deportation cases to the Attorney General, it cannot alter that delegation except through new legislation

(b)can’t be a qualified gift: you must give it all away; and then can’t cross into executive power b/c of separation of powers.

(1)then we know who is making the decisions; by someone elected by the majority

(2)if Congress is dissatisfied with the results of its delegation, it may counteract the problem only by passing a new law removing or restricting the agency’s discretion

(c)valid legislation goes through bicameral approval

  1. [White Dissent] legislative veto is necessary as a check on the broad delegations of legislative power

(a)although it wasn’t considered by framers, either was delegation

  1. What’s really at stake here?

(a)Accountability – makes Congress accountable again, like Constitution intended

(b)Legislative veto an anti-majoritarian force? when Congress is supposed to be majoritarian

(c)analysis of separation of powers cases? text and framers intent vs. functional justification

b)Clinton v. New York

  1. facts: Congress passed legislation granting the President the line item veto, but when Clinton exercised it (keeping NY from being relieved of a tax debt), New York challenged it’s constitutionality

(a)line item veto :: power to veto portions of enacted laws

(b)Clinton was first President to receive this power

  1. line item veto is unconstitutional

(a)violates Presentment Clause and it makes President a legislator

(b)Senate compromises when it makes bills; if President can just get rid of the work they did in compiling and creating the bill, it takes away Senate’s power; undermines their work

(c)Constitution allows President to veto entire bills before they become law (Art I, §7); the line item veto, however, allows the President to cancel only parts of a bill, after it has become law

(d)Const. is silent on issue of unilateral presidential action that repeals or amends parts of duly-enacted statutes; court says this should be interpreted as prohibition of such action

  1. [Breyer Dissent]line item veto is not an amendment or repeal of a law; just exercise of Congressionally-authorized power (joined by O’Conner and Scalia)

(a)someone must be confused – Scalia is an originalist

  1. policy considerations?

(a)Congress attempting to lay the politically-unpopular burden of cutting popular pork-barrel projects on the President, rather than on itself?

(b)Congress could pass popular spending they new would be vetoed, and blame it on the President

  1. another application of Chadha principle?
  1. Foreign Policy
  2. traditionally the President is allowed vast, almost unlimited discretion in conducting foreign policy, including war.
  3. United States v. Curtiss-Wright Export Corp

a)facts: joint resolution of Congress authorized President to prohibit the sale of arms to Bolivia and Paraguay, which were engaged in armed conflict; the President proclaimed an embargo,  was indicted for violating its terms

  1. unconstitutional delegation of power?

b)in situations involving foreign affairs, Congress may delegate to the President greater lawmaking authority (including power to ban arms sales abroad)

  1. powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations need be vested in the federal government – Constitution delegated this power to the President
  2. thus the President has exclusive power over foreign affairs and international relations; President alone negotiates and speaks for the nation

(a)if he is to be an effective power abroad, Congress cannot contradict him

(b)only (officially, anyway) limits on presidential power in this context are:

(1)Congressional support to declare war

(2)Senate consent to sign treaties

  1. the detailing of authority for conducting foreign policy rebuts the assumption that the President has complete control over foreign affairs simply by virtue of being chief executive

c)Court assumed the president’s foreign policy power is greater than his domestic power – why?

  1. immediacy – President often has to make decision quickly and cant be asking permission to do everything
  2. international strength persona; need for a single voice

(a)“sole organ of the federal government in the field of international relation …”

  1. secrecy and national security

d)Model 4 coming up here? … acting as long as he doesn’t go against constitution … what limits him then? … political process

  1. War Powers – term used to describe various Constitution provisions granting the President and Congress the power to maintain and use armies

a)Art. I, §8 – Congress may:

  1. declare war
  2. raise and support armies
  3. lay and collect taxes to provide for a common defense
  4. grant Letters of Marque and Reprisal (legalize private piracy and attacks against national enemies)
  5. provide and maintain a Navy
  6. make rules for … the land and naval forces
  7. provide for calling forth the militia to execute the laws …, suppress insurrections, and repel invasions
  8. provide for organizing, arming, and disciplining, the militia
  9. suspend the privilege of the Writ of Habeas Corpus during rebellion or invasion

b)Art II, §1 – President

  1. shall be Commander in Chief of the Army and Navy of the U.S. and the militias of the states when called into the actual service of the U.S.
  2. take care that the laws be faithfully executed

c)Congress has exclusive power to declare offensive war, though the President may repel sudden attacks w/out waiting for Congressional approval

  1. Dames & Moore v. Reagan

a)facts: to release American hostages in Iran, Reagan suspends claims an judgments against Iranian govt

b)executive order OK if:

  1. settlement claim is necessary incident to the resolution of a major foreign policy dispute
  2. can conclude that Congress acquiesced in the President’s action

c)here, quoting Youngstown, Rehnquist said “a systematic, unbroken, executive practice long pursued to the knowledge of the Congress and never before questioned … may be treated as a gloss on Executive Power vested in the President”

  1. approaches to separation of powers issues:

a)formalist – assumes that Constitution recognizes three kinds of functions – legislative, executive, and judicial – that must be assigned to the corresponding branch

  1. issues turn largely on classification of functions

b)functionalist – foundation is in ‘check and balances’ principle;’ can be no rigid division of govt functions

  1. each branch may have ‘core’ functions, but issues should be measure based on:

(a)maintaining system of checks and balances

(b)preventing concentration of excessive power in a single branch

(c)protecting individual liberty

(d)allowing (subject to a check) a cooperative ebb and flow of power among the branches to promote effective govt

  1. War Powers Resolution

a)Allows president to introduce armed forces into hostile situations pursuant to:

  1. a declaration of war
  2. specific statutory authorization
  3. national emergency
  4. consult Congress where possible; submit report w/in 48 hours; withdraw after 60 days unless Congress has declared war or grants extension

b)created as reaction to Vietnam War