con law flow

8/2/2019 Con Law Flow

1/12

Constitutional Law I

General Constitutional Argument TypesNote: Could be a mix of any of the arguments

below; especiallytextual and historical together.

Textual Argument Interpretation

based on words and structure of Const.

Historical Arguments

Intent Looks to what thedrafters intended for a

provision to mean/say.

Mix of Opinion Arguments-

Consider these factors

Specific Intent of Framers

Natural Law/Rights

Processes/Rights of Govt

Structural Argument Looks more

broadly at Const. provision, and itsplace within the rest of the document.

Application at time of Const. Drafting

Contemporary Values/Evolving Standard

Traditional Values

Precedent / Stare Decisis

Broad Interpretation of Precedent

Narrow Interpretation/Distinction

Social / Policy Considerations

Note: Much less important toOriginalist viewpoint.

Originalism

Consistency in interpretation -We can

have confidence in what thedocument means and this meaning

will NOT change.Democratic Values - The Const. was

ratified by the people, and should

therefore bind on all judges.Higher Law - If the Const. means only

what we want it to mean, it is just amakeview, and not law in its own

account.Contract - The Const. is a contract, and

this contract specifies how we can

change it if we want to do so.Constraining Judicial

Discretion/Activism - Constrains theability of judges to impose theirviews.

Flexibility - The Const. is not a tax code;it is intentionally broad.

Indeterminacy - There is no referenceto the current issues in theConstitutional Debates. Therefore,

Originalists just get to pick andchoose their historical evidence tosupport their arguments, and

support their own views as well.Legitimacy -We follow the Const.

because its legitimate, but to theextent it diverges from our valuestoday, it is less viable and legitimate.

Anti-Democratic Values- Originalism

constrains the Court from

protecting new groups of peoplefrom injustice.

PROS CONS

Democratic Theory- The Constitution issupposedly the voice of the sovereign/the

voice of the people. We the people dontalways trust ourselves to make the rightdecisions. Therefore we have the

Constitution as a self-imposed paternalism.

It restrains us from acting in certain waysthat we will regret in hindsight.

Anti-Democratic Theory Judicial Review shouldbe anti-democratic. Our founders were all

white, land owning men. Still the constitutionis designed to protect the minority. The reasonthe framers wrote the constitution down was

because they feared the will of the elected

officials to listen to the majority who votes forthem. Therefore, the members of congress

would decide based on the votes they get. Thewhole point of having a constitution is to havelimits on political actors to act.

Theories of the Constitution


2/12

Judicial Power, Generally: Article III 1- The

judicial power of the United States, shall bevested in on Supreme Court, and in suchinferior Courts as the Congress may from time

to time ordain and establish.The judges, bothof the supreme and inferior Courts, shall holdtheir Offices during good behavior, and shall,at stated times, receive for their services, a

compensation, which shall not be diminishedduring their continuance in office.

Judicial Powers and Review

Judicial Control Courts control:

a) Cases arising under the Constitution or

federal statutesb) Cases of admiraltyc) Cases between 2 or more states

d) Cases b/w citizens of different statese) Cases b/w a state or its citizens and a foreign

country or foreign citizensf) Congress Control of Federal Judicial Power

g) Control of Supreme Court Docket

Judicial Review The Court can reviewand invalidate statutes found to beunconstitutional. Marbury v. Madison

Marshalls Opinion in Marbury Established Courts Role in Interpreting the Const.

The Const. is the Supreme Law of the U.S., and it is

the Supreme Courts job to interpret it.

Placed important limitations on review of

Executive and Legislative decisions:

1) Political Question Doctrine2) Cases and Controversies Reqt3) Legis. Control of Jurisdiction

Textual Defenses of Judicial Review

Appellate Review of Problems

arising from the Const.

Issues Especially for the Courts Judges take an Oath to the Const.,

and thus, must uphold it via review.

Supremacy Clause Laws must be

made pursuant to the Constitution.

Arguments for Judicial Review

Judicial Expertise - "It is emphatically the province and duty of the judicialdepartment/branch to say what the law is." This also speaks to why we

don't allow judges to rule on political questions: they speak from

judgment, not will. See Political Question Doctrine under Exceptions.

Institutional Logic - It wouldn't make sense for Congress to have the powerof judicial review, because they would just find all their rules to be

constitutional (else they wouldn't have passed them.)Notes: (Counter) There would still be presidential veto;(Counter-Counter) they would still all be elected, and the point of the

Constitution may indeed be anti-democratic in nature.

Judicial Supremacy Under thisdoctrine, decisions of the court

interpreting the Const. Are the supreme

law of the land for purposes of Article VIof the Const, and are therefore binding onall state officers. Cooper. V Aaron.

Note: This is an assertion by the Court , they

do notactuallyhave supreme power:a. Court must rely on other political powers

to enforce their decisions.b. Court has no weapon available to battle

presidential and congressional defiance.

What they have is the weapon of respect.Without the support of the people theirdecisions would mean nothing. Court is

always mindful of risk of expressing theirauthority with judicial supremacy/review.


3/12

Limits on Judicial Power:

The Political Question Doctrine

Political Question A question is non-justiciable if it raises a political

question that the Courts are not authorized to answer,

or should not for policy reasons.

Determining whether a P.Q. exists in a case dependson the following six factors from Baker:

1) Is there a textually demonstrable commitment in the

Constitution of the issue to Exec. Or Legis.?Notes: A case will be found to pose a non-justiciable political

question if it raises an issue whose determination is clearly

committed by the Constitution to another branch of thefederal government rather than the judiciary.

2) Are therejudicially discoverable and manageable

standards for resolving the question?Notes: An issue may be non-justiciable if there are no

manageable standards to guide the judiciary in deciding.

3) Does resolution of the question call forpolicy

decisions inappropriate for judicial resolution?

4) Will resolution of the question express a lack of due

respect for other branches of government?

5) Is there an unusual need for unquestioningadherence to a political decision that has already

6) Is there a potential for embarrassment frominconsistent resolutions of the issue by the courtand one or more of the political branches?

Note: Bakers 6 factors give the court a large amount of discretionto find a political question. The flexibility can be used as a route

to take the Court out of the situations in which they shouldnt beinvolved / will damage their legitimacy and view in the public.

Political Question Deference Spectrum

Extreme Deference

(e.g., Pres. Veto)

Court wouldnt get involvedat all.

Middle of Deference

Spectrum

Most cases fall here, e.g.,Souters Conc. in Nixon

No Deference

(e.g., Congress passes

Court would Substitutetheir judgment.

Example Cases:

Baker v. Carr (1962)Facts - Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Carr, the

Sec of State of TN. Bakers complaint alleged that the TN legislature had not redrawn its districts

since 1901, in violation of the TN Const. which required redistricting every 10 years. Baker, wholived in an urban part of the state, asserted that the demographics of the state had changed shifting agreater proportion of the population to the cities, thereby diluting his vote.

Issue - Do federal courts have jurisdiction to hear a Const. challenge to a legislative apportionment?

Holding -Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative

apportionment. The P.Q. doctrine is based in the separation of powers and whether a case isjusticiable is determined on a case by cases basis. The court held that this case was justiciable/ did

not present a political question. The case did not present an issue to be decided by another branch.The court noted that standards under the Equal Protection Clause were well developed and familiar,

and it had been open to courts since the enactment of the 14th Amendment to determine if an act is

arbitrary and and reflects no policy. When a question is enmeshed with any of the other twobranches of the government, it presents a political question and the Court will not answer it without

further clarification from the other branches.

Nixon v. United States (1993) (NOT 1974 with Richard Nixon)Facts - Nixon, a Federal Judge, was convicted of a felony, perjury. The House of Reps voted three

articles of impeachment; impeachment in the Senate followed. A Senate committee heard theevidence and reported its findings. The Senate convicted Nixon and sought to remove him. Nixonchallenged in federal court on the ground that the rule violated the impeachment clause of the

Constitution, which declares that "the Senate shall have the sole Power to try all Impeachments."

Issue Is Nixon's claim --the Rule violates the Impeachment Trial Clause -- justiciable, i.e.,appropriate for judicial resolution?

Holding - No. The question of whether or not the Senate rule violated the Constitution was non-justiciable since the Impeachment clause expressly granted that the "Senate shall have sole Power to

try any impeachments." The clause laid out specific regulations that were to be followed and as long

as those guidelines were observed the courts would not rule upon the validity of other Senateprocedures regarding impeachments. Court observed that while it was the "ultimate intrepreter of

the Constitution," a matter would be deemed nonjusticiable when there was "a constitutional

commitment of the issue to a coordinate political department."


4/12

Limits on Judicial Power:Non-Justiciability / Cases and Controversies Requirement

The Judicial Power under Art. III extends only to cases and

controversies , and accordingly, the courtlacks the authority to

issue advisory opinions about the resolution of abstract legal

questions without an actual dispute between adverse litigants.Note: The Cases and Controversies Req't also precludes Congress

from conferring jurisdiction on the federal courts to decide

abstract legal questions. SeeMuskrat v. United States.

Standing RequirementsPersonal injury fairly traceable to sallegedly unlawful conduct and

redressed by the requested relief.

1) Injury in Fact must be:a) Distinct and palpable;

b) Not abstract / hypotheticalc) Personally injured

2) Causation injury must be fairlytraceable to action of; measuress stake in the outcome.

3) Redressability Would the rulingbind and produce desired fix fors injury?

See e.g., Lyons (Failure to showpossible future injury);Mass v. EPA (Congress givingpower to create IIF)

See e.g., Lujan (Failure to purchaseairline ticket, not imminent

enough b/c speculative)

See e.g., Richard (Actual payment ofchild support is notguaranteed)

Common Triggers for Standing Problems

Generalized Grievance

e.g., Govt failed to follow and

bringing suit to compel them to,without injury in fact.

Third Party Actor

e.g., Govt failed to regulate some third party,

raises q

s about cause and redressability. See,e.g.,Allen v. Wright, (IRS failure on taxexemptions for racially segregated schools)

Separation of Powers Problem

e.g., Court doesnt have the ability to

determine law, there are concernsabout overstepping.

Timeliness Requirements

Ripeness not yet blossomedinto actual controversies.

E.g. cannot file a lawsuitenjoining Congress frompassing a law that would hurt

your business; there is nolegal obligation yet imposedon you.

Mootness Cases that are nolonger live; the parties no

longer have anything at stake.E.g. improper detention with

the remedy asks for release,

and you are released whileaction is pending; however,could seek to recover

damages

Case must be Concrete, certain,

ripe for review.Hypo Injury Considerations:

a) probability of inj. occurrenceb) hardship if denied

c) fitness of record


5/12

Limits on Judicial Power:

Congress Control of Courts Jurisdiction / Checks on Judicial Power

Congressional Control Over Federal Court Jurisdiction/SCOTUS

PowerTextual Basis - Section 2, Cl. 2 says that the S. Ct. has appellate jurisdiction

subject to such Exceptions, and under such Regulations as the Congress

shall make. Further,Art III Section 1 provides that federal judicial powershall vest in the Supreme Court and in such inferior Courts as the Congress

may from time to time ordain and establish." Therefore, the lower federal

courts do not even exist until Congress creates them."

Congress thus has the power by statute to limit opportunities for judicialreview by restricting the jurisdiction of both the federal courts and

the Supreme Court.

See, e.g.,Ex Parte McCardle (Congress Has Some Power to Control Boundary ofSup. Ct. Jurisdiction)

Facts - After the Civil War, Congress imposed military government on many former

Confederate States by authority of the Civil War Reconstruction Acts.McCardle (D) was a Mississippi newspaper editor held in military custodyon charges of publishing libelous/inflammatory articles. McCardle filed a

habeas corpus writ claiming that Congress lacked authority under the

Constitution to establish a system of military government. The Actauthorized fed. courts to grant habeas corpus to persons held in violation

of their constitutional rights and granted the Supreme Court the authorityto hear appeals. The circuit court denied McCardles habeas corpus writ

but the S.C. sustained jurisdiction to hear an appeal on the merits. After

arguments were heard, Congress passed an act repealing the portion of the1867 Act that allowed an appeal to the S.C. and the exercise by the

Supreme Court of jurisdiction on any such appeals, past or present.

Issues - (1) Does Congress have the power to make exceptions to the SupremeCourts appellate jurisdiction in cases in which it has already grantedjurisdiction?

(2) Must the Court always first determine if it is has jurisdiction to review a

case?

Holdings -(1) Yes. The Constitution gives the Supreme Court appellate jurisdiction,but it gives Congress the express power to makeexceptions to that appellatejurisdiction.The court held that appellate jurisdiction of the Court is not

derived from acts of Congress, but from the Constitution, and is conferredwith such exceptions and under such regulations as Congress shall make.The court held that when Congress enacts legislation that grants the

Supreme Court appellate jurisdiction over final decisions in certain cases,it operates as a negation or exception of such jurisdiction in other cases.

(2) Yes. The Court must always determine if it is has jurisdiction. In thiscase, the repeal of the act necessarily removed jurisdiction.

Other Methods of Checking the Court Besides Jurisdiction StrippingA) Power of Appointment - The President nominates Justices to the Supreme Court

Counter-Arg - Its difficult to predict how judge will rule in the future / justices takevery seriouslystare decisis and prior precedent / appointments are infrequentbecause justices serve for life.

B) The Senate Must Confirm Appointments - Appointment will not be effective unlessthe President obtains the advice and consent of the senate.

C) The Impeachment Process - Congress has the power to impeach federal judges.

Counter-Arg - Its a difficult process because needs supermajority to convict.D) Amendments to the Constitution - Article V provides for the process of adopting

amendments to the Constitution.Counter-Arg - The Constitution does NOT get amended frequently (only 4 times),

and achieving supermajorities in Congress as well as the States is difficult

E) Regulating the Court's Procedure - Congress can regulate the size of the Court / Setthe time of their Meetings

Counter-Arg - May seem like interference with independence of the judicial branchF) The "Bully Pulpit" - If there are enough attacks on the Courts decision, it can affect

their future decisions / lead to reversals.G) The threat of Non-Acquiescence - Not an effective technique though b/c people DO

hold the Court as the supreme law of the land, and if the political branch does notfollow Court decisions, the public will view them as lawless

H) Budget Constraints Cant diminish a justices salary, but can reduce it.

Negatives

a) De Facto reversal of SCOTUS precedentb) Essential Functions - If Congress can strip

the Court of its powers, then the Courtscheck on Congress actions under the

Constitution / protection of the minorityfrom the tyranny of the majority iseliminated.

c) Uniformity / Rule of Law - The Constitutionwould mean different things in different

places

d) Anti-Democratic Value -We dont want to

leave to Congress the sole responsibility toprotect the minority, because they

represent the majority.

Positivesa) Power Check - The power to

strip jurisdiction is an importantcheck on the Courts power

b) Democratic Values - The Court

is not elected, and thus lacks anessential democratic element.

Pros and Cons of Congressional Check on Judiciary


6/12

Federalism The Scope of Federal Powers

Specific Powers

All legislative powers herein granted Art I, 8

1) Lay and collect taxes (Taxing Power)

2) Provide for the defense of the country

3) Borrow money on the credit of the US4) Regulate commerce w/ foreign nations, and among

the several states (Commerce Power)

5) Regulate immigration and bankruptcy

6) Establish post offices

7) Control the issuance of patents and copyrights

8) Declare war

9) Pass all laws needed to govern the District of

Columbia and federal military bases

10) Make all laws which shall be necessary and properfor carrying into Execution the foregoing Powers,

and all other Powers vested by this Constitution inthe Government of the United States

Necessary & Proper

Clause

Use must be tied topower from 8.

McCulloch v. Maryland :Marshall gives broadinterpretation of N&P clause,importance of Const. in

regulation of people, notStates / implied inherentpowers justified.

The Concept of FederalismConceptual Basis - The allocation of power between, and among, the states and the federal

government. Premised on the idea that power should sometimes be de-centralized anddivided.

States rights - The limits on the federal government because of the existence of the states

In writing the Constitution, the framers were influenced by2 sets of historical concerns:Articles of Confederation - States were too strong, while the Central government was too weak

Despotic Government - States were too weak; Central government much too strong

There is no general federal police power(no right of the federal government to regulate for the

health, safety or general welfare of the citizenry, like the states have), so instead, each act of

federal legislation or regulation must come w/in one of the very specific enumerated

powers (i.e. the Commerce Clause, the power to tax and spend, etc.)

If Congress is seeking an objective that falls w/in the specifically enumerated powers, Congress

may use any means that is rationally related to the objective being sought, and thatis not specifically forbidden by the Constitution.

Arguments for Centralized v. De-Centralized Governments

Pro Centralized Govt

Promote Liberty -We dont want to leave it toindividual states to protect essential rights

Nationhood - There are certain fundamental values wehold as a nation that should be uniform. If youconcentrate power in a large central government, the

power of one homogenous faction will be diluted andwont be able to impose their views on others

Maximize Welfare - If will benefit the entire nation ifthe federal government can regulate the economics of

the country.

Pro De-Centralized Govt

Maximizes Overall Welfare - A federal solution isalmost always a uniform solution, but conditions on

the ground vary from state to state. If we hadsmaller communities, they could better channelthat money to fit peoples needs and could offerbetter services to people

Democratic Values - If you represent less people, youare more responsive to them.

Promote Liberty Small communities can decide whatrights they prize and allocate accordingly.


7/12

Commerce Clause Flowchart

Does it regulate the channels of

interstate commerce? E.g.,Roads, Waters, Airway, Internet

Does it regulate theinstrumentalities of

interstate commerce?i.e., persons/things moving b/w states

OR

Does it seek to regulate commerce itself?

YES

NODoes the thing beingregulated have a

substantial effect oninterstate commerce?

Other Considerations:a) What is the size and power of the target?

b) Is Congresss purpose frustrated by targets activity?

c) When aggregated, would the targets activitysubstantiallyaffect IC?

d) If targets are difficult to distinguish from non-

targets (i.e., adulterated and unadulterated food

products), does the commingling / intermingling

of them affect IC?e) Does the regulation seek to promote and regulate a

prohibition on interstate commerce by directly

regulating production and manufacture? (i.e.,products of child labor forbidden to be distributed

in IC; thus, child labor laws enacted to regulate

production)

f) Does the physical association of the target with IC(i.e. location directly next to an interstate hwy

McClung) substantially affect IC?

Test from Lopez :a) On the face of it, does it affect economic activity?

This is the most significant element. Here, theact being forbidden is possessing a gun near

school, while an actual economic activity is likea farmer is using wheat that he grew on his

farm, and therefore is not buying it from thenational economy (see Wickard)

b) Jurisdictional element present?c) Are there any findings/tests that indicate affects on

commerce?

d) Does it impede on traditional areas of state law?(criminal, family, etc)

e) Attenuation

Probably

VALID under

Commerce Clause

BUT

Is Congressional actforbidden by some

external constraint

on federal power?(ie, state autonomy)

YES

NO

Regulation

INVALID

a) Is the law a law ofgeneral

applicability(a.k.a. applies to

States and private parties alike)?

b) Is there a coercive element (a.k.a.compelling the States or their

agents to do something)?

CONSIDER

RegulationVALID

BUT Note: Garcia purports toabandonHodels testand givebroad authority to Congress; butit is unclear that traditional

matters of the state has actuallybeen abandoned as a factor fordetermining whether an act ofCongress unjustifiably infringes

on state autonomy (see languageinLopez)

(3.) Is whats beingregulated a matter ofexclusive or traditional

state concern?

YES NORegulationINVALID

NO


8/12

Separation of Powers DoctrineFederal Executive Powers

Youngstown Framework:

The Stoplight Analogy

Article II, 1 Executive Powers;

Art II, 3 Take Care Clause

Green Light Having CongressionalApproval (either Explicit or Implicit)

Presidents power is athighest ebb:

a) Maximum Powerb) Strongest presumption in favor of

Congress

c) Burden of persuasion falls on party

The Presidential action must be challenged to a

statute, and the Court must evaluate theconstitutionalityof the statute in question,

giving strong deference to Congress.

Clinton v. New York the Line Item VetoBoth Exec and Legis agree, but Court finds the

Nature of the L.I.Veto Specific regulations onhow and why the Pres

could veto the spending

section of bill, after it

had been passed.

Problems Violation of Presentment /

Bicameralism

The L.I.V. is not in line with thefinely wrought law-makingprocedures of the

Constitution Must have anamendment if you want thispower, even though following

the law is unacceptable .

Dissent Different form of Govtnowadays, the Court has interpreted

broadly the ideas of legis and exec, noneed to referee their behavior.

Yellow Light Inaction by Congressor

Conflicting Congressional

Requiresa) Eitherabsence of Congress

grant/denial,OR

b) Acting on independent presidential

responsibility

c) Congressional inertia or indifference

d) Doesnt necessarily require any

lawmaking process, may just

have legal repercussions.

Red Light Inaction by Congress or Disapproval by Congress

Presidents power is atlowest ebb:

a) President has taken measure that isincompatible with express or implied will

of congress

b) Action is maintained only if able to disableCongress from decision.

E.g., Youngstown (1952) (Steel Seizure)Presidents decision is covered by statute so thisis NOT a war power. This is a clear indication

of unconstitutionality. The Pres cannot MAKE

laws; he can only carry them out.


9/12

Federal Executive Powers

Dames & Moore (1981) (Presidentforeign claim suspension waswithin the Presidents constitutional authority / the President

has the power to suspend pending claims against foreign

governments where such action is necessary to the resolution

of a foreign policy dispute and where Cong. has acquiesced.

Executive Privilege

Executive Agreements- An executive agreement is an agreement b/w the US and a

foreign country, that is effective when signed by thePresident and the Head of the foreign nationIf the document is titled an executive agreement, no senateratification is required

Note: If the document is titled a treaty, senate ratification isrequired / not effective without it.

- No limit exists on the ability to use executive agreements for

foreign policy commitments.Anything that can be done by a

treaty can be done by an executive agreement. An executive

agreement has never been struck down as unconstitutional

or invalid

- Executive agreements prevail over conflicting state law, but

never over conflicting federal law or the Constitution

Executive privilege is asserted to say that certain communications b/w the President andhigh-ranking government officials should NOT be disclosed

In Nixon, the Court recognized in general terms a constitutionally-based doctrine ofexecutive privilege, but held that the privilege was only a QUALIFIED one, which

was overcome on the facts of Nixon by the needs of a pending criminal investigation

Executive privilege protects presidential papers and conversations, but such privilege

must yield to overriding needs for the information.

Pros- President cant act on these

executive agreements without

implicit Congressionalauthorization. Therefore,

Congress still plays a role / notproblematic.

- There is a modern need forflexible government action inregards to executive agreements

In todays world, President mayneed to act fast- do we wantPresident to have to tell hostilenation holding hostages to wait

until he has ratification to makea valid agreement?

Pros and Cons of Exec. Agreements

Cons- Encroachment on Senates

power to ratify treaties

- Divests them of the power to doso

- If executive agreements are thelegal equivalents of treaties,they would superseded

previous legislation- This, in essence, allows the

President to make law and

strike down laws dulyenacted by Congress

Executive Immunity

Nixon v. Fitzgerald (Pres. Has Absolute Immunity From Civil Liability for Official Acts)The Court held that the President has an absolute immunity from CIVIL liability for anyofficial act done while carrying out the presidency, at least where Congress has notexpressly provided otherwise by statute. Since there is no constitutional provision saying

that the President is immune from civil suits for his official actions 2 issues:(1) CHILL DISCRETION If the President doesnt have civil immunity for his official

actions, might be unduly cautious in his duties(2) DISTRACTION Might sap up the Presidents energy and job in running the country

if we opened up the floodgates / allowed people to sue Pres. for his official actions

Clinton v. Jones (No Civil Immunity for Presidents Actions Taken Before Office)Paula Jones filed a civil lawsuit for private damages against President Clinton while he

was in office. Jones claimed that while she was employed by the state of Arkansas andClinton was Governor of Arkansas, Clinton made illegal sexual advances at her. Clintonargued that he should have temporary immunity, to last while he in office, against

virtually all civil litigation arising out of events that occurred before he took office

The Court held that therewas NO immunity, not even qualified immunity, for acts that

the President takes that are completely unrelated to the carrying out of his job (i.e.unofficial acts). Crux of the Courts argument is functional.

Why should we give the President immunity from civil suits for nonofficial action?Pro-Immunity Allowing the Court to oversee exec. actions will have an effect on the

ability of the President to carry out responsibilities. The Exec concentrates power inone person! Pres is not asking for perm. immunity, just a stay of the proceedings.

AGAINST-IMMUNITY The Court has long overseen actions of the President through

judicial review. Judicial review will not unduly undermine the ability of the executive

branch to function. While the office of the President is demanding, important, and

time-consuming, separation of powers does NOT bar the judiciary from compellingthe President to defend the suit against him.


10/12

Executive Encroachment:

War Powers and the War on Terror

Roles Within the War Power

Congress power to declare war (Art 1, 8, cl.11) & to raise and support armies and navies

(Art. I 8, cl. 12 & 13)

President Authority as commander-in-chief of the armed forces (Art. 2, 2)

Writ ofHabeas Corpus Entitles a person who has beenimprisoned by the government to force the

government to justify his detention. Affords a

procedural right to a hearing to show why you

shouldnt be detained

The Constitutions Suspension Clause (Art. 1, 9) The privilege of the writ of habeas corpus shallNOT be suspended, unless then in cases of rebellion

or invasion the public safety may require itThis means that the Government can ONLY suspend the

writ of habeas corpus to protect the public safety in

times of invasion, or rebellionSince Article 1 delineates the power to Congress, we

can infer it is Congress who has the authority tosuspend the writ of habeas corpus.

Non-Detention Act No Citizen shall be imprisoned orotherwise detained by U.S. except pursuant to an act

of Congress. After WWII detention of Japanese.

Authorization of Military Force (AUMF) All necessary and appropriate force against nations,organizations, or persons associated with Sept. 11 th. The US may detain for the duration of hostilities ifengaged in armed conflict of U.S.

Hamdan v. Rumsfeld (Pres Lacks Power to Try Terrorist w/ Pro-Govt. Proced. w/out Cong Approval)

Facts After 9/11, Bush issued an exec order (Nov. 13) saying that if any non-citizen who the Presidentdetermined is or was a member of Al Qaeda or a terrorist was to be tried for war crimes, that person

should be tried by a military commission. The procedures to be followed by such military commissionswould give must less protection to defendants than they would get if they were tired by a court martial

conducted under the rules set out in the Uniform Code of Military Justice (UCMJ). Ex: The accused and

his counsel could in certain circumstances be excluded form the proceeding / hearsay is admissible .

Hamdan was a citizen of Yemen who was captured in Afghanistan by US forces. The govt asserted that had served as bin Ladens bodyguard/driver, and that Hamdan had assisted Al Qaeda in planning

terrorist attacks including the 9/11 attacks. Hamdan was held in Gitmo, and petitioned for a writ of

habeas corpus.Holding The issue in the case was whether Hamdan could be tried by the use of pro-government

procedures before a military commission for conspiracy to commit terrorist acts . The Court held thatHamdan could NOT be tried by a military commission operating under the pro-government procedure .The military commission convened to try Hamdan lacks power to proceed because its structure andprocedures violate both the Uniform Code of Mil. Just. and the Geneva Conv. AUMF did NOT expand

the Presidents authority to convene military commissions . Suggests that, especially in the controversialarea of the Press wartime powers, the Court will be reluctant to conclude that a vague or ambiguous

Congressional statute constitutes implicit acquiescence in the Presidents exercise of the authority in

question. If Congress wants to authorize the President to exercise a particular wartime power, it willhave to confer that authority explicitly.

Hamdi v. RumsfeldFacts Hamdi, a US citizen, was captured fighting against in Afghanistan. US forces designated Hamdi an

enemy combatant and held him in US. Hamdi sought habeas relief. Govt argued that Hamdis statusas a combatant justified holding him indefinitely without charges or proceedings.

Holding - The Court held that the government may detain citizens as enemy combatants, but due processdemands that they be afforded a meaningful opportunity to contest the factual basis for the detentionbefore a neutral decisionmaker. Congress has specifically authorized the Presidents acts of detention

through the AUMF gives the President authority to use all necessary and appropriate force againstpersons associated with the Sept. 11, 2001 terrorist attacks) and the Non-Detention Act (passed by

Congress in 1948, it says that no citizen should be detained by the US EXCEPT pursuant to an Act of

Congress), and therefore the Presidents actions fall under Category #1 ofexecutive power

Executive Powers in The War on Terror

Analysis of the War on Terror Opinions Does the AUMF authorize the President to:

a) Indefinitely detain US citizens captured abroad?

YES, for the duration of the conflict Hamdib) Indefinitely detain US citizens captured at home?

NO, under Padilla & Hamdi

c) Try foreign enemy combatants without court martial rights?

NO Hamdan The President has asserted this right,

but according to Hamdan the authorization to useforce does NOT confer this power.


11/12

Administration Delegation

Non-Delegation DoctrinePrinciple that Congress may not delegate its legislative

power to administrative agencies Generally eroded

by standards of delegation.

Has Congress delegated a

legislative power inappropriately?

Standards -

Necessary fordiscretionary

choices made byExec. Branch.

Intelligible Principle

Congress must givecriteria to guide the

Agencys Discretion;Agency cannot makepolicy itself, but may useCongs benchmarks

Legislative Veto This

is unconst. afterChadha (05); violatespresentment,bicameralism.

ALA Schecter No Restraint onPres.s legislativechoices no

standards for

trade, industry oractivity basically

unfettereddiscretion forenacting laws byPresident, so

invalid.

Whitman Trucking(05)Necessary to protect thepublic health Determinable Standard

is not necessary even for

broad reg. schemes BUT use of scientific

data is allowed.

Considerations:

1) Legislative nature of decision.

2) Framers Intent3) Whether efficient or not is

unimportant; protect through

separation of powers and structure.One-House leg. veto is ALWAYS

unconst.; must have both houses

(bicameralism) to overturn exec.

action.

INS v. Chadha (83)Holding Efficiency alone wont save a

delegation action; House judiciarycommittee tried to revoke an exec.

hold on deportation ofChadha; actiondeemed legislative, and thus needed

legislative process.

Appointment and Removal PowersAppointments Art III, Sec 2 President nominates w/

the advice and consent of Senate, but may vestpower for inferior officers in the Pres, Courts, and

Department Heads.

Morrison Analysis:

General Considerations

1) Incongruity2) Power Intrusion3) Power Expansion

Principal Officer

Appointment Mustbe selected by thePresident andapproved of by the

Senate.

Inferior Officer

Appointment Congress may vest the

appointment power to:1) The President;2) The Judiciary;3) The Heads of

Departments

Congress mayNOTreserve the power ofremoval for itself,

except through

impeachment.

Principal officers may

be removed for just

cause

Statute may onlyprovide certain, limited

duties, that do notinclude policy-making.


12/12

con law flow

Documents