Con Law Outline

Cardinal Rule: Federal Judges will NOT Interpret the C If they don’t have to. Why did Judge Marshall interpret the C in this case? He wanted to establish Judicial Review. “Marshall Highway’: Possible Outs: 1. He could have said that the commission doesn’t vest in Mammary unless it is delivered. But he didn’t say this. He said the commission vested when the documents were signed. He didn’t say that the delivery was necessary in order for the commission to have bested in him because he doesn’t want to back down. He wants to get to the constitutional question. 2.

He could have read the Act as giving he Sup Ct Appellate Jurisdiction 3. He could have said It was a political question, NOT a legal duty. But again, he wanted It to continue. The Executive Realm Is split In half. Half of It Is political/adulterously that Is not subject to Judicial review. The other half is a legal duty that is subject to judicial review. 4. He could have interpreted the exceptions clause of Art II 2 to allow mandamus in original jurisdiction. , but he didn’t. Art Ill S 2 spells out the Federal Court’s subject matter jurisdiction. The claim must be within this section to be in Federal Jurisdiction.

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Art II 2 0 sup cutoff Appeals/ acts O sup CT The Sup Ct hears cases regarding ambassadors, where the state is a party, or in any of the other listed situations. Mandamus is not a case regarding ambassadors or the state being a party, so technically they didn’t have to proceed. Marshall C] Mandamus is not mentioned In A,B, or C so it is unconstitutional to fit It In A. Congress may not expand the federal court’s Jurisdiction Congress may reduce the federal court’s Jurisdiction, which would enhance State court power. This case establishes the Supremacy of the Constitution. (All laws of Congress are less than the Constitution) US v.

Nixon: US Sup Ct 1974: Nixon conspired with high officials on tape Special prosecutor ordered Nixon to turn over the tapes as evidence Nixon claimed Executive Privilege Issue: When may the President exert Executive Privilege? In cases involving national security, etc. Issue: Who decides the scope of the Executive Privilege? The Court says the Court does! B. Who is the Ultimate Arbiter of the Constitution? 3 Models: 1. Each branch is “Co-equal” 2. Spheres of Expertise Mammary v. Madison: Jurisdiction under Art Ill Art II 0 executive decides if it’s a political question US v. Nixon: President can claim

Judiciary decides on evidence 3. Judiciary (Sup Ct) Normative Evaluations of the 3 Models: Model 1: Each branch is Co equal + most efficient, supports SOP – What if the branches disagree? Model 2: Spheres of Expertise + Expertise in an area – Who decides which branch gets which sphere? Model 3: Judiciary (Sup Ct) + 1 unified voice interpreting the C as a whole – no one to check them + no bias/influence from others What to consider when Interpreting the C: Text Can society handle the interpretation? Prior cases Framer’s intent Historical context (tradition) Legislative history) What are States doing?

Judge’s own views (Mammary v. Madison) Modern Context (vs… 4,5,6 Originality: interpretation should be confined to the clearly implicit norms stated in the written C Unoriginality: Courts have substantial discretion in interpreting the C. Believe that the C evolves by interpretation as well as amendment to meet the needs/ norms of an evolving society. Continuum: Know where your Judge is on the continuum II. Division of Power between the Executive and Legislative Branches: A. Presidential Power Does the President have “Inherent Executive Power” (PEP)? 0 power Just b/c he is the president Domestic issues

Foreign issues To what extent can Congress delegate its power to the Executive Branch? Art II 0 President’s Power. Youngstown Sheet & Tube Co v. Sawyer: US Sup Ct 1952 Steel mill workers on strike during Korean War President issues an Executive Order mandating the mills to open up (claimed national security) PEP: Every Issue of Whether the President Acted Constitutionally Justice Inherent Pres. Power? Conditions? Who Checks? Black No Power must come from either Congress or the Constitution Court Douglas Yes President cannot usurp other branch’s power Frankfurter Until Congress stops the President Congress

Jackson President cannot violate the Constitution B. Non-Delegation Doctrine 0 Delegable Duties: Non-Delegation Doctrine: The executive branch could NOT do any Legislation (Until the Industrial Revolution 0 out of Necessity) Administrative Agencies: Congress gave powers to the Executive Branch (Legislative/ Enforcement/ad]educative) AAA = experts in their fields To What extent may Congress retain power over Delegable Duties? Immigration and Congress delegated powers to the INS (and administrative agency) to determine if aliens may stay or be deported.

INS permitted the D to stay, but the House of Reps toed and demanded deportation Issue: Can 1 house of Congress unilaterally veto an administrative agency’s decision? Holding: The House of Reps’ veto violated the required procedure of Bicameralism + Presentment. If Congress gives power away, it must completely give it away Congress may take power back but it must follow the procedure to do so Congress may set a time limit for the duration of power delegation. NO VETO retention! (Legislative Vetoes are unconstitutional) Procedure: Bicameralism Presentment To what extent may Congress delegate power to the Executive Branch? Clinton v.

City of NY: US sup CT 1998 Facts: Congress gave the President the power of a Line Item Veto, which means the president can cross out any part of a law he doesn’t like within 5 days of passing the law. Issue: Is this an over delegation, violating SOP? Under Article I, only Congress may legislate By changing the laws, the President is essentially legislating new laws. Line Item vetoes are UNCONSTITUTIONAL. Disapproval Bill: if the President exercises a Line Item Veto, Congress may pass a bill to null his corrections, but the Pres. May veto this bill, requiring Congress to pass gamma by 2/3 vote this time. (“Legislative veto” UNCONSTITUTIONAL)

The President cannot “tip the scale” by interfering with Lobbyist deals in Congress. C. Inherent Executive Power in Foreign Affairs: US v. Curtiss-what Export corp..: US sup CT 1936 Facts: Congress authorized the President to stop sales of arms to nations involved in the Coach Border dispute. Issue: Can the President do this? Holding: YES, if he acts in bounds with the Constitution. Dames & Moore v. Reagan, Secretary of Treasury: US Sup Ct 1981 Treaty 0 requires Congressional approval Executive agreement 0 president may negotiate a contract without congressional approval Freeze Assets Settlement Agreement through binding arbitration

Issue: Can the President force private litigants into binding arbitration? Holding: Yes It doesn’t interfere with the courts Parties still get due process. Can the President Deploy troops without Congressional Approval? *Congress has the *President is Commander in Chief War Powers Resolution: Congress’s attempt to keep the President in check Look at framers of the Constitution’s intent President may deploy troops ONLY when: It’s to declare war Statutory authorization National emergency The WAP is not very Practical 0 the President actually does have A LOT of war-making power. Hammed v. Rumbled: US Sup Cutter

Facts: Congress authorized the President to use all necessary and appropriate force against persons associated with attacks on the IIS> Issue 1: Can a citizen be detained indefinitely? In a 5 to 4 decision for Detention: Yes: O’Connor/Rehnquist/Kennedy/Brayer No: Ginsburg/Stouter No: Stevens/Scalia (should’ve charged w/ treason) Yes: Thomas (leave it to the President to decide) Issue 2: Does the Deft have a right to Due Process? The Court weighs Private Due process v. National Security in an 8 to 1 decision in favor of Due Process: Yes: O’Connor/Rehnquist/Kennedy/Brayer Yes: Stevens/Scalia No: Thomas D.

Congress’s Impeachment Power: Can Congress Abuse its Impeachment Power? Impeachment: Ultimate check on the president. But who checks this check? Art II S 4: For Treason, Bribery, High Crimes, or Misdemeanors (felonies) Art I S 3 (6): Senate = SOLE power to try ALL impeachments. Votes: Senate Executive People Chief Justice of the Sup Ct (no power… Silent, Just symbolic… The Chief Justice of the Sp Ct can’t really stop an abuse of impeachment power) “High Crime/Misdemeanors” is NOT defined by the constitution. However, we do know that perjury is not a high crime/misdemeanors because Clinton was NOT convicted.

Congress’s check on abusing Impeachment power = the People. Ill. Federalism A. Supremacy of Federal Law: McCullough v. Maryland: US Sup Ct 1819 Congress set up a National Bank in Maryland. Maryland taxed the bank. Issue 1: Does Congress have the power to charter a National Bank? Issue 2: Can a Analysis 1: John Marshall said Yes. 2 parts- a) People gave Congress power to establish the bank, NOT the States b) Congress’s Power is broad. Commerce Clause = Power “Necessary and Proper” = Must be a legitimate end and reasonable means. If so, Congress’s actions are okay. Judicial Limitations on Congress’s power:

Must be within the scope of the Constitution No laws under a PRETEXT! (bad motives) Analysis 2: John Marshal said No. Federal > State Slippery Slope 0 stop state taxation on federal bank before it gets out of hand Tax on national Bank = a tax on EVERY state Federal Government Distrusts the States Key Things to take out of Mac v. Md: 1. Establishes supremacy of federal law 2. Federal government distrusts the states. 3. Congress’s power is Broad 4. Congress gets Commerce authority from the People, NOT the states. MOVE V. Mac v. Md: M v M 0 established Court’s great power Mac. . Md 0 established Congress’s great power. B. Commerce Clause and State Sovereignty: Commerce Clause (Art l, 58): Congress has the power to regulate commerce “among the states” 10th Amendment: All powers not delegated to the Federal Government, nor prohibited to the States, is given to the States. Commerce Clause does NOT say the States can NOT regulate commerce To what extent may States regulate Commerce? Gibbons v. Ogden: US Sup CT 1824 (Marshall) Ogden had exclusive right to have ferry on NY waters Gibbons had a Federal License and had a ferry on NY waters.

Analysis: “Commerce” includes Navigation! “Among the States” means It concerns 2+ states (includes indirect effects) Purely Intrastate Activity = State control (police powers) Not delegated to the US, and is not prohibited to the States) States may regulate interstate commerce, but Federal Law Trumps it. Else’s BBC + Heart of Atlanta: Congress tried to regulate Civil Rights through a PRETEXT of Commerce Private Businesses were not subject to 14th Amendment that outlawed government discrimination So, Congress fit these private businesses into “Commerce” US v.

Lopez: US sup CT 1995: Court used the same law as previous: “Commerce” = “Substantially Affects” Court said: No Connection to Interstate Commerce D was charged with Possession, NOT selling NY v. US: US sup 91st Congress has the power under the Commerce Clause to regulate Radioactive waste disposal Court: Did not look at the definition of “Commerce” because Congress already has the power to regulate. Law ruins “Accountability’: Whose fault is it? Federal officials or State officials? Congress may encourage States but MAY NOT coerce them.

Era Time Congress’s Power (Commerce Clause) States’ Power (10th Amendment) Assumptions about States Check “Beginning” Gibbons McCullough -Expansive, Complete -Controlling, Plenary -Legitimate End -Limited -Intrastate -Police Powers -Not trustworthy -not important People (Political Process) 2 1887-1937 -“Direct” (Shreveport Rate Cases) -Even Intrastate -If Immoral (Lottery) Production/Mining (Hammer, Knight, Carter Coal) -Trustworthy -Important 3 1937-1990 -“Substantial Effect” -Commerce = Production -Plenary SASS -Education (Lopez) -Criminal Law -Family Issues States = labs -Experimental -Uncomprehending (NY v, US) prints v.

US: US sup CT 1997: Brady Bill required local police to enforce background checks for gun sales until federal agents could Congress had the power to regulate guns under the Commerce Clause 0 NOT the issue! Rule: Federal government can NOT commandeer the states onto federal service! Congress may encourage or offer incentives, but may NOT mandate state action: NO COMMANDEERING! Reno Hypo: A unanimous Decision! Facts: Federal Statute tells states they can NOT sell DIM information Issue: Does this violate the 10th Amendment?

Analysis: Federal Government said that he act prohibits something, it is NOT requiring States to do anything Holding: Prohibiting = K, Mandating = Not K solid waste: US sup cutter (Commerce Clause Case) Congress says it controls “navigable waters” The body of water in question is Just a point EPA defined “navigable waters” as including seasoned ponds Issue: Does the Migratory Bird Rule fall under the Commerce Clause? Analysis: Millions of people spend lots of money watching these birds Holding: NO!

Not Commerce Marshall would say that as long as the end is Just, then it’s okay IV. Individual Liberties: A. Early: 14th Amendment = Narrow Barron v. Baltimore: USC 1833 Facts: P claims local government may NOT deprive him of property without due process (5th amendment) Issue: Does the 5th amendment apply to state/local governments? Holding: Constitution applies ONLY to the federal government Trust your state governments Court assumes State constitutions will protect such rights The bill of rights does not apply to the states. States are trusted with individual liberties.

Beyond the political process Can NOT be voted away by the majority Court will decide what an “individual liberty’ is *Note: After the Civil War, courts saw that States could not be trusted with Individual Liberties of ex-slaves. 14th Amendment: Privileges/luminosities (P”) Due Process Equal Protection Slaughterhouse Cases: SISSY 1873 State granted a slaughterhouse monopoly to one slaughterhouse The Plats are butches who challenge the grant. Claims: 1. 13th Amendment (involuntary servitude) 0 Court: No! Not an issue of slavery. 2. P/ I (include BOOR) CT: NO!

P/’ of 14th Amendment = Same as Art IV Under Supremacy Clause, States never had right to abridge these rights Reads PI Clause out because it adds nothing to Art ‘V. 3. Due Process (lost right to work = violates substantive Due Process) 0 Ct said No, only procedural EDP 4. Equal Protection (not all butchers were treated equally) 0 Court said No, equal protection only applies to ex-slaves. This was the first case to interpret the 14th Amendment: P/’ Clause means NOTHING EDP = Procedural ONLY (not substantive) PEP ”Only for ex-slaves BOOR does not apply to the States Trust with Individual Liberties:

Before 14th Amendment: (Barron) states = YES Feds = NO *Ct soon began to interpret EDP in substantive way After 14th Amendment: (Slaughterhouse Cases) states = NO Feds = YES B. Incorporation Doctrine: Incorporate Debate = What is included in substantive due process? Incorporation Doctrine Put BOOR into the 14th amendment’s due process clause Does NOT include: Right to bear arms (2nd amendment) Right to not house soldiers (3rd amendment)Right to Grand Jury Indictment in Criminal Cases (5th amendment) Jury trial in civil case (7th amendment)Prohibition of excessive fines (8th amendment) Due Process:

Procedural Due Process Substantive Due Process 0 The court decides what belongs here. *Note: Why not Decides C. State Action State Action Requirement: Private conduct does not have to comply with the Constitution 14th amendment applies ONLY to State Actors, NOT private people Applies ONLY to Constitutional Violations! NOT State Laws! Civil Rights cases: US v. Stanley: USC 1883 State government tried to regulate private conduct under the 14th amendment due process clause There were no state actors, Just private people. Premise: Individual invasion of individual rights is not a subject of the 14th amendment.

Exceptions to State Action Public Functions Entanglement YES: 1940-sass Marsh (Town) Evans (Park) Terry (Elections) Shelley Judge) Breadroot (athletic association) Raritan (Housing) NO: sass + Jackson (Exclusive) Hedgers (Shopping Center Moose Lodge (License Exceptions to State Action Doctrine: Public Functions: private person engages in something traditionally done by the government Entanglement: if the Government has authorized or encouraged the private action. Public Functions: Marsh v. Alabama: SISSY 1946 Company owned a town Issue: Can D repress P from expressing religious beliefs within the town Balance

Test: As the town became more open to public use, rights of the people prevail over the rights of private owner Town = Public Function Evans v. Newton: USC 1966 Park given by private party as a gift to the city so long as only white people allowed to use it Choice: either open the park up to everyone, or revert it back to the private party Park = Public Function Terry v. Adams: USC 1953 Private Democratic Party held elections for whites only Election = Public Function Jackson v. Metropolitan Edison Co: SISSY 1974 Privately-owned utility company cuts off electricity without notice Violating Due