Constitutional Law I Fall 2009 I. The Supreme Court’s Authority and Role A. The Power of Judicial Review • Marbury v. Madison (Justice Marshall) Judicial Review: 1.) S. Ct. can review and declare acts of the legisl ative and execut ive branch unconstitutional only when those acts are not purely political A law that is inconsistent with the Constitution is VOID because all branches of government are bound by the Constitution 2.) S. Ct. is the ultimate Const itutional i nterpretive authori ty Article III § 2: S. Ct. Jurisdiction o Original Jurisdiction- “in all cases affecting”: a.) Ambassadors b.) Public ministers and consuls, and c.) State is a party o Appellate Jurisdiction- “in all the other cases before mentioned, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” a.) Applies to federal questions or federal diversity b.) Congress can alter the scope of Ct.’s appellate jurisdiction B. Supreme Court Authority to Review State Court Judgments • S. Ct. has authority to review state Supreme Court decisions where the case involves a federal question and S. Ct. has appellate jurisdiction • S. Ct.’s review of State S.Ct. decisions is not impeding upon state independence because: 1.) States do not have absol ute sovereignty because they are bound by Constitution 2.) It is necessar y for S upreme Court to review state decis ions to mai ntain uniformity in the law C. Judicial Exclusivity in Constitutional Interpretation • Article VI Supremacy Clause : “The Constitution and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made…under the Authority ofthe U.S., shall be the supreme Law of the Land” o Binds States and Federal Government o Since S. Ct. interprets and applies the Constitution, the S.Ct.’s interpretations and applications also bind the states o All branches of the government interpret the Constitution: 1.) Congress- pas sing l egisl ation 2.) Execut ive- e nforc ing t he la ws 3.) Judici al- judic ial revie w • State officials can oppose S. Ct. decisions, but they ca nnot nullify the decisions and actively bar its enforcement because underArt. VI para. 3federal and state legislative, executive, and judicial officers are bound by oath to support the Constitution • Why Do We Interpret the Constitution? 1.) Create and Organize the Government 2.) Create limits on government power
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Constitutional Law I Fall 2009I. The Supreme Court’s Authority and RoleA. The Power of Judicial Review
• Marbury v. Madison (Justice Marshall)
Judicial Review:1.) S. Ct. can review and declare acts of the legislative and executive branch
unconstitutional only when those acts are not purely political
A law that is inconsistent with the Constitution is VOID because all
branches of government are bound by the Constitution
2.) S. Ct. is the ultimate Constitutional interpretive authority
Article III § 2: S. Ct. Jurisdiction
o Original Jurisdiction- “in all cases affecting”:
a.) Ambassadors
b.) Public ministers and consuls, and
c.) State is a party
o Appellate Jurisdiction- “in all the other cases before mentioned, both as to lawand fact, with such exceptions, and under such regulations as the Congress shall
make.”
a.) Applies to federal questions or federal diversity
b.) Congress can alter the scope of Ct.’s appellate jurisdiction
B. Supreme Court Authority to Review State Court Judgments
• S. Ct. has authority to review state Supreme Court decisions where the case involves a
federal question and S. Ct. has appellate jurisdiction
• S. Ct.’s review of State S.Ct. decisions is not impeding upon state independence because:
1.) States do not have absolute sovereignty because they are bound by Constitution
2.) It is necessary for Supreme Court to review state decisions to maintain uniformity
in the lawC. Judicial Exclusivity in Constitutional Interpretation
• Article VI Supremacy Clause: “The Constitution and the Laws of the United Stateswhich shall be made in Pursuance thereof, and all Treaties made…under the Authority of
the U.S., shall be the supreme Law of the Land”
o Binds States and Federal Government
o Since S. Ct. interprets and applies the Constitution, the S.Ct.’s interpretations and
applications also bind the states
o All branches of the government interpret the Constitution:
1.) Congress- passing legislation2.) Executive- enforcing the laws
3.) Judicial- judicial review
• State officials can oppose S. Ct. decisions, but they cannot nullify the decisions and
actively bar its enforcement because under Art. VI para. 3 federal and state legislative,
executive, and judicial officers are bound by oath to support the Constitution
• Why Do We Interpret the Constitution?
1.) Create and Organize the Government2.) Create limits on government power
3.) Neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit
5.) States have automatic standing because they have an interest as a sovereign entity
2.) Case or Controversy
S. Ct. and federal courts require a “case and controversy” because the S.Ct. cannot issue “advisory opinions”
Declaratory judgments are not advisory opinions
State S. Ct.’s can issue advisory opinions
To establish a “case and controversy”, the claimant must establish that the
matter in controversy:
a.) Is definite and concrete
b.) Touches the legal relations of parties having adverse legal
interests; and
c.) Involves a real and substantial controversy capable of
specific relief through a decree of conclusive character
3.) Timeliness: Cannot be Moot or not Ripea.) Mootness- a case is moot when changing circumstances developing after the initiation
of the lawsuit have ended the controversy, so that the court no longer confronts a livedispute
• Exception: Cases that are capable of repetition yet evading review
1.) Where the action is likely to happen repeatedly, but will alwaysavoid review due to the time required to litigate
2.) Roe v. Wade- pregnancy litigation would seldom make it
through the judicial process if all were considered moot just because thewoman is no longer pregnant
3.) Cessation of past wrongful conduct might moot a claim for an
injunction, but not a claim for damagesb.) Ripeness Doctrine- the case is brought before a concrete confrontation emerges
(Look for this when under standing, there is no immediate injury)
4.) Legal Issue: Cannot be a Political Question
Determining whether something is a political question is a question for the court
Baker v. Carr Factors: A suit involves a nonjusticiable political question if:
1.) Constitution textually commits the issue to another branch of federal government
a. The legislative or executive branch must have the power and the finaldecision-making (discretion) power under the Constitution
b. Only applies to Separation of Powers; not Federalism
2.) There is a lack of judicial standards for resolving it
3.) It would be impossible to decide the issue without a policy determination that isoutside the judicial branch’s discretion
4.) Deciding the issue would show a lack of the respect to one of the other branches5.) There is an unusual need to defer to a prior political decision
6.) There is a need for the nation to speak with one voice
• S. Ct. shows prudence and restraint by:
a.) Exercising power of judicial review only as last resort b.) Constitutional Avoidance- deciding Con. Law questions last
l.) Declare war, grant letters of marque and reprisal, and make
rules concerning captures on land and water
m.) Raise and support armies, but no appropriation of money tothat use shall be for a longer term than two years
n.) Provide and maintain a navy
o.) Make rules for the government and regulation of the landand naval forces
p.) Provide for calling forth the militia to execute the laws of
the union, suppress insurrections and repel invasionsq.) Provide for organizing, arming, and disciplining, the
militia, and for governing such part of them as may be employed in the service of the United
States, reserving to the states respectively, the appointment of the officers, and the authority
of training the militia according to the discipline prescribed by Congressr.) Exercise exclusive jurisdiction over D.C. and other
government land
s.) Make all laws which shall be necessary and proper for
carrying into execution the foregoing powers, and all other powers vested by thisConstitution in the government of the United States, or in any department or officer thereof.
(Necessary and Proper Clause)
Art 1 § 10: States Cannot:
1.) Enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin
money; emit bills of credit; make anything but gold and silver coin a tender in payment of
debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility
2.) Lay any imposts or duties on imports or exports without Congress’s consent, except what
may be absolutely necessary for executing it's inspection laws: and the net produce of allduties and imposts, laid by any state on imports or exports, shall be for the use of the
treasury of the United States; and all such laws shall be subject to the revision and control
of the Congress3.) Lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any
agreement or compact with another state, or with a foreign power, or engage in war,
unless actually invaded, or in such imminent danger as will not admit of delay withoutthe consent of Congress
10th Amendment: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the states respectively, or to the people.”
If a state did not have the power before 1789, then the 10th Amendment does not reserve
that right to the states (U.S. Term Limits, Stevens)
If not on the fed’s list and not prohibited to the states, Thomas says it is reserved the
States regardless of whether the States had that power prior to 10
th
Amendment (U.S.Term Limits, Thomas Dissenting)
• Doctrine of Enumerated Powers (Statutory Construction):
1.) Fed. Gov. can only exercise the powers granted to it2.) If you can find the power in the Constitution, then the gov. has all the power to carry out
that power
3.) Read non-delegated powers narrowly and delegated powers broadly
o Doctrine of Implied Powers: in addition to powers expressly granted, fed. Gov.
may exercise “incidental power”
1.) Theoretical Basis for Implied Powers
a.) Fed. Gov. is supreme within its sphere of power
b.) No exclusion of implied powers because the10th Amendment does not require that the powers be “express”c.) Enumerated powers need ample means for
execution
d.) Constitution is the source of the power “It isthe Constitution we are expounding”
2.) Textual Support for the Doctrine
a.) Necessary and Proper Clause not a power but a means in executing the
enumerated power
• If “necessary” was intended to mean “absolutely necessary and
nothing else”, “proper” would not have been added
3.) Marshall’s Test for Implied Powers: (Rational Basis Test)a.) Ends must be enumerated
b.) Means must be “plainly adapted” (reasonable)
4.) Separation of Powers and Necessary and Proper Clause: The degree of the law’snecessity is to be discussed by Congress as long as Ct. determines that Congress has the
power
E. Themes in Federalism
1.) History
a.) States and Union
b.) Articles of Confederation and Constitution
2.) Political Theory
a.) Decentralized government better protects liberty (Subsidiarity) b.) Encourages Experimentation in States
3.) Constitutional Law
G. Subsidiarity
• Central authority should have a subsidiary function, performing
only those tasks which cannot be performed effectively at a more immediate or locallevel
• European Union law: incorporates Subsidiary; like U.S. 10th
Amendment that says the powers that are not given to Congress are reserved for theStates.
b.) Extends to intrastate activities that have a :
i. Substantial effect on commerce, or
ii. The exercise of Congressional power over interstate commerce
2.) “Substantially Affects” is Determined by the Aggregate
Wickard v. Filburn Congress can regulate an activity through the Commerce Clause:
a.) Even if local (intrastate) and not regarded as commerce if b.) That activity has a substantial economic effect on interstate commerce
c.) Does not matter if the effect is direct or indirect
d.) Aggregate Effects Test- must look at the aggregate to determine “substantial effect”
3.) Commerce Power can Regulate Civil Rights and other Social Matters
o Social matters are generally state concerns; however, 1964 Civil Rights Act was
enacted under Commerce Clause power because:
1.) Businesses that discriminate based on race, sex, national origin, religion, or color affectcommerce by:
a.) Discouraging travel across state lines
b.) Discouraging other businesses from coming to the state
4.) Determinative Test for when Congress can Exercise Power under Commerce ClauseCongress can exercise its power under the Commerce Clause when:
a.) Activity equals Commerce
b.) Concerns more States than one and has a real and substantialrelation to the national interest.
c.) Even if the activity is:
i. Morally or Socially wrong or
ii. The activity is local
5.) Commerce Power can Regulate Crime
E. The Rehnquist Court’s Revival of Internal Limits (Imposed by Commerce Clause itself)
of the Commerce Power
• After nearly 60 years of deferring to Congress, Rehnquist court determines a trilogy of cases limiting Congress’s power under Commerce Clause to protect States’ power under
Federalism
• Modern Commerce Clause Power:
Congress May Use Its Commerce Power to Regulate:
1.) Use of Channels of Interstate Commerce even though an activity may occur
wholly intrastate
a.) Internet
b.) Roadsc.) Railways
d.) Waterways
2.) Instrumentalities of Interstate Commerce used in Interstate Commercea.) Trucks
b.) Trains
c.) Planes
d.) Persons or goods traveling in IC
3.) Wholly Intrastate Activities that Substantially Affect Interstate Commerce
c.) Viewed in light of Congressional findings of its substantial affect on
interstate commerce- Morrison- Congressional findings are not dispositive
F. External Limits on the Commerce Power: Federalism and the 10th and 11th Amendments
•Congress Cannot Use Its Commerce Power to:1.) Commandeer the State Legislature or Executive Officers
2.) Or to Abrogate a State’s Sovereign Immunity
New York v. U.S. “If a power is delegated to Congress in the Constitution, the 10 th
Amendment expressly disclaims any reservation of that power to the States. If a power is an
attribute of state sovereignty reserved by the 10th Amendment, it is necessarily a power the
Constitution has not conferred on Congress.”
• Congress cannot commandeer the state legislatures by requiring it to enact specific
legislation; however Congress can:
a.) Give a state a choice between legislating as Congress wants or acceptingfederal preemption in an area within the federal power
b.) May provide states incentives to legislate according to a federal plan by use of conditional grants under the Spending Power
• Congress cannot commander state executive officers to administer a federal program
• Congress can commandeer state judiciary (State cts must enforce federal law and apply
substantive federal standards)
G. State Sovereign Immunity and the 11th Amendment
• Analysis should always start with 11th Amendment when someone sues a state
• 11th Amendment:
“The judicial power of U.S. shall not be construed to extend to any suit in law or equity,commenced or prosecuted against one of the U.S. by citizens of another State or by
citizens or subjects of any foreign state”
1.) The origins and meaning of the 11th Amendment Originally, Sovereign Immunity meant the King, as the Sovereign, could not besued
11th Amendment was enacted in response to Chishlom v. GA (1973) allowed a citizenfrom S.C. to sue the state of GA and interpreted Art. III § 2 to allow federal courts to
have jurisdiction
11th Amendment applies only to:
a.) Federal court suits b.) Brought by private parties
c.) Seeking damages against a state
11th Amendment instructs courts on how to interpret Art. III and:
1.) Diversity Cases 11th Amendment divests jurisdiction from federal courts over
states as defendants by amending Art. III that allowed suits between a state and non-
citizens
2.) Federal Question Cases 11th Amendment also takes away federal question cases,
IV. Other National Powers: Taxing, Spending, War, Treaties, and Foreign
Affairs• If Congress cannot regulate an activity through the Commerce Clause, it can use
another Art. 1 § 8 Power:1.) Taxing
2.) Spending
3.) War
4.) Treaties
5.) Foreign Affairs
B. Taxing Power as a Regulatory Device
• Taxing Clause Art. 1 § 8: “Congress shall have power to lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the common Defence and general
Welfare of the U.S., but all duties, imposts, and excises shall be uniform throughout the
U.S.”
• Amendment 16: “The Congress shall have power to lay and collect taxes, from whatever source derived, without apportionment among the several States, and without regard toany census or enumeration.”
1.) States cannot impose their own tariffs, so tariffs must be uniform
2.) 2 easy always wrong answers on an exam:
a.) “provide for the common defense” is not a separate source of power b.) “general welfare” is not a separate source of power
• Congress may use its Taxing Power to regulate an activity when:
1.) The tax’s revenue feature outweighs the tax’s penalty feature
2.) The tax is applied uniformly throughout the states
3.) The tax does not have to be uniform with respect to individuals
• Usually, there is a presumption of validity under the Tax Clause
• Tax is okay even if Congressional motive was to deter intra-state gambling
C. Spending Power as a Regulatory Device
• Spending Clause Art. I § 8: “provide for the common defence and general
welfare”
• Statute exceeds Spending Power when:
1.) The statutory plan regulates and controls an activity traditionally
reserved for the states
2.) The statutory plan does not make the states’ cooperation voluntary
• Power to tax for general welfare is an independent power in
Congress• All tax has some regulatory effect
• Regulation v. Revenue
7.) Regulation- must be a part of Congress’s enumerated powers toregulate
8.) Revenue- need not be a part of Congress’s enumerated powers
2.) There should be judicially enforced limitations on treaty power because:
a.) Founders believed that treaties should be difficult to make
b.) Founders contemplated that treaties would govern truly inter-national relationsc.) Founders placed substantial emphasis on the role of the Senate in protecting
states’ rights
d.) Supporters of the Constitution repeatedly expressed the view that theConstitution delegated only limited powers to the national government
3.) Implied power for Congress to regulate foreign affairs
• International Court of Justice judgment is not self-executing, and states do not have to follow it
V. Federal Limits on State Regulation of Interstate Commerce• Ways Federal Gov. can Limits on State Action:
1.) Preemption
2.) DCC3.) P&IC4.) Congress Consents to State’s Activities
• Reason for Federal Limits on State Regulation of Interstate Commerce:
1.) We do not want barriers between states dealing with economy
Power to regulate commerce was granted to Congress to prevent state rivalries2.) Uniformity
• Dormant Commerce Clause deals with concurrent powers shared between States and
Congress, such as the power to tax (Is regulating commerce shared?)
A. Dormant Commerce Clause (Negative Commerce Clause)
• First issue for Dormant Commerce Clause: Justiciability
• Commerce Clause: “The Congress shall have the Power . . . to regulate Commerce withforeign Nations, and among the Several States, and with the Indian Tribes.”
• Dormant Commerce Clause: Determines whether a state may enact legislation that
affects interstate commerce when faced with federal inaction.
o If state cannot enact the legislation, the state law is “preempted by silence”
• Congress’s Commerce Power is:
1.) Exclusive as to the Direct Regulation of Interstate Commerce
- Economic aspects of trade
- Not health and safety2.) Concurrent as to the Regulation of Health and Safety that Affect Interstate
Commerce
- If a state uses its “police power”- power to regulate health and safety- itis presumptively valid
- If found invalid, DCC preempts the state law
• Dormant Commerce Clause cannot be found in the text of theConstitution; only supported by Originalism and Living Constitutionalism
• Court’s modern Categories of Dormant Commerce Clause:
1.) Facially discriminate against out-of-state commerce
b.) State must show that it has a compelling interestin facially discriminating against out-of-state commerce
- Types of Regulations Subject to Strict Scrutiny:
1.) Protection of Natural Resources2.) Protectionist : Barring importation of goods into its borders to protect
its in-state industries from out-of-state competition
b.) Regulation will be upheld as involving a compelling state interest when:1.) The regulation serves a legitimate environmental purpose
- If the out-of-state waste would create the same environmental harm as
the waste already in your state, then the state does not have a compelling
state interest2.) The regulation is for quarantine purposes
3.) There is no alternative in protecting the state’s interest besides the
discriminatory regulation
2.) Facially Neutral Laws that have a Protectionist Purpose or Effect3.) Facially Neutral Laws that have a Disproportionate Adverse Affect on Interstate
Commerce
• Use Pike Balancing Test:
A. State’s Interest
Must meet Rational Basis Test:
1.) State must show that the regulation pursues a legitimate end and
Legitimate when the regulation seeks to protect public welfare,
health or safetya.) Transportation
b.) Economic protection is NEVER a legitimate interest
2.) The regulation must be rationally related to that legitimate endB. Burden on Interstate Commerce
Even if the state’s interest meets the Rational Basis Test, the state’s
interest must still outweigh the burden on Interstate Commerce
Burden on Interstate Commerce Factors:
1.) Is there a reasonable alternative to the burdensome regulation
that would protect the state’s interest the same?
2.) Is the activity a type that should be regulated uniformlythroughout the country?
3.) Is the state isolating itself economically?
• Dormant Commerce Clause Does Not
Apply:1.) Market Participant Doctrine
a.) If a state is a market participant
i. State is a Buyer or Seller
- State does not “sell” fishing licenses; it regulates fishing licenses
ii. Can only regulate that particular market and not a downstream market
b.) It may choose to favor its own citizens
c.) Even if that favoritism burdens interstate commerce
1.) Is the federal law valid?2.) Does the state law conflict with the federal law?
• Cts. should assume that a federal act does not supercede State’s
historical authority unless:
1.) Express Preemption
2.) Implied Preemption:
a.) Field Preemption- must be a clear showing that
Congress meant to occupy a field and to displace the states from regulation on thesubject matter”
i. Scheme of federal regulation
so pervasive that it is reasonable to infer Congress left no room for State
ii. Federal interest may be sodominant
iii. Analysis:
a.) Look to language
b.) Look to purpose
b.) Conflict Preemption- situation where compliance with both federal and state regulations is a physical impossibility
• A presumption of preemption occurs when Congress typically enjoys the power:
a.) Commerce b.) Immigration
c.) Determine Congress’s ultimate purpose
• Anytime a state tries to interact with foreign powers, it is preempted because state has NO foreign power
D. Other Aspects of Federal-State Relationships
1.) State Taxation of Interstate Business
• State tax may be sustained against Commerce Clause challenge
when the Tax is :
a.) Applied to an activity with a substantial nexus with the taxing State
b.) Fairly Apportionedc.) Does not discriminate against interstate commerce
d.) Fairly related to the services provided by the State
2.) Intergovernmental Tax Immunities
• Only applies when the levy falls on the U.S. itself, or on an agencyor instrumentality so closely connected to the U.S. gov. that the two cannot be viewed
separately
3.) Intergovernmental Regulation Immunities
• Ability of the State to “regulate” activities” of U.S.
• Same as Tax Immunity: U.S. and its “closely related” agencies are
a.) Art. 1 § 10 Interstate Compact Clause States cannot enter into
interstate compacts without the consent of Congress
b.) Art. 4 § 1 Full Faith and Credit _____________________________________________________________________________
_
VI. Separation of Powers• Federalism vertical
• Separation of Powers horizontal
• Justice Brandeis: “Purpose [of separation of powers] was not to avoid friction, but, bymeans of the inevitable friction incident to the distribution of the governmental powers
among three departments, to save the people from autocracy.”
• Themes in Separation of Powers:
1.) Incomplete Separation
- Power is shared between the branches2.) Encroachment
- A power constitutionally assigned to one branch alone may not be
exercised by another
3.) Interference
- One branch may not obstruct another in the performance of itsconstitutional pwoers
• Executive Agreements: Usually constitutional because they
involve foreign affairs which require the nation to speak with one voice. Since Presidentis the Head of State, it his is duty to speak for the nation as a whole
- Is a treaty but is never ratified by Senate
- These are binding between the two executives of the countries but not on
citizens of the U.S. unless Congress passes a law implementing the executiveagreement
- NAFTA is not a treaty but an executive agreement
- Not all executive agreements require enabling legislation
• Unitary Executive Theory: all executive power must be in
President’s hands, without exception
1.) Dick Cheney
2.) Professor John Yoo—Office of Legal Counsel—
Drafted Memo that redefined “torture” as failure of bodily organs
3.) David Attington
4.) Signing Statements Bush would write and attach
his opinion on the constitutionality of a law• Dames and Moore: President has power in the absence of
Congress’s disapproval to settle claims with foreign government and entities when:
1.) Necessary to resolution of main foreign policy dispute
- When President must speak for the nation
2.) Congress acquiesced in President’s action
- Since 1952, the President has entered into at least 10 binding
settlements with foreign nations; therefore, Congress has implicitly approved the
practice of claim settlement by executive agreement
- “A systematic, unbroken, executive practice, long pursued to theknowledge of Congress and never before questioned may be treated as a gloss on
Executive Power vested in the President by Art. II § 1.C. Emergency Constitutionalism
• Constitution does not grant President emergency powers
• Emergency Constitutionalism:
1.) Art. I § 9, cl. 2 Suspension Clause: Congress may suspend Habeas Corpus in
times of Rebellion or Invasion to protect public safety
2.) Art. I § 8, cl. 15 Congress can call the militia to suppress insurrections and
invasions
3.) Art. I § 10, cl. 3 gives States power to engage in war if attacked
4.) Art. IV § 4 U.S. guarantees States protection from foreign and domestic invasions
• Chief Justice Rehnquist “The laws will not be silent in time of war, but
they will speak with a different voice.”
D. Executive Discretion in Times of War or Terrorism
• War Powers Resolution of 1973
a.) Joint Resolution by Congress
b.) Allows President to send U.S. armed forces only by:
c.) Martial Law is only Appropriate when foreign invasion or civil war has
closed the courts down so that the only court available is the military tribunal
2.) Executive Detention and Trial of Enemy Combatants After 9/11
• Joint Resolution for the Authorization for Use of Military Force (AUMF) (2001):
- Congress gave President authority to:a.) Use all necessary and appropriate force against
b.) Nations, Organizations, or Persons
- Only foreign citizens are subject to this order and sent to Guantanamoc.) He determines
d.) Planned, Authorizes, Committed, or Aided Terrorist Attacks on September 11,
2001
• Background to Rasul, Hamdi, Hamdan, and Boumediene: Eisentrager (1950) The privilege of litigation in U.S. Courts does not extend to aliens in military custody who
have no presence in any territory over which the U.S. is sovereign. (This involved
Germans where U.S. detained them in Germany prison)
• Rasul (2004) Federal courts do have jurisdiction over Guantanamo Bay detainees because the detainees have not been afforded a tribunal to dispute their charges and U.S.
exercises exclusive jurisdiction and control over Guantanamo Bay
• Hamdi (2004) Hamdi (resident of Louisiana) is detained at Guantanamo, but he argues
that the Non-Detention Act prevents him from being detained.
e.) Non-Detention Act“No citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress.”
f.) AUMF Congressional act gives President power to
detain a citizen
Rule: A citizen-detainee seeking to challenge his classification as an enemy
combatant must receive:
1.) Notice of the factual basis for his classification, and2.) A fair opportunity to rebut the government’s factual assertions before a
neutral decision maker
3.) Combat Status Review Tribunal Order
Issued by Secretary of Defense
Established that detainees would be able to contest the basis for their
designation as “enemy combatants” before military tribunals (CSRTs) comprised of 3
commissioned officers, including one judge advocate, unaffiliated with the particular detainee’s detention
4.) Detainee Treatment Act (DTA)
Enacted by Congress
Provided for limited review by the Court of Appeals for the D.C. Circuit of whether the
enemy combatant status determination complied with statute and the Constitution
Purports to overrule Rasul and Hamdi
• Hamdan (2006): caught in Afghanistan and transported to Guantanamo
Issue: Whether Hamdan can be tried by military commission.
- Does it encroach on or interfere with judicial branch’s power to review or President’s powers?
3.) If it is Executive, does the Executive have the power under Article II, by a delegation
from Congress, or from inherent power to protect nation?- Does it meet the non-delegation principle?
- Does it meet Bicameralism and Presentment?
- Does it encroach on or interfere with judicial branch’s power to review or Congress’s power to legislate?
4.) If it is Judicial, does the Judicial branch have the power under Article III or from a
delegation by Congress?
- Does it meet non-delegation principle?- Does it encroach on or interfere with Congress’s power to legislate or President’s power
to execute the laws?
1.) Congressional Control over the Actions of the Executive Branch
•
Principle of Nondelegation- the theory that Congress may not constitutionally delegateits legislative power to another branch of government
a.) Weak in Domestic Affairs b.) Even weaker in Foreign Affairs
• INS v. Chadha (1983): All legislative
power must comply with:
a.) Presentment Clause:
Text:
- Art.I § 7 para 2-3: President must approve or veto; if vetoed, then Houseand Senate can override with 2/3
Theory:
- Fear of legislativeb.) Bicameralism
Text
- Art. I § 7 para. 2: Every Bill which shall have passed the House of Rep.
and the Senate shall be presented to the President to be signed or vetoed andreturned. Congress can override the veto with 2/3 approval from both houses
- Art. I § 7 para. 3: Every Order, Resolution, or Vote to which the
concurrence of the Senate and the House of Rep. may be necessary must also be presented to the President
a.) Concurrent Resolution does not have to be presented to
President because no force of law (Ex: We think December 1 should be John
Garman day) b.) Joint Resolution must be presented to President because
functionally equivalent to a bill- 4 Provisions in Constitution by which one House may act alone with the
unreviewable force of law, not subject to President’s veto:
1.) House can initiate impeachment
2.) Senate can conduct trials on impeachment3.) Senate has power of President’s appointments
Generally, whoever is granted appointment has power to remove
Congress cannot remove executive officers by itself because this would be
encroaching on and interfering with executive branch’s power to execute the
laws; can only remove by impeachment Congress can limit removal based on “good cause”
F. Executive Privileges and Immunities
• 2 - Fold Separation of Powers problem when there is a demand for executive
information:
1.) Judicial or legislative inquiry into executive actions could interfere with performance of
constitutional duties2.) Executive refusal to provide evidence could interfere with judicial or legislative functions
1.) Qualified Immunity from disclosing confidential communication for criminal
proceedings against others
• United States v. Nixon Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances does not exist, especially for a“generalized” need for confidentiality.
2.) Absolute Immunity from civil liability of official actions
• Nixon v. Fitzgerald Absolute presidential immunity from civil liability of official
actions because:a.) Protection prevents the President from being unduly cautious in the discharge of his
official duties
b.) Other remedies for Presidential misconduct:i. Impeachment
ii. Formal and informal checks on the President
iii. Constant scrutiny by the pressiv. Vigilant oversight by Congressv. Desire to earn re-election
vi. Need to maintain prestige as an element of Presidential influence
vii. President’s concern for historical stature
3.) No Immunity from civil liability of unofficial actions
• Clinton v. Jones Presidential immunity does not apply to civil damages litigation
arising out of unofficial events occurring prior to the assumption of office
G. Impeachment
• Art. II § 4: President shall be removed from office on Impeachment for, and
conviction of, Treason, Bribery, or other high crimes and misdemeanors
a.) House initiates the impeachment proceedings b.) Senate must vote 2/3 to remove
c.) Only Andrew Johnson, Nixon, and Clinton have been impeached;
none have been removedd.) Applies to President, V.P., or any civil officers of the U.S.