Louisiana Law Firm - George S. Mentz Constitutional Law

Law Student Outlines Selected by Prof. George Mentz

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Constitutional Law Students Outline

Based upon class notes - Loyola University (New Orleans) School of Law

Text - American Constitutional Law- Structure and Reconstruction,

N.B.: According to Prof.:
Constitutional Law is not a common part of routine law practice. However, lawyers
are the "oracles" of legal knowledge for their friends, communities, etc., and so we
must learn ConLaw to be able to guide and teach the public during crises which
arise (e.g. Clinton's impeachment, Watergate, etc.). Basically, we must be able to
determine (and explain to the public) whether the government is following the rules
set down by the Constitution. There is no "rule of law" in constitutional-less
countries. [Prof. claims, mirabili dictu, that this is more serious than everything,
even more important than Louisiana torts!!!]

I. Background:
A. Supreme Court supremacy over the other branches:
1. How did the Supreme Court get so supreme?
a. powers of the courts are delineated in U.S. Const., Art. III (i.e. Congress is
Art. I, most important, followed by the Executive, Art. II), so the judiciary
is in third place - how did it get so powerful?
(1) U.S. Const. Art III, §8:18, e.g., delineates that Congress makes "all Laws,"
so how does S. Ct. jurisprudence (which is "law" in this country) become
so preeminent?
2. Cooper v. Aaron, 358 U.S. 1 (1958) - desegregation case in Arkansas
a. governor and legislature of Ark. opposed federal court ordered desegregation
b. S. Ct. ruled that state legislatures and governors cannot defy the orders of the
federal courts, and that the state cannot ignore U.S. Const. rights and protections
c. S. Ct. ruled that segregated schools violated U.S Const. Amend. XIV
d. S. Ct. cited Marbury as authority that the Constitution was the "supreme Law of
the Land" and "the fundamental and paramount law of the nation" - the federal
judiciary is supreme in the exposition of the law of the Constitution
e. since 1958, the federal courts rule American everyday life, e.g.
(1) regulate the number of urinals in prisons
(2) determine which children go to which schools
(3) determine that you have to have ramps into buildings for cripples
3. judicial review:
a. appellate review - review lower courts' findings of law
b. national review - superintending state courts' actions under the Supremacy Claus
c. interdepartmental review - review actions of other 2 branches of government
(1) the (unelected) judiciary can tell the (elected) executive and congress what
to do - almost a monarchy or oligarchy (like we ran away from in England)
(2) counter-majoritarian difficulty - Marbury sets up the S. Ct. as king of all
and melds the Constitution ("by the People") together with the S. Ct.
(not "by" the People - selected by one guy) into authority
(3) Constitution should always overrule judicial interpretation, but who interprets
what the Constitution means? the judiciary
B. Invalidation of FEDERAL laws: Text, p. 11
1. Marbury v. Madison, 5 U.S. 137 (1803) Text, p. 12
Ps were appointed justices of the peace in the D.C. by (past) President Adams,
and duly confirmed by the Senate. However, (new) SecState Madison refused to send
Ps' commissions to them. They sued in the form of a writ of mandamus, and the issues
ultimately argued before the S. Ct. were:
• Whether the S. Ct. can award the writ of mandamus in any case.
• Whether it will lie to a SecState, in any case whatever.
• Whether in the present case S. Ct. may award a mandamus to SecState Madison.
Before the S. Ct.: The S. Ct. (C. J. Marshall) put the issues in this form: (1) Does P
have a right to the commission he demands? (2) If he has a right, and the right is
violated, is there a remedy under U.S. law? (3) If there is a lawful remedy, is it a
mandamus from the S. Ct. (i.e. jurisdiction)?
Item 1: Since P's office was not an at-will appointment, as of the time the president
signed the appointment, it was official and became a legal right of P. Therefore, it
is violative of a legal right to withhold the commission.
Item 2: The court accepted P's argument, that a secretary, in his capacity as an agent
to the president, was not accountable (since the president had independent discretion),
but a secretary performing his own ministerial duties (as delineated and mandated by
the Congress) was answerable - could be mandated to perform his ministerial duties.
Item 3: As to a mandamus, it was considered settled law from British times that a
public officer could be mandated to perform his duty, as long as no other remedy was
available to the individual to address his damage. The S. Ct. jurisdiction question was
answered by the Court after noting that the constitution itself gave the S. Ct. original
jurisdiction over public "ministers" and the "state [as] a party." However, the Judiciary
Act of 1789 expanded the judiciary's power over that delineated by the Constitution,
hence it was unconstitutional. The S. Ct. had appellate jurisdiction, according to the
structure of the lower courts, etc., and not the broader original jurisdiction delineated
in the Judiciary Act.
Holding: "The rule must be discharged."
[I take that to mean, "Nope, that law ain't constitutional!"]
a. background:
(1) magistrates were appointed by outgoing President Adams (Federalist), and
Anti-Federalists (Republicans) came in (Jefferson-Burr) and tried to get around
the leftover appointments by the opposition
(2) counsel for Marbury et. al. was Mr. Lee, who had been Adams's AG
(3) C.J. Marshall was a staunch Federalist, and they were all scared of Jefferson's
Republicans in power - Marshall's dilemma:
(a) if they issued the writ of mandamus, Jefferson would ignore it and they
would appear weak
(b) if they refused the writ of mandamus, Jefferson's people would "win"
b. if P was an at-will appointee, then the president could cancel his appointment at
anytime after signing it, meaning P would have no right in it - but since it was a
specified term of 5 years (per statute), the signature gave P the power to either
accept or decline the appointment - a legal right which could not be taken away
c. the discussion of Item 3 was the most important part of this case:
(1) in deciding whether the S. Ct. had original jurisdiction, the Court debated the
wording of the Constitution (S. Ct. had power to grant writ of mandamus
against public officials) versus the D's argument that the legislature, in
constructing the lower court system, effectively delegated the S. Ct. to an
appellate level, leaving original jurisdiction to the lower courts
(2) S. Ct. compared Constitution, Article III, with the Judiciary Act of 1789
(3) S. Ct. stated points in their 3rd item:
(a) Constitution is the Supreme Law of the Land, and laws which are
"repugnant to the constitution" are void (a characteristic essential to all
constitutions)
• Constitution was ratified directly from the people - Law of the People
• Constitution was a sovereign act, unlike other types of law
• notion of unconstitutional laws is essentially attached to written
constitutions
• Constitution is organic, basic, limiting law, and all contrary acts of
the congress etc. are ultra vires (beyond the limits of the people,
since the Constitution is from the people and trumps anything else)
(b) Courts are empowered to decide whether a law passed by the Congress
were "repugnant to the constitution" and therefore "void," i.e. the
courts have authority to nullify legislation and executive action as
unconstitutional
• it is the constitutional duty of the court to say what the law is
• court must apply "the law" and ultra vires statutes are not law, so
the courts must stick to the Constitution, not the bad statute
• Constitution is superior to any ordinary act of the legislature
• what this decision doesn't do is tell Congress what to do with their
unconstitutional statute now? Is it a nullity, or just null in this case?
- the only people bound by a court's opinion are the parties at bar
- what goes on with other cases depends on the other two branches
of government (are they going to enforce it?)
- it is the court's responsibility to apply the law to the case at hand
d. NOTE: Marshall dealt with the three questions, entitlement, mandamus, jurisdiction,
in reverse order, compared to the way we look at it today - if he looked at
jurisdiction first, then the court (lacking jurisdiction) would not have to decide on
entitlement and mandamus - however, he did it backwards so they could give their
opinion on the merits, even without jurisdiction
(1) he got to say that Marbury had a right to his commission
(2) he gets to say that the executive is abusing his office - tyrannical abuse - etc.
(3) he gets to opine that the writ of mandamus will lie against the executive
(a) through a writ of mandamus, even the president can be controlled
(4) but then he says that the S. Ct. has no jurisdiction - so Jefferson "wins," but
has to put up with the obiter dicta (the extraneous stuff in the beginning
which lasts in the jurisprudence and later becomes holding) - so the
Republicans wouldn't complain, since they won, but the Federalists get
to lay the tracks for control of their court over the Republican executive
and congress
e. Dred Scott v. Sandford, 60 U.S. 393 (1856)

C.J. Tawny doesn't cite Marbury, since Marbury is not on point
(1) doctrine of Marbury is limited by a judiciary statute and Article III
(2) a statute about the courts which relates to Article III - very narrow
(3) other branches of government can't touch the court on this topic, since
it's about the court itself, not about them (case of a judiciary nature)
- it was thought that only cases under Article III were where the S. Ct.
could exercise dominion, but Tawny saw that this was an Article I
case, not Article III, and so Marbury wasn't applicable
2. Countermajoritarian Difficulty Text, p. 24
a. Note 6: "...government of laws, and not of men." - Marshall, contrasted with
"...we are supreme because we are final." - Jackson (about 150 years later)
(1) is the S. Ct. really final? Look at Amend. V - you can amend the Const. to
change a S. Ct. ruling (e.g. income tax amendment, etc.), or Amend. XI,
in response to a ruling of S. Ct. - so it's not really final, since the people can
amend it away
(2) the Executive can ignore the S. Ct. rulings, as can individuals (e.g. have a
public school graduation in a Catholic church and prayers by a priest - what
is the S. Ct. gonna do???) - Andrew Jackson: "... now let him enforce it."
(3) one problem: Pavlovian training to stop thinking about the Constitution,
since we figure the Court will do that, e.g.:
(a) congressional legislation doesn't debate constitutionality of statutes any
more
(b) President doesn't worry about constitutionality much (which was why
veto power was created)
(c) anti-flag burning statute - President Bush (41) during his campaign
said it was for the court to decide - if congress passed it and it hits his
desk, he'll sign it and let the court figure it out (which is contrary to
oath to protect and defend the Constitution that government officers
have to take)
C. Invalidation of STATE laws: Text, p. 26
1. Martin v. Hunter's Lessee, 14 U.S. 304 (1816)
Land originally granted from England was passed from Lord Fairfax to Mr. Martin,
and English subject. The assembly of Va. passed a law seizing any lands granted by
the crown, and moved to eject the owner, D Martin, and grant the land to the P,
the lessor, who took possession. U.S. S. Ct. originally reversed the Va. court of
appeals, and the appeal resurfaced to the S. Ct. since the Va. court refused to follow
the S. Ct. mandate and writ of error put in issue whether the U.S. S. Ct. had appellate
jurisdiction over the Va. court.
Before the S. Ct.: Federalist court argued that uniformity of national law was a reason
that the S. Ct. have appellate jurisdiction over state courts (which Republicans
didn't worry too much about). Note that Marshall recused himself (J. Story wrote
the opinion) because he had interest in some of the land in issue, so Federalists
were not too concerned with this case - it wasn't that important. The justification
that §25 of the Judiciary Act of 1789 provided the S. Ct. with appellate power over
the state courts was a textual reading of U.S. Const. Article III to demonstrate that
the federal courts had jurisdiction over "all cases..." Also, Article VI says that the
Constitution is binding on state judges, as well as federal judges. Then he switches to
an originalism argument, that the Framers and ratifiers must have meant the
state courts were to bow to the S. Ct. since there were no lower federal courts in
existence at the time of the ratification of the Constitution. In other words, the
Framers meant for most questions to go through the state courts and end up in the
final appellate level at the U.S. S. Ct.
a. good arguments were made on both sides of this argument
(1) what does "all cases" mean in Article III?
(2) even §25 of the Act doesn't cover all possible cases, only 3 classes of actions
b. Note 3, p. 33: common sense of the matter - O.W. Holmes Jr. felt that if the S.
Ct. couldn't strike down acts of Congress, the country wouldn't be in trouble, but
if the S. Ct. couldn't review the states' law, the country would come to an end
(1) it's more important to the country that state decisions be uniformly
superintended by the S. Ct. than to ride herd on Congress
D. Interpretive methods:
1. different types of constitutional interpretation:
a. textual - plain reading of the text of the Constitution (with cross-reference to
other parts of the Constitution)
b. originalism - what was the original intent of the Framers - look to the
documents and amendments leading up to the final Constitution, and argue
what the original intent is
c. natural law - the Constitution arises in the context of natural rights and
liberties guaranteed (by God), and must be read in that context
d. precedent - dodge argument and stand on the logic and holdings of prior
jurisprudence
e. pragmatism - you use any and all means to justify the pragmatic end you want
to achieve
2. 2nd Amendment interpretation: Text, p. 48
a. read these and answer an argument:
STATUTE: Federal Housing Projects Anti-Gun ban:
Congress passes law that people living in fed. projects cannot own guns.
Lil ole lady gets repetitively robbed by thugs, gets a gun, shoots one, and
is arrested for having a handgun in a project. No state violation due to
self-defense. However, she violated a federal statute. Is it constitutional?
Construct the argument after the methods in the book.

N.B.: This was a real case, but was dismissed before it was ultimately decided (Illinois).

b. crux of Prof.'s argument:
(1) regular Militia - described by U. S. Const. Article I § 8 [15][16] refers to the
nationalized militia, governed by the Congress/government
(2) unorganized Militia - described in U.S. Const. Amend. II refers to the
people (not nationalized), who keep guns for security of the State, not Govt.
(3) so the old lady, being a citizen ("the people") should be allowed to carry
arms

Prof. pearl: Correct bumper sticker: "When guns are outlawed,
only the government will have guns."

D. Limitations to judicial power:
1. Ex Parte McCardle, 74 U.S. 506 (1869) Text, p. 53
Congress passed an act during reconstruction (1867) providing federal courts with
power to grant writs of habeas corpus, to insure that freed slaves would be able to
have just treatment if they were imprisoned by state action. After this, there was
passed a Military Reconstruction Act, dividing the South into military districts
under martial law. McCardle was arrested for disturbing the peace, libel, etc. and
he filed a petition for habeas corpus under the 1867 act. His petition was denied
and he appealed to the S. Ct. that his suspension of a jury trial, etc., was not
constitutional. After oral arguments, Congress appealed that part of the Acts of
1867 that gave habeas corpus appellate jurisdiction to the S.Ct.
Before the S. Ct.: C.J. first addressed jurisdiction and discussed that the very
existence of the S. Ct. was determined by the Constitution, but the Constitution
also empowered Congress to limit and modify the scope and powers of the
S. Ct. jurisdiction. When Congress repealed the act granting the specific jurisdiction
(over this type of case) to the S. Ct., then the Court has no jurisdiction and can't
even hear the case, except to dismiss it for want of jurisdiction.
a. case had huge political significant - Miss. newspaper editor was squashed for
racist incitement to violence, etc. - irony was, P was unreconstructed racist
who used anti-slavery statute to protect himself from anti-slavery authorities
b. unanimous opinion but very short - difficult to determine holding
(1) Article III, § 2 - "judicial Power shall extend to all Cases, in Law and
Equity, arising under the Constitution, the Laws of the United States. . . .
[and appellate jurisdiction] with such exceptions as Congress shall make."
(a) Congress passed the Reconstruction Act, a "Law of the U.S.", so
if they repeal it, the "judicial Power" is gone
(b) if Congress gives it, then Congress can take it away
c. Judiciary Act of 1789 had to be passed before the Constitution was augmented
to provide the numbers and types of judges, the hierarchy, etc. - i.e. the Courts
were dependent on Congress to actually work
(1) under Article II, § 2[2], the Court cannot act unless Congress gives them the
power to work (via the "exceptions" and "regulations" which they make
(2) judicial power conveyed by the people through the Constitution to the
Court, but it did not work until Congress allowed implementation (power
needed to be vested - Art. III has no restraints on Congress power to
fiddle with lower courts, jurisdiction exceptions, etc. - basically plenary
power)
d. narrow reading of McCardle - the act of 1968 was repealed, so the P must come
back under a different theory of law (if you're in federal custody under the
Judiciary Act of 1789, you can appeal directly to the S. Ct. under a writ of
habeas corpus - the Reconstruction Act was aimed at state courts) [last ¶
of case is dicta - racist Court giving McCardle a hint as to reapplying for writ]
e. broad reading of McCardle - the Congress has ultimate power to implement
powers of the Court, even though the power itself is derived from the people
(via the Constitution)
(1) every vesting of power to the Court by Congress was also an exception of
every power not vested in the Court (describing affirmatively is understood
to negate any power not delineated in the affirmative)
(2) Congress can set it up any way they want, so long as they don't violate
the Constitution in other ways (i.e. violate due process, etc.)
f. tripartite government does not operate independently, department from
department - e.g. Pres. can veto Congress, Congress can limit Court,
Court can declare Congress unconstitutional - government is not separate, but
separate with checks and balances
g. Marbury stands for the idea that Congress can't give more original jurisdiction
to the Court than the Constitution gives - Marshall says that Court can decide
constitutional issues that get to them, not that they all should
h. Notes, #5: Text, p. 55
5(a): U.S. Dist. Courts cannot have jurisdiction over school busing cases?
- they don't interfere with Constitution or constitutional protections
- before the Federal Judiciary Act, you would have to go to state court
and the federal statute would still be law of the land - i.e. the
"problem" would not be solved at the federal level, only state level
- core purpose argument - the federal courts have a "core purpose" to
hear constitutional cases
5(b): Deny S. Ct. all cases of State Law regarding prayer in school?
- if you can take away habeas corpus (McCardle) then free speech is
no problem, either
5(c): Deny jurisdiction of any state over abortion statutes?
- Congress has no power over state courts - state courts have to worry
only about whether they follow the U.S. Constitution (Congress
can't order them to do anything)
2. I.N.S. v. St. Cyr, Suppl. p. 2
Haitian immigrant was being deported after 1996 amendments to the I.N.A. of
1952 to change the provision of
On Appeal: J. Stevens held that 1996 repeal of judicial review of deportation
orders (of the I.N.A.) only meant direct judicial review (statutory), not collateral
(habeas corpus) review, as guaranteed by the U.S. Constitution. He wanted to avoid
constitutional difficulties, which he discussed in dicta. He thought that constitutional
difficulties would have arisen if the statute were read to remove habeas review, since
it would violate Article I, § 9[2]. (unless the public safety were affected in times of
rebellion or invasion).
a. J. Scalia's dissent claimed that the decision was goofy. . . .
b. Judiciary Act of 1789 - All Writs Clause bestows all writs (including habeas corpus)
on the courts, i.e. the writ of habeas corpus is set up by the Congress for the
courts, rather than the idea of J. Stevens, that the writ of habeas corpus was a
self-evident law that existed on its own
c. all the writs (writs of mandamus, writs of error, writs of habeas corpus, writs of
certiorari) were given by Congress, and Congress can take them away...
BUT, suspension of the writ of habeas corpus can only be done pursuant
to Article I, § 9[2] (not abolish for everyone or for certain classes, but just
suspend it for certain reasons)
d. Congress can always repeal enabling legislation - Congress giveth and Congress
taketh away (i.e. the Framers understood "suspend" versus "abolish")
e. 4 states refused to ratify the Constitution because it didn't specify the writ of
habeas corpus (anti-Federalists didn't like the writ of habeas corpus being left
up to Congress - but it was, although the Constitution specifies that only Congress
can suspend the writ of habeas corpus, not the Executive and not the Court)
3. Charles B. Miller v. Richard A. French, ___ U.S. ___, (2000) Text, p. 56
Prisoners sued to enjoin the operation of an automatic stay provision of the Prison
Litigation Reform Act of 1995, wherein an existing injunction is automatically
stayed after 30 days of the filing of a motion to terminate prospective relief, if
the court finds that the injunction is not in keeping with the specifics of the Act.
Prisoners contended that the Act was violative of their Eighth Amendment
rights and violative of the separation of powers principle.
On Appeal: Majority court held that the Act did not restrict the Court, but it altered
the law that the Court was applying. The courts monitoring ongoing or prospective
injunctions were not a "final judicial determination" that the Congress otherwise
could not alter.
a. courts issued standing injunctions against prisons to keep their conditions okay
b. PLRA specified narrow standards for issuing and keeping injunctions against
prisons for unsuitable conditions
c. precedent cases:
(1) Plaut - Congress cannot annul a final judgment or it's a forbidden assumption
of judicial power
(2) Hayburn's Case - Congress cannot vest review of the decisions of Article III
courts in officials of the Executive Branch
(3) U.S. v. Klein - according to this court, Klein forbid prescribing rules of decision
to the courts in cases pending before it (i.e. Congress cannot direct the outcome
of a pending case by making up new rules)
4. Justicability - does the matter belong to the "cases" and "controversies" under
Article III of the Constitution, or had the Court refused on their own to handle
some type of case (prudential limitations - e.g. rules about 3rd party standing, etc.)
a Constitution has certain limits
b. Congress can make it harder for the S. Ct. to hear a case, but not relax the limits
of Article III
c. "cases or controversies"
- basically, in the separation of powers doctrine, the Court needs to be able to
check and balance the other branches in cases and/or controversies
(1) adverse parties with injury in fact
(2) Court's decision alters the behavior of parties (binding) - is the world going to
change in anyway based on the decision?
e.g. Bush v. Gore - injury in fact was "I'm not going to be President," but he
never got the recounts to be unPresident, so the Court was premature in its
decision (ripeness)
- so this could have been an impermissible advisory opinion
- Gore's people argued this point (but still lost)
d. types/categories of limitations:
(1) advisory opinions
- Article II indicated that the President needed to get advice from his cabinet,
not the Court
- the Court should be a check on the Executive
- the Court was a "court of last resort"
- the Court's decison should bring about a change in one party's behavior, but
this won't happen in an advisory opinion (nothing changed by the Court, so
no "case or controversy")
- the rest of the following elements serve to exclude advisory opinions from
the mix by insuring there are elements that indicate the matter is not an
advisory opinion
(2) standing
- is the P the proper party to bring legal action
- usually has to be and injury in fact (advisory opinion won't have an injury
in fact, since it didn't happen yet)
(3) ripeness
- is there really a harm yet? a dispute? or do we have to let the facts develop
more (see Bush v. Gore, supra)
(4) mootness - e.g. Laidlaw, infra - if the court can't fix it, it's moot
(5) political questions - discretionary decisions/actions of the other branches
are political questions (permitted by the Constitution) not under the
jurisdiction of the Court
5. Friends of the Earth, Inc. v. Laidlaw Environ. Svc., Inc., 528 U.S. 167 (2000)
D bought hazardous waste incinerator and wastewater treatment plant and dumped
waste into local river. Environmental groups filed suit under the 1972 Clean Water
Act. District court did not enjoin D, since they had come into substantial compliance
(and actually closed and sold the plant during the suit), but awarded monetary penalty
(which went to U.S. Treasury, per statute). App. Ct. vacated order on the basis that
the case had become moot (plant was closed, etc.) and penalty would not redress any
injury suffered by P.
On Appeal: S. Ct. determined that P had standing to sue, because at least one of the
members of the groups lived in the area and claimed loss of enjoyment of the river,
etc., due to the pollution. S. Ct. also decided the case was not necessarily moot, since
effect of closure and compliance on prospect of future violations by D was not
decided by the District Court. Remanded for consideration of whether there was
any possibility of future violations by D.
Standing: 1. injury in fact; 2. causation in fact (by D's actions); 3. redressability
- without an injury, there's no dispute
- if D didn't cause P's injury, there's no dispute (at least not here)
- if the court can't fix it, there's no (point to the) dispute
a. strident dissent (J. Scalia) took issue with "feelings" of tree huggers, in absence of
any evidence of harm to anyone (and District Court found as a matter of fact
that no significant harm had been done to the environment by pollution)
b. Ginsberg felt that the merits should not be reached when deciding standing - so
she wanted to avoid Scalia's dissent argument that there was no pollution found
by the fact-finder
c. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) - Court held that P who may
at some future date in some distant place visit an endagered species did not have
standing to seek enforcement of the Endangered Species Act (Scalia opinion for
the majority)
d. qui tam actions - Vermont v. U.S. ex rel Stevens, 120 S.Ct. 1858 (2000) - Court
held (unanimously) that an interest unrelated to injury in fact is insufficient to
give a P standing, but that the interest must consist of obtaining compensation for,
or preventing, the violation of a legally protected right - but in qui tam situations,
the injury to the U.S. (by violation of the statute or whatever) is sufficient, and
the realtor is basically a subrogee of the U.S.
(1) long history of qui tam actions in England and the U.S. is supportive
(2) "cases and controversies" in Article III means those traditionally recognized
and amenable to judicial process
(3) qui tam actions originated in the 13th century when individuals brought action
on their own and the Crown's behalf
e. Allen v. Wright, 468 U.S. 737 (1984) - case that invented causation requirement
- tax-exempt status of (all-white) religious schools - Court decided that there was no
causal connection between tax-exempt statutes and (bigotted) white parents sending
their kids to all-white school (they ruled incorrectly, since the government subsidy
did indeed help white kids go to white schools)
- Court basically rejected true causation-in-fact analysis, and took more of a
common- law proximate causation thinking (it was too remote or indirect)
f. redressability - in this case, the money goes to the government
(1) why does it matter that you have redressability to make a case justiciable?
(what does redressability add to the cases and controveries clause?)
(2) Prof. argues that once causation was "invented" in the 1980s, the concept
of redressability was basically a tap-in, since you can always pay off or
stop the injury... period (if you prove causation, redressability follows)
g. mootness - the allegedly wrongful behavior could not reasonably be expected to
recur
(1) mootness doctrine - deals with whether the wrong is ongoing or not - it is
required by Article III, since if there is no controversy, Article III does not
apply
(2) make sure that as the case goes on, the controversy doesn't vanish (moot)
- if the controversy is gone, the Court's opinion would only be an advisory
opinion (which they don't want)
(3) J. Ginsberg talks about saving money, and after so much judicial costs "sunk"
we keep on with the case to not waste money (so this isn't an Article III
requirement, it's a prudential requirement - they don't want to waste all the
money and effort and come away without a "result")
(a) three exceptions to mootness:
- alleged repetitive wrong evading judicial review (e.g. Roe v. Wade - by
the time the Court works, the pregnancy is already finished)
- collateral consequences (e.g. you've been adjudicated a criminal and you've
served your time and it's all done, but you still appeal/protest, since you
are forever branded a convict)
- defendant voluntarily ceases the activity so the complaint is technically
moot (at issue in Laidlaw)
(b) Ginsberg is wrong (and Scalia's correct) because she calls these cases
exceptions to the mootness doctrine (the usual mootness statement is
that mootness = standing but at the end of the case)
- mootness is more flexible than standing (because of 3 exceptions)
- in other words, if mootness is the same as standing, how can you have
exceptions? you have to have standing or it's unconstitutional
- conclusion: it must not be like Article III, since there are three
long-standing exceptions to mootness doctrine (over 50 years old)
6. Baker v. Carr, 369 U.S. 186 (1962) Text, p. 80
A suit alleging that the state of Tenn. apportioned its numbers of legislatures in an
arbitrary and capricious nature made it to the S. Ct. The Court decided that it had
jurisdiction, and that the Ps had standing, and then addressed whether the issue
was a "political" one, not addressable by the Court, or not.
Before the Supreme Court: J. Brennan held that the challenge to an apportionment
did not present a nonjusticiable "political question," and the claim did not rest upon
or implicate the Guaranty Clause (Article IV § 4) of the Constitution regarding a
republican form of government. Therefore, the right asserted is within the reach of
the Fourteenth Amendment.
a. since the Luther v. Borden case, everyone had assumed that under Article IV
things were nonjusticiable, which Brennan basically overturns, giving the six
factors which now are mechanically regurgitated:
(1) a constitutional commitment of the issue to another political branch
- this is the best correlate to Marshall's decision in Marbury (another branch
has sole discretion)
(2) a lack of judicially discoverable and manageable standards
(3) the impossibility of deciding the question without an initial policy decision
(4) the impossibility of a court's undertaking resolution without expressing lack
respect for other political branches
(5) an unusual need for unquestioning adherence to a political decision already
made
(6) the potential for embarrassment from multifarious pronouncements by the
various departments on one question
b. J. Marshall (in Marbury) defined nonjusticiability as a matter that is vested in the
discretion of the Executive, while the courts were supposed to hear are those things
over which the law has made a legal duty/obligation that the court can enforce
- it's the duty of the court to declare "what the law is"
- if it's the discretion of the Executive, there is no law (it's up to his will)
b. dissent by J. Frankfurter:
(1) calls the majority decision a reversal of prior opinions
(2) thinks that the Court's (improper) meddling in politics will basically be bad
for morale - the moral high ground is the only "weapon" the Court has (as
opposed to the purse - Congress - or the sword - the Executive)
(a) similar to the public opinion of the Bush v. Gore Court, which basically
is "they're fixed along party lines - depends on who's appointing them"
(3) Federalism concerns - the Court should not get involved in matters concerning
the structure and organization of the political institutions of the States
(4) the Court has a limited fund of political capital to spend, so they should
save it for important topics and situations - don't use up the peoples' good
will and undercut your ability to act when you need to
c. calling it a "political question doctrine" is a little misleading, since every
constitutional law question deals with some political "stuff" or implication
(should really be called the "nonjusticiability doctrine" or some such thing)
(1) always separate the constitutional part (required by Article III) from the
prudential part, which can be changed at will by the court
d. Brennan's majority opinion considers the "political question doctrine" to simply
be applicable to the national government, not the state governments
- he equates the political question doctrine only comes into play when separation
of powers is threatened, powers meaning the 3 branches of the federal government
- this is his distinguishment between Baker and Luther (which is incorrect, since the
facts of the two cases are basically identical)
e. Note 4, p. 88:
(1) Baker basically killed the "political question doctrine"
(2) in the 40 years since Baker, only 2 cases have been "nonjusticiable"
(3) Baker v. Carr - Brennan is only concerned with separation of federal power
(similar to Marbury's discretion concept)
(4) Powell v. McCormick - black representative from Harlem, Adam Clayton
Powell, wasn't allowed to take his seat (1968?) because of allegations of
financial shennanigans, etc., based on the Article I clause that Congress can
decide on the qualifications of the members, etc. to exclude or expell people,
and he sued the Speaker of the House and got to the S. Ct.
(a) Congress argued separation of powers, Article I, Baker v. Carr - i.e. it
was nonjusticiable
(b) S. Ct. says "no" - no discretion vested in Congress - you have to use the
requirements in the Constitution (age, residencey) only - no discretion,
so it's justiciable
(c) basically wiped out what was left of "political question doctrine" except
for what is specifically written out in the Constitution
(d) only in Gilligan v. Morgan (Kent State shooting by National Guard) and
Nixon v. U.S. (Miss. judge tried by Senate for perjury, etc.) did the Court
bow out due to nonjusticiability in the last 40 years - only going by the
specific textual wording in the Constitution
- Article I specifics on Senate trials and training of Select Militia
7. Methodology Court uses in writing opinions: Text, p. 34
a. Keep these in mind when writing test answers. . . .
8. Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996)
At issue was the Seminole Tribe suing under the Indian Gaming Regulatory Act, which
dictated that an Indian tribe could enter into a compact with a state regarding gaming
on Indian land within a state. Florida refused to enter into good faith negotiations, &
the Seminole tribe sued in federal court, as per the Act.
Before the Supreme Court: Court held that Congress lacked authority under the Indian
Commerce Clause if Article I to abrogate the state's sovereignty under the Eleventh
Amendment, and the doctrine of Ex Parte Young didn't apply, because of the intricate
remedial provisions of the Indian Gaming Regulatory Act (in other words, if Congress
would have meant Ex Parte Young to apply, they wouldn't have such complicated
remedies built into the act). Affirmed lower court's dismissal for lack of subject matter
jurisdiction.
a. the Seminoles could have sued in Fla. state court, after Article VI § 2, which says
that the judges of any state must obey the Constitution . . . .
(see Aldus v. Maine)
b. textually, the 11th Amendment doesn't seem to cover the instant case, since the
"Seminole Tribe" is not a citizen of the state, not a foreign state, etc.
(1) the Court relies on Blatchford v. Native Village of Noatoak, 501 U.S. 775
(1991) to say that they've always considered Indians citizens of the state in
which they live
c. is this case justiciable?
(1) the statute in issue instructs the state government to negotiate in good faith
with the Indian Tribe - is this like a common-law agree-to-negotiate problem
that doesn't rise to the level of real contract . . . . i.e. injunctions do not lie
to force people to follow discretionary activity (no F.R.C.P. 12(b)(6) standing
here
(2) only way there can be a private right to sue, then, is if Congress expressly
authorizes the private cause of action (specifically telling the governor that
he has to do it or else private individuals shall have expressly a right to sue
in federal court . . . .)
(3) same argument as Marbury v. Madison, can the court compel discretionary
activity? No - so there's no relief/remedy available
(4) for justiciability, you don't reach constitutional grounds unless you're forced
to - you try to decide other grounds (statutory grounds) first
(a) the fact that the majority didn't consider the statutory grounds, you might
think that the court is being activist, and doing this on purpose to expand
the meaning of the 11th Amendment
(b) these are Republican activists working in a conservative direction, to
further conservative agendas - they then go on to talk about the "spirit
of the 11th Amendment" to keep suits against states down

Prof. pearl: "I hate all activists!"

9. Eleventh Amendment:
a. hastily passed to overrule Fletcher v. Peck to make it impossible for a person of
of one state to sue a state government in federal court
b. Amendment XI (1798)
The Judicial power of the United States shall not be construed to extend to any
suite in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
c. the 14th Amendment should have clearly abrogated the 11th Amendment
immunities, since it was passed after the 11th Amendment (while the
Commerce Clause of Article I does not, since the Amendment was passed
later)
d. Notes, p. 100:
(a) 11th Amendment doesn't really prohibit citizens of suing their own state,
but that's what the Court is saying from 1890 (Hans v. La.)
(c) If P sued the governor, the 11th Amendment wouldn't on its face cover it,
but the state is still immune - but you get around the language under the
Ex Parte Young Doctrine, where you get injunctive relief based on illegal
action by the individual of the state (legal fiction)
e. exceptions to 11th Amendment immunity:
(1) sue in state court
(2) Ex Parte Young exception
(3) state abrogates its immunity - consents to be sued
- but, a party cannot generally waive jurisdiction, so where does this come
from?!? (Green v. Mansour) - and this is subject matter jurisdiction, not
personal jurisdiction (in personam jurisdiction)
(4) only talks about private suits - federal government can sue the state
(so in Seminole Tribe, the S. Ct. was upset that the Indians were suing in
the place of the Federal Government - hostile to private commandeering
of Federal power by a private entity)

II. Distribution of National Powers:
A. The Congress v. The President:
1. separation of powers/checks and balances:
a. purposes:
(1) prevent tyranny - keep three forms of power in separate hands
(a) Federalist #47 - Madison claims that "the very definition of tyranny" is the
concentration of powers (legislative, judicial, executive) in one hand (like in
England) - but it's also the balancing that's important
(b) this is horizontal separation of powers - equal footing but separate and
disticnt
(c) Federalism - more of a vertical separation of powers - some powers are for
the Fed and some are for the States, etc. - vertically separated
(2) efficiency - better system than the Articles of Confederation
2. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Steel companies named in a list attached to Executive Order No. 10340, promulgated
April 8, 1952, directing seizure of the plants of such companies, brought actions against
Charles Sawyer, Secretary of Commerce, praying for declaratory judgments and
injunctive relief. District Court granted Ps' motions for temporary injunctions.
Certiorari was granted by the United States Supreme Court after the D.C. App. had
issued stay orders.
Before the Supreme Court: J. Black held that the seizure order was not within the
constitutional power of the President. Court looked for either congressional act which
granted President this power, which did not exist, or wording in the Constitution which
allowed President this action, which did not exist. President's argument, that "broad"
powers of the Commander-in-Chief covered just about anything (since there was a war)
was not persuasive to the Court, which felt that the Founders of the Nation left the law
making power exclusively to Congress. Affirmed.
Steel Seizure Case - what can the President do without congressional authority?
Can the Court step in and solve calibration problems between the Congress
and the Executive? (In this case, we don't know, since the Court acted too
fast. . . .)
a. concurring J. Jackson admitted question of executive power was not very well
spelled out in Constitution, so Court had to do a lot of scholarly speculation based
on the totality of the Constitution, etc.
(1) Court took up case on expedited review, which sort of short-circuited the
possible actions of Congress
(2) S. Ct. was on thin ice when they left the security of popular opinion
(a) if the public opinion would have been pro-labor, and didn't want to work,
the Court could have addressed civil disobedience how? they could have
"gotten the flu"
(b) Truman threatened to draft the steel workers if the didn't work - idle
threat against civil disobedience? who knows. . . .
(c) it would be hard for the Court to make people do anything
b. Truman relied on Article II for his "power" to seize the steel mills - "§ 1. [1] The
executive Power shall be vested in a President of the United States of America."
(1) this is different than in Article I, which says "legislative power herein granted
is vested . . . ." - and then Article I is long, with 10 sections
(2) so this would mean there is inherent and unlimited (if not limited) power of
executive action vested in the President - ALL executive power is given in
Article II (none retained by the States, which Article I does with Congress)
(3) specified A President - no co-presidents
(4) also, note that Truman wrote to Congress twice and they did not answer - so
you can't say the Congress disapproved of this act . . . .
c. J. Black failed to cite any precedent jurisprudence or even historical practices to
support his decision
(1) reference to the failed amendment of the Taft-Hartley Act, which applied to
non-wartime seizures of property - at best ambiguous
(2) N.B.: This is not how you write a blue book test answer . . . .
d. J. Frankfurter's concurrence also fails to cite much precedent or original
understanding
(1) he feels like there's a blank slate and we need to look at historical practice
and the President has no authority
(2) unless Congress blesses the President's action, it's unconstitutional - so in the
period between action and ratification the President is acting unconstitutionally
(??? is this right ??? - not logical - e.g. can the president shut down or act on
terrorist activities like taking flight lessons before Congress legislates)
e. dissenters (C.J. Vinson) extensively cited historic precedent of presidents taking
executive freedoms, some of which are exactly on point
(1) he concludes that the President has the same power that other presidents
have wielded
(2) is the President disempowered because of legislative silence - if Congress
disapproves, then the question is settled, but what happens before they approve
or disapprove
f. evidence:
(1) 1799 - Jay Treaty - ratified by Congress, with extradition provisions in it, and
President Adams issues a warrant for someone - C. J. Marshall claims that
President can act until Congress gives him more instruction or explanation
- Congress finally acted on giving extradition instructions in 1852, so under
Frankfurter's theory, the President was acting illegitimately for 53 years
(2) First Neutrality Act - Geo. Washington declared this without Congressional
approval until later
(3) Whiskey Rebellion
(4) Lincoln suspended the writ of habeas corpus during the Civil War (while the
Congress was silent for a while - ratified it a year later, 1863)
g. bottom line:
When Congress says the President can act, then he's got the power. When Congress
says he can't act, then... is he handcuffed? But he's taken an oath to support the
Constitution, so he can act unless he's told specifically not to . . . In fact, if the
Congress tells him he can't do his own Article II work, he has to stop.
(1) Sinclair v. United States, 279 U.S. 263 ()
if the President won't enforce a Supreme Court order, the Congress can pass
an extra-executive order
(2) Truman was right - he asked Congress twice - but they sat on their hands
(3) Current theory ("Stroke of the pen, law of the land, gotta love it!") is that
unless forbid by Congress, the President can work by Executive Order
- modern court looks at Jackson's opinion and Vinson's dissent

Prof. pearl: The Articles of Confederation got it right, by not having a president.
They got away from the problem of electing a king for eight years.

h. interpretive techniques - assumptions about Constitutional interpretation often
influences the result of the judicial decision-making:
(1) J. Black's - formalist, formalist reading of Constitution, no citation of cases
or history or etc.
(2) J. Jackson's - pragmatic or functionist - how does the government function and
and how it fits
(3) C.J. Vinson's - historical, precedence, etc.
(4) J. Frankfurter's - sort of the same - in understanding the ambiguous language,
you look and see how historically the officials have treated the language
- several of justices (on both sides) agree there are cases where the President can
act independently and with vigor, but all justices concede that once Congress takes
the issue, the President is powerless to act (Article I trumps Article II) and the
Congress can even take the President's power away if they want
- you get suspicious when a justice departs from his usual and customary style to
use another one, to obviously get a preordained result
3. William J. Clinton v. City of New York, 524 U.S. 417 (1998)
City, health care providers, and unions, and farmers' cooperative and individual member,
commenced separate actions challenging constitutionality of Line Item Veto Act after
President exercised his authority under Act to cancel provisions of Balanced Budget Act
and Taxpayer Relief Act. District Court entered order holding that Line Item Veto Act
was unconstitutional because it violated the Presentment Clause of the Constitution
(Article I § 7(2)) and also that it impermissibly upset the balance of power.
Before the Supreme Court: On expedited appeal, J. Stevens, held that Line Item Veto
Act violated Presentment Clause by departing from "finely wrought" constitutional
procedure for enactment of law. Affirmed.
What can the President do with congressional consent? Can the Court (again)
step in and settle power questions between Congress and the Executive?
a. Article 1 § 7(2): Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be prsented to the President of the
United States; if he approve he shall sign it, but if not he shall return it, with his
Objections to that House in which it shall have originated, who shall enter the
Objections at large on their Journal, and proceed to reconsider it. . . .
(1) no actual conflict here, since the Line Item Veto Act was bipartisan and
agreed to by Congress and Clinton - no argument about the Act
(2) Court is attacking an act which everyone liked
(3) Line Item Veto Act provided for an override of a mere majority vote, while
the Presentment Clause requires a 2/3 majority to override the veto
b. J. Stevens declared that cancellation of an item keeps it from "having legal force
or effect," in essense, making the whole statute (minus the cancelled part) a new
bill or law, which had not been approved by Congress
(1) interesting that George Washington felt that you had to send the whole
bill back, not just part of it - if it was perceived by him to be an all-or-none
thing, that's pretty authoritative
(2) interesting that the Confederate Constitution had a partial veto in the
Presentment Clause to include an item veto (same as a line item veto)
because everyone knew that line item veto wasn't allowed in the U.S.
Constitution
c. J. Stevens distinguished from previous similar acts which allowed the President
discretion at fact-finding, acting in a prescribed manner after something or
another came to his knowledge (e.g. Field v. Clark, where Congress decided the
ultimate course of action, but left it to the President to decide if the threshhold
circumstances had arisen - occurance of particular events)
(1) formalist interpretation
(2) looking formally at the Presentment Clause, he felt that the President can
sign the bill, or return the bill - the line item veto gives an alternate act which
is not in the Constitution (approve part and it becomes law - cancel part)
(3) in effect, the President amends the bill and the amended bill becomes law,
which is impermissible (sole method of amending or appealling is by a new
statute, according to the Constitution)
d. J. Kennedy, concurring, spoke of the threat to individual liberties if there was
taxation without adequate checks and balances
(1) also formalist opinion
e. J. Scalia, dissenting, argued that the Congress' authorization for the President
to cancel a budget item was the same thing as discretion to spend (or not) on
a budget item, which power had been enjoyed by Presidents since the founding
(and then gave examples of Grant, Lincoln, Truman, etc.)
(1) usually a textual formalist, he turns to pragmatic and functional arguments
(2) if the New Deal is constitutional (allowing huge delegation of authority to
the President, e.g. FAA, etc.), allowing "rule" making (not "law" making) to
the President, then why isn't his okay???
(3) if this is unconstitutional, then what about the New Deal regulatory structure
(4) he doesn't make the point of: why do these general taxing and spending bills
get passed in these formats (all complicated and lined)? why doesn't Congress
just give each item a separate bill # and he can sign or return each one, item
by item - because Congress wants these big "Christmas tree" bills passed so
that your pork gets in (kind of hidden) within the big bill - get reelected by
getting stuff for your constituents
(a) so if you go item by item, there won't be a congressional majority on each
individual item
f. irony of the strict formalist approach:
(1) Stevens blesses presidential impoundments - they can be very contentious when
the President refuses to allow Congress's desired spending
(2) here, there is agreement by bipartisan Congress and President in the Act, and
formalistically he can make it unconstitutional
4. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) Text, p.132
Proceedings by the United States against the Curtiss-Wright Export Corporation and
others, under indictment charging a conspiracy to sell arms of war to a foreign
government in violation of a joint resolution of Congress. From a judgment sustaining
a demurrer to the indictment, the government appeals. (D claimed Congress could
not delegate this authority on the President, as it was not specified particularly in
the Constitution - structural or institutionalist argument based on separation of powers.)
Before the Supreme Court: Reversed, and cause remanded. J. Sutherland explained the
difference between internal or domestic and external or foreign affairs, in that the
Constitution was primarily concerned with enumerating and stratifying the powers
referable to internal affairs. Foreign affairs were the province of the sovereignty
which passed from the British Crown to the Union, not the states, when the country
revolted against England
a. Joint Resolution stated that if the President found that prohibition of the sale of
arms to countries at war could help peace, then he was empowered to make a
proclaimation and make it illegal for such arms sales (war going on for several
years in Chaco Province, Bolivia, with Venezuela)
b. if you used J. Black's reasoning from Steel Seizure case, he would look for wording
from the Constitution (absent) or permission from statute (YES - Joint Resolution)
to decide whether the President had this power - he'd say YES, statutorily
c. J. Sutherland talked about sovereignty as though it were land or property, that it
always had to be somewhere, and when the U.S. split from England, the sovereignty
passed from the Crown to the "union" of the states that split and formed the new
country - historical argument (to get around recent S. Ct. cases which dealt
contrarily with domestic affairs - needed to sidestep recent cases and get into
another playing field) but basically becomes a natural law argument (nature of
sovereignty, etc.)
(1) "transatlantic springing sovereignty" - people make fun of this
(2) domestic power, according to Sutherland, specifically give part of their power
to the national government
(3) where was this sovereignty between 1776 and 1781 (ratification of the
Articles of Confederation)???
(4) what happens between 1781 and 1789? etc. - historically shaky
d. since sovereignty with respect to foreign affairs never rested in the states, the
Constitution did not have to portion it out, some to the federal government,
like it did for internal affairs
e. Article II § 2(2) - He shall have Power, by and with the Advice and Consent of
the Senate to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the Senate,
shall appoint Ambassadors . . . .
f. Federalist Papers 57-77, Hamilton defends the "energetic executive" - the power
in the Constitution given the President (not existing in the Articles of
Confederation) - government needed a fast-acting power, rather than law by
committee, esp. in war and foreign affairs situation
5. Dames & Moore v. Donald T. Regan, 453 U.S. 654 (1981) Text, p. 135
President Carter, under International Emergency Economic Powers Act, froze all
Iranian interests in the U.S. after American hostages were taken in the Embassy in
Tehran. P filed suit in USDC (C.D. Ca.) against Iran & Iranian entities, etc.,
for contractual money that Iran owed P. Subsequently, President entered into an
agreement with Iran and the matter was settled, and Executive Order was issued
dissolving all of the effects of the frozen assets, etc., and dissolving any and all
U.S. claims against Iran. P sued, apparently claiming President did not have the
authority to dissolve suits in federal courts. Lower courts upheld the Executive
Orders and P appealed.
Before the Supreme Court: J. Rehnquist considered the issue of whether the
President has authority to suspend claims pending in U.S. courts. He concluded
that the IEEPA and the Hostage Act on their faces did not specifically authorize
this type of action by the President. However, both statutes were evidence of a
looser sense of congressional acceptance of a broad scope executive action in
similar circumstances.
a. Algerian Executive Agreement - ratified by Ronald Regan immediately on
taking office - this opinion was approximately 9-0 (or 8 1/2 - 1/2)
(1) Executive Agreement = agreement between heads of state without any
ratification by Congress
b. in J. Jackson's 3 zones of Executive authority, this one lies in the Twilight
Zone between Congressional approval and Congressional disapproval - but
Congress has a pattern of approving of these types of things, and with their
silence and pattern of acquiesence, we can infer Congress would approve of this
(1) but in the Steel Seizure case, J. Jackson opposed Presidential action - here,
they approved it almost unanimously - Jackson saw silence as bad
(2) called by some as the most sweeping case to date supporting sweeping
Executive foreign affairs power
c. one question not asked: in the spirit of Sutherland's Curtis-Wright opinion,
that sovereignty exists in the Executive, why should foreign affairs decisions
of the Executive turn on congressional approval?
(1) this will be important in the Iraq/Saddam Hussein question now. . . .
B. Executive power:
1. United States v. Richard M. Nixon, 418 U.S. 683 (1974)
President was named an unindicted coconspirator and a 3rd party Rule 17(c) SDT was
issued for tapes and documents relating to his conversations with aides and advisors.
President moved to quash, based on Executive Privilege, etc. U.S.D.C. D.C. denied
his motion and held that the judiciary, not the Executive, was the final arbiter of the
claim of executive privilege. Both parties moved for certiorari before judgment.
Before the Supreme Court: C.J. Burger
a. Fed. R. Crim Proc. 17(c):
b . President claimed case was non-justiciable political question of interbranch dispute,
and that Executive had control of prosecutions (i.e. A.G. office)
(1) Court held that it was Court's power to say what the law is (Marbury)
(2) Court held that President had power to delegate prosecutorial power thru the
A.G. to the special prosecutor's office
(3)
c. Re: Executive Privilege
(1) role of the Court to decide whether (by law) President has privilege and what
the scope of that privilege is
(2) nothing in the Constitution precludes an interpretation that gives another
branch power final authority, but Marbury states it's the Court that decides
what the law is (precedent is Marbury dicta - not a holding)
(3) claim of Executive Privilege is still reviewable by the Court (any district
court) - because the courts have to be able to say what the law is. . . .
(4) Court felt Executive Privilege existed and was needed, but:
(a) need for candor between President and advisors
(b) need for confidentiality
(c) constitutional underpinning to confidentiality, but it's not absolute
- must yield to some judicial review
- must have specific reason not to have judicial review (in this case, it
would have been protected in camera review at the district court level)
- balance on a case-by-case basis: need for confidentiality vs. need for review,
(here, need for criminal evidence outweighed executive privilege, and the
President only claimed a general confidentiality, no specifics)
- absolute confidentiality would interfere with judiciary's constitutional
function and interfere with Fifth and Sixth Amendment rights
C. Legislative authority:
1. Immigration & Naturalization Service v. Chadha, 462 U.S. 919 (1983)
Chadha was in the U.S. longer than his visa and was ordered deported. INS judge
ordered his deportation suspended, but a congressional committee passed a rule
under § 244(c)(2) (Immig. Natur. Act) to oppose his permanent residency. He
appealed and the INS backed him (and the A.G.), and the 9th Cir. ruled that the
§ 244(c)(2) was unconstitutional.
Before the Supreme Court: S. Ct. determined that § 244(c)(2) violated the
separation of powers. Congressional veto circumvented Presentment Clause (§ 7)
and the bicameral congress (§ 1). Very textualist opinion, analyzing the wording
and purpose of the Constitution, affirming 9th Circuit.
a. Congress passes legislative vetos because they don't want to write the detailed
statutes in case they offend someone and lose votes - if they make a vague law
they look good, and they can slap the Executive's hand if something goes "wrong"
and they look better again (congressional courtesy - any one person on a
committee can request a veto and the rest follow by courtesy)
b. in this case, Congress took action against Chadha (and others) for war protests
(anti-Vietnam War marching, etc.) - so someone in Ca. congressional district
was upset
c. J. Powell (concurring) thought this was quasi judicial activity - no general rule
applied, but Congress made specific determinations about specific people, just
like a judicial ruling
d. J. White (dissenting) thought this was quasi executive activity -
e. J. White (dissenting): whether it's by Presentment or not, if the Executive (e.g.
via A.G.) and Congress (e.g. via committee), isn't it the same thing
(1) the whole modern administrative state is a violation of separation of powers
because you have administrative law judges acting executively and executive
branches acting judicially, etc. - you'd have to trash the whole system
f. what does Congress do after Chadha? - how does legislative activity work now?
(1) under the veto power, special interest lobbying was on the tail end (after the
law was passed), and now it has to be on the front end
(2) Federalist #10 and #51 felt that Congress should be more deliberative (i.e.
don't allow sloppy law making, and then allow special-interest to change it
later)
2. Bowsher v. Synar, 478 U.S. 714 (1986)
Congress passed the Gramm-Rudman-Holling Act to eliminate the budget deficit. The
Comptrollwer General (part of the Executive arm) was given certain functions within
the Act to cut spending if deficits went over a certain limit. Congressman Synar filed
suit to declare the act unconstitutional and the District Court held it violated the
separation of powers. Direct appeal to the S. Ct. (secondary to the Act). . . .
Before the Supreme Court:
a. Comptroller General's discretion in applying the law indicates inherently
executive power - this shouldn't lie with Congress or Congress' control
3. Morrison v. Olson, 487 U.S. 654 (1988)
Independent Counsel provisions of the Ethics in Government Acts of 1978 were
challenged based upon separation of powers, since the A.G. pointed out the problem,
but the Special Division (a congressionally-appointed court) could appoint the special
prosecuter.

a. Independent Counsel provisions (Title VI of Act) - same statute that led to the
appointment of Kenneth Starr - allowed to lapse in 2000 after it was used
against a democratic president:
(1) how the I.C. is picked (appointed by Special Division court, after A.G. finds
grounds for investigation)
(2) how the I.C. may be removed
(a) for cause, incapacity, etc. - removal by the A.G.
(b) for completion or substantial completion of job - by Special Division
b. Article II § 2, cl. 2 - Appointments Clause:
"[The President] shall . . . nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges
of the supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be established
by Law; but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in
the Heads of Departments."
(1) divides appointments into Principle officers and inferior officers
(2) Court found that Appellant was an inferior officer
(a) subject to removal by higher Executive Branch official (in spite of any
independence in her job, she was still removable by the A.G.)
(b) only appointed to do limited duties
- contrast this to Ken Starr's far-ranging duties to follow the case of
Clinton all over the country - Prof. thinks this was way too wide, in
comparison to the idea of "limited duties" discussed by the Court here
(c) jurisdiction limited
(d) office of limited tenure
(3) Appellees argued that Constitution did not empower Congress to make inter
branch appointments
(a) facially, Appointments Clause allows "such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments," which seems to allow interbranch appointments
(b) Courts are good choice to appoint prosecutors, since they do it all the
time in criminal cases - not an "incongruous" inter branch appointment
c. separation of powers analysis:
(1) two dangers in separation of powers analysis w.r.t. the President:
(a) does restriction of A.G. in removing the prosecutor interfer with the
President's exercise of Executive funcion?
- in older cases, the Court held that the President should have control
over "purely" executive appointments
- in this case, Court changes their line in the sand to say that the Congress
can set up regulations as long as they don't completely strip the President's
authority to terminate the prosecutor
(b) does the Act as a whole interfere with the President's ability to control
the prosecutorial powers wielded by the I.C.?
(2) similarly vis-a-vis the Court, there is no violation of the separation of powers:
(a) Special Division court has no review power over the A.G. action
(b) Special Division judges cannot preside over the case at hand
(3) why did the Framers have an impeachment mechanism, but the Congress can
just make a law creating a special prosecutor?
(a) if the election of the President is the most important and intense political
even determined by the Constitution. . . .
(b) why shouldn't the impeachment of the President not be the second most
intense political event for the people
d. J. Scalia's dissent:
(1)
e. Mistretta v. United States, 488 U.S. 361 (1989) - functionalist opinion that defers
to Congress and doesn't want to look too closely
f. Problems: Text,

III. Congressional Power
A. Necessary & Proper Clause:

U.S. Constitution, Article I § 8 - . . . . To make all Laws which shall be necessary
and proper for carrying into Execution of the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any Department
or Officer thereof.

1. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1918) Text, p. 201
This was an action of debt, brought by the D in error, John James, who sued as well for
himself as for the state of Maryland, in the county court of Baltimore county, in the
said state, against the P in error, McCulloch (cashier), for taxes under the act
of the legislature of Maryland, from the 2nd Bank of the U.S, which Maryland sought
to tax, under the terms of the disputed statute. Judgment being rendered against
the P in error, upon the following statement of facts, agreed and submitted to the court
by the parties, was affirmed by Ct. App. of Maryland, and appealed to the U.S. S. Ct.
Before the Supreme Court: Congress has power to incorporate a bank. Though the
power of establishing a corporation is not among the enumerated powers granted by
the constitution to the general government, yet such power may be exercised by it
whenever it becomes an appropriate means of exercising any of the powers expressly
granted. This doctrine does not apply to a tax on the real property of the bank, in
common with other real property in a state, nor to a tax on the interest of the citizen
of a state in the bank, in common with other similar property throughout the state.
The state within which a branch of the United States Bank may be established cannot
constitutionally tax it, nor pass any law to control or impede its operations, or the
operations of the parent bank.
a. 1st Bank of U.S. - signed by Washington - expired in 20 years and then debated
in 1811 in Congress about the renewal (charter of 2nd Bank of the U.S.) which
defeated bill - passed a bill 4 years later, vetoed by President Madison - in 1816
it was repassed, and signed by Madison
(1) Madison deferred to legislative and popular arguments that bank was okay
under the Constitution
(2) bank would act as sole fiscal agent for the U.S. - payroll, etc. - notes were
legal tender of the U.S.
b. Maryland - taxed of $15,000 on all banks not chartered by the Maryland
legislature (about $280,000 in today's money), which meant only the Bank of
the U.S. - McCulloch refused to pay the tax
c. first question - Has Congress the power to incorporate a Bank?
- Marshall has to show that the existence of the Bank is legitimate, in order to
then have to proceed to the second question, whether Maryland can tax it
(1) Marshall looks at Maryland as a sovereign state - what does that mean?
(a) Maryland tries to argue that the Constitution came from the states
(b) Marshall says the sovereignty can come from the
- people of each state
- the states themselves
- the people of "the whole U.S." sort of globally
(c) initial Preamble of the Constitution originally was drafted with "We, the
People of ... name each state... " came back from the Committee on
"style" with "We, the People of the United States,. . . ." with no explanation
for the change - they just did it
(d) Article VII has the Constitution ratified by nine states - what about the
other 4 states who had to ratify later? - Marshall implies that the individual
states don't matter, but Art. VII says "for the state so ratifying," meaning
that the other states aren't held to it - so where's the sovereignty???
(2) the fact that making a Bank isn't expressly described in the Constitution,
Marshall says that the "expressly" term used in the Articles of Confederation
was left out to expand on the capabilities under that Constitution, not to
limit them to the enumerated powers- in Marbury, he said that no clause in the
Constitution is intended to be without effect, unless the words require it to be
(a) if this is true, you basically make the 10th Amendment superfluous
(b) Article I marks the great outlines of Congressional power - you can't
have everything enumerated, like a legal code, or the people would not
be able to understand it
(3) Marshall looks to Article I § 9 to say the broad outlines of Congress' power
needed some restriction on particularly important things that were scary to
the supporters of individual rights or people afraid of the Crown's power in
the English system - this is sort of a mini-bill of rights to keep the broad and
expansive power from overwhelming some sensitive areas
(a) Necessary & Proper Clause - Marshall decides that "necessary" doesn't
mean what Maryland thinks (e.g. "vital"), but that it can be convenient
or useful - looking at Article I §10(2) and it says "absolutely necessary,"
which indicates that "necessary" is not an absolute, and must be added to
- Johnson's dictionary of the English Language of the time defined
"necessary" as "needful and indispensibly necessary" - this would
make "absolutely necessary" redundant
- if Maryland uses a narro word for "necessary" then what does "proper"
mean? is it superfluous
(4) Marshall gets into a confusing contradiction:
- if the Necessary & Proper Clause is added to expand, then why do you need
§ 9 to limit the powers... if you needed to expand it
(5) Implied powers means-end relationship:
"Let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consistent with the letter and spirit of the constitution, are
unconstitutional."
(a) basically, he was saying "If it's not specifically prohibited by the
text of the Constitution, then it is constitutional."
(b) just after this sentence in McCulloch, he then tries to reassure that Congress
does not have plenary powers
- limitations are - can only use power to perform things entrusted to it
- degree of necessity of the power is discussed "in another place," i.e.
in Congress
- Court can only limit Congress by watching for prohibited actions and
pretextual actions
- did this give unlimited implied powers??? some think so. . . . what's the
point of enumeration of powers after McCulloch?
- Jefferson felt this gave Congress too much power, and mooted the
enumeration of powers - so why do we have an enumeration now?
- Marshall wrote pseudonym articles to the newspaper supporting his
decision here - the enumeration sets up the limits to work under, and
the implied powers are the "fill-in-the-blanks" within the enumerated
powers, i.e. if there were no enumeration, what would the limits on the
implied powers? you need a limit for the means-end test to work under
- so if what Congress does cannot be connected to any enumerated
power, then Congress would be acting as a pretext, which is improper
- Court's job is to watch for pretextual behavior and use the means-end
test to evaluate congressional statutes
(c) Marshall says that the flexibility to decide what the Constitution means
has to be left to Congress (at least in so far as rational basis) to decide
what needs to do - the Court simply decides if the act is not prohibited
and if it has some rational basis (not necessarily the best idea, but okay)
- ". . . it is a constitution we are expounding. . ." - leave Congress the
flexibility to do the work - the Constitution can't cover it all itself
(d) Jefferson actually wanted more judicial activism, and to strike down
the Bank - but Marshall defered to Congress the enumerated and the
implied powers
(6) Concept of Maryland's taxing of the U.S. Bank:
(a) can Congress create a bank? yes - it's necessary, we all agree it's handy,
it's not forbidden by the Constitution
(b) what does Maryland's taxing the bank cause? destruction of the bank - i.e.
diminishes the bank
(c) if one part of government creates something, and another part destroys it,
the highest part on the constitutional ladder wins - in this case, the Fed
i.e. the supreme authority, the Constitution, has to resolve the problem
(therefore the Federal government wins. . . )
(7) Sovereignty argument: if you have sovereignty, you have it only over your own
subjects - therefore, taxing, flowing from sovereignty as it does, can only have
force on the constituents/subjects of the sovereing - the U.S. is not a constituent
of Maryland
- "They [the people of America] did not dsign to make their government
dependent on the states."
(8) Supremacy Clause: Article VI ¶ 2 - . . . This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges of every State shall be
bound thereby, any Thing in the Constitution of Laws of any State to the
Contrary notwithstanding."
- but since here Congress has not enacted a preemptive law contrary to
Maryland's tax, so Marshall had to make an implied immunity from the
Supremacy Clause (using such bytes as "power to create, power to destroy")

N.B.: Good test question: Can California, for good reasons (energy crisis), pass an
energy conservation law which restricts federal building usage? This was a
question on the California Bar last year - it's a good test question. So does this
violate the McCulloch default rule that Marshall argued for implied immunity
of the Supremacy Clause? - Look at Amendment X, also. . . How does this make
sense with Marshall's argument?

(9) After McCulloch, some states tried to get bank taxes anyway with their