Structure of Government 1.

14
Sunday, January 20, 2019
1:23 PM
I. Overview
a. Structure of government ex. What are president’s powers with respect to congress?
i. What does it mean to interpret the constitution?
1. Framers intent?
a. Who are the framers?
b. Amendments?
c. Was their intent for you to follow their intent?
2. Changing societal conditions - living constitution
II. Youngstown Sheet and Tube Co. v. Sawyer
a. 3 types of presidential power according to Justice Jackson
i. With congressional authority - best category but not a home run b.c congress
may have passed a statute authorizing presidential behaviour that is unconstitutional
ii. Congress is silent
iii. Congress explicitly denies - even when congress explicitly denies a president a
power it could be unconstitutional to deny it
b. Congressional authority to declare a national emergency?
i. 50 U.S.C. s1621(a) - president can declare national emergency
1. Does not define what a national emergency is
2. Has to be specifically declared
3. What can congress do if they don't agree?
a. Joint resolution saying the national emergency is terminated
i. President can override this with 1/3 + 1 majority
b. Chadha case
c. War powers resolution - statute
2. What can the courts do?
a. Deference to the president
i. Pro - allows the president to act in times of emergency
ii. Con - checks and balances are not being exercised
iii. Con - individual rights may be jeopardized
b. Hear the evidence to see if its justified
I.A continued 1.15
Sunday, January 20, 2019
2:59 PM
i. Statutes trigger once there is a declaration of a national emergency
a. What are the elements that trigger s2808 to apply?
i. Declare a national emergency that
ii. requires use of armed forces
1. Does the wall require a military? Probably not a necessity
ii. Has to be about military construction projects
iii. Projects not otherwise authorized by law that are necessary to suppose the use
of armed forces
1. If the national emergency stops then where does funding come from?
Of all funds have been appropriated?
a. There would be no funds
 ii. Why would congress add the sentence that funds can only come from military
constrution funds? Congress can't just telll the president the sky is the limit
1. Exercise of appropartion power or delegating?
b. Article 1 section 9 clause 7 - no money shall be drawn from the treasury but in
consequence of appropriations made by law
c. As it applies to Youngstown
i. According to Jackson this was a category 3
ii. Truman was trying to deter a strike and so he seized the mill against the will of
congress via statute
1. Jackson said this went against the will of congress b/c congress rejected
amdnement that would auhtorize government seizures in taft hartley axct
a. Will of vongess can be expressed with more than the absencen
fo a legislatuve provision
ii. Dissent
1. "take care" provision allows the president to take measures during
times when our freedom would be at issue
b. 18 U.S.C. s1385
i. Why is this statute not a problem? If president can find a statute like 2808 then
this doesn't pose a problem
ii. I.B. Constitutions
a. Article 1 section 9 # 2
i. Closest thing to talking about a national emergency in the constitution
1. Can't go to court and contest your detention during times of emergency
- writ of habeas corpus
ii. South Africa - parliament has power to declare state of emergency but there will
be judicial review of it
1. Would we have been better off with a provision like this in our
constitution?

Constitutions cont'd. 1.17

Sunday, January 20, 2019
4:28 PM
I. Why have a constitution
a. Why have a written constitution at all?
i. Is it binding? What if people today don’t share the value of the framers
ii. It's important to have the power to revise or else it can become oppressive
1. Might be possible to express fundamental values without making them
binding
a. You could make certain provisions unamendable ex. Equal
suffrage or no direct tax (section 9, 1-4 which dealt with slavery)
II. What should be in the constitution?
a. Parliamentary system v. presidential
b. Judiciary
c. In South Africa the national constitution lays out what powers of provinces are
i. They can have their own constitution
b. Rights? Added later on in U.S. and Canada after constitution was drafted
c. Article 1 section 9 is a limit on federal powers
d. Article 1 section 10 is limit on state powers