Constitutional Law Summary- Outline M. Long 1. The Constitution A. Constitution is a living document but it is difficult to change B.

Establishes the values of the government and disallows overriding those principles C. Prevent tyranny of the majority by protecting the rights of the majority - give states an even field of play D. Vertical separation of powers 1. federal /state/local E. Horizontal separation of powers No Branch is authoritative interpreter of the Constitution and conflicts would be resolved through political power and compromise 1. Executive- can disregard a law or judicial ruling if it believes the law is unconstitutional 2. Legislative- can pass law if not constitutional /b courts prefer they would use Cnst. as a guideline 3. Judicial- judiciary has judicial review (Marbury v. Madison) and is the final authoritarian a. hwvr/can state certain areas are political question and neglect deciding i. results in a balance of power ii. constitutional interpretation is not affected by majority politics F. Sets limits of the government 1. expressed- specifically limits 2. implied- through pragmatics establishes limits or area of breadth 3. inherent- spirit of the law Methods of Interpretation: 1. appeals to text 2. theory and structure of the government 3. prudential argument 4. appeals to history 5. precedent 6. national ethos 2. Zivotofsky v.Clinton A. Concurring opinion Agree with outcome but not reasoning, or agree with reasoning but want to write more to drive direction of the next case, persuasive value but not precedential value B. Congress passes statute about how US should treat the city of Jerusalem o SOS Clinton refuses to comply with statue that if a person requests State Dept. has to add the word Israel (or replace Jerusalem with Israel) because it fulfills the policy of the U.S and she believes it is unconstitutional. - If the SOS decides that a statute is unconstitutional then what? o Jury nullification there are different mechanisms for resistance to unjust or unconstitutional laws; ability for people as a jury to negate with the legislature has done o Could have complied with the statute, but go into court and argue that its unconstitutional (ex: Obama Administration on DOMA) or if you want the case to be tested, dont comply so as to force the case into court o Majority opinion says we wont decide on merits because its a political question Passport is official government document, placing a country on an area, is official government recognition The Cnst. says government recognition is a power of the president (exclusively) Case law doesnt answer whether Congress can regulate that authority o Relevant Article to Case: Article 2- Presidents responsibilities The President s oath must uphold the Constitution: (Art2) I do solemnly swear. . . to preserve, protect and defend the Constitution of the United States. The Take Care clause (Art 2) The President must "take care that the laws be faithfully executed.

How should the President decide two questions in relation to the above powers/responsibilities? Precedent: o President Jefferson set a upon entering office of the Presidents opinion dominating- he pardoned everyone who had been imprisoned due to the Sedition Act and stated he would no longer implement this statute because he concluded that it is unconstitutional. o When President Bush (43) stated that he thought the statute 214d was unconstitutional when he signed it However, President Bush signed the bill in the first place, because it was an omnibus bill. . Jefferson was in a different situation than Bush because Adams signed the Sedition Act not Jefferson, and Bush signed 214d/ Obama is in the same situation as Jefferson in thinking that Bush signed 214d o Three options: Once President signs it, he and his successors must support it and enforce it. Chance for veto is over. Only the President who signs the bill has to enforce it Both Presidents would have to disagree with the bill for the bill to be void o (HQ) Can SOS fight President on an issue? Does she have an oath? She has an oath under Art. 6- Shall be by oath or affirmation to support the Constitution Can she act on her own Constitutional obligation if the President disagrees? o She can act against President but then the President can remove her. o The Secretary of State is not an inferior office but a principal officer so she has to be confirmed by the Senate and the President has to appoint her. o Congress has the power to create offices and what shall be the function of that office and who shall fill it, if Congress assigns a role to an officer then that officer and only that officer has the power, the President cannot step in. However the Executive has the power of removal. o What powers does the executive inherently have? Investing Clause- first phrase in Article 2 Congress can generally say that this officer will conduct this duty, however the President has overruling power in most cases by threatening the removal power or issuing a directive. But if she refuses he cant do it himself, he has to remove her. Congress can spread power around to give check on Exec, but it is not extensive, but we are asking whether it can? o (HQ) What if the President hadnt said anything, could the SOS act on her own? She could but would risk removal o Article 6 Supremacy Clause Z Case Issues o Is 214d constitutional? Substantive question, merits question.

Majority opinion says it is non justiciable, they say it is a political question and invoke the Political Question Doctrine. These are questions that are left to be fought out by political branches Edwards disagrees, thinks court is obliged to reach the merits and that he statute is unconstitutional Political Question Doctrine The case that is most frequently cited is Baker v Carr In this case the court decided there were political questions that the court cant decide and that there are six factors to look at. They are listed on page 7 of the print out. o Factor 1: Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department? Griffith imparts here. Says the question is clearly assigned to the President because they are debating what nation, if any, the US will recognize as being sovereign over Jersusalem Edwards says this is not the issue, but rather the issue is regarding whether Congress has the right to regulate the Presidents decision. And this Judge Edwards says is not for Congress or President to decide, but rather for Courts. o Factor 2: Or a lack of judicially discoverable and manageable standards for resolving it? o Example of the Political Question Doctrine: Nixon ( A judge impeached by the House) House is given the power to impeach and the Senate to try those impeached according to the Constitution. Senate says rather than try these judges as a whole, to save time they would create a committee then the committee will then report to the entire Senate. This committee ruled that Nixon should was guilty. Nixon said he deserved all 100 senators to try him , not just the committee. The Supreme Court said ruled that the court could not second guess the Senate because the Constitution clearly gave it this power. And since the Senate had the power to try those impeached, they also had the power to decide how they would like to try them. o Could lead to potentially overly broad power. How do we decide who wins this? There is not a lot of text for the President to rely on. Say we decide that the President does indeed have the exclusive power? Then the court still needs to decide if the passport issue is a part of that authority/power. How is the birth place listed on someones passport related to the Presidents power and not Congress? President o The Taiwan example does not really pertain here as that case did not go against Policy of the US regarding the issue. o International pressures may play somewhat of a role.

Can you past behavior to help decide the issue? Should past behavior cut against Congress? Does it matter that the practice had been consistently left to the executive for 200 hundred years? And that this is a break from that practice? Can inaction be a form of precedent? This also applies to the Healthcare debate. Congress says that it is breaking from executive now because the needs of America have changed. Is this relevant or not? Can it influence the decision or not? Congress o Art 1 Sec 8 includes most of the express powers given to the US Congress by the constitution and it states that Congress shall have the power to regulate Commerce with foreign nations o Art 2 Sect 9 - Congress has sole power of appropriating funds from the treasury. The Spending Clause also states that Congress has control over the army and for many years the US did not have a standing army. This is not so with Navy because ships take a long time to build and therefore some are always kept ready All three panel judges agreed with President but were split as to the cause- Griffith is the majority opinion

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The Bank Controversy a. James Madisoni. The power to create a bank is not expressly stated in the Constitution ii. A federal bank is convenient but not necessary or proper (ref to clause) iii. It may be able to pass on roots of precedent but the silence on the issue at the Cnst. Conv. rules here. b. Atty. Gen. @ the time i. Cautions against giving this power to congress due pursuant to Article 8 because it releases to much power to Congress ii. Cautions both sides about using Necessary and Proper clause with any force for the same reason above. c. Jefferson i. Cites Philadelphia Convention rejecting the ability of Congress to incorporate canals as the prevailing spirit of incorporating banks. (didnt then/shouldnt now) ii. The power to incorporate a bank is not enumerated in the Cnst. so the power belongs to the states d. Hamilton i. Necessary and Proper ii. Necessary: no more than needful, requisite, incidental, useful, or conducive to iii. Establishes the relation of the measure to the end iv. Establishes inherent powers e. Authority: i. McCulloch v. Maryland: 1. Seminal case in defining Federal Power relative to State power. 2. Specific issue in the case was whether the State of Maryland could collect a tax from Bank of US. 3. Chief Justice Marshall used the case as an occasion to broadly construe Congresss powers and narrowly limit the authority of state governments to impede the federal government. 4. Major Resolutions in McCulloch: a. The ends justify the means b. When state and federal law conflict the federal law reigns supreme c. Definition of necessary as essential, convenient, and useful

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d. Cant tax the federal government e. Affirms the constitutionality of the Bank of the U.S Inherent vs. Implied Powers i. Article I section 8 and Article IV 1. Is there an inherent or implied power of incorporating a bank in the Constitution? 2. Treaty power is inherent because that comes from the meaning of being a nation ii. Expressed Power: Ones that are listed (its not listed in the Constitution) iii. Inherent Power: You would not be interpreting the document ot get the power, but it is in the very being of a nation. Implied from the idea of a nation. 1. Case Chae Chan Ping v. U.S.: involved the prohibition of Chinese nationals form entering the US. Relied on inherent power attached to sovereignty rather than pointing to any textual assignment of power to Congress. a. "The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the US as a part of those sovereign powers delegated by the constitution, the right to exercise at any time, in the judgment of the government. iv. Implied: You read the text of the constitution and from that you would ascertain the powers 1. Ex: Immigration power is implied because the government is allowed to naturalize. (necessary McCulloch canonical example of the Courts willingness to discern implied powers of Congress beyond those specified in the text.

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Judicial Power and Interpretive Authority a. Introduction Art III i. creates a federal judiciary system ii. vests the judicial power in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish 1. compromise between Madison and James Wilson (lower courts are an unnecessary expense and a likely intrusion on the sovereignty of states) iii. ensures independence of the federal judiciary by according all federal judges life tenure iv. defines in terms of nine categories of cases and controversies (2 categories) 1. authority to vindicate and enforce the powers of the federal government a. ex. authority to hear all cases in which the US is a party 2. serve as an interstate umpiring function, resolving disputes between states and their citizens v. allocation of judicial power between Supreme Court and the lower federal courts. vi. prescribes that the trial of all crimes except impeachment shall be by jury vii. treason shall consist only in levying war against the United States or giving aid or comfort to the enemy, and you must have 2 witnesses b. The Authority for Judicial Review i. Marbury v. Madison (1803) 1. Facts: Organic Act of D.C. allowed President to appoint 42 justices. Secretary of State (John Marshall) signed and James Marshall tried to deliver, but missed a few. When Jefferson took office and Madison was Secretary of State, he withheld commissions. Marbury sued to compel commissions. 2. Held: Supreme Court could not hear case as a matter of original jurisdiction, and it ruled the Judiciary Act unconstitutional 3. Did the Court act impermissibly when it considered matters other than jurisdiction? a. Means of chastising Jefferson? i. Politically, ruling against Jefferson was futile

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Marshalls conflict of interest he should not have participated in the decision c. Unique opportunity to expand the judiciary since it was unlikely to draw opposition Summary of the Arguments a. Issue #1: Does Marbury have right to a commission? i. Yes. Appointment is made when seal is affixed by the Secretary of State ii. Delivery is merely a custom, and not essential b. Issue #2: Do the laws afford Marbury a Remedy? i. Yes. The essence of civil liberty is a right to claim protection of the laws when you receive an injury ii. US is a government of laws and not of men the president is not above the law iii. Only relief when duty to a specific person and not a political matter c. Issue #3: Can the Supreme Court issue a remedy? i. Judicial review only appropriate when to a specific person ii. Where the president has a duty, the judiciary can provide a remedy d. Jurisdiction: i. authorized mandamus under original jurisdiction under statute ii. Alternative readings are more plausible e. Does Writ of Mandamus violate Article III? i. Article III enumerates original jurisdiction and Congress cannot enlarge ii. By enlarging, makes enumeration mere surplusage of words 1. C/A: what if its just the floor of the Courts jurisdiction? f. Can the Supreme Court declare laws unconstitutional? i. Limits to Constitution are meaningless without judicial enforcement ii. Interpretation is inherent to the judiciary 1. It is emphatically the providence and duty of the judicial department to say what the law is. 2. implied power to declare a law unconstitutional from cases arising under the Constitution iii. judges take an oath to uphold the Constitution g. C/A: if no power to deem unconstitutional, then they wouldnt be breaking their vows i. Art IV makes the Constitution supreme law of the land b.

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Slavery and Inequality a. Dred Scott i. Scott raises a tort of batter and imprisonment against his owner (Amerson) ii. Claimed to have the right to sue in Federal Court under Article III section 2, which can settle disagreements between two person in different states even if the issue is of state law. iii. Controversial Holdings 1. The court does have the jurisdiction over the case because Scott is not a citzen a. Descendents of slaves are not citizens even though they may be free i. Cites history of how enslaved Africans are treated

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b. Original Intent Argument c. Original Expectations 2. Congress does not have the power to prohibit slavery a. Congress cannot take the property of citizens b. Congress does not have substantive due process c. Only in the territories held by the U.S in 1788 under Article 4 section 2 did congress have the power to prohibit slavery. b. Douglas and Lincoln letters i. Agrees that the framers could have never imagine a world w/o slavery ii. The constitution should be read as is however ( All men are created Equal) iii. Original meaning interpretation The Commerce Clause: The power over Interstate Commerce (IC) a. Commerce + among the states + regulate i. Commerce: commercial exchange of goods and services ii. Amoung the states: involves more than one state iii. Regulate: set rules and prohibit b. Courts current sentiment: Commerce power has exceeded authority to regulate noneconomic activity that should be left to states (esp. when close to a police power) c. Three regulateable categories: i. Regulate the use of channels of I.C 1. Restrict goods to be shipped interstate 2. Regulate terms and conditions of sale ii. Regulate instrumentalities of I.C 1. Protect from threats (from local or interstate activities) 2. Impose safety standards 3. Railroads, planes, ships iii. Via Necessary and Proper: regulate all I.C having a substantial effect 1. Allows potential to regulate purely intrastate commerce 2. Congresss attempt to regulate things that are not really I.C and arent instrumentalities either. d. History and Purpose: i. Purpose was to establish a fair market between states, and to promote through legislation via Congress e. Article 1 section 8 i. Congress has the power to regulate commerce between the states. 1. What may congress regulate? a. Commerce Any activity may be regulated even if it is not commerce in the traditional sense (the movement of persons or goods) as long as that activity i. Takes place with in interstate commerce ii. Uses the channels or instrumentalities of interstate commerce iii. Substantially affects interstate commerce 2. Interstate v. Intrastate: Congress may clearly regulate any activity that take place wholly intrastate due to effects on or relationship to interstate commerce. i. Gibbons V. Ogden b. Any interstate activity which has a substantial effect on interstate commerce i. U.S v. Lopez 1. Substantial effect: currently, an intrastate activity will have a substantial effect on commerce only if the matter regulated is economic or commercial c. Individual activities that have an aggregate effect on interstate commerce

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All parts of an enterprise, even if only a part of the enterprise effect interstate commerce, where the nonregulated part may adversely impact the part affecting commerce i. Heart of Atlanta Motel 3. Scope of Power: Congresss control over interstate commerce is plenary. Congress can prohibit or condition the movement of persons or goods regardless of its motive, so long as it does not violate any other constitutional provision a. May do so to protect the national economy b. As a means to achieve health, safety, or welfare aims. i. To a degree, Congress can regulate what happens after interstate commerce has taken place. 1. U.S v. Sullivan ii. Once Congress ginds that a class or aggregate of activities affects commerce that activity may be regulated regardless of whether any particular instance of that activity affect commerce 1. Perez v. U.S a. commerce clause couple with the necessary and proper clause 1. Necessary and proper clause is combined with the commerce clause to extend it to areas that arent expressly stated in the commerce clause 2. Types of regulation a. Manufacturing vs. salses/transfers/transportation b. Commerce v. navigation c. Direct v. indirect d. Fluid v. statis (in the flow of comm. V good in place) e. Regulation v. prohibition f. Economic v. non economic (subjective and objective endsa0 Lochner v New York 1. Issues that are typically intrastate, non commercial, non economic, are dealt with inside the state by police powers but Lochner goes against this tradition. a. Rule that a baker could only work 60 hours a week i. Violates due process of life, liberty, and property ii. Freedom to contract that police power does not have authority over Lassaiz Faire 1. Champion v. Ames a. Congress has the right power to prohibit the commerce of certain items when its affects health and safety 2. Hammer v. Dagenhart a. Congresss power to regulate interstate commerce does not include the power to forbid certain commerce from moving interstate ( products made by illegal child labor) New Deal: radically alter federal regulation to protect workers, free up trade, is anti-trust, and restricts big business 1. U.S v. Darby: overturns Hammer v. Daggenhart a. Congress has power to regulate interstate commerce, production of goods to places in another state from state to if it protects the national welfare Wickard v. Filburn 1. Even if the effect is minimal in comparison to other things and individual action is still effecting commerce 1935-1995 1. Commerce clause is limited but it is not limited by the courts 2. If a court states that a statue is facially unconstitutional it cannot be applied

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viii. Wexler: Federalism is a constitutional value 1. The court is not a place to police the line of power between federal government and the states ix. BiG Change 1. U.S. V. Lopez a. 1st time a court says a federal statue is unconstitutional since 1937 i. Congress doesnt have the authority to regulate state gun control ii. Needs to be a theory that lead s to some limitation 2. Morrison is a similar issue Taxing and Spending Powers a. Article 1Sec 8 cl 1 i. lay taxes, duties, impost and excises, to pay the debts and provide for the common defense and general welfare of the U.S 1. Any exercise must be in the form of a tax or expenditure 2. Wide latitude a. Whenever beneficial to the common defense or welfare of the nation ii. Limits: 1. Taxes must be uniform 2. Any direct tax must be proportional to the population of the states 3. Taxes and duties cant be put on exports iii. Test 1. Operate as a tax? Or is it penal and prohibitory? 2. Raise some revenue? a. Even if it is minimal, low threshold i. Sonzinsky b. If the tax is in place to prevent, it must work in light of the Commerce Clause 3. Fails the general welfare clause (allowed via Sonzinsky) a. Court is unwilling to inquire the hidden motives of Congress b. Child Labor Tax Case i. Disguised as a regulation ii. Decided before F.D.R appointed new S. Ct justices iii. Is an infrequent statutory pattern iv. Uniformity: must be uniform everywhere the subject of the tax is found (general applicability) v. Ex). oil production 1. No production in Hawaii- still uniform (no subject b/c no oil production) 2. Not on a specific area w/ oil production- depends on the circumstance of the oil production and the intention of the act. vi. Congress can spend money to execute its other powers b. Spending Power and Unconstitutional Conditions Doctrine i. Constitutionality of Condition Test (South Dakota v. Dole) 1. Must promote the general welfare 2. Clear notice of conditions 3. Nexus: related conditions 4. Cant require the state to abridge constitutional rights a. Cant be coercive b. Has to respect state sovereignty i. (Okalahoma v. CSC) 1. Fed. gov. cant make clearly state decisions for the state The power to treaty a. Treaties and Executive Agreements i. Treaties need advice and consent of the senate

ii. Executive agreements do not Treaties i. Cannot create criminal sanctions ii. Is preemptive iii. Meaning domestically 1. Is to be decided by courts a. Cant abridge rights listed in the constitution b. Not subject to international law iv. Self-executing: becomes law of the united states v. Non-self-executing: require further passage of laws to apply domestically vi. Missouri v. Holland 1. Treaty was constitutional as a necessary and proper means of executing the treaty power. 2. Does not violate 10th amendment because it only powers not already delegated to the feds are reserved for the states a. Also 10th amendment is a truism vii. Court has never held a treaty is invalid if it goes beyond the scope of treaty power 1. Limits: a. Treaty still cant violate the Constitution, inferior to it b. Cant violate the bill or rights or force congress to do so 2. If a federal law and treaty conflict, the recently devlpd trumps 10. Federalism: powers of the gov. are limited by the idea that government is shared between the nation and the state. a. National government: limited government b. States: use powers not grated to the nation or that have been denied c. U.S v. Lopez: i. Resurgence of limited government d. In what ways does federalism trump legitimate exercise of national power? i. U.S v. Darby: congressional exercise of a granted power allows states only the accede to mandate ii. Changes with the passage of National Leagues of Cities v. Usery 1. Cant invade the states realm of sovereignty 2. National League of Cities overturned by Garcia v. San Antonio iii. Garcia v. San Antonio MTA (another FLSA case) 1. Issues of sovereignty to be decided by Congress 2. Judicial review of sovereignty is limited iv. New York V. U.S (nuclear waste case) 1. Congress can invade state sovereignty a. Test: Congress can... i. Preempt states by direct regulation ii. Entice w/ monetary incentives b. But Congress cannot i. Force a state to administer a federal regulatory scheme 1. ie) cant make state gov the administrative arm of the federal gov. (Printz v. U.S) 2. The anti-commandeering doctrine, recently announced by the Supreme Court in New York v. United States and Printz v. United States, prohibits the federal government from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials e. Note from Professor: It's a somewhat complex topic, but for our purposes, here's the important distinction: If the federal statutory mandate is generally applicable -- if it applies to, e.g., all employers, and only incidentally covers the state as employer -- it is subject to the b.

National League of Cities/Garcia/Gregory line of doctrine. In these cases, almost invariably, Congress's statutory mandate is imposed not because the state is a government, but instead because the state is in the "market," as an employer like analogous private employers, and treated as such. By contrast, if the federal statute singles out the state, and imposes an obligation on its legislature or executive officers in their governmental capacity -which Congress typically does because it is a government with state power to impose on its residents -- then you have to ask whether the anticommandeering rule of NY/Printz applies. 11. Limits on State Regulation a. a. express b. b. structural c. c. implied 12. Separation of Powers: one branch usurps the powers of another a. Does not matter if consent was allowed by the other branch (N.Y v. U.S)\ b. Other important cases i. INS v. Chada and Myers v. U.S ii. See separation of powers chart c. Legislative Veto: any legislative action by Congress must met the requirements of bicameralism and presentment) i. Bicameralism: legislative act is approved by both houses ii. Presentment: measures approved by both houses must be presented to the President for approval. 1. If Prez vetos then 2/3 majority vote iii. INS v. Chada: defined legislative action 1. Has purpose and effect of altering legal rights, duties, and relations to others. 2. Non examples (no effect outside of the Congress) a. Recessing b. Taking a bill out of order c. Appointing a special committee 3. Powell: States Chada was not a presentment /bicameralism issue but a separation/aggrandizement issue a. Congress assumed a judiciary role that it does not have 4. White: If congress has granted the authority to another branc, it may check that power/ or ensure its execution because the power to disperse its powers to other government branches is constitutional d. Morrison v. Olson: for cause vs. at will i. PAS (President Appointment with Senate confirmation) 1. Problem? Test: 2. If congress provides PAS the appointment clause is not an issue 3. If congress give authority to a person at all who is not an officer, it might raise the question of deligation a. Not an officer of the U.S no appointment clause problem e. Appointments Clause i. Every non elected official is deemed 1. Principal officer of the U.S 2. An inferior officer of the U.S 3. A mere employee ii. Article II, sec 2 cl 2 1. Principal officers must be appointed by the president with consent of the Senate a. Give congress 4 ways to appoint inferior officers b. Of vest power in i. Whoever ii. President iii. Courts of Law iv. Heads of departments

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c. Congress can appoint non officers w/o restriction Officer: any appointee with significant authority pursuant to laws of U.S Employee: subordinate to officers of the U.S (Buckley v. Valeo) Federal Judges must be PAS a. The house should not confirm PAS at all b. Congress can not appoint members to Congress i. This called aggrandizing ii. Can only appoint for purely legislative purposes iii. Difference between principal, inferior, and employee (Morrison v. Olson) 1. Subject to removal by higher executive official 2. No policy making powers- preforms certain limited duties 3. Limited in jurisdiction ( cant pass any policy) 4. Limited in tenure iv. Edmond v. U.S; gives inferior officer definition 1. Inferior officers are supervised by others who were appointed by president and confirmed by Senate 2. Upholds Morrrison 3. Removal power was not limited a. Congress can vest appointment of inferior officers in the President alone, in the courts, or in the heads of the departments 4. Congress can subject appointees to qualifications a. As long as it does not limit the scope of the position v. Article II, Sec 2, cl 3 1. Recess Appointment: President can appoint an official w/o senate approval a. May last up to 2 years Removal: Constitution does not mention removal i. The statutory presumption is the entity that has the power of appointment also has the power of removal ii. Placing limitations on Presidents removal powers could be a violation of separation of powers 1. Destroys concept of unitary executive power a. There is no 4th branch b. President has the ultimate control over the Executive branch and implementation of Federal laws iii. Myers v. U.S: Congress insertion of itself in the removal of a postmaster unconstitutionally violates Presidential power to execute (all of the executive power) iv. Morrison v. Olson: Any congression interference with a Presidents ability to dismiss such officials would impermissibly encroach upon the integrity and independence of the executive branch. 1. Some executive officials work so closely w/ the President, she must be able to remove them at will 2. For cause removal : limitation on executive removal a. Was allowed in Morrison v Olson because the removal did not interfere with the President exercise of executive power b. Not the default rule/ at will is default c. For cause is i. Mental and physical incapacity ii. Legal issue/broken the law v. Removal by Impeachment: 1. Another way Congress limit presidential removal authority vi. Printz v U.S and Vermont Agency 1. Cast doubt on congressional attempts to assign the duty of enforcing federal laws to persons outside the federal executive branch. 2. Raise doubt of Congresss independent agencies Executive Immunity form suit i. No immunity from criminal actions 2. 3. 4.

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Article I, sec 3, cl 7: An impeached officer is still subject to criminal prosecution 2. If an official is convicted while in office the sentence will likely be stayed until the end of a term or resignation. a. Why: perceived as a judicial usurpation of removal powers b. But: can be prosecuted w/o encroaching upon Congress authority/power to impeach Executive qualified immunity form damages in a civil suit i. Test: 1. Must be stated early in the proceeding by the person wish to take defense behind it. 2. When the breacher had objectively reasonable grounds to believe conduct was lawful a. Objective not subjective i. State of mind is now irrelevant 3. It is qualified immunity if: a. Involve constitutional or statutory right? b. Clearly established? Absolute Civil Damages Immunity for the President i. Does not extend to suite arising from conduct before Presidency ii. Does not protect form suites until after leaving W.H 1. Clinton v. Jones (1997) (sexual harassment suit) a. Primary doctrine of immunity to avoid rendering the President incapable of completing his duties did not come into play) b. Reasonsing: would not impede Pres from duties and thus not an issue of separation of powers c. Separation of power doctrine is not at issue because president is not shielded from judicial review. Congressional Exercise over Executive Power i. Congress can not give to itself, others, or its agencies executive powers 1. James Madison cautions against this in his Federalist Papers ii. Myers v. U.S: unconstitutional for Congress to participate in the removal of executive officials iii. Browsher v. Synar: cant vest an executive with duties and make them only answerable to Congress iv. INS v Chada: House cant preform adjudicative functions (Powells Dissent) Analyzing Separation of Powers Problems i. Test 1. Express: Specific clause is broken that specifically vest power in another party? 2. Inherent: Aggrandized authority by usurping power? 3. Implied: Encroached upon the functions of a coordinate branch that undermines the integrity of independence of that branch? ii. The Domestic Area 1. All legislative powers shall be vested in Congress a. Presisdents limited role in law making i. Recommending new legislation ii. Vetoing measures that have been approved by Congress 2. Youngstown Sheet and Tube v. Sawyer a. President can not usurp the lawmaking power of Congress under the authority of War Powers (Article II, sec 2, cl. 1) b. Justice Black: i. Executive can not step in to take property because that is in fact legislative 1. It is legislative because it in fact suggest the government will pay for the property

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a. Congress has the power of the purse Justice Jackson: Power of the President (concurrence) i. Presidents power is at its max when act pursuant to express or implied congressional authority ii. In the absence of congressional grant of power, Pres. can act only in regard/limits of the Const 1. Cong. And Pres. Have both powers iii. To act against the constitutional only where it can be shown Congress has exceeded Const. authority 1. President under more scrutiny 2. This third category is called the lowest ebb. d. Frankfuter: i. Where congress has consistently vest the right in another authority, that right when invoked is likely to be upheld ii. PreclusiveL cases in which there is a sharing of power 1. Results in an improbable. Hamdi v. Rumsfeld a. Hamdi: does not have independent authority to detain him because this is a category 2 issue (referece to above), due to his membership with the Taliban, because he is an American citizen b. OConnor: i. Between 1971-2001 Hamdi being held was illegal ii. But the AUMF was passed in Sept of 2001 1. The President may do whatever to pursue those involved in the 9/11 attacks 2. Category 1 (pres. is given authority by cong.) c.

13. War Powers a. Can the President unilaterally take the country to war? i. If another country declares war on the nation, Pres. Does not have to wait for the legislative to declare war 1. Test: a. Is it a sudden attack? i. Ex) war has been declared upon the U.S b. Is there time to ask Congress? i. Ex) Lincolns suspension of Habeus Corpus 1. Congress was far away/dangerous to travel ii. Framers were hesitant to vest the power to declare war in the President because it desired to remain a neutral nation at the time iii. Between 1850-1950 President took too much authority in engaging the military in combat 1. Teddy Roosevelt (asserting military might across the world/showmanship) iv. Article 1, sec 8: Congress has the authority to declare war 1. Congress can take the U.S to war by statue w/o a formal declaration of war v. Since Korea, the major costly foreign engagements have been statutorially apporoved 1. Clinton and Obama believed in 3rd manner to engage in low level wars a. Two conditions i. Significant national interests (historical precedent) 1. Abiding by U.N resolution 2. Protecting stability in N. Africa ii. It cant be full fledge war vi. War Powers resolution 1. Sec 2c: statement on the unilateral authority a. Only to repel sudden attacks 2. Sec 5 b and c a. 60 days to engage

i. Beyond that must have congressional approval 3. Because of the risk persons could take in engaging in war against the equity of other nations b. Blood and treasure are precious in America c. U.S does not want to undermine its international relations vii. Delinger and Krass 1. Whether its war depend on certain circumstances a. Expected duration b. Scope c. Ground troops (proves significant risk) i. Can engagement be done in the air or remotely d. Act of diplomacy (requested by the country seeking to invade) e. Taking a territory viii. Does the president have emergency power to declare war? 1. Yes. a. But only if the emergency arises to an existential threat to the nation. ix. Category 3 Lowest Ebb 1. Justice Jackson, Congress wins a. President is likely to lose i. Bush: Congress cant tell him how to run a war once its been approved ii. Very little case law on who wins during Lowest Ebb 1. Typically rule in Congress Power 2. Little vs. Bureem 3. Hamdi: Souter: if statue limits what the Executive does it does violate the Contsitution) 4. Rumsfeld: Congress can not direct the conduct of campaigns 5. Raul v. Bush 2. Congress ability to regulate executive execution of war powers a. Undecided, but has been allowed 14. Miscellaneous Issues: a. The Supremacy Doctrine: State law must conform to the Const and yield to Constitutionally valid federal law when they clash i. Article VI, cl 2 ii. McCulloch v. Maryland 1. facts a. 2nd B.U. S enacted in 1816 by Congress b. In 1818, Maryland enacts a law issuing a fee for the use of bank note by banks not chartered by the State of Maryland. c. McCulloch uses Bank note paper but does not pay fee d. Maryland sues and wins (of course) in its own courts 2. Rules: a. The ends justify the means (necessary and proper clause) b. When state and federal law conflict federal law reigns supreme c. Definition of necessary as essential, convenient, useful d. Cant tax the federal government iii. Gibbons v. Ogden: iv. Conflict between federal state law 1. Federal law preempts v. State attempts to tax/regulate Federal government 1. Federal gov. immune from state law imposing this vi. A conflict w/ an unconstitutional feder alw 1. No conflict (U.S v. Lopez) Why? a.

b.

Political Question i. Baker v. Carr (6 point test) 1. a textual commitment of an issue to another branch 2. lack of judicial standards 3. impossibility of deciding an issue without policy judgments inappropriate for the judiciary 4. inability to decide an issue without showing disrespect for a coordinate branch 5. an unusual need to defer to a prior political decision 6. a need for the nation to speak in one voice.