Con Law Outline
Katrice Bridge Copeland
Spring 2015
Things to remember:
Ø Police Power: the state constitutions grant powers to the state legislatures. Primary among these is the power to regulate activities that affect the “public health, safety, morals, or general welfare.” Collectively, this regulatory power is known as the police power. Only coincidentally does it have anything to do with the power of the police
o this power is plenary (an inherent function of a legislature) and reserved (retained by the L if not delegated to municipal gov)
Ø Objective Inquiry for Fundamental Right
o Implicitly in the concept of ordered liberty
o Deeply rooted in nation’s history and tradition
Ø Criteria for strict scrutiny
o Immutable characteristics à no control over it
o History of discrimination that demonstrates classifications are likely based on prejudice
o Politically powerless, discrete and insular minorities
The Judicial Power
1. Constitution (C) – Article III
a. C instrument authorizes G act.
i. When question involves action by G, action valid only if authorized by C.
b. C authorizes Ct system: Article III: Cts have judicial powers: “cases and controversies:”
i. Arising under the Const., laws, or treaties of the US
ii. Of admiralty and maritime juris.
iii. In which the US is a party
iv. Between two or more states
v. Between a state and citizens of anther state
vi. Between citizens of different states
vii. Between citizens of the same state claiming lands under grant of dif. states
viii. Between a state or citizens thereof and foreign states, citizens, or subjects
ix. Ambassadors, Public Ministers, and Consuls
2. Judicial Review – Marbury v. Madison
a. C silent on issue
b. C is law & duty of judiciary to declare what law is.
i. C is regulatory
ii. Congress cannot increase J of fed Ct à limited by Article III §2
iii. Ct may review executive conduct for C
iv. Ct may review legislative actions for C
c. Separation of powers (see below for more): prohibits legis. interfering w/ct’s final judgment
d. Executory acts:
i. Political acts à NO
1. Issues committed by C to another branch of G or
2. Inherently incapable of resolution/enforcement by judicial process.
3. E.g.
a. Questions regarding conduct of foreign relations
b. Issues as to when hostilities have stopped
c. Questions relating to which group of delegates should be seated at DNC
d. Procedures used by the Senate to “try” impeachments
ii. Ministerial acts à YES
1. P papers generally considered privileged/protected against disclosure
2. Where these docs necessary to continuation of criminal proceedings:
a. Justiciable and not political (United States v. Nixon)
e. Federal Review of State Acts
i. Executive, legislative, and judicial
ii. Supremacy Clause of Article VI rationale
3. Limits on the Federal Judicial Power
a. Three Types:
i. Interpretive Limits: How C interpreted à little agreement on how to interpret
1. Theories:
a. Originalism: protect C rights only if clear or intended by framers
i. Benefits – accurate, predictable, stable
ii. Problems – doesn’t allow for moral/social change
b. Nonoriginalists: C should evolve by interpretation
i. Benefits – allows for change
ii. Problems – to easily changeable
ii. Congressional Limits: Ability of Congress to restrict fed court jurisdiction
iii. Justiciability Limits: judicially created doctrines that limit types of matters Ct can decide.
Separation of Powers
1. Reasons
a. Prevent tyranny
b. Efficiency of administration
2. Theories:
a. Formalism: demands adherence by each branch to the roles it is assigned. Strict.
b. Functionalism: commands fidelity to purpose of distribution of powers. Leeway.
i. Violated only if one branch aggrandizes its power at the expense of another branch
Presidential Authority
1. Constitution: Article II
a. Compare I and II, Congress is limited, president is not…
i. The entire “executive power” is vested in the President by Article II §1.
b. Executive power is vested in the president
c. Take Care Clause: P to make sure that the laws are followed
d. Hamilton View – there is an inherent exec authority
i. Article I – all leg powers herein granted
ii. Article II – exec power shall be vested
e. Madison View – no inherent exec power
i. Inconsistent with written C, there are no enumerated powers in Article II
2. P Authority models:
a. Youngstown Sheet & Tube v. Sawyer (P take over steel mills)
i. Model 1: P may act only if C/statutory authority. No inherent authority.
1. Pure Formalism.
ii. Model 2: P may act until usurps power of another branch.
1. Seizure is a legislative act à usurping legislative power “Twilight Zone”
iii. Model 3: P may exercise inherent power until C limits him
1. Justice Jackson: combination of the models functional approach
iv. Model 4: P has inherent authority and may act unless violates specific C limit.
b. Importance of Youngstown
i. P can’t execute laws of own making: P may not C legislate on own authority, ever!
ii. P can’t be sole judge of scope of C/stat powers.
iii. Ct can/will rule on these questions:
1. Matters of war, foreign affairs, natl security, & natl emergency.
3. Executive Order
a. Order given to admin agencies telling how to enforce the law.
b. No need for congressional approval
c. P can issue order that is contrary to Legis. original interpretation.
4. Take Care Clause
a. P no power refuse spend appropriated funds when C expressly said be spent. Kendall v. United States.
b. Article II §3 cl 4
ii. P must report troop deployment within 48 hours
iii. Requires removal of troops if congress has concurrent resolution
iv. Requires withdrawal w/ 60 days unless Congress
1. Approves of troop deployment
2. gives 30 days extension
3. Unable to meet bc/ of national emergency
f. Hamdi v. Rumsfeld
i. Facts: G detention of American citizen apprehended in foreign country: enemy combatant
ii. P has auth. to detain UC cit captured abroad as enemy combat as long as congress has auth.
iii. Due process demands that cit held in US as enemy combat be given meaningful opportunity to contest factual basis for that detention before neutral decision maker
9. Presidential Line Item Veto
a. Veto power allows P only to approve/reject bill in toto.
b. Rationale: P veto power not authorize him amend/repeal laws passed by congress.
c. Clinton v. City of New York
i. Line Item Veto is unconstitutional
10. Presidential Appointment & Removal power
a. Appointment
i. Art. II §2 Cl 2
1. P empowered w/advice & consent Senate appoint all 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, 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.
2. If Principle Officer, P must appoint w/ advice & consent senate
3. If Inferior Officer, Congress may give appoint power to P, ct of law, or head of depart.
ii. Inferior Officer
1. One who has power limited in scope, lots of oversight, lower rank to someone, limited duration, subject to removal, limited J
2. Alexia Morrison, Independent Counsel v. Theodore
iii. Appointment of Independent Counsel (Special Prosecutor)
1. Spec pros w/limited duties: inferior officer
2. Under Appointment Clause, Congress free vest appoint power to judiciary
a. Morrison v. Olson
iv. No Appointment by Congress
1. Congress may appoint its own officers to carry on internal legislative tasks (i.e. its staff)
2. May not appoint w/admin or enforcement powers
a. They are “officers of the United States”
b. Art II, §2 requires appoint by P w/senatorial confirmation unless C vested auth.
c. Buckley v. Valeo
b. Removal
i. C silent except for ensuring tenure of all Article III judges during good behavior.
ii. Args in favor of removal power:
1. Implicit in the power to appoint
2. Inherent exec auth.
