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Constitutional Law I
South Texas College of Law Houston
Blackman, Joshua Michael

Constitutional Law Outline

Constitution Ratified in (1789)

Bill of Rights Ratified in (1791)

14th Amendment (1868)

New Deal Court (1937)

Constitutional Supremacy-

Federalist 51 (Separation of Powers)

**Ambition must be made to counteract ambition.

How to check ambition-

“The constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.

IE- The checks and balances are the foundation that makes the Bill of Rights valuable.

Purpose of the government-

“You must first enable the government to control the governed and in the next place oblige it to control itself.

Federalist 78 (Judicial department)

How judges are appointed- by the president and with Senate approval

Art. 2 Section 2 “He shall have power by and with the consent of the Senate…nominate… Judges of the Supreme Court.”

For inferior offices created by Congress, President shall also have power.-

Art.2 Section 2 “but Congress may be law vest the appointment of such inferior offices in the President alone.”

They have life terms-

Art. 3 Section 1 “shall hold their office during good behavior.”

Nature of the judiciary-

Least dangerous branch- “Neither force nor will but merely judgement”

IE nothing Constitutionally making people/state/executive follow court ruling

-Yet if states ignore SC ruling then judicial system falls apart

Nothing in the Constitution says Supreme Court interprets the law, only a Supreme Court ruling gives the Supreme Court interpretational powers **Marbury v Madison**

Marbury v. Madison (1803)

Probably the most important decision in Con Law because it established the authority for the judiciary to review the constitutionalist of executive and legislative acts.

Facts- Marbury was appointed as a justice of the peace. However his papers were not delivered and Jefferson refused to do so. Marbury filed for a writ of mandamus under the Judiciary Act of 1789 which granted authority to accept the mandamus.

Hold- Sc ruled against Marbury by declaring the Judiciary Act of 1789 was unconstitutional because it created original jurisdiction beyond that enumerated in the Constitution.

The power of the law- “the government of the US has been termed a government of laws and not of men.” IE There is no person who is above the law.

What can be reviewable under the precedent set by Marbury- “Questions in their nature political or which are by the constitution and aw submitted to the executive can never be made in this court. But where the executive is directed by law to do a certain act affecting the absolute rights of individuals it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be don’t to an injured individual.”

IE- If the matter is political it is given to the executive for discretion. However where there is a legal duty to act or refrain the judiciary can provide remedy.

Marshall on judicial review- “It is emphatically the province and duty of the judicial department to say what the law is.” IE it is for the judiciary to interpret and define the Constitutionality of the law

Reason for striking down the statute. Art. 3 Section 2 the judiciary appellate and original jurisdiction is enumerated. Thus powers not stated under the listed are not granted by the Constitution. Congress can not create jurisdiction only redefine powers within the powers already granted.

– upheld Constitutional Supremacy- Constitution listed first before the laws of the US

– Judges take oath to uphold Constitution thus must strike down non-Con law

Marbury and its reasoning became the basis for judicial finality in the future

Separation of Powers

Youngstown Sheet & Tube Co. v Sawyer (1952)

and Presidential inherent powers

Facts- Steel workers threatened to strike and President issued an Executive order to keep steel mills open. After issuing the order, President notified Congress, and Congress took no action.

– Executive order- comes from inherent power of the executive branch given from Con.

– If Congress supported action then ratified Con Power President assumed

– If lack of Congress support then assumed Unconstitutional act


– Taft Hartley act- Congress had already considered seizure during the labor strike but had rejected the amendment. Congress stated that President should defer to Congress for potential seizures

– B/C Congressional power would come from eminent domain Congressional power from the 5th amendment “private property shall not be taken for public use without just compensation”


First -Black- looked to enforce bright line rules. Essentially to deny President any inherent power- “The president’s power if any to issue the order must stem either from an act of Congress or from the Constitution itself.”

Art 2 § 1- executive power vested in POTUS

§ 2- commander in chief but only triggered by declaration of war

§ 3- must take care that laws faithfully executed

Thus- the executive orders were laws enacted not laws faithfully enforced, and since war was not officially declared, the order was beyond Presidential power

Second- Douglas- importance of checks and balances. That the president can act without expressed power or with inherent power so long not violating the powers of another branch.

“The branch of government that has the power to compensate for the seizure is the only one able to authorize or make lawful one that the President has effected” 5th Amendment power

Here the emergency does not create power but the opportunity for power to be used. The power need not be used, but if the power is used then it must be by the correct branch of government.

Thus because the power used by the President is one that infringed on Congress’s power of eminent domain, the power violated the separation of powers and was unconstitutional

Third- Jackson- powers between branches are not fixed but fluctuate. The power to act depends on whether the branches are in conjunction or disjunction. Breaks down power into three tiers

Tier 1- heightened authority(max) because President working with the express or implied consent of Congress. IE working with the power of Article 1 and Article 2. This tier has the presumption of Constitutionality and burden to prove unconstitutionality placed on the challenging party

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right plus all that congress can delegate.”

Tier 2- “zone of twilight” When it is unclear what Congress’s stance is on the issue. IE there is no express, implied or (maybe) silence by Congress by the act is still not rejected. Based on indifference or acquiescence of Congress

**TEST- “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” IE Constitutionality depends on circumstances or events.

“zone of twilight in which President and Congress may have concurrent authority or in which its distribution is uncertain”

Tier 3- “lowest ebb” “when the President takes measures incompatible with the expressed or implied will of Congress his power is at its lowest ebb”

This is because he only has Article 2 powers or power specifically granted to the President.

**There is a presumption of unconstitutionality and the burden is placed upon the President to prove the constitutionality. Courts should “scrutinize with caution”

McCullough v Maryland (1819)

and scope of Congressional Pow

islation not strike down all bills containing the function

Rehnquist- Congress did not intend the statute without the one House veto. Without the potential check the legislation is very different than intended.

However (gridlock good)- efficiency is not the main purpose of the Separations of Powers in the Constitution. IE gridlock is built into the system

Potentially unchecked branch of government- Administrative Agencies

While in Constitution everything must go through bicameralism and presentment the rise of administrative agencies became exception to this process

Regulatory committees create regulations which have the force of law without bicameralism or presentment

Congress has no check other than overturning an agency’s rule through legislative action. However this is limited because difficult to pass such legislation.

Clinton v City of New York (1998)

and the Line Item Veto

Facts- Clinton was presented with a bill in which he canceled 3 provisions in the bill. This power was garnered from the line item veto act

Art. 2 Section 3 “faithfully execute the law”

Art. 2 Section 7 “he shall sign IT” the it is in reference to the whole bill not only part of the bill

– Thus the two choices given are

– veto the whole bill or

– sign the whole bill

Effectually both Houses and the Executive branch must agree on the bill or it cannot become law

Order under line item veto

– house presents bill to president

– president signs the bill

– president cancels specific provisions

– president notifies congress of the cancellation

– if congress disagrees then use disapproval bill and both Houses pass then the President’s cancelation is null and void

– But President can still sign the disapproval bill

Kennedy concurrence- “ they used the principle of separation of powers and federalism to secure liberty in the fundamental political sense”

IE it is the structural protection of laws that ensure the protection of liberty. The logical chain of events has checks at each step

However- Art 2 Section 3 “faithfully execute laws” – The line item veto act was a law that was to be faithfully executed. The question is whether the act itself was Constitutional

Scalia- The law is not reject, there is only a cancellation or nullification effect. The law continues to exist although not executed.

This is instead a problem of the non-delegation doctrine which the line item veto allowed for.

IE- Congress gave president discretion to determine law thus delegating lawmaking power from Congress to the president

Impoundment ?

Quasi Judicial/legislative acts

– bills of attainder- legislative act targeting one or a few individuals that declares them to be guilty of a crime and specifies the punishment they must suffer IE congress exercising judicial function

– ex post facto laws- retroactive criminal laws although retroactive civil law potentially permitted

– obligation of contract- cannot pass law that impair the obligation of a contract. Only apply to state not federal government? Also this can be ignored in states of emergency