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

Constitutional Law Outline – Blackman – Fall 2015
The Constitution and Its Documents
·         Art.1, Sect. 8: The Congress and Its Powers
·         Congress has the powers that the constitution gives them.
·         Congress votes to impeach, the senate has a trial.
·         Congress can overturn a presidential veto by a 2/3 vote.
·         Congress can declare war, but just as a declaration.
·         Art.1, Sect. 9: Writ of Habeas Corpus – you need to go to a judge to justify your imprisonment.
·         The president can only spend money the way congress says, you have to have a budget. (SOP).
·         No titles of nobility are allowed.
·         Art. 1, Sect. 10: Limitations on the states.
The Judicial Power – Why is the Constitution Supreme?
·         Art.6, Clause 2: The Constitution is the supreme law of the land. The judges in every state shall be bound thereby.
·         Art.4: Supremacy Clause. The federal law is the law of the land.
·         Judges in every state shall be bound. A state judge takes an oath to the constitution.
·         To be unconstitutional a branch exceeds its bounds.
Federalist No. 78:
·         The judiciary is the weakest branch, it relies on the executive.
·         The court cannot operate on itself. They need the executive branch to enforce the law.
·         Defends lifetime tenure, so not to be swayed. They can be honest and virtuous this way.
1803 — Marbury v. Madison
·         Congress cannot expand the original jurisdiction of the Supreme Court.
·         Writ of Mandamus: a higher court ordering a lower government entity to do something.
·         Fed. No. 78 – in defense of Judicial Review.
·         Judicial Review: authority of the courts to review decisions, actions, or omissions committed by another agency or branch of government.
1803 — Stuart v. Laird
·         Congress can eliminate whatever judge it wants.
·         The SCOTUS checks itself. It determines its own power.
·         It is better to have an imperfect Supreme Court that the alternative, chaos.
The Separation of Powers
·         The separation of powers reduces fractions.
·         “Ambition checks ambition” and “If we were all angels we would not need government”:– Madison, Fed. No. 51.
1952 — Youngstown Sheet and Tube v. Sawyer
·         Steel needed for the Korean War. Truman makes and EO to take over the steel mills. This is domestic so it is unconstitutional.
·         President cannot usurp the lawmaking power of congress by an assertion of an unspecified aggregation of his specified powers.
·         Taking the mill would be a legislative act, he cannot do this. This is what the congress is supposed to do.
Three tiers:
1.      Maximum Authority – acting pursuant to express or implied grant of congress. “Strongest presumption of constitutionality”. Exec. And Legis. Together, courts will not poke holes.)
2.      Zone of Twilight – congress is silent and does not say anything. Power depends on “imperative events.”
3.      Lowest Ebb – President takes action incompatible with the express will of congress. Highest level of scrutiny, constitutionality presumption is flipped.
1819 — McCulloch v. Maryland
·         State cannot tax a federal bank.
·         The power to tax is the power to destroy.
·         N&P Clause. Art.1, Sect.8: enables congress to make all laws that may be necessary and proper” to execute its enumerated powers.
·         Marshall interprets necessary loosely.
·         Supremacy Clause: any law of the state against the federal government in accordance with the constitution is unconstitutional.
·         Takes Hamilton’s BROAD view.
The Legislative Powers
·         Art. 1, Sect.7: Presentment Clause.
·         A bill must pass both houses (Bicameralism), the house and the senate, then the president must sign it.
1983 — INS v. Chadha
·         Unicameral “veto” on executive branch violates the presentment clause, thereby making it unconstitutional.
Non-Delegation Doctrine: Congress cannot give its legislative power to the executive branch. If power is retained in the executive or another branch, then the balance is broken.
1998 — Clinton v. New York
·         Line item presidential veto is unconstitutional. Goes against the presentment clause. President can veto it, then goes to super majority.
·         Constitutional silence – express prohibition.
·         SOP was designed to protect liberty (Kennedy)
1977 — Nixon v. GSA
·         No state shall…pass any Bill of Attainder, ex post facto law, or law impairing the obligations of contracts.
·         The statute named Nixon.
·         This gutted the Bill of Attainder.
·         Contracts Clause: You can impair contracts during things like the depression.
1934 — Home Building and Loan v. Blaisdell
·         The emergency of the great depression allowed a law in MN to allow judges to stop banks from foreclosing on mortgages for those that did not pay.
The Executive Power – The Appointment

1944 — Korematsu v. US
·         The president has a lot of power here. This is willful blindness by the court here.
·         Classification based on race is “suspect”. Strict scrutiny – action must be narrowly tailored to a compelling state interest.
·         No act or EO here, this is an order from a military general.
·         The president has the power in Zone 1, to put Japanese Americans in concentrations camps. They have the power exclude, but not detain. You have to have an oath to detain.
·         Exclusion law is in issue here. There were other cases too thought. Hirabayashi – Curfew, and Endo – Detention.
·         Plessy was still good law here, so it was allowed.
The Executive Power – The Recognition Power
2015 — Zivotofsky v. Kerry
·         The US does not recognize Jerusalem. A child was born there and wanted to have his place of birth as Israel. 214 (d) in a bill said you could do this.
·         Holdings: The president has the exclusive power to recognize foreign nations and governments.
·         Heckler Veto:  something small stamping out the majorities thought.
·         Majority: We should keep things as they are, we do not need to follow this part of the bill, it is unconstitutional.
·         The president takes an oath to uphold the constitution. To faithfully uphold the law.
·         Recognition is for the executive and it concerns foreign affairs.
·         Reception Clause – Art. 2, Sect. 3.
·         Some history of the recognition power being shared with congress.
·         We are at the lowest Ebb here. Congress has enacted a bill and the president does not think that it is constitutional. If the president does not have the statutory power, he needs the constitution then.
·         The court will scrutinize with caution.
·         The Executive Power – Vesting Clause
·         Curtiss Wright – This case makes it dicta
·         Dissent: a passport is a signal to the world. If congress does not act then the power is shared. This should be about ambition checking ambition. This threatens congressional powers over foreign affairs.