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

Constitutional Law Outline
Blackman Spring 2017
Founding Documents
Why is the Constitution Supreme?
Federalist No. 51 (Madison)
ambition must be made to counteract ambition
checks and balances
Federalist No. 78 (Hamilton)
judiciary the weakest branch
federal courts have the duty to determine whether acts of Congress are constitutional and to follow the Constitution when there is inconsistency
judicial review
Marbury v. Madison
Facts: Pres Adams wrote commission to Marbury to make him federal judge. Adams’ term ended before it was delivered and Jefferson became pres. Jefferson’s sec of state (Madison) refused to honor commission
Judiciary Act of 1789
gave Sup Ct original jurisdiction to deliver writ of mandamus
in conflict with Constitution
Jefferson: under English common law, you don’t get something until it’s actually delivered
President has discretionary role for purely political things, so question is whether it was a political appt
Article III says Sup Ct has original jurisdiction over things affecting ambassadors, other public ministers, consuls, and those in which the state is a party. All other cases, Sup Ct acts as appellate ct to all inferior cts
Applies to reps from foreign governments, not US ambassadors
Exceptions: Congress can make
Ex Parte Merryman
Merryman imprisoned. Writ of habeas corpus issued for him to appear in court, but army unwilling to produce him, claiming the pres (Lincoln) had suspended the writ
Taney: Only Congress, not the president, had power to suspend writ
Cooper v. Aaron
Gov of Arkansas refused to follow ct order for desegregation
Separation of Powers
Executive authority
Youngstown Sheet and Tube v. Sawyer
Facts: Steelworkers were on strike during Korean War. President Truman issued executive order to seize steel mill
Justice Black
President has power through statutes and Constitution
“Commander in Chief” clause (Art. II Section 2): President is Commander in Chief and has theater of war power, but this power does not extend to domestic, which belongs to Congress
Justice Frankfurter
Justice Douglas
President doesn’t have inherent authority to seize private property because he can’t compensate. Only Congress has power of the purse
Justice Jackson: three tiers when determining whether the executive has authority
Maximum authority
Congress (Article 1) + president (Article 2) = authority at maximum. Minimal judicial scrutiny
Presumption of Constitutionality: when the president and Congress agree, judiciary will assume it’s constitutional
Congress ? president (Article 2) = “Zone of Twilight”
Look at imperative of events
Scrutiny not determined
Minimum authority/”lowest ebb” (this is where case falls)
Congress – president (Article 2) = authority at minimum. Maximum or strict scrutiny
Presumption of Liberty: individual prevails; judiciary acts if it’s something really egregious
Justice Vinson (dissent)
President’s duty is to keep the people safe. People must trust the executive to tell us how he’s going to keep us safe
Legislative powers
Necessary and Proper Clause (Article 1, Section 8)
Jefferson: can’t do anything that’s not absolutely necessary
Hamilton: constitutional if it makes the job more convenient
McCulloch v. Maryland
Maryland imposed state tax on national bank
If Congress finds it useful or conducive to regulate commerce by chartering a bank, then it’s necessary/permissible
Congress has power to coin money, so having a bank could help move money
“If the end be legitimate, let it be within the scope of the Constitution, Congress can do it”
“We must never forget that this is a constitution we are expounding”: this is a paper; we need have flexible constitution
Necessary: things government MUST do
Proper: things government has power to do
Doctrine of implied powers: federal government has authority to pass laws not expressly stated in constitution
Executive Power
Appointment and removal
Morrison v. Olson
Facts: Ethics in Government Act of 1978 (Independent Counsel Act) created special ct and allowed attorney general to appoint independent counsel to investigate and prosecute government officials for criminal laws
independent counsel can’t be fired except for cause; appointment not by Pres, but not subject to approval of Congress
Independent counsel was inferior officer, so appointment does not have to come from pres
Office was still under executive branch, but not under control of Congress or judicial branch
Dissent: criminal prosecution is purely executive power. Law deprived pres of exclusive control of that power. Independent counsel has no accountability to anyone, so could abuse power
Free Enterprise Fund v. Public Company Accounting Oversight Board
Sarbanes-Oxley Act created Public Company Oversight Board under direct supervision of the SEC, which is appointed and can be removed by pres
SEC considered inferior officers
National Labor Relations Board v. Noel Canning
Recess Appointments Clause (Art. II, Sec. 2): allows pres to fill up vacancies during recesses
Constitution does not say whether it must be done during intersession recess or how many days are required to constitut

her, none can dominate, which results in more narrowly-tailored law and the best possible outcome
Gibbons v. Ogden
Facts: NY gave monopoly to two guys to operate ferries. Ogden licensed to operate ferry under federal statute
Dormant Commerce Clause: any law that regulates interstate commerce, even if it doesn’t conflict with state law, it’s void
States cannot regulate interstate commerce
Argument: federal preempts state law (supremacy clause)
“Among” means intermingled with, so commerce cannot stop at the external boundary line. Congress cannot reach commerce that is completely internal (completely interior, in no way affects other states, or is unnecessary to regulate)
Because Congress can regulate commerce, states cannot. Therefore, NY law fails
Progressive Era Cases
United States v. E.C. Knight Co.
Companies bought up 98% of sugar industry and created monopoly
Issues: Can Congress use Commerce Clause to break up monopolies? Manufacturing considered commerce? Inter- or intra-state commerce?
Commerce succeeds to manufacture and is now part of it (commerce comes after manufacturing)
Narrowed Sherman Act to commerce as trade, not commerce as manufacture
Dissent (Harlan)
To take this narrow definition of commerce to only manufacture is impossible
Champion v. Ames
Lottery tickets are subjects of traffic and are subjects of commerce, so they are subject to regulation of commerce
Congress might pass a law having the effect to keep the channels of commerce free from use in the transportation of tickets used in the promotion of lottery schemes
Lottery tickets are a nationwide problem (main issue is the trafficking of lottery tickets), so Congress has power to regulate
Even though the lottery tickets are not commerce, the channels are commerce and subject to regulation
Shreveport Rate Case: power of Congress to set railroad rates (instrumentalities of interstate commerce)
You use the same train tracks from Baton Rouge to New Orleans as you use from Baton Rouge to Houston
Caminetti v. US: channels/instrumentalities – Congress could regulate