I. Adoption of the Constitution
§ Federalist Papers 1, 40, 43, 39
II. Addition of the Bill of Rights
§ Federalist Paper 84 – Didn’t want a Bill of Rights fearing it would restrict people’s rights.
· Anti-Federalist for BOR, federalist didn’t. Thus creation of the 9th Amendment
o Barron v. Baltimore – Court held the Bill of Rights only applied to limiting the exercise of power of the federal government, not applicable to States. States have their own constitutions with their own limitations. If framers intended Bill of Rights to apply to states it should have declared it in plain language. (Textualist View)
§ But was later overruled in the Incorporation Doctrine, 14th Amendment’s Due Process Clause
III. Slavery Controversy
o Text of the Quaker Petitions
o Franklin’s Anti Slavery Petition
o Slave Trade Debates
o Franklin’s Satire
IV. The Power of Judicial Review
§ Art III – Gives Courts power to resolve cases
· Section 1 – Congress’s power to ordain and establish lower courts.
§ Federalist Paper 78
§ Judiciary Act of 1789 – Vests judicial power in one Supreme Court and Congress may establish inferior courts.
§ “Arising Under” Clause – gives courts power to determine if unconstitutional.
o Marbury v. Madison – Here, President appointed and commissioned an officer of the US. Commission was never delivered and new President attempted to deny Marbury his commission. Court had no jurisdiction to hear case because the Judiciary Act of 1789’s (a Congressional act) expansion of original jurisdiction was unconstitutional. BUT this is the first case to establish the authority for the judiciary review of the constitutionality of executive and legislative acts. “Arising under” clause (Art III Sec 2 Clause 1) gives courts power to determine if something is unconstitutional. And holding here gives court the power to review executive or legislative acts and to invalidate them if they are unconstitutional.
§ Keep in mind, statutes are severable. (look to INS v. Chada to see the test)
o Stuart v. Laird – Here, Congress essentially removed a layer of lower federal courts, thereby removing Art III judges from office and re-assigning the affected cases. There are no words in Constitution prohibiting the exercise of legislative power of removing lower courts. SO after this Congress became vested with power to remove lower courts.
o Ex Parte Merryman – South secedes from US as a result of election of Lincoln. Country in uproar, Lincoln suspends habeus corpus. Can only be suspended during times of “rebellion or invasion to promote public safety” (Art I Sec 9). BUT unclear who can suspend, its assumed the power belongs to Congress. However, Congress was unable to convene and Lincoln seized power to suspend. Lincoln relies on the notion of emergency powers to justify his actions. TEXTUAL HOOK – Art I Sec 9
§ Courts ruled the presidential action as unconstitutional, thus the rise of “judicial supremecy”.
§ President seems to have exceeded his power however he uses “emergency powers” to justify his actions. This sets precedent for inherent executive powers.
§ Sets stage for Younstown case.
V. Bank Controversy
o Jefferson’s Opinion on the Constitutionality of the Bank
o Andrew Jackson Veto Message
VI. Legislative Power
§ Art I Section I – Legislative power granted to Congress
§ Always consider the Delegation Doctrine when applying Necessary and Proper.
o McCullough v. Maryland – 1. Does Congress have authority to charter a second National Bank? A STRUCTURALIST view of the constitution says yes, if there was a limitation it would be found in Art I Sec 9. The Necessary and Proper clause means it just has to be necessary = convenient. (Absolutely necessary = indispensible, restrictive [Art I Sec 10 Clause 10]). A PURPOSEFUL view Congress’ powers cannot be limited to those specifically enumerated in Art I, this would mean limit law making power to a finite universe. A HISTORIC view says its natural/inherent for a government to have that power. Further, there was already a National Bank. A PRAGMATIC view looks to judicial restraint, every decision will have political impact, judges should look to rarely strike down legislation. Moreover, states are not truly sovereign (“compact federalism”) some powers were given up in ratifying the Constitution, SO States don’t have authority to veto a federal act. Last, as long as the “ends” are constitutional the “means” are irrelevant, so long as they are not explicitly prohibited (A Necessary and Proper argument). 2. Can a State tax a national bank/officer in a discriminatory way? “Power to tax is power to destroy” ie the States should NOT be able to tax the bank. Further, citizens of non-taxing States would carry the burden of the taxing States and, thus, they would be taxed without representation (unconstitutional). However, Maryland could tax ALL banks and not discriminate.
§ Use of Necessary and Proper Clause must achieve a legitimate end and be “convenient”
VII. Legislation/Non-Delegation Doctrine
§ Separation of Powers is what precludes branches from delegating power to one another.
§ Intelligible Principle Standard – Congress will provide a standard when delegating powers. (Misretta)
§ Delegation Doctrine – Textual Hook – Art I Section 1
o Field v. Clark – (Powers “delegated” to Executive) Congress passes an act that gave power to the President to determine tariff rates on imports/exports. The Court says that Congress didn’t really “delegate” the powers since the act contained limitations. The President was only acting as an agent of Congress and prior history shows President had a certain amount of discretion when Congress “delegated” powers to him. SO here, the President’s actions were good. Dissent – the powers given to the President went beyond the powers authorized in the Constitution. Further, past examples are irrelevant since they under judicial review.
o Misretta v. United States – (Powers “delegated” to Judicial) Here, Congress enacted a Sentencing Reform Act which created an independent commission to deal with federal sentencing guidelines. Petitioner argued this granted excessive legislative discretion. Court upheld act and set up the “intelligible principle” standard. Ultimately, it was held that Congress may delegate to the Judicial Branch non-adjudicatory functions that do not trench upon the prerogatives of another branch and that are appropriate to the central mission of the Judiciary (ie. Giving sentencing guideline powers to a group of judges is OK since that is part of their forte). Dissent – (Scalia) The power to make law cannot be exercised by anyone other than Congress (except in conjunction with the lawful exercise of executive or judicial power). Further, the commission is set up with non-judges as well as judges, this delegation of power to the non-judges of the committee is excessive.
§ Consider why Congress would delegate power – get out of making tough and politically unpopular decisions. BUT on the other side, Congress has an impracticable workload and can’t always be forced into make the tough decisions.
§ Also, when delegating powers Congress must make sure the agency has some sort of executive powers otherwise the delegation would essentially create a “Junior Congress”. (part of Scalia’s dissent)
VIII. Bicameralism and Presentment
§ Art I Section 7 – every bill will pass through House, then Senate, then be presented to President for signature or veto.
§ Once Congress delegates out power, in order to re-gain power, they must go through Bicameralism and Presentment
o INS v. Chahda – Immigration judge approved Chada’s petition to stay in US. However, the House of Reps adopted a resolution overturning this decision (thus, overturning an executive action under authority of the Attorney General). Here, Court held the “legislative veto” of executive action unconstitutional since it lacked bicameralism approval (House and Senate) and lacked presentment (presenting bill to President for approval or veto). Bicameralism and Presentment are two levels of checks and balances and here the “legislative veto” was technically legislative in nature and, thus, needed to pass through Senate and presented for Presidential approval.
§ Legislative Veto – this would allow Congress to vest
eves Congress’s actions are unconstitutional.
§ Dissent – Justice Vinson (Approach 4) – President has broad inherent authority. Statutes curbing the President’s inherent executive authority are unconstitutional. Look at emergency/situation (Consider actions Lincoln took, acting unilaterally to prevent Union from losing war by suspending habeus corpus and then afterwards asked for Congress’s blessing).
· SO President’s power must stem from either the Constitution or an act of Congress.
· Federalist Paper Argument – President was acting appropriately according to Federalist Paper #70.
· In re Debs – President stepped in between a labor strike issue, using troops enforced a court ordered injunction. This could have been an action for Congress under the “Commerce Clause” or it could be an action under the Executive as ensuring the operation of the Postal service. BUT it seems more like a “take care function”
o This sounds like a “Zone of Twilight”
· **Fed 70 – inherent authority to repel against foreign attacks
o In re Neagle – Attorney General assigned a federal marshal to protect a circuit court judge. In defense of the judge the marshal kills a man. Court said the Constitution is the source of the AG’s inherent powers to protect it’s public officials under the “Take Care” clause (Art II Section 3). Dissent said that the Congress should have been the ones to act to protect the judge under the Necessary and Proper clause.
§ Consider, Youngstown said President needs his powers spelled out by either Congress or the Constitution?
· It is an executive power to protect and defend it’s personnel.
X. Executive Power: Appointment/Removal
§ Art II Section 3 – the President should take care that laws are faithfully executed
§ Art II Section 2 – Appointment Power; President nominate and with Senate’s consent appoint Ambassadors, public ministers/counsuls, SC Judges and all other officers. Congress appoints all inferior officers.
· Keep in mind there is no textual hook for Removal powers, its implied in Art II Sec 2 as incidental to appointment powers.
§ **Federalist Paper 39 – people elect officials who can elect other officials
§ **Federalist Paper 77 – President nominates officers and appoints with Senate approval
o Myers v. US – President removed a Postmaster (executive official) from office without Senate consent (based off a Congressional statute). Holding – President does not need Senate consent, because “power to remove is an incident of the power to appoint”. Exclusive removal power by President was the intent of the framers. Consider, president needs power to remove officers in his branch to keep the executive running smoothly (otherwise he would be consistently running to Congress for approval). President is more aware than Congress because its in his “wheelhouse” and deals with it on a day to day basis. History recognizes broad executive removal power. Two (2) ways to read decision: Broad reading – any limitation on removal powers by Congress is unconstitutional. Narrow reading – Congress cannot give itself powers to remove executive officers and Congress cannot require a Senate approval for removal. Dissent – the Postmaster is a Congressional “creature” how can you then ignore Congressional involvement in removal of an officer it created?