Constitutional Law I Outline

 
Constitutional Law
Berg
Spring 2015
 
The Constitution’s Structure
 
Article I:  Congress and its enumerated powers (section 8)
·          Commerce Clause – Article I, Section 8, Clause 3
·          Tax Power – Article I, Section 8, Clause 1
·          Congress’ powers to act directly on people – Article I, Section 8
·          Certain explicit limits on states – Article I, Section 10
Article II:  Executive and its powers (including foreign affairs)
·          Created executive branch
Article III:  Federal courts and their limited (enumerated) jurisdiction (“judicial power”)
·          Created judicial branch
Articles IV and VI:  Regulations among states and between states and federal government
·          Article VI – Federal law is supreme over states
a.       Article VI, Paragraph 2 of the Constitution is commonly referred to as the Supremacy Clause.  It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
Article V:  Amendment Process
Amendments 1-10:  Bill of Rights
·          10th Amendment Limits Congress – the federal government may exercise only those powers specifically enumerated by the Constitution
·          It is the state government and the people – not the national government – that retain any powers not mentioned in the federal charter.
·          U.S. v. Darby says 10th Amendment states only a “truism” – power is only “reserved to the states” if it’s “not delegated to the US”
Amendments 13-15:  Post-civil war (limit states)
Amendment 16:  Congress has power to tax income
Amendments expanding voting (five of the last 13:  15, 17, 19, 24, 26)
The Concept of Federalism
We have a federalist system.  The national government and state governments co-exist.
·          Therefore, you always have to watch whether some power being asserted by the federal government is in fact allowed under the Constitution
·          And you must watch whether some power asserted by the states is limited in favor of federal power 
The Federal government has limited powers
·          The federal government is one of limited, enumerated powers
·          Enumerated Power = A political power specifically delegated to a governmental branch by a constitution – also termed “express power”
·          The three federal branches can only assert powers specifically granted to them by the US Constitution.
·          When answering a question, always ask:  What is the enumerated, specified power in the US Constitution that gives the federal government the right to do what it has just done?
·          State governments can do whatever they want as far as the US Constitution is concerned, unless what they are doing is expressly forbidden by the Constitution
No general police power
·          The most dramatic illustration of this state/federal difference is the general “police power”. 
·          Each state has a general police power (i.e., the ability to regulate solely on the basis that the regulation would enhance the welfare of the citizenry
·          But there is no federal police power – no right for the federal government to regulate for the health, safety or general welfare of the citizenry
·          Each act of federal legislation or regulation must come within one of the very specific, enumerated powers
Tax and spend for the general welfare
·          Article 1, Section 8, Clause 1
·          Congress does have the right to “lay and collect taxes…to pay the debts and provide for the …general welfare of the United States…” Article I, Section 8
·          But the power to tax and spend is subject to the requirement that the general welfare be served; there is no independent federal power to provide for the welfare
Necessary and Proper Clause
·          Article I, Section 8, Clause 18
·          In addition to the very specific powers given to Congress by the Constitution, Congress is given the power to “make all laws which shall be necessary and proper for carrying into execution” the specific powers.
·          Congress is given power to enact any legislation necessary and proper to execute any authority granted to any branch of the Federal government – McCulloch v. Maryland p. 138
–          The Necessary and Proper Clause grants Congress the power to make all laws necessary and proper (appropriate) for carrying into execution ANY power granted to ANY branch of the federal government.
–          McCulloch v. Maryland – Congress has the power to charter banks since that power is appropriate to executing Congress’s enumerated powers to tax, borrow money, regulate commerce, etc.  
–          EXAMPLE: McCulloch v. Maryland: Federal Government created a National Bank which was then taxed by states the Supreme Court was asked to decide if Congress had the power to incorporate a bank. The Court did state that Congress may find in the necessary and proper clause the ability to pass laws in furtherance of an enumerated power (such as the ability to regulate commerce). Thus this Court establishes the necessary and proper clause as an expansion of Congress’ power to enact laws which enhance the ends reached by the enumerated powers. Congress has the power to lay and collect taxes, they have control of the “sword and the purse” and the necessary and proper clause allows them to further this by creating a national bank.
·          Limit: Amend. X states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
·          The Necessary and Proper clause is not an independent source of power, but it permits Congress’s otherwise designated authority to be exercised fully
–          The clause is not itself a basis of power; it merely gives Congress power to execute specifically granted powers.
·          Rational Relations Test:  The “Necessary and Proper” clause is easy for Congress to satisfy:  if Congress is seeking an objective that is within the specified enumerated powers, then Congress can use any means that is
1.        Rationally related to the objective Congress is trying to achieve and
2.        Is not specifically forbidden by the Constitution 
·          Congress gives a very broad and deferential meaning to Congress’ powers under the Necessary and Proper Clause
–          Example Question:  Congress passes a statute to civilly commit certain sexually dangerous federal prisoners at the end of their prison sentences.  The prisoners attack the statute as being beyond Congress’ powers.
–          Example Answer:  Congress acted properly.  The “Necessary and Proper” Clause grants Congress broad authority.  Congress is entitled to large discretion in choosing the particular means to carry out a given enumerated power – all that’s required is that Congress chooses a means that’s rationally related to the implementation of some constitutionally enumerated power.  Here, Congress has the power to define federal crimes, and to run a prison system housing those who commit such crimes.  Allowing the Federal Bureau of prisons to maintain custody of prisoners who would be dangerous to others is released is a rational method of carrying out the federal power to incarcerate those who commit federal crimes. [U.S. v. Comstock].
Can’t violate specific constitutional provision
·          Even where congressional action appears to fall within a specific grant of power, the federal action may not violate some other specific constitutional guarantee.
·          Congressional (or other federal) action must satisfy two tests to be constitutional:
1.        It must fall within some specific grant of grant of power under the Constitution
2.        It must not violate any specific constitutional provision
Powers of the Three Federal Branches
Any action by the federal government must be vested – supported by a source of power originating in the Constitution.
Congress – Article I
·          Interstate Commerce:  Congress has the power to regulate interstate commerce, as well as foreign commerce
·          Taxing and Spending: 
·          DC:  Congress can regulate the District of Columbia
·          Federal Property:  Congress has the power to regulate and dispose of federal property
·          War and Defense:  Congress can declare war, and can establish and fund the armed forces
·          Enforcement of Civil War Amendments:  Congress can enforce the post-Civil war Amendments.  (For instance, under its power to enforce the 13th Amendment’s abolition of slavery, Congress can ban even private intrastate non-commercial conduct.)  
Executive – Article II
·          Execution of laws:  The President holds the “executive power.”  That is he carries out the laws made by Congress.  It is his obligation to make sure the laws are “faithfully executed.” 
·          Commander-in-Chief:  He is Commander in Chief of the armed forces, so he directs and leads our armed forces (but he cannot declare war – only Congress can do this).
·          Treaty and Foreign Affairs:  The President can make treaties with foreign nations (but only if 2/3 of the Senate approves).  He appoints ambassadors.  Also, he effectively controls foreign policy – some of this power over foreign policy stems from his right to appoint ambassadors but much is simply implied from the nation’s need to speak with a single voice in foreign affairs (so that congressional involvement in the details of foreign affairs will generally not be appropriate).   
·          Appointment of federal officers:  The President appoints all federal officers.  These include cabinet members, federal judges, and ambassadors.  (But the senate must approve all such federal officers by majority vote.)
–          As to “inferior [federal] officers” it is up to Congress to decide whether these should be appointed by the President, by the judicial branch, or by the “heads of department” (i.e. cabinet members). 
–          But Congress can’t make these lower level appointments itself; it my merely decide who can make these appointments. 
·          Pardons:  The President can issue pardons, but only for federal offenses.  Also, he can’t pardon anyone who has been impeached and convicted.
·          Veto:  The President may veto any law passed by both houses (though this veto may be overridden by