Constitutional Law I Outline

 
Con Law, Spring 2010, Prof. Berg
 
1.       Non-Delegation Doctrine
                                        i.     In Theory:    Congress may not delegate its legislative power to administrative agencies b/c the Constitution permits no delegation. (structural rule)
·        Article 1: Vests the legislative power in Congress.
                                       ii.     In Practice:    Congress does give a lot of discretion to administrative agencies to carry out statutes under broad standards. Broad discretion since 1935:
·        Standard: Just need an “intelligible principle”
·         Really doesn’t mean much! (A LOT of discretion)
·        Curtis Wright: Gave president power of delegation before 1935, but this was defended b/c of its foreign affairs aspect.
                    a.            Arguments
                                        i.            For “flexible attitude”
1.       Discretion is Inevitable:    This is just a product of the way the law is (all areas of law leave some discretion for people who carry out the law).
2.       Pragmatic:    Broad delegations can be defended as essential in a complex world requiring technical and detailed regulations that probably exceed the scope and ability of Congress. Congress can’t legislative in detail but agencies have this expertise.
                                       ii.            For “strict attitude”
1.       Accountability:    Non-enforcement of the doctrine undermines government accountability as political decisions are made by unelected administrative officials rather than a politically accountable Congress ,which allows Congress to avoid the political heat that specific regulations might engender. It also undermines the basic philosophy of separation of powers embodied in the Constitution.   
2.       Predictability:    If Congress makes specific policy choices, there is less likelihood that administrative rules will change with each political administrations, as each administration interprets general legislative directions to suit its tastes, but the doctrines current flaccidity permits Congress to escape even that duty
3.       It decreases the possibility that administrators will exercise discretion unfairly: Specific legislation gives administrators less room to impose their sometimes peculiar policy notions.
2.        Main Separation of Power Cases in Domestic affairs
                    a.            INS v. Chadha
                                        i.            The Legislative Veto:    In the 1930’s Congress created the “legislative veto” as a check on the actions of administrative agencies.
                                       ii.            Chadha’s visa expired and was ordered to show cause to remain in US. Immigration judge ordered his deportation be stayed. However, the House adopted a resolution overturning this decision and thereby ordering Chadha’s deportation. 
                                     iii.            Holding:    Declared the legislative veto unconstitutional. So if Congress wants to overturn and executive action, there must be both Bicameralism & Presentment as anything less is a legislative veto.
1.       Bicameralism:    Passage by both the House and Senate, and
2.       Presentment:    giving the bill to the president to sign or veto.
o    Majority (Burger):  Formalistic – Text & Framers Intent:
·         Formal Approach to Separation of Power:    Separation of powers is not about flexibility or efficiency, its about clear lines & limiting gov power. There are clear lines set out in the Constitution, they must be followed regardless of the pragmatic matters to not enforce them.
o    Dissent (White): Functional: 
·         Pragmatic: Out gov calls for flexibility. Don’t be to ridged or formalistic judges, let there be room for experimentation while still maintaining the basic balance (Its about efficiency – don’t stand in front of innovation)
·         Emphasized the need for the legislative veto as a check on the broad delegations of legislative power.
·         Without legislative veto, Congress would be left with the hopeless task of writing laws with the requisite specificity to cover the endless policy landscape.
·         The majority “in one fell swoop provisions in more laws enacted by Congress than the Court had cumulatively invalidated in its history.”
           Morrison v. Olson
                 Presidents Appointment / Removal of Officials
·         Article II:    Basically gives the President sole power of appointment ambassadors, Supreme Court Justices, and officers, but Congress may vest the appointment power of inferior officers in the President, the courts, or the heads of the executive departments.
                 Title VI of Ethics in Government Act allowed for the appointment of an “independent counsel” to investigate and prosecute wrongdoing by high-level federal government officials. If the attorney general determined that further investigation or prosecution is warranted, a panel of federal court judges “shall appoint an independent counsel and shall define that independent counsel’s prosecutorial jurisdiction.” The law provides that the panel shall consist of 3 federal court judges, one of whom must be a judge of the United States Court of Appeals for the District of Columbia Circuit, and no two of the judges can be from the same court.
                 Holding:    It was permissible for Congress to vest appointment in the federal courts because the independent counsel is an “inferior” rather than “principal” officer.
                o     Formalist Approach (dissent):    Executive power is vested solely in the president and any grant of prosecutorial authority to an independent counsel is unconstitutional (b/c that’s what constitution says). We need clear lines, clear structure, even thou it may seem inconvenient.
·         Scalia:    President has to have full authority to execute executive laws! When the president controls executive officers, we know who is ultimately responsible, and if you don’t like what is happening, you have a choice in 4 years to choose someone new.
·         Structural / Accountability:    Notes it appears in Printz v. US
                o     Pragmatic Approach (Majority):    The independent counsel is desirable b/c an independent individual, appointed by Article III judges, would be conducting the investigation rather than people that are accountable to the president.
                o     Majority:   Basically an office of “limited scope”, only for prosecution of high individuals
o    Your picked to prosecute someone and that’s it. Once you do your done.
·         Once that’s down than the independent counsel expires and that’s it
                 Congress can’t appoint an exec officer its self, it can invest power to do such a thing to other areas.
                 Humphrey’s Executor (1930’s when administrative power was mushrooming) (Fed Trade Comm.)
o    Idea: This agency should be insulated from politics
·         So President couldn’t just remove commissioners and who ever he wants.
·         This ruling lead to man new “independent administrative agencies”
o    Independent Agencies:    They basically exercise all 3 parts to! (exec, legislative, judicial)
·         Quasi-legislative, Quasi-judicial
·         Given that these agencies are not purely exec, its okay for president not to have power.
o    Olsen Argued:    President should have “core function” to prosecute exec crimes.
o    Majority:   
·         Pragmatic Approach: Does it impede on the president, does it prevent him from carrying out his constitutional authorities, does it go to far?
o    Court: No, limited scope, tenure ends when prosecution over, President still has some power = can remove the attorney general for good cause.
     Dred Scott
           2 Holdings:
                 Slaves are not citizens – therefore cannot invoke diversity jurisdiction
                 Due Process – 5th amendment (bill of rights) – life, liberty, or property
·         Making Scot a free man, does that take away property with out due process of law?
·         What’s wrong with making Scot a free person is that it substantively be done, there is no problem with the procedural aspect.
·         Doctrine that the court developed here:
·         Substantive Due Process:    It takes the due process clause and strikes down a law on the grounds that it takes a away property/liberty if the law which is being applied is proper
o    Gives the due process clause a substantive reading.
·         Court’s most controversial doctrine
                    b.            Original Meaning:
                o     Dred Scott It took the framers conflicted attitude about slavery and read into them a full constitutional protection of slavery for good.
                o     Problem with Original Meaning:    It takes the attitude of the past, fixes it, and makes it very hard to change
 
4.       Brown v. Board of Education
                                      a.     Facts: Easy case if the facilities between whites and black were unequal. Howeve