Professor Morrissey
Constitutional Law Spring 2014
Separation of Powers
v US Constitution Functions
· Constitution was initially concerned with structuring the country, rather than individual rights
· The Constitution has 3 main functions:
o 1) Establish National Government
§ Article I creates Congress, the 2 houses of representatives, sets qualifications, defines procedures for enacting laws, and delineates powers (like the commerce clause)
§ Article II creates the presidency, gives it executive power, defines the office, sets qualifications, sets the method for election, and powers
§ Article III creates the SCOTUS, authorizes Congress to create lower federal courts, and gives the Judiciary power over various categories of cases. (§2-3)
o 2) To determine the relationship between federal and state government
§ Federalism: 2 governments over the same territory (federal and state)
§ The federal government is “evil but necessary” – currency, commerce, war
§ States are closer to the people, so they get more power
§ Article I grants some power to feds, and reserves the rest for the states
· BUT….Federal laws are supreme (Article VI)
o 3) To limit governmental power, and protect individual rights (regulatory)
§ Article I §9 and §10 prevent Congress from passing bills of attainder or passing ex post facto laws
§ Prevents Congress from suspending habeas corpus, and states from impairing the rights of contracts
§ Why So Little Protection of Individual Rights yo?
· Not necessary with a weak government (no need to safeguard)
· Separation of Powers and federalism were deemed sufficient
· A danger in listing protections, because it would exclude something
§ The first 10 Bill of Rights do not apply to the states; states have their own protections
§ None of the Bill of Rights apply to private conduct (except Amendment 13 on slavery)
§ There is no “right to privacy”
· Separate Branches:
o For decentralized government (non-tyrannical). At least 2 branches are needed to do anything.
§ Enact a law – Congress + Presidential approval
§ Enforce a law – Presidential prosecution + Conviction by jury
o Presumption that less government is better (action is more difficult)
· A lot of constitutional law has been created by the SCOTUS over time through judiciary interpretation
· An administrative agency is part of the executive branch and can make law
v Role of the Judicial Branch
· Article III: never expressly grants authority to the federal courts to review the constitutionality of federal or state laws or executive actions. Judicial interpretation of Article III has created doctrines that restrict access to the federal courts à standing, ripeness, mootness, and political question (justiciability doctrines)
· Authority for Judicial Review: was established by Marbury v. Madison, to review the constitutionality of executive and legislative acts. The Constitution is silent on whether federal courts have such authority
· MARBURY v. MADISON (Marbury’s commission for justice of the peace was not delivered before Jefferson
was appointed president – Marbury sued Secretary of State for writ of mandamus for delivery)
o A writ of mandamus – petition for a government official to perform a duty (authorized on original jurisdiction by the Judiciary Act of 1789)
o No Jurisdiction:
§ The court cannot constitutionally hear the case as a matter of original jurisdiction. The Judiciary Act of 1789 authorized such jurisdiction but that provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the enumerated situations in the Constitution (the act was trying to expand the scope of the Constitution)
§ Court held that Congress cannot expand the jurisdiction granted in Article III of the Constitution (it is the ceiling of federal jurisdiction)
o Expanding Judiciary Power:
§ “duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”
§ By declaring the statutory provision unconstitutional, the judiciary’s power was enlarged (when an Act of Congress conflicts with the Constitution, it is not law, and Courts are bound to instead follow the Constitution – legislative review)
o Executive Actions:
§ But judicial review is only appropriate for MINISTERIAL ACTS which the executive has a duty to perform; there is power to review the constitutionality of executive actions if they are MINISTERIAL (legal duty) and can provide a remedy (such as a writ of mandamus)
§ POLITICAL acts are within the discretion of the executive (and acts of his officers are instruments of his will)
o Marbury had a right to the commission, and the Court had authority to issue mandamus as a remedy, but the ultimate issue was of JURISDICTION à there is a remedy but the court does not have power to enforce it.
o Set Precedent à to check the executive and legislative branch; actually checks the legislative (beginning of judicial review) Congress CANNOT expand the jurisdiction of the courts
o Court can strike down regulatory acts by states if not constitutional
· Political vs. Ministerial Actions:
o Political:
§ If the act is political policy à the executive branch has discretion to make decisions unchecked (extends to their agents)
§ Checked by the electoral process – can be voted out of office (elected by people) It is executive’s decision to make political decisions (ex. deciding who to make a judge)
§ NOT subject to judicial review
o Ministerial:
§ A specific duty assigned by law and individual rights depend on that duty à there is a remedy and it IS SUBJECT to judicial review.
§ duty that the executive branch owes, and by not doing that duty he tramples individual rights à REVIEWABLE by the judiciary
· Limits on Federal Judicial Power:
o Judges are unelected and have great authority to say what the law is.
There are 3 primary limits (interpretive, congressional, justiciability):
§ Interpretive Limits – questions about how the Constitution should be interpreted (broad or narrow?)
· Includes the text, intent, practices, tradition, and social policy needs
· Considerations are weighed differently by each judge
o ORIGINALISTS: believe the discretion to interpret must be narrow to limit judicial power
§ Democracy must be ruled by electorally elected officials (judicial review allows unelected judges to overturn decision of elected and accountable officials)
§ Constrain rights only if something is clearly stated in the text or intended by the framers
§ If the Constitution is silent on an issue à for the legislature to decide the law
o NON-ORIGINALISTS: believe it is better to have substantial discretion in determining the meaning of the Constitution
§ The Constitution should evolve from interpretation, as well as amendment (a living document)
§ Should enforce norms that cannot be found “within the 4 corners” of the document.
§ Should be an evolving document to meet societal needs
§ Permissible to interpret the Constitution to protect rights NOT expressly stated or intended à should evolve by amendment AND interpretation
§ Congressional Limits – ability for Congress to restrict federal court jurisdiction
§ Justiciability Limits – judicially created doctrines that limit matters of decision
· No Advisory Opinions: Article III §2 specifies there must be a case or controversy
o there must be an actual dispute; but the executive branch does give advisory opinions (ex. administrative agencies can make law through regulations, because the legislature has delegated rule making authority).
o Keeps courts out of the legislative process; conserves judicial resources, and avoids waste if the advice is not adopted
· Standing: whether a litigant is entitled to bring suit
o Excludes some cases; promotes efficiency; improves decision making ensuring there is a personal stake and advocate
o Constitutional Req: Must have a personal stake in the dispute; must have a sufficient injury, causation, and a remedy
o Prudential (efficiency and fairness): you can only assert your own right; no suit as a taxpayer on behalf of citizens. Claim must be related to the statute challenged
· Ripeness: injury cannot be speculative
· Mootness: a controversy must still exist.
o An exception for Roe v. Wade because of the time constraints for pregnancy (exce
cal arguments (statistics)
§ Balance interests
§ Consider policy
§ Deference to coordinate branches (executive and legislative)
§ Compare to International Law
v Role of the Executive Branch
· Federal Executive Power:
o There is tension between the executive and legislative powers
o Inherent Presidential Power: if the president has explicit constitutional authority, the he must act within the scope of that power. If there is a statute that gives him authority, then that law must be constitutional.
§ What if there is NO statutory or constitutional authority?
· Hamilton: argued there is intent to create inherent presidential powers due to the different wording between Article I (giving legislative power to Congress) and Article II (vesting executive powers to the president). Because there is no limitation of “herein granted” in Article II, but there is in Article I à there is presidential authority even when not specifically defined in the Constitution
· Madison: argues the president has no authority that is not enumerated in Article II, and that the purpose of it was to state the singularity of the executive branch and the title
o YOUNGSTOWN SHEET & TUBE v. SAWYER (United Steelworkers planned a national strike;
President issues an executive order to Secretary of Commerce which took possession of
the steel mills and kept them running to protect the national defense/weapons/war
materials)
§ The president reported the action to Congress, which did nothing.
§ Authority:
· Mill owners argue this was a legislative function which is not reserved for the president à sued.
· Government argues it was made on President’s findings and was necessary to avert catastrophe
· Article II à no express power to nationalize a steel mill; the president could be overstepping his boundary as part of the executive branch
o Congress had REJECTED this type of action previously
o The power is not “implied” from his enumerated Constitutional powers (not part of military power – no ultimate power to possess private property for production)
· Considerations: efficiency of an executive decision; Constitution has no check on the president (but can be checked politically – voted out – Article II §2)
· RULING à seizure was UNCONSTITUTIONAL (this was a legislative decision reserved for Congress) The Taft-Hartley Act rejected an amendment that would have given the president such power.
§ Concurrence Jackson: there are 3 cases in which a president can act:
· Authorized by express/implied authority of Congress or Constitution – MAXIMUM POWER
· Congress is silent – can only act upon independent power – UNCERTAIN “zone of twilight” (if powers are concurrent or Congress is indifferent à sometimes the president can take independent action)
· Congress/Constitution has disapproved – LOWEST POWER à must be scrutinized because the balance of powers is at stake ß *THIS CASE*
o Since seizure is INCONSISTENT with the will of Congress (in 3 statutory policies which contradict the seizure) this can only be justified by the “remainder of executive power after subtraction…of Congressional power”. Whether the President can act in sole authority, if Congress has no powers over the subject
o The military powers of the president cannot supersede internal affairs. This was an exercise of authority without law, and the individual will of the President à no power
