II. Historical framing background
A. Declaration of Independence
B. Federalist 10
· Madison starts by rejecting democracy out of hand
o Aristotle characterized democracy as worse than dictatorship, as ruled by the mob; Madison said
o The throes of passion from the mob can easily lead country astray
o Democracies are prone to factions
§ Faction is an interest group who are united by some common impulse of passion, adverse to the rights of other citizens or the common good
· They are bad b/c the nature of man is that he wants to advance himself – in that process, we are unable to judge a common interest.
o We are self interested
o Humans are weak – incapable of self control
o \ we will harm other people
· For Madison, control of factions is \the most important goal of forming a govt
§ Factions cannot be eliminated – \ we must control them. How do we control them?
· If faction is a minority, the majority will just outvote them
· The real worry is if the faction is a majority.
o The only solution to the inevitable majority faction is a large federal republic.
o 2 main advantages
§ Election of representatives – election of the wisest and most virtuous
§ Great size
· Greater proportion of “fit characters”
· Harder to deceive the many than the few
· Factions are less likely to form and succeed
o Greater variety of interests – note that Madison thinks there is a relationship btwn geography and interest
o Harder for the many to conspire successfully
III. Separation of Powers
1. Federalist 47
2. Federalist 48
3. Federalist 51
· Federalist 47, 48, 51:
o Humans are weak, \ there must be control over self interests
o It is inevitable that people that have the power to tyrannize, eventually will
o The goal must be, then, to enact barriers against accumulating too much power among the branches of government. However, these powers will not be able to be kept completely separate
§ Madison gives examples in England of overlap – PM of UK is elected through the legislature
§ Says we must blend the branches to some degree; a system of parchment barriers will not work. Just being written in a document will not make it (separation) true.
o Madison describes a system of checks and balances; that is how we will keep these branches separate
§ Examples from Constitution of overlap
Type of Power
Power to declare war. Can impeach President. Presidential succession. Confirms appointments of cabinet members
Pres. Must sign or veto legislation. VP is the deciding vote in the senate. President can make treaties
Can invalidate laws using judicial review.
· Framer’s solution – if you balance the powers the defects of past republics may be overcome
o An enterprise of reason over nature, of science over politics
B. Executive violation of separation of powers (aggregation arg, history arg failed)
a) Youngstown 1952 (court’s role): court invalidated Truman’s orders seizing the steel industry to prevent a strike during the Korean War; Black majority (formalistic, rigid) – rejected govt’s contention that presidential power should be implied from aggregated powers in the CON. ( Commander in Chief, executive power shall be vested in the President, he shall take care that the laws be faithfully executed)
(1) Frankfurter concurrence – the President relies on past exertions of seizure, which all occurred around 12/7/41; circumstances are not sufficiently similar
(2) Jackson’s concurrence (functional, flexible) provides a 3 level analysis of presidential action:
(a) When the president acts pursuant to Congressional authorization – president’s power would be the maximum – supported by the strongest presumptions and the widest latitude of judicial interpretation
(b) In absence of Congressional grant or denial of authority – has only his own powers, but there may be a zone of twilight in which the president’s powers are concurrent with Congress’s – a test of power here depends on the imperatives of events rather than abstract theories of law
(c) When the president acts in defiance of congress – here, his power is at its lowest ebb, and must be scrutinized with caution
(i) Jackson says President operated in the 3rd category; it is not in the second because Congress had already addressed (by remaining silent) it in 3 other statutes, especially denial of this power in Taft-Hartley. \ he acted in defiance of Congress, item 3
(3) This case is an example of how Madison wanted these interbranch disputes handled by battles btwn the branches – to paralyze power grabbers
2. Executive authority to make national domestic policy
3. Executive authority over foreign and military affairs (history, LH and LI arg successful)
a) Dames & Moore 1981: Iran hostage/asset freeze: President Carter issued 2 EOs – For the first order (asset freeze), that power is specifically enumerated in IEEPA statute (Jackson Category 1 analysis) and the President \ was acting at the highest level of authority. For the second order (claims suspension) – Congress has not expressly forbidden this power, but has not given it (Jackson category 2 above). In this case however, congressional inaction is viewed as implied approval of the power, unlike Youngstown. This silence was viewed as tacit congressional authorization by the Court.
(1) Frequent amendment to the statute authorizing this Preisdential power demonstrates Congress’s continuing acceptance of the President’s claim settling authority. (LH)
(2) “Past practice, by itself, does not create power, but long –continued practice, known to and acquiesced in by Congress, would raise a presumption that the action had been taken in pursuance of its consent.
(3) A necessary incident to the resolution of a major foreign policy” dispute
b) Relation to Youngstown
(1) Why was Dames silence viewed as approval while Youngstown silence was viewed as a denial of presidential power?
(a) In Youngstown, president was acting on speculation. In Dames, the president had a current hostage situation – not speculating
(b) President has a bit more leeway in foreign policy – this was a direct foreign policy issue (hostage negotiation process btwn 2 executives of both countries), whereas Youngstown it was a domestic issue (industry seizure w/in US, suit btwn govt and private industry, domestic labor relations)
(c) Role of negotiator (w/ Iran) given to president – Congress theoretically would be more likely to defer to president in negotiation matters. President can assume congressional approval. However, in domestic affairs, the Constitution confers the power to meddle in business affairs to the Congress. “Such failure of Congress to delegate authority does not, especially in matters of national security and foreign policy, imply congressional disapproval.”
(d) Legislative intent – presidents have taken this type of action in the past, and congress has generally acquiesced
4. Executive discretion during war and terrorism
a) President, Congress and War Powers; while CON confers to the Congress the ability to declare war and raise armies, it also confers to the president the title of C-I-C; Framer’s debates suggested that President must be able to act quickly to defend against sudden attack. At the same time it was intended that a full war declaration not be rushed into by one branch of govt.
(1) Korea, Lebanon, Nam, Panama, Iraq, Afghanistan… At least 10 events that look like a war but in which war was not declared. Many of these were initiated by president with no approval of Congress. RESPONSE: War Powers Resolution of 1973: President may introduce troops into hostilities pursuant only to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the US. War power resolution increased the options of Congress to start war, and limit president’s options
b) Emergency Constitutionalism – US has no general state of emergency exceptions, unlike many other countries (Germany, France, India, S. Africa – see 263).
(1) Ex parte Milligan 1866 – “Con is a law for rulers and people, equal in war and in peace, and covers with the shield of its protection all classes of men, at all times, and at all circumstances. No doctrine … was ever invented than that any of its provisions can be suspended during the any of the great exigencies of govt. Such a doctrine leads directly to anarchy or despotism.”
C. Congressional encroachment – NO BRIGHT LINE TEST!
1. Nondelegation principle – Congress may not constitutionally delegate its legislative power to another branch of govt; in practice, it has little bite in domestic matters, and even less bite in foreign affairs.
a) Only 2 cases (post New Deal) have ever found a violation of this principle: Schechter Poultry (struck down provision of NIRA that authorized the President to approve codes of fair competition) and Panama Ref Co v Ryan (struck down another provision of NIRA)
IV. Judicial review
A. SC Authority
1. Marbury v Madison 1803 – Supreme Court has the implied power from the Constitution to review acts of Congress and to declare them void if they are found to be repugnant to the Constitution.
a) Important points principle and arguments
(1) CANONS: 1-Every word in CON must be given effect, as it is a perfect document and the framer were the prophets of the people. 2-Duty of a federal court is to try to avoid invalidating statutes by finding them UC. 3-noscitur a sociis – meaning of an unclear word or phrase is to be determined (constructed) on the basis of its context the words or phrases surrounding it.
(2) PRINCIPLES: 1-You cannot assume that any clause of the CON is intended to have no effect, otherwise it would be mere surplusage. 2-CON is a fundamental law.
B. SC Authority to review state court judgments
1. Martin v Hunter’s Lessee 1816 – SC does have the power to review decisions of state courts on questions of federal law. Court rules that its jurisdiction comes from the Constitution, regardless of what court the case came from. Virginia is outraged – it “impairs the independence of the states.” The Court asserts that the states are not independent, but are part of one nation under the Constitution. The Constitution presumes that there may be problems with state problems and state jealousies, which is why there is federal review for these kinds of problems.
2. Other clashes btwn SC and state court authority
a) Cohens v Virginia 1821 – Allows SC to review state criminal convictions on appeal, and does not have to be original jurisdiction because the state is a party to the case
C. Judicial exclusivity in constitutional interpretation
1. Cooper v Aaron 1958 – SC is final (When SC engages in judicial review, there is NO further recourse – the end of the road ) and supreme (Much broader and more powerful– SC’s interpretation is good not just for the parties in this case, but for everyone in the US – the law of the land) – you may not have been a party in Brown v Board, but you MUST follow SC ruling
a) This holding can be seen to expand Marbury
D. Authoritativeness of SC decisions
1. Dickerson v US 2000 – Upheld Miranda v. Arizona; asserted that Supreme Court decisions supersede Congressional statutes in regard to the Constitution. The Court has the final ruling on constitutionality, not Congress. Only Amendments can overrule Court rulings – difficult process
E. Political restraints on SC
1. Judicial selection/impeachment/court packing/court-stripping
F. Constitutional and prudential limits on Constitutional adjudications: “Case or controversy” reqts – judicial power does not extend to anything but a case or controversy (negatively implied from A3§2c1)
1. Advisory opinions – SC has policy of not providing advisory opinions to Presidents. Rescue Army v Muni Ct of LA: ensures that CON issues affecting legislation will not be determined in friendly, non-adversary proceedings.
A. Context – another system to protect liberty; Why federalism?
1. Federalist 51 – To prevent tyranny we must prevent the concentration of power. Through horizontal separation (leg v jud v exec) and vertical (state v fed) separation. Competition btwn these branches ensures checks and balances. Madison calls it a system of double security. Downside – it is very inefficient. There need to be many agreements to accomplish anything. Key CON issue in federalism – where are the lines drawn btwn these branches?
2. Interpreting state constitutions
B. Federalist system
Congress has the power to charter a bank (important to state things as propositions – by raising an issues as