David Kairys, ConLaw, Spring 2012
I. LEGISLATIVE POWER: MCCULLOCH V. MARYLAND
a. After America started a national bank, Maryland tried to tax it, but didn’t have the right.
b. While the constitution doesn’t give the government a right to start a bank, it doesn’t spell out every little thing the government may do.
c. Three Arguments to consider that would yield powers not in section 8
i. Greater powers yield lesser powers (court rejects this, but adopts the next two)
ii. Government has the right to use certain means to accomplish its ends
1. Purpose of this means must be limited
2. Means must be within the scope of the Constitution
iii. Powers can be implied by the language used of the explicitly stated power
II. EXECUTIVE POWER
a. Domestic
i. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)
1. President Truman should not have seized the steel mills when they went on strike during the Korean War – that’s Congress’ job
2. Presidential power can only come from two sources
a. Execution of laws passed by the legislature
b. The ability to raise and maintain an army and navy
3. Jackson, concurring: Presidential powers aren’t fixed, but there are some situations when they can be challenged
a. When the president acts according to the authorization of congress, his powers are least able to be challenged
b. When the President is not acting according to Congress, there is a “zone of twilight” where the distribution of power is uncertain. Any test of power should depend on current events
c. When the President does something against Congress, he is most vulnerable.
ii. Dames & Moore v. Regan
1. The President is allowed to suspend all Iranian claims in American courts, nullify Iran’s debts, and order its assets back to Iran, even though he didn’t act according to Congress
2. When Congress doesn’t stop the President, acquiescence is taken as implicit approval. Congress can’t anticipate and legislate with regard to every action the President might take.
b. FOREIGN AFFAIRS AND WAR
i. U.S. v. Curtiss-Wright Export
1. Congress’ joint resolution allowed the President to stop the sale of arms to Bolivia and Paraguay and the President went ahead and did so, constitutionally.
2. The President has the power to interact with other nations and foreign affairs and needs the power to act quickly and with freedom from the kinds of statutory restriction
ii. Korematsu v. United States
1. U.S. locked up Japanese people constitutionally.
2. It’s constitutional because it’s not about race, and because we can’t reject the military’s assertions that there are disloyal members of that population. It’s not because of racism, but because we’re at war with Japan and we shouldn’t second guess the military.
3. Jackson, Dissenting: this sets up a precedent of constitutional racial discrimination
iii. 4 Guantanamo Cases
1. Hamdi v. Rumsfeld
a. Hamdi, enemy combatant and American citizen, was detained and this didn’t violate the non-detention act, however, he cannto be held indefinitely without formal charges
b. Matthews Factors: Private vs. Public interest
2. Rasul v. Bush
a. Federal Courts DO have jurisdiction to consider challenges to the legality of the detention of foreign nationals in Guantanamo
b. Dissent by Scalia: Federal Courts have no jurisdiction over Guantanamo detainees
3. Hamdan v. Rumsfeld
a. President said that captured Hamdan was subject to an order that gave the Secretary of Defense the power to appoint military commissions, so he could be tried by a military commission
b. Since the military commission was no authorized by a congressional act, violates the Geneva Accords and Uniform Code of Military Justice, it is unconstitutional
c. There’s nothing stopping the President from asking Congress for this power, but he just hasn’t.
4. Boumediene v. Bush
a. Detainees do have the constitutional privilege of habeas corpus
b. If Congress intends to suspend habeas corpus, it must provide an adequate substitute for it, which the Detainee Treatment Act of 2005 has not provided
III. JUDICIAL POWER
a. Development of Judicial Review
i. Marbury v. Madison
1. The Supreme Court has the authority to review acts of Congress to see if they’re constitutional: “It is emphatically the duty of the Judicial Department to say what the law is.”
2. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified i
Doctrine: Even if it’s unconstitutional, the Court can’t necessarily do anything about it
vii. Cambell v. Clinton
1. Bunch of congressmen sue saying that the President violated the WPR and War Powers Clause because he directed US forces to participate in a NATO campaign
2. Congressmen lack standing and the issue is not justiciable, because there’s no personal injury and they’re congressmen, they should have done something about it in congress
viii. INS v. Chadha
1. Does the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine?
2. Yes, it violates the explicit constitutional standards regarding lawmaking and congressional authority
ix. US v. Nixon
1. Nixon wants executive privilege to cover whatever he wants so he doesn’t have to turn over evidence.
2. Unless it’s about diplomatic or military, then no
x. Morrison v. Olson
1. Ethics in Government Act allows a special court to appoint an “Independent Counsel” by a special court, upon the recommendation of the Attorney General
2. There is no inherent incongruity in a court having the power to appoint prosecutorial officers
IV. FEDERAL COMMERCE POWER
a. Gibbons v. Ogden
i. State of NY says that Ogden has the right to go between NYC and NJ. Congress says Gibbons can navigate between NY and NJ.
ii. Interstate Commerce clause includes traffic and navigation
iii. The power to regulate commerce is plenary under Congress – they can do whatever they want, as long as it’s constitutional. This is constitutional.
