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Constitutional Law I
Temple University School of Law
Kairys, David

Con Law Outline

Main Issue of Constitution
1) powers of fed govt (federalism) v. State
2) internal allocation w/in federal govt among branches of govt : separation of powers, checks & balances
3) allocation of power & rights bw individuals and the government
4) slavery & equality

1) sets up structures, insittutions, & offices
2) federalism & separation of powers
3) promoting commerce
4) individual rights
5) privileges & immunities
6) habeous corpus—right to challenge holding & custody


National Legislative Powers
1) McCulloch v. Maryland
a. congress has power to incorporate bank; const gives congress discretion & power to enact means needed to perform duties imposed upon it & are implied by the Necessary & Proper Clause even though const has no mention of bank
i. arguments
1. greater power includes lessor powers—- reject as having too much power
2. N&P clause: does conveniently really come from necessary?; framers meant it to mean convenient
3. implied as incidental—- if somehting is implied or incidental by nature of power than it is okay
b. bc word “expressly” was not there, there is room for leeway
2) fed legislation must be based on powers granted by constitution
3) N&P Clause: provision to effectuate granted powers; Art1§8 lists powers related to banking
a. ex: post office: certain implied means, implied goes more towards definition & meaning or power, attributes that require power to function well and conveniently

Executive Powers (must come from constitution or act of congress; can only recommend or veto them, not create them)
1) Youngstown
a. commander in chief of armed forces doesnt have power to take possession of private property to stop labor disputes
i. not a power in const, was not executing a law
b. only lawmakers could do it; doesnt matter if previous presidents have done it
2) Two Sources fo Executive Powers: constitution or act of congress
3) const makes executive the commander in chief of army & navy, power to make sure laws are carried out

Emergency Executive Power
1) Korematsu
a. exclusion based on war w/ japan, not personal; congress granted president power to do so; only in time of war
b. exclusion was based on military dangers, not race, so long as not done out of racial hatred it is okay
2) restrictions that curtail legal rights of single racial group are immediately suspect; not always unconstit. but

e would be no uniformity each state would have diff laws, no two states would have same effect

Political Question Doctrine
1) Atlee v. Laird
a. participation in vietnam war is PQ not subject to review, no set judicially manageable standards
b. whether congress has taken sufficient action to authorize war adn whether president is justified in maintaining american forces are also political questions
2) PQD: if courts review these questions, they enter domain outside their competence & legit concern; would not have necessary data
a. often the case with foreign relations; would not have all the info or judicial standards (too hot to handle)
b. mo clear standards of when it applies but criteria seem to be when there is a
i. constitutional designation to other branch and international consequences
3) Camphell v. Clinton (war powers resolution)
a. WPR require president to report to congress w/in 48 hours when US armed forces are sent in; it was PQ
b. exception when initiation is againsnt US and have to act fast