Prof. Kairys, Constitutional Law Spring 2011
1. Legislative Power
i. Two step process for federal legislative (and executive?) actions
a. Does congress have the power under the constitution to enact the law in question? If no, it is unconstitutional.
b. If congress does have the constitutional power to enact the law, is it in violation of another provision of the constitution? If yes, unconstitutional.
b. Art. I – legislative power is entirely vested in congress
i. Enumerated powers
ii. Necessary and proper – interpreted in McCulloch to mean that something is a convenient necessity. Not a particularly hard standard to meet. Means and implied powers both reach similar results on almost every issue.
c. McCulloch v. Maryland, Choper 58 – Md. Imposed a tax on the bank of the united states. The question was whether Congress had the power under the constitution to charter the bank. Held: Congress had the power to create a bank even though it is not an enumerated power. A national bank is necessary because it is convenient to achieve the enumerated powers. If something is a means to accomplish an enumerated power, it is a proper use of power. Alternatively, the enumerated powers imply other powers; for instance, the power to tax implies power to hire tax agents.
2. Executive Power
a. Art. II – executive power is vested in the president and his officers; there are a few enumerated powers (commander in chief, veto), but there are not too many of these. Where do all other executive powers come from?
b. Domestic power
i. Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) (1952), Choper 151 – During Korean war, stell union called a nationwide strike. President thought that the strike would jeopardize national defense, so he seized the steel mills through an executive order. Congress had considered and rejected an amendment to a bill that would have authorized such action. Held: Any presidential action must stem from congress or the constitution. Congress did not authorize this, so it must be from the constitution. Constitution did not grant the president this power. Jackson concurrence: There are three groupings of presidential authority (infra), and this falls into the president’s weakest category and is unconstitutional. Vinson dissent: This was a potential emergency, and the president has the power to act in an emergency as a quasi-legislator until congress can act.
1. Authorization of congress- whether implied or expressed, president’s authority is at its maximum; he has the constitutional power of congress and of the executive
2. Absence of congressional authorization –zone of twilight in which the president acts; any actual test will depend on contemporary imponderables rather than abstract theories
3. Conflict with congress – president’s power is weakest; he has only the powers which the constitution specifically grants him
4. Note: Opinion presupposes that in a toss-up, congress should win. Are there institutional advantages? House is elected every 2 years, congress acts much more slowly than executive and can be seen as much less dangerous.
ii. Dames & Moore v. Regan (1981), Choper 157 – Executive order terminated all litigation between Americans and Iran. It suspended all claims, nullified prejudgment attachments, and ordered transfer of Iranian assets in US to Iran. Plaintiff had prejudgment attachment of Iranian assets Held: The president acted under implicit congressional authorization, so the president’s power was within Jackson’s first zone and gave him maximum power. Congress intended for the president to settle the claims.
c. Foreign affairs and war
i. U.S. v. Curtis-Wright (1936), Choper 167 – Joint resolution authorized president to prohibit sale of arms to Bolivia and Paraguay if he found that it would contribute to peace. He enacted an embargo, and defendant was indicted for violating the embargo. Held: Federal government exercises full sovereignty over its foreign affairs. President alone has the power to speak or listen as a representative of the nation. The president has plenary power when he acts in foreign affairs with the authorization of congress. Note: This was decided in the New Deal during an expansion of executive power, and might turn out differently if decided now.
ii. Korematsu v. U.S. (1944., Choper 1201 – President issued an executive order which gave military officials authority to exclude people from designated areas in order to prevent sabotage. Petitioner was of Japanese descent, and an order excluded people of Japanese descent from a specified area. Held: It is within the war powers of congress and the president to exclude those of Japanese ancestry from the war area as at the time there was an apprehension by the proper military authorities of grave imminent danger. The power to protect must be commensurate with the threatened danger. Murphy dissent: The exclusion order was unconstitutional since it assumes that all Japanese descendants have a dangerous tendency. Racial prejudices should not be given the same level of judicial deference as judgments made upon strictly military considerations. Jackson dissent: Guilt must be personal, not inheritable. Note: In modern times, race based discrimination is generally given strict scrutiny and thus assumed to violate equal protection
iii. Detainee Cases – An American citizen can only be imprisoned pursuant to an act of Congress under the Non-Detention Act; even with Congressional authorization, the imprisonment cannot be indefinite without charges(Hamdi).Habeas corpus is extended to non-citizens detained in Guantanamo(Rasul), but habeas can be suspended for under certain circumstances (Boumediene). Relevant factors for suspending habeas for are 1) the citizenship and status of the detainee and whether the process by which that determination was made was adequate, 2) the nature of the sites where apprehension and then detention took place, and 3) the practical obstacles inherent in resolving the prisoner's entitlement to habeas. Federal courts should refrain from habeas review of enemy combatants until DoD has a chance to review his status, but it is unconstitutional to bar habeas review. The president cannot try enemy combatants in military tribunals without Congressional approval, but with Congressional approval this might be legal depending on the specifics(Hamdan).
1. Is he an American citizen? If yes, he must be charged or released after some amount of detainment. If no, go to 2.
2. Habeas corpus is extended if he is in Guantanamo, but habeas can be suspended. If habeas can be suspended, go to 3. Habeas can be suspended based on
a. A determination of the detainee’s non-citizenship/(combatant) status that afforded adequate (not due) process; this process does not need to be a trial
b. The nature of the sites where apprehension and then detention took place. If he was apprehended and detained outside the US, it is most likely that habeas can be suspended. If both occurred in the US, habeas will almost certainly not be suspended.
c. The practical obstacles inherent in resolving the prisoner’s entitlement to habeas. Is he held far away? Is he an intelligence asset? Is he Osama bin Laden? Etc.
3. It is unconstitutional to bar federal courts from reviewing habeas for enemy combatants, but the courts should refrain from doing so until DoD has had a chance to review his status.
4. Enemy combatants cannot be tried by military tribunals without Congressional approval. It is not clear whether they can be tried by military tribunals wi
t is not a wrong capable of repetition yet evading review. Dissent: This falls under the voluntary cessation exception to mootness. Furthermore, there is a fully developed factual record and there are 26 amicus briefs; this issue will come up again and inevitability counsels against mootness.
iii. Ripeness – Seeks to separate matters that are premature for review, because the injury is speculative and never may occur, from those cases that are appropriate for federal court action. Ripeness ensures that there is a fully litigated record before the supreme court. In cases where there is a facial challenge to the constitutionality of an act, ripeness might be relaxed. Is there a hardship imposed by the choice between possibly unnecessary compliance and possible criminal conviction? The court is likely to find an issue ripe if so, but might not. If enforcement is certain, the court will find the case ripe. If there will be collateral injuries, the court will find the case ripe.
1. United Public Workers v. Mitchell – Federal employees had to choose between taking part in communist party campaigns and facing being fired for doing so because of the Hatch Act. They sued on 1st amendment grounds. Held: The employees’ claims were not ripe except for the one employee who had actually been fired. The employees were seeking an advisory opinion a hypothetical threat of being fired is not enough. Note: This opinion might not be good law anymore; other decisions have distinguished on very similar fact patterns and found the claims to be ripe. It has never been explicitly overruled, though.
iv. Political question – The courts sometimes abdicate their authority to the political branches. It is unclear whether this is a constitutional or prudential requirement.
1. Reasons for political question doctrine:
a. Strangeness of the issue and its intractability to principled resolution
b. Sheer momentousness of it, which tends to unbalance judicial judgment
c. Judiciary does not want to decide it because it thinks it would be irresponsible to do so
d. Inner vulnerability of judiciary
e. Lack of judicial expertise or information in certain areas
2. Reasons against political question doctrine:
a. Judicial role is to enforce the constitution
b. Political branches must be restrained even when it might be unpopular to do so, since that is the essence of constitutional governance
c. Courts can defer to the political branches without completely abdicating
d. Many of the issues, such as defining war, are amenable to principled resolution in the judiciary
3. War powers resolution or power to declare war – Atlee v. Laird, Campbell v. Clinton; While the Supreme Court never reached the issue of the constitutionality of an undeclared war, almost every lower court that saw such a case concluded that it was a political question. Prof. thinks that the courts could resolve this by defining war and requiring the political branches to either declare war or end the military involvement, and that the political branches would probably respond by declaring war.