Constitutional Law I Outline

Constitutional Law
Meyerson
Spring 2012
 
 INTERPRETTING CONGRESSIONAL POWER
Does Congress have the power to make that law?
      Look at text—saying “necessary” in one place and “absolutely necessary” in another place for example means something
      Structure—where a clause is placed means something
      Language—the changes that the drafters of the constitution made between the Articles of Confederation and the Constitution were changed for a reason
      Historical Practice—important, but not definitive
      Remember that the Constitution was a document for the people—drafters wanted to avoid prolixity so it was impractical to expect that everything was written down—this leads us to our implied powers
 
STANDING
Is this the right plaintiff to bring this case?
      Identify the injury
o   Is the harm individualized? It cannot be just general harm
o   Is the harm real? It cannot be a hypothetical harm
      Identify nexus/connection
      Is the injury fairly traceable to the defendant?
o   Is the link too attenuated? If so, this isn’t the right plaintiff to bring this case
      Is it likely that the injury will be redressed if the plaintiff wins the case?
      Keep in mind prudential standing
o   3 judicially created standing principles
§  Prohibition of 3rd party standing
§  Prohibition of generalized grievances
§  Zone of interest
·         (1) zone of injury—zone of injury is expected under the congressionally created statute
·         (2) zone of interests—party is within the zone of interests protected by the statute or constitutional prohibition
 
SEPARATION OF POWERS
Can the President do that?
      Is the task within his enumerated powers?
      Under Jackson’s framework:
o   Congress granted the poweràmost power
o   Congress did nothingàtwilight zone
o   Congress opposed the poweràleast Presidential power
      Under Dames & Moore, it’s more of a spectrum:
o   Essentially says that the more Congress seems to approve of the action, the more likely it is that the President has the power to do it
      Is this a time of war?
o   War doesn’t give the President a blank check, especially with the rights of citizens—habeas corpus continues to be a check on executive authority
 
FORMALISM & PRAGMATISM
      Formalism
o   Looks at the Constitution in strict terms (what the framers did/meant)
o   What are the rules?
o   Is the right branch doing the right job in the right way?
      Pragmatism
o   Does it get the job done?
o   Does it pass the puke test?
o   Does it impair the central function of the branch of government that’s doing it?
o   Does it threaten fundamental separation of powers?
 
PASSIVE VIRTUES
      When the court doesn’t intervene despite feeling like it should because it’s not actually their place to do so
      It’s the judiciary’s role to analyze cases and controversies, not to give judicial advice to other branches
 
POLITICAL QUESTIONS
      Court can’t hear because it’s meant for either the executive or Congress
      To determine:
o   Does the constitution indicate where this question should be handled?
o   Is there a judicial standard to be used to answer the question?
o   Where in the structure of the government is the activity done?
o   Areas the Supreme Court won’t get involved in:
§  Foreign affairs (executive)
§  Guarantee clause (legislative branch)
§  Policing constitutional amendment process (executive)
§  Election issues (states)
 
EXECUTIVE PRIVILEGE
      For President and Vice President
      Presumptive privilege—not in Constitution
      Foreign affairs typically invoke this privilege
      Criminal affairs generally lead to disclosure
      Civil affairs generally don’t compel disclosure
      A general desire for privacy doesn’t keep things secret
      When in doubt, assume the President wins
 
IMPEACHMENT
      Done with Presidents and Justices
      How it’s done:
o   Majority of house to impeach
o   2/3 of senate to convict
      Impeachable actions:
o   High crimes and misdemeanors
o   This is a political question, so court will never decide whether or not an impeachment is constitutional
 
HIRING & FIRING
      Who c