CON LAW FINAL OUTLINE:
Federalist 10:
1) Dangers of factionalism
a. Faction = a group motivated by common interests, passions or goals
2) Failure of Democracy
Federalist 51:
-More power to fed
-but control the governed (enumerated powers)
-Mandate that Gov’t control itself (separation of powers; checks & balances)
-Ambition counteracts Ambition- reason for Separation of Powers and checks & balances
-If men were angels we would not need any gov’t (James Madison)
I. Judicial Powers:
Six Part Test For Judicial Interpretation (used by J. Marshall in McCulloch v. MD)
1) Definition
2) Structure- what part document does word exist (Art I, II, III)
3) Comparison to Same Document- compare to similar usage in same document; modifier? (ie- necessary vs. absolutely necessary)
4) History- how was word treated in past?
5) Comparison to Preceding Documents- if not used in this document- how used in other documents
6) Logical Implication- **most important**- constitution we are expounding- may imply what can be logically implied
II. Doctrine of Standing (proper Plaintiff)
1) Injury in Fact
a. Actual Harm
b. Concrete, personal and NOT hypothetical
c. Claim is Ripe, but not moot
2) Nexus (connection)
a. Connection b/t harm and action (NOT abstract harm)
b. “Fairly Traceable” – Allen v. Wright
c. Allen v. Wright- connection b/t harm & action too attenuated
i. White private school gets tax benefits; black parents sue on behalf of children- but children had never applied- no harm caused
3) Redressability
a. Court must be able to fashion a legal remedy
III. Political Question (Separation of Powers issue)
Political Question Test:
1) A Textually Demonstrable constitutional commitment of the issue to a coordinate political dept
2) Is there a Judicially Manageable Standard for resolving the issue? (HATE)
3) Structure Test – where in structure of gov’t did this, or similar issue, show up?
a. If showed up in executive or legislative power- then it’s a political quest.
b. Where in gov’t is activity “done”? (Nixon v. USà legislature)
Areas where Court will NOT involved (Political Areas):
1) Foreign Affairs
2) Guaranty Clause (states guaranteed republican form of gov’t)
a. Issue is what defines a repub form of gov’t- Duty for Legislature
3) Will NOT police the Constitutional Amendment Process
a. Legislatures job to propose amendment
b. Executives job to enforce
Political Question Cases:
-Baker v. Carr- TN apportionment case- of voting districts- NOT a political question
-Nixon v. U.S.- impeachment of senator- house impeaches- senate “tries”- in manner in which they see fit- how to “try” is left for senate to decide (senate sole power to “try”)
SEPARATION OF POWERS
Art I- Legislature
Art II- Executive
Art III- Judiciary
-Make Binding Policy
-Enforce the Laws
-Interpret the Law
-Power to Tax
-Commander in Chief of Armed Forces
-Powers to Hear CASES & CONTROVERSIES
-Power to Spend for General Welfare- “no coercion” but may use “persuasion”
-Make Executive Agreements
esume there exec privilege- must present strong evidence that you’re entitled to the information requested
i. National security- not good enough reason
ii. *Efficiency*- ability and NEED to keep secrets- pres needs to have complete freedom to receive ADVICE; Pres gains EXPERTISE by hearing from advisors who must be able to give FULL, FREE, and OPEN advice- pres must be able to receive frank, blunt and harsh opinions- should presume that these opinions are kept b/t Pres and advisors
Heavy balance towards disclosure for criminal matters
Light balance towards disclosure for civil matters
Heavy balance towards secrecy if Foreign Diplomacy
Light balance towards secrecy if just general desire for privacy
Executive- Hiring (Art II, Sec. 2, cl. 2)
Hiring
i. Principal/Superior Officers
1. Appointed by Pres w/ consent of Senate
ii. Inferior Officers
1. May be appointed by pres., dept heads, or the court
2. Congress will determine which branch hires
3. Congress does NOT hire (congress not supposed to hire/fire anybody who performs an executive branch function, but may be able to limit hiring/firing of those who perform quasi executive function)
Firing
i. Whoever hires you, fires you
ii. Pres can ALWAYS fire executive employees
iii. Question is whether congress can LIMIT firing “for cause”
