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Constitutional Structures
University of Chicago Law School
Baude, William Baude

Baude Outline, Con Law I FALL 2015

1.       Text
2.      History (includes historical context and understanding)
3.      Policy (results-oriented approach)
4.      Precedent and practice
5.      Structure (other parts of the Constitution)

1.      Differences between Articles of Confed. & Const.
a.      Unicameral legislature (each state had one vote)
b.      No separate executive/president; 1 person from Congress chosen each year
c.       Treaty between the states, which were referred to as a “league”
d.      “We the States” rather than “We the People”; states retained sovereignty (much stronger than subsequent 10th Amendment)
e.      Weak Federal Government/Congress lacked power to tax, coin money, do anything w/out super-majority (9 of 13 states) approval
f.        Decentralized court system – congress appointed courts for specific disputes b/w states; only independent courts for piracy/captures
g.      State armies; no standing federal army
h.     Open invite for Canada to join
i.        Amendments require unanimity (Const. Art. V requires ¾ states)
2.     Legality of Replacing the Articles of the Constitution
Articles were mere treaty, which once breached by states=dissolved
Convention didn’t exceed Congress’ mandate (bad argument b/c Articles required mandate from states, & this exceeded it anyway)
People truer source of authority than states (natural law argument)
Under a social contract, people have right to throw out form of government and start anew (Lockeian theory)

1.      Checks & Balances:
a.      Congress checks Executive— controls funding, can enact laws over a presidential veto with a 2/3 majority, Senate can block nominees & refuse to ratify treaties, oversight hearings, impeachment
b.      Congress checks Judiciary—must approve nominees, can overturn judiciary’s statutory constructions by enacting new laws, overturn judiciary’s constitutional construction by passing constitutional amendments, changing jurisdiction, constrain funding/salaries, impeachment (majority of the House and 2/3 the Senate)
c.       Executive checks Congress— vetoes bills, sets priorities in execution of Congress’s laws, commander-in-chief role checks a lot of Congress’s foreign affairs power
d.      Executive checks Judiciary— nominates judges
e.      Judiciary checks Congress & Executive— judicial review of executive actions and congressional legislation

2.      Youngstown Sheet & Tube Co v. Sawyer— President Truman seized nation’s steel mills during Korean war on eve of nation-wide strike b/c the strike would’ve crippled war effort. President claimed actions authorized by aggregate Article II powers + “faithfully execute” clause + commander-in-chief power.
a.      Majority (Black): Unconstitutional; president has no constitutional or statutory power to seize the mills.
i.      Text: This is law-making, and all “legislative powers [are] herein granted” to Congress, not the executive.
1.       “Faithfully execute” applies to laws enacted by Congress, not to laws the executive makes himself.
ii.      No statutory authority: Congress rejected government seizure as emergency labor dispute resolution when drafting Taft-Harley Act
b.      Frankfurter concurrence:
i.      Precedent/Practice: we can “gloss” over the text when:
1.       there’s “systematic, unbroken” historical practice, and
2.      when Congress acquiesces – Neither exist here.
ii.      Policy: inefficiency of SOP intentional/helps protect from autocracy
c.       Douglas concurrence:
i.      Structure: This is a taking which requires compensation from Congress; it can’t be the President’s power
d.    Jackson concurrence:
i.      Policy: Looks to relation between President’s actions and Congressional intent
1.       Maximum= Congress is on President’s side (Constitutional)
2.      Zone of Twilight= Congress is silent – acquiescence?
3.      Lowest Ebb= President is acting against Congress (Unconstitutional)
a.      But does amendment’s rejection and past precedent really determine President’s Constitutional power?
b.      Ask 1) does Prez have some power that Congress can’t abridge (specific provision or vague vesting exec power – i.e. removal in Myers vs. recognition in Zivotofsky), & 2) Congress have power to pass law?
e.      Clark concurrence:
i.      Precedent: Congress rejected this in previous statutes
ii.      History: cases shortly post-Constitution spoke on the topic
f.        Vinson dissent:
i.      Precedent: pas presidents during war time have acted similarly to “faithfully execute” laws approving war & anti-inflation legislation

1.       Non-Delegation Doctrine (only 2 statutes ever struck on non-delegation) 
a.      Congress can’t delegate legislative power
b.      As long as Congress gives an intelligible principle, it’s not delegation
c.       Even if it’s outside the executive branch (Mistretta)
d.      But can’t delegate to itself (Chadha)
e.      But not power to repeal (Clinton)
f.        Post-Roads Debate — Bill to amend Post Roads Bill, delegated postal route making to the President, struck down on non-delegation doctrine; Pro-delegation:
i.      Inevitability – Congress doesn’t mint its own money; there’s always some sort of delegation necessary when legislating (Sedwick)
ii.      Postmaster general better informed than Congress (Sedwick)  
iii.      gridlock/rent seeking concerns over Congress (Barnwell)
iv.      even though it’s hard to determine what’s legislative and executive, we should try not to blend these powers (Madison)
v.      Against Delegation:
1.       text/structure of the Constitution
2.      danger of corrupt executive abusing the power/moral hazard
g.      Mistretta v. United States—Upholds Sentencing Guidelines.
i.      Intelligible principle test= as long as Congress sets forth an intelligible principle that the delegated authority is to conform to, it’s okay.
1.       Goals/purposes/guidance given to Sentencing Commission
2.      Congress doesn’t have time to do it all; can seek assistance from other branches for labor-intensive tasks.
ii.      Sca

                                                           ii.      Pardon power: if president can pardon an admittedly guilty party, he can prevent the penalization of an innocent party
c.       US v. Cox— Racist judge gets grand jury to indict black plaintiffs in civil rights case for voter fraud. Prosecutor refuses to issue indictment & is held in contempt.
i.      HOLDING: Executive has discretion of whether or not to prosecute/enforce the laws. Judge cannot interfere with this power.
1.       Might suggest take care clause is somewhat of a power, and less of a restriction
ii.      Concurrence (Brown): prosecutor doesn’t have discretion to issue indictment handed down by grand jury, but has discretion to prosecute.
d.      “Under-enforced Constitutional norm” – something might be unconstitutional but the Court chooses not to challenge it
2.     Appointment Power
a.      Source:
i.      Sec. 2= Ambassadors, ministers, federal judges, officers of US
ii.      If power is vested in him by Congress= “inferior officers”
1.      Congress may also vest this power in Courts of Law or Heads of Department
b.     Federalist No. 76 (Hamilton)— good thing to focus energy of government in the executive. Senate approval is a check on executive (won’t slow things down because it serves as a preemptive check) and presidential nomination of judges is a check too.
c.     Buckley v. Valeo— Members of Committee for Campaign Finance were appointed by Speaker of House (2), President Pro Tempore of the Senate (2), and President (2); and confirmed by both houses of Congress.
i.      HOLDING: Committee members=“Officers of the US” & so may only be appointed by President and approved by the Senate.
ii.      Officer= Federal employee “exercising significant authority”
iii.      N&P Clause inapplicable b/c even though commission might have been necessary, Congress retaining appt. power was not N&P
1.       Otherwise, would swallow other provisions of Constitution
d.      Morrison v. Olsen: Ethics in Government Act gives courts power to appoint independent prosecutor to investigate/prosecute high-ranking government officials.
i.      HOLDING: Special prosecutor=inferior officer and constitutionally appointed b/c:
1.       subject to removal by AG [but not under authority of] 2.      limited duties/no authority to formulate policy
3.      limited jurisdiction
4.      limited tenure