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Constitutional Law I
University of Cincinnati School of Law
Bryant, A. Christopher

Professor Bryant
Fall 2015
Eng. background-Glorious Rev. (1688) & English Bill of Rights limited king’s rights.
John Locke said all govt must rest on the consent of the governed in a social K
Colonial Background: relevance of text is imp; change in the burden of proof.
Popular sovereignty: people have the power, not the king. The Mayflower Compact and the Colonial Charters led to the Articles of Confederation
Articles of Confederation (AoC): it was decentralized and said states were sovereign
failure to regulate trade and currency created an economic crisis
states had a trade wars and were non-compliant, federal government had no enforcement
unanimity was required, no executive or judicial branch
congress was micromanaging the president
The Constitution (completed in 1787 ratified in 1789) it fixed problems of AoC by:
9/13 state votes were needed to ratify
separation of executive and judicial branches
legislature was now bicameral-senate and house of representatives proportional to state population (checks and balances)
People are sovereign, not the states
The Court has the power to declare acts of the president and congress cons or uncons. The Judicial power of the US extends to all cases arising under the constitution.
Marbury v. Madison (1803) Established Judicial Review; SC can declare congressional and executive acts uncons implied from Article 3, §2. D, President Jefferson’s Secretary of State, refused to deliver P commission. P requested a writ of Madamus under JA. Judge Marshall held
the P has a right to the commission because it was signed by president and sealed by the secretary of state (p. 143)
the court has to provide a remedy because the commission is ministerial, not discretionary
the SC does not have jurisdiction to issue the writ under the Judicial Act of 1789 (Marshall invalidated sec 13). Article 3, §2; it has to come from the appellate court; an expansion of the court’s jurisdiction is unconstitutional.
Judge Marshall could’ve addressed the jurisdiction issue in the beginning and then proceeded hypothetically; it was his way to slight Jefferson.
He felt it was the duty of the judicial department to state what the law is
Marshall argues, Art VI cl. 3 says the judge swears allegiance to the constitution by oath; This can be used as an argument against JR because the other 2 sectors can claim the same thing.
Ex Parte Merryman: SC can rule a presidential act uncons. Lincoln suspended the writ of habeas corpus, Taney told him that he couldn’t, sole power of Congress.
**Sample essay-Do you agree with Lincoln’s view on judicial review? (cite cases)
Legislative supremacy-Congress could decide what is consistent with the constitution
Departmentalists- each part of the govt independently determines the consl meaning
Judicial supremacy-constitution means what the court says it means.
Bryant’s Scale of SC Power of Judicial Review:
Short Answer 
Legislative Supremacy- Acts of Congress may change Cons (like Parliament)
No, but . . .
Congress’s interpretation of Constitution ordinarily governs the Court, but Court may disregard Acts of Congress if (and only if) flagrantly unconstitutional. Where there is ambiguity, Congress will get the benefit of the doubt. Marbury is not implausible, past the notion the court gets to disregard the idea that this case can’t be determined.
Yes, but . . .
Departmentalism (all branches have power/duty to interpret Const.); Courts may decline to enforce unconstitutional law, but has no affirmative power over other branches of federal government. Courts can’t be made to act in a way that is contrary to the Constitution.
Yes, but . . .
#3, PLUS Court has final say as to actual PARTIES to cases b/4 Ct
Yes, but . . .
#4, PLUS, once Court rules, other branches must adhere to Courts interpretation of the Constitution even in other cases SO LONG AS the Court’s ruling was rendered in a case lawfully within the Courts jurisdiction, which Congress may limit
(Absolute) Judicial Supremacy in Constitutional Interpretation; Judicial jurisdiction necessary in at least some cases to “check” other branches. Marbury was the first time (until Dred Scott) that court held an act of Congress unconstitutional. While issuing opinion, “laid claim to this power.”
The limitation in Art III § 2, on federal courts, by the “cases and controversies” doctrine, forbidding advisory opinions, hypotheticals, moot cases, etc.
Rationale: it violates separation of powers if advice is given, conserves judicial resources, and promote fairness by letting people raise their own rights and concerns.
Washington asked SC for advice, they refused saying it was uncons.
Exam Answer: there’s was no dispute between parties, there’s was no asking of relief, and this was asking for advice.
Supreme Court judges cases and controversies in 3 ways:
Standing Doctrine- must show a concrete injury or reason for action, must be imminent/actual, not hypothetical, and must be redressable or preventabl

US steel mills without congressional authorization. He said it was necessary to avoid a national catastrophe to US defense. SC affirmed an injunction.
Truman argued the “vested clause”.  J Black says: the govt has the power to execute laws, you have to proceed under the cons, and this is outside the theater of war, it was law making. Pres power must stem from congress or cons
J Jackson says there are 3 zones of Presidential Authority
(1) Zenith: he acts with expressed or implied authority of congress
(2) Twilight zone:  concurrent powers-no clear expression of congressional will
(3) Nadir: acts contrary to the expressed or implied will of congress.
Legislative Delegation
Congress is not permitted to transfer essential vested legislative functions to others.
Congress cannot delegate legislative power to administrative agencies, although they have the power to create them in order to help them fulfill their powers.
Congress can delegate law making powers as long as they use an intelligible principle test-fair or in the public interest.
Rationale: it forces political accountability on Congress to make the policy choices, rather than leave this to an unelected administrative official.
Mistretta v. US p. 216 (1989) SRA guidelines. Delegation to commission cons because of intelligible principle test. P indicted under the SRA guidelines established by a commission, SC said the Guidelines in the SRA were consl. The commission is not a court and does not make judicial decisions. As long as Congress lay down by legislative act an “intelligible principle test” which authorizes a delegated body, they can delegate.
INS v. Chadha (1983) p. 261 Student deported-1 House Veto; Congress can only legislate bicamerally. Article 1 §7. Student had an expired visa and filed to suspend his deportation, AG suspended it, congress deported him using the congressional veto provision of the Immigration and Nationality Act-one house VETO, that lets one house of invalidate the decision of the Executive Branch. The SC held it was unconstitutional.