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Constitutional Law: Separation of Powers
University of Connecticut School of Law
Dailey, Anne C.

TEXTBOOK: Constitutional Law, 4th Edition by Erwin Chemerinsky
Anne Dailey, UConn Law, Spring 2016
Course Objectives
1. A familiarity with and understanding of the text of the Constitution and its history, goals and principles;
2. A deep understanding of the Constitution’s establishment of a democratic system of government with protections for individual rights;
3. An ability to work with differing modes of interpreting the Constitution through the close study of Supreme Court decisions, including framers’ intent, originalism, evolving meaning, fundamental principles and legal policy;
4. A strong grasp of the major constitutional doctrines, including the separation of powers, federalism, the due process clause and the equal protection clause;
5. The capacity for identifying and analyzing constitutional issues;
6. The skills for making persuasive constitutional arguments.
I. Introduction

Marbury v Madison (1803)
à It is S.C.’s power to review the law. Courts have the power to invalidate acts of congress, executive, and acts of states if inconsistent with the Constitution.
à Article 3, section 2 is the ceiling of SC power (not the floor as it equally could have been interpreted).
Facts: Jefferson, a President (and his Secretary, Madison) big on state rights did not want to hand out the appointments of former president, Adams. C.J. Marshall was appointed by Adams too.
Three questions:
1- Does Marbury have the right to his appointment?
Yes. Delivery of notice not required so long aslawfully appointed.
2- If he does have a right, does he have a right to a remedy?
Yes. For every right there’s a remedy, unless an executive action that’s exempt from review.
Ministerial act gets a remedy.
This case is not a political question but a legal question and could be resolved by courts.
Political question doctrine (one of justiciability doctrines):
If Marbury is merely a political agent, he is not entitled to a remedy, but if Marbury was deprived of his ability to fulfill a duty assigned to him by law, then he is entitled to a remedy for that deprivation.
3- If Marbury is entitled to a remedy, is that remedy specifically a writ of mandamus [as outlined in Section 13 of the Judiciary Act of 1789]?
Writ of mandamus: court compelling government official to do their.
Congress has no power to subtract or contract SCOTUS’s original jurisdiction, though it does have the power to do so with its appellate jurisdiction.
Section 13 of the Judiciary Act of 1789, which authorized the United States Supreme Court to give such a remedy, is unconstitutional.
The Act allows the Supreme Court to have original jurisdiction over actions for writs of mandamus. However, this provision directly conflicts with Article III of the Constitution, which greatly limits the cases in which the Supreme Court has original jurisdiction and provides it with appellate jurisdiction in all other cases.
The Act is unconstitutional because it seeks to expand the Supreme Court’s original jurisdiction and therefore jurisdiction over Marbury’s claim cannot be exercised.
*Biggest power grab in U.S. history.
*Decision lay dormant till Dread Scott.
District of Columbia v. Heller (2008)
àApart from specific safety concerns, states can not limit second amendment right for individuals to keep and bear arms
District of Columbia wanted to remove hand held guns due to high crime/
Scalia opinion based on his originalist jurisprudence.
Not a textualist, but works closely with text when it was written and what it meant.
Stevens Dissent:
Purpose of 2nd amendment is to serve the militia. Hand gun for self defense does not serve the miitia.
Breyers Dissent
Evolving constitution – meaning moves with time.
Interest balancing
*liberals and conservatives flipped here.
II. Constitutional Structure
A. The Separation of Powers
Powers of the three branches: Here is a summary of the powers of the three branches of the federal government:
1. Congress: Here are the main powers given to Congress [18]:
a. Interstate commerce: Congress has the power to regulate interstate commerce, as well as foreign commerce.
b. Taxing and spending: Congress has the power to tax and the power to spend.
c. DC: Congress can regulate the District of Columbia.
d. Federal property: Congress has power to regulate and dispose of federal property.
e. War and defense: Congress can declare war, and can establish and fund the armed forces.
f. Enforcement of Civil War amendments: Congress can enforce the post-Civil War amendments.
2. President: Here are the main powers of the President:
a. Execution of laws: The President holds the “executive power.” That is, he carries out the laws made by Congress. It is his obligation to make sure the laws are “faithfully executed.”
b. Commander in Chief: He is Commander in Chief of the armed forces. So he directs and leads our armed forces (but he cannot declare war – only Congress can do this.)
c. Treaty and foreign affairs: The President can make treaties with foreign nations (but only if two-thirds of the Senate approves). He appoints ambassadors. Also, he effectively controls our foreign policy – some of this power over foreign policy stems from his right to appoint ambassadors, but much is simply implied from the nation’s need to speak with a single voice in foreign affairs (so that Congressional involvement in the details of foreign affairs will generally not be appropriate).
d. Appointment of federal officers: The President appoints all federal officers. These include cabinet members, federal judges and ambassadors. (But the Senate must approve all such federal officers by majority vote.) As to “inferior [federal] officers,” it’s up to Congress to decide whether these should be appointed by the President, by the judicial branch, or by the “heads of departments” (i.e., cabinet members). (But Congress can’t make these lower-level appointments itself; it may merely decide who can make these appointments.)
e. Pardons: The President can issue pardons, but only for federal offenses. (Also, he can’t pardon anyone who has been impeached and convicted.)
f. Veto: The President may veto any law passed by both houses (though this veto may be overridden by a 2-3’s majority of each house.) If the President doesn’t veto the bill within 10 days after receiving it, it becomes law (unless Congress has adjourned by the 10th day after it sent him the bill – this is the so-called “pocket veto”).
3. Judiciary: The federal judiciary may decide “cases” or “controversies” that fall within the federal judicial power. See the section on “Federal Judicial Power” in the chapter called “The Supreme Court’s  Authority and the Federal Judicial Power,” above.
The Federal Judicial Power

Justiciability Doctrine
Concept that “cases” and “controversies” in Art.3, §2 limits federal judicial power (what cases they can hear).
“Constitutional” case
Congressional § cannot override it
“prudential” case
be overwritten by congressional § (not a constitutional req’mt).
5 major justiciability doctrines that must be met for fed court to hear a case:
1. Prohibition against advisory opinions
Must be an actual dispute between actual litigants
Will bring some change/have some effect
Pres. Jefferson’s requesting advice from S.C. (was denied)
Hayburn’s Case (fed courts and pension claims)
Plautt v. Spendthrift Farms Inc. (1995)
2. Standing
Requires crt to find:
(1) injury (has suffered or will imminently suffer)
Particularized and concrete, not generalized.
Actual or “imminent” not speculative. Crt looks for “certainly impending”
(2) injury is fairly traceable to D’s conduct, “causation”
(3) favorable decision by the court will redress the injury, “redressabillity”
Allen v. Wright (1984) [no standing] Massachusetts v. EPA (2007) [standing found] Hollingsworth v Perry (2013) [no standing] Injury Cases:
City of Los Angeles v. Lyons (1983) [no injury, no standing] Lujan v. Defenders of Wildlife (1992) [no injury, no redressabillity, no standing] United States v. Hayes (1995) [no injury, no standing] Federal Election Comm. Akins (1998) [injury found due to lack of information; so there is standing(?)] Clapper v Amnesty International USA (2013) [no standing] You must show actual injury, and not act on fear of injury or fear that you will suffer in the future to have standing.
1) Theory of future injury is too speculative 2) need to establish injury traceable to § 1881a 3) taking on high costs b/c fear of harm that (crt believes) not certainly impending is manufactured, not enough
Breyer dissent: injury is imminent (does not have to be “certainly impending”) and Gov has motive.
Causation and redressabillity
Linda R. S. v. Richard D. (no standing] Warth v. Seldin (no standing] (no standing] Duke Power Co v. Carolina Envir. Study Group Inc (yes standing but was found constitutional] Prudential Standing req’mts: (congress can overrule)
Prohibition of third party standing
Prohibition of generalized grievances
United States v. Windsor (2013) [standing] 3. Ripeness
Need for pre-enforcement, hardship on P.
Susan B Anthony List. Driehaus (2104) (ripe for review, case ok to proceed)
Was being sued under an Ohio statute that prohibits false statements. Suit was dropped but they proceeded w/ challenging the law. SCOTUS said they had standing b/c there was substantial threat of future enforcement of statue.
4. Mootness
No live controversy/ongoing injury.
Exception: capable of repetition bu evading review (Roe v Wade), class actions(?)
5. Political question doctrine: Certain provisions of constitution can not be judicially enforced and must be referred to the political branches.
Think: Do the issues implicate the separation of powers? Does Constitution Commit resolution of issue to either President of Congress? (yes to both, prob. PQD).
See Marbury Madison issue; Baker v Carr
“principles of avoidance”
Judicial restraint in takin

have to be “certainly impending”) and Gov has motive.
Hollingsworth v Perry (2013)
à Petitioners of prop 8 in CA do not have standing under Article III because they will not be effected by the decision.
FACTS: In 2008, the CA S.C. held that the California Constitution required the term “marriage” to include the union of same-sex couples. Citizens passed Proposition 8, which amended the California Constitution to provide that “only marriage between a man and a woman is valid or recognized by California.”
Gay couples sued for the enforcement of California's marriage laws and claimed that Proposition 8 violated their Fourteenth Amendment right to equal protection of the law. State officials originally named in the suit informed the district court that they could not defend Proposition 8, the petitioners, official proponents of the measure, intervened to defend it.
The district court held that Proposition 8 violated the Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed.
SC: After district court decision, petitioners no longer have standing – no injury that effects him in a personal way. Just have Generalized grievance in the form of a desire to defend Proposition 8.
Kennedy dissent:
Petitioners are authorized by the state, CA Supreme Court confirmed it, and we should respect that.
Article III does not interfere with a state's rights to allow such proponents to support an initiative in court.
United States v. Windsor (2013)
à P has standing because they will be effected by decision.
P/Windsor had a real injury and other people are facing it too so we should affirm it to benefit everyone. Executive branch stopped litigating for DOMA, Congress stepped up.
Executive position here is prudential problem – this is a friendly not adversary proceeding.
“Urgent circumstances” encourage us to take on on jurisdiction.
Scalia Dissent: U.S. has no standing (no injury by U.S., in anything house of rep’s has injury) – this is an advisory opinion
II A. 2. Federal Executive Power
Youngstown Sheet & Tube Co. v. Sawyer (1952)
àThe President of the United States may not engage in lawmaking activity absent an express authorization from Congress or the text of the Constitution.
à Strict, formal spheres of authority with black lines.
Facts: importance of steel as a component in weapons and war materials led President Truman to believe that a reduction in steel production from a nationwide strike would jeopardize the nation’s security. Issued an Executive Order taking over, steel mills sued.
The Court found that there was no congressional Statute that authorized the President to take possession of private property. Congress explicitily overruled it when writing labor laws.
President does not have inherent powers.
President can not make law.
Congress is place where broad powers lie.
Gov’s defense: We sent Congress a letter they were silent. Congress failed to pass law.
Jackson Concur: (famous)
There is inherent authority but with limited test.
There is a twilight zone when Congress is silent
Flexible test of balancing.
When the President acts under an express or implied grant of power, he can rely on both his own powers and Congress’s.
When the President acts without an express grant or denial of Congress’s powers, he acts under the aggregate of his own independent powers. The twilight zone when congress is silent.
When the President acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution. Since Congress denied power to the President in the present case under the Taft-Hartley Act, the third scenario is implicated.
Douglas Concur:
President can act so long as it does not intrude on Congress’s power; interstitial inherent authority
Frankfurter Concur:
Congress chose not to give this power to President.
Vinson Dissent:
President acted necessarily and has the power.
Interest in balancing.