Dennis Greene – Constitutional Law 1L – Spring 2014 – UDSL
Module 1: Introduction to Judicial Review and Executive Branch Power
a. The Federal Judiciary Power
i. Marbury v. Madison (1803)
a. President Jefferson’s Secretary of State, Madison, refused to deliver a commission granted to Marbury by former President Adams.
b. Marbury named justice of peace, and signed into position on last day of Adams presidency, but commissions not delivered by until end of day.
c. Jefferson treated as void, and Marbury writ of mandamus to SC to compel Jefferson to deliver commission.
a. SC has the implied power to review acts of Congress and rule them unconstitutional under Article IV, S2. (Created Judicial Review of other branches).
b. Struck down the Judiciary Act of 1789, which established courts able to issue writs of mandamus.
c. Article III says SC has original jurisdiction for ambassadors, etc., but appellate jurisdiction for everything else.
i. Article III is ceiling, not floor.
d. Although Marbury is injured and entitled to commission, to issue the writ would be an unconstitutional exercise of original jurisdiction beyond court power.
b. The Federal Executive Power
i. Inherent Presidential Power
a. Not limited in Article II, question is whether acting within scope of power, or law constitutional?
2. Youngstown Sheet & Tube Co. v. Sawyer (1952)
i. President ordered Secretary of Commerce to take possession and operate most of nation’s steel mills.
ii. Took control because industry was going to strike, and steel indispensable to weapons and national defense. (Executive Order).
i. Not expressly given power of taking private property in Constitution, and not in President’s role as Commander-in-Chief.
ii. Role for Congress to make laws necessary and proper, President for legislation limited to veto and proposal or laws.
ii. Scope of Executive Privilege
1. The privilege of president to keep secret conversations with advisors. (Not in Constitution, but assumed over history).
2. US v. Richard M. Nixon (1974)
i. Comes from Watergate Scandal, Nixon taped everything in his office.
ii. Motion to quash subpoena filed by Nixon claiming presidential privilege.
i. Court said granting an unqualified privilege against subpoena in criminal case would upset constitutional balance.
ii. Allowance of privilege would cut deeply into due process.
c. Compare with Youngstown Steel
i. Both inherent power, Truman went too far claiming national crisis, and Nixon went too far to try to quash subpoena without legitimate reason in criminal case.
d. Compare with Cheney v. US District Court of DC (2004)
i. Cheney is a civil case, need for info in civil cases not as high as criminal in Nixon.
iii. The Authority of Congress to Increase Executive Power
1. William J. Clinton v. City of New York (1998)
i. Line Item Veto Act of 1996 allowed president to cancel provisions of laws.
1. Rule: any dollar amount in budget, any item of direct spending, any limited tax benefit.
2. Must: reduce federal budget, not impair gov’t function, and not harm national interest.
ii. Clinton used power to cancel part of Balanced Budget Act of 1997, forcing NY to repay Medicaid and farming money to federal gov’t.
i. Act is unconstitutional, says can veto law, but silent on line items.
1. Silence construed as express prohibition.
ii. Such a change must come from amendment.
i. Complexity of nation, Act promotes efficiency.
iv. The Constitutional Problems of the Administrative State
1. Nondelegation Doctrine (Demised): says that Congress cannot delegate legislative power to admin agencies (Executive Branch).
2. A.L.A. Schechter Poultry Corp. v. United States (1935)
i. National Industrial Recovery Act delegated to President, powers to regulate certain industries.
ii. Schechter Poultry violated code of one of agencies, and challenged as unconstitutional delegation of power.
i. Cannot delegate congressional power to Executive Branch without congressional standards.
ii. Here unfettered presidential discretion.
3. Panama Refining Co. v. Ryan (1935)
i. National Recovery Act authorized the president to prohibit transportation in interstate and foreign commerce of petroleum produced in excess of the amount permitted by state.
i. Congress left the matter to the President without standard or rule, to be dealt with as he pleased.
ii. Congress manifestly is not permitted to transfer to others the essential legislative functions with which it is vested.
4. Whitman v. American Trucking Assoc. (2001)
i. Cases present the question of the Clean Air Act delegating legislative power to the Administrator of the EPA.
i. Giving agencies some discretion in setting regulations is not unconstitutional.
ii. Rule: may delegate power only when intelligible principle guiding the decision-maker.
v. The Legislative Veto and Its Demise
1. Congress enacted as a check on admin agencies.
2. INS v. Jagdish Rai Chadha (1983)
i. Challenge to the Immigration and Nationality Act, which allowed one House to invalidate AG (Exec Branch)
emove member only for good cause, but member can be removed by President for good cause as well.
i. Multilevel protection from removal contrary to Article II, thus President cannot hold SEC fully accountable.
II. Module 2: Legislative Power
a. Separation of Powers and Foreign Policy
i. Are Foreign Policy and Domestic Affairs Different?
1. US v. Curtiss-Wright Export Corp. (1936)
i. Congress passed a resolution authorizing the President to stop sales of arms to countries involved in the Chaco border dispute.
ii. President alone has the power to speak or listen as a representative of the nation, make treaties with the advice and consent of the Senate, but alone negotiates.
i. The constitutional powers of the President over international relations are not restricted by the Constitution to the same extent as those regarding domestic affairs.
ii. Goes back to the federalist papers with guidance for handling or foreign affairs.
ii. Treaties and Executive Agreements
1. Article II, S2: make treaties with 2/3 Senate vote.
2. Executive Agreement: agreement between president and foreign leader, effective when signed.
3. Dames & Moore v. Regan, Secretary of the Treasury (1981)
i. Carter froze Iranian assets under federal act when Americans taken hostage in Tehran.
ii. Hostages released by executive agreement, which called for arbitration for all international claims.
iii. Dames & Moore wanted a trial.
i. The President lacks plenary power to settle claims against foreign gov’ts through an executive agreement, unless Congress gives him the power to do so.
ii. The Act (IEEPA) gave the President the power to seize and handle foreign assets, and the burden would be to prove that gov’t as a whole lacks power.
1. Failed to meet burden.
iii. War Powers Resolution Act
1. Article I, Clause 11: Congress can declare war.
a. President is the Commander-in-Chief.
2. Article I, S8: Congress shall have the power to make all laws necessary and proper for execution.
3. S1542: Shall consult Congress before sending troops in hostile area.