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Constitutional Law I
University of Dayton School of Law
Greene, Dennis

A. The Authority of Judicial Review
o    Marbury v. Madison: The justices held, through Marshall’s forceful argument, that on the last issue the Constitution was “the fundamental and paramount law of the nation” and that “an act of the legislature repugnant to the constitution is void.” In other words, when the Constitution–the nation’s highest law–conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court’s power of judicial review.
B. Limits of Federal Judicial Power
1) Interpretive Limits
o    District of Columbia v. Heller: Whether provisions of the D.C. Code generally barring the registration of handguns, prohibiting carrying a pistol without a license, and requiring all lawful firearms to be kept unloaded and either disassembled or trigger locked violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes? The Court held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home. The Court based its holding on the text of the Second Amendment,
2) Congressional Limits
o    Ex parte McCardle
The president appoints people; the legislature approves them. This is an example of one of the many overlaps.
A. Inherent Presidential Power
o    Youngstown Sheet & Tube Co. v. Sawyer: Under constitutional law, does the President have executive power to authorize the Secretary of Commerce to seize the nation’s steel mills when he uses the war powers, executive authority vested in him in article 2 of the constitution, or any implied powers gleaned therein? The Government says they were trying to avoid a national crisis.  There is no explicit statute or act (of Congress) which authorizes the President to act in such a manner.  The only 2 statutes which authorize acquiring personal and real property are not met here. 
o    Information given to the president in the constitution is almost non-existent.
o    United States v. Richard M. Nixon: Is the President’s right to safeguard certain information, using his “executive privilege” confidentiality power, entirely immune from judicial review? The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to “the fundamental demands of due process of law in the fair administration of justice.
o    This is an underlying criminal trial; this is not involving some significant issue of making America a better place.
o    The executive privilege started with George Washington; it’s been around for forever.
B. The Authority of Congress to Increase Executive Power
Presentment Clause; Article I, Section 7 the process on how a bill becomes a law.
o    How is this compared to the tri-partheid analysis from the concurrence of Youngstown? Clinton is essentially acting with Congress’s consent by acting with the Line Item Veto Act.
o    How do we work out the conflicts between the branches of the government? Because that is what is essentially happening here.
o    William J. Clinton v. City of New York: Did the President’s ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I? The Court held that by canceling only selected portions of the bills at issue, under authority granted him by the Act, the President in effect “amended” the laws before him. Such discretion, the Court concluded, violated the “finely wrought” legislative procedures of Article I as envisioned by the Framers.
C. The Constitutional Problems of Administrative State
o    The growth of agency is the result of Manifest Destiny; our country is growing in population then is going westward, and therefore our government is getting bigger all the time. The necessity for greater management is necessary here, hence the agency stuff sprung up so fast.
1) The Non-Delegation Doctrine
o    A.L.A. Schechter Poultry Corp. v. United States: Section 3 of the National Industrial Recovery Act empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees. The codes had standing as penal statutes.
o    Fundamentally, when we look at someone like Schechter, what’s the big question? When you’re doing business in New York like they were, it is very possible for business to flow right across the river to New Jersey and into other states. When it comes down to interstate commerce; Congress is who deals with this-Article I, Section 8, number 3. To regulate commerce with other nations and the several states. This is a delegation of the legislative power to the executive branch.
o    Panama Refining Co. v. Ryan: In 1933 the price of wholesale gasoline had fallen to two and a half cents a gallon, that of crude oil to ten cents a barrel. The states, unable to cut production and push up prices, clamored for national controls. Congress responded with section 9(c) of the NATIONAL INDUSTRIAL RECOVERY ACT, authorizing the President to prohibit the shipment in INTERSTATE COMMERCE of petroleum produced in excess of quotas set by the states. By a vote of 8–1, for the first time in history held an act of Congress unconstitutional because it improperly delegated legislative powers to the President without specifying adequate standards to guide his discretion. Moreover, the act did not require him to explain his orders. Vesting the President with “an uncontrolled legislative power,” Hughes said, exceeded the limits of delegation; he did not explain how much delegation is valid and by what standards.
o    Whitman v. American Trucking Assn., Inc.: Does section 109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the Environmental Protection Agency? May the Administrator of the EPA consider the costs of implementation in setting national ambient air quality standards under section 109(b)(1)? Does the Court of Appeals have the jurisdiction to review the EPA’s interpretation of Part D of Title I of the CAA, with respect to implementing the revised ozone NAAQS? The Court held that the CAA properly delegated legislative power to the EPA, but that the EPA could not consider implementation costs in setting primary and secondary NAAQS.
2) The Legislative Veto and Its Demise
o    Immigration & Naturalization Service v. Chadha:  Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine? The Court held that the particular section of the Act in question did violate the Constitution. Recounting the debates of the Constitutional Convention over issues of bicameralism and separation of

approved” of executive control of claim settlement. The Court emphasized the narrowness of its ruling, limiting the decision to the facts of the case.
3) War Powers
What in the Constitution relates to war from the Congressional standpoint? Article I, Section 8.
President-Article 2, Section 2.
War Powers Act of 1973-Really defined what was supposed to happen when putting troops into a war type situation.
Title 50. War and National Defense;
President can send troops when there’s statutory authority, national emergency predicated by an attack on the U.S. or the military, or a declaration of war.
The President can’t make any actions regarding the troops; you need Congressional approval.
Why might this be unconstitutional? The Constitution says that the President is the Commander in Chief; they’re sort of rewriting the Constitution and taking away his powers as Commander in Chief. The rationalization for this would be that it’s in the spirit of the Constitution because it’s giving another check on the power of the President; trying to prevent loss of American troops by entering into wars.
Chapter 33—War Powers Resolution
E. Presidential Power and the War on Terrorism
We haven’t declared war, so right off the bat we have constitutional problems in that sense.
1) Detention
o    Hamdi v. Rumsfeld: Did the government violate Hamdi’s Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an “enemy combatant” who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an “enemy combatant”? Although Congress authorized Hamdi’s detention, Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decisionmaker. The plurality rejected the government’s argument that the separation-of-powers prevents the judiciary from hearing Hamdi’s challenge.
o    Boumediene v. Bush: 1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba?
2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?
3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to invoke that review?
A five-justice majority answered yes to each of these questions.