Constitutional Law I Outline

Lidsky – Constitutional Law Outline – Spring 2012

UNIT 1 – Separation of Federal Powers

THE FEDERAL JUDICIAL POWER

A. Authority for Judicial Review

Marbury v. Madison (1803)

· The Court held that the federal courts have the power of judicial review because (1) the nature of the Constitution makes it superior and binding on all actors of government, and (2) the Constitution is law, and the courts have a duty to interpret what the law means.

· Issue #1 – Judicial Review of Congressional Legislation: Can Congress, by statute, change the original jurisdiction of the Supreme Court from what is granted by the Constitution? No. The Constitution is supreme.

· Issue #2 – Judicial Review of Executive Action: The denial of the commission is a violation of the law, and where there is a violation, the law provides a remedy. (Only exception is when it is a discretionary action) But in this case it was a ministerial act, and by withholding the commission there was a violation of a vested right.

· Holding: Ruled against Marbury and held that it could not constitutionally hear the case as a matter of original jurisdiction. Although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution.

· Court holds that that there is a responsibility by the executive branch to respect Marbury’s vested right to the position. Further that if the executive branch is making a discretionary action the judicial branch has no authority to limit or review these, the checks to the executive branch is the political process to elect a new president. Marshall then clears that if the president is not acting consistently with the constitution the judicial branch can correct the president’s actions.

· Marshall argues that the power for the judiciary to review executive power comes from common sense. If constitution is to be supreme some branch has to make judgments as to its validity. (Rationale: Judges appointed for life, therefore they are not politically biased and they are not elected so do not have to respond to voters)

· Judicial Branch has implied checks and balances

· Supreme Court has power to review legislative actions that conflict with the constitution

B. Limits on Federal Judicial Power

a) Interpretive Limits – How should the Const. be interpreted?

Theories of Interpretation:

a) Originalist – Look at framer’s intent

b) Modified Originalist – interested in the general value system the founders’ were trying to create, looking for original meaning in context of ratification

c) Contemporary Practices – at the time of ratification, objective test

District of Columbia v. Heller (2008)

· Like the 1st amendment applies to modern forms of communication and the 4th to modern forms of search, the 2nd should apply to modern instruments that might not have been present during the creation of the constitution.

· 2nd amendment divided into prefatory and operative clause. Former merely announces a purpose and does not limit the latter

· Right to bear arms is a fundamental right (Strict Scrutiny should be applied)

a. Whether there is an individual right or a collective right

i. Scalia finds that it is an individual right by going through the text of the 1st amendment.

ii. Analyzing the actual clause the action is in the operative clause

iii. By analyzing the general structure of the constitution he finds that other references to “the people” there is a reference to the individual right

b. Is it an individual right what is its purpose? Only for military, self-defense or hunting purposes?

· The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.

c. When can you limit the right? What types of weapons can you limit the right to?

· The court found that this right can be limited to not carrying it everywhere (e.g. cannot carry in court), found that the traditional definition of “weapons” does not allow for the carrying of dangerous and unusual weapons, also allows for restricting felons and mentally ill from possessing weapons, and allows restrictions on commercial sales of guns.

C. Congressional Limits under Article III –

(To what extent may Congress stop the jurisdiction of the S.C., or of lower fed. Courts)

Under Original Jurisdiction Congress cannot do anything (Congress was granted exceptions and regulations power but only concerning appellate jurisdiction)

What does the language of Article III mean in regards to exception and regulations:

Ex Parte McCardle (1869)

· While appeal was pending on S.C. docket, Congress passes the Judiciary Act of 1867 stripping them of jurisdiction in order to prevent them from reviewing constitutionality of the reconstruction.

· Court held that it had no appellate jurisdiction over habeas corpus cases because of Congress’ legislation. (This is case is different from Hamdan v. Rumsfeld because here there is still a path for habeas corpus petition, in that case there was none.)

· Although the S.C. appellate jurisdiction is derived from the constitution, Congress can make certain exceptions and regulations:

o Traditional “literal” Interpretation: Plain language of the exceptions clause allows it

o Mandatory Interpretation: Congress may not eliminate altogether the Court’s appellate jurisdiction over cases arising under the Constitution unless it vests that power in some other Article III court.

Does separation of powers limit the ability of Congress to restrict S.C. Jurisdiction?

US v. Klein (1871)

· Ruled that the 1870 statute, which stated that any person that accepted a presidential pardon for supporting enemy troops during the war, was not allowed to recover for his property, was unconstitutional.

· The retroactive withdrawal of jurisdiction during trial because of admittance of evidence is unconstitutional and violates the judicial power of the courts. It goes too far in interfering with the separation of powers.

· Congress may affect the outcome of cases by legislative actions but not judicial. It cannot control how the court looks at facts

· Basically legislative branch cannot impair the exclusive powers of another branch

D. Justiciability Limits

Prohibition on Advisory Opinions

§ Helps keep judges out of the political process/ preserves resources

§ Dispute must not be hypothetical; any decision issued will be final, based on concrete facts

§ There must be a case or controversy

§ Opinion issue must have some effect; must be “final”

Plaut v. Spendthrift (1995)

· Court declared unconstitutional a fed. Statute that overturned a S.C. decision dismissing certain cases.

· New statute regulating the statute of limitations for some securities laws was unconstitutional because it overturned a S.C. decision and gave relief to a party that the court had said it was entitled to none, making the court’s decision not final.

Policy Arguments on Congressional Control of Fed. Court Jurisdiction

THE FEDERAL EXECUTIVE POWER

**Remember Checks and Balances Arguments- Congress has power of the purse (textual argument), however not always a politically sane solution (pragmatic argument)**

A. Inherent Presidential Power

Enumerated Powers:

i. Art. II Sec. 1 “[t]he Executive power shall be vested in a president of the United States”

ii. Art. II Sec. 2 Provides that president shall be commander in chief of the armed forces and that he shall have certain powers, including the power to grant pardons and reprieves, to make treaties with senate approval and to appoint judges and other federal officers.

iii. Art. III Sec. 3 recommend measures to congress, receive ambassadors, and take care that the laws be faithfully executed.

iv. List of President’s Powers is not exclusive; he has inherent powers given to him by the Constitution when it states the general “executive” or “law carrying out” power.

Inherent Powers

Youngstown v. Sawyer (1952)

· During the Korean war a number of disputes between steel mill and union members put the country on a verge of a strike, which would have halted steel production when it was most needed. President Truman tried to seize the mills in order to protect war materials, but was found to have exceeded his authority by not following congressional statutes that outlined the procedure for these type of wartime government seizures.

· Four Different Approaches:

1. Majority Opinion: (Black) NO inherent presidential power. Decided that it was unconstitutional because there is no statute or express language that grants the power to take possession of property like in this case by the president. Based on the belief that inherent authority is inconsistent with a written Constitution establishing a government of limited powers.

2. Concurring Opinion: (Douglas) President does have inherent authority unless it interferes with other branch or usurps the powers of another branch. Agreed that president’s actions were unconstitutional because president was forcing the expenditure of federal funds to compensate the taking of mills, usurping Congress’s spending power

3. Jackson and Frankfurter: President may exercise powers not mentioned in the Const. so long as he does not violate a statute or the Constitution. Jackson divided presidential authority into zones (Said that this fit the third since congress had covered it in 3 statutory policies):

a. Maximum authority when president acts pursuant to express or implied authorization of Congress

b. When the president acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and congress may have concurrent authority, or in which its distribution is uncertain

c. When the president takes measures incompatible with the expressed or implied will of congress, his power is at its lowest. Because the president is disobeying a federal law, such presidential actions will be allowed only if the law enacted by Congress is unconstitutional.

4. The president has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated. In other words, federal laws r