Con Law – Rush
Spring 2014
Exam Break Down:
· Separation of Powers
o Horizontal Relationship between Executive, Legislative and Judicial Department
· Federalism
o Vertical Relationship between the National Government and the States
· Individual Liberties
o Due Process (Rights)
o Equal Protection (People)
Exam Answers:
1. State position
2. Use cases the most strongly support your position
3. Distinguish other cases that disagree
I. Separation of Powers
Role of the Judiciary – Authority for Judicial Review
· Marbury v. Madison – what can the court review under Article III – (1-9)
o “It’s emphatically the province and duty of the judicial branch to say what the law is” – Supports idea that SC is ultimate arbiter
o Marbury: Given seat on federal bench just before Adams left office and before Jefferson’s inauguration – never received papers – Jefferson orders papers not delivered after he takes office
o Marbury seeks writ of mandamus at the SCOTUS
o Justice Marshall: No original jurisdiction in the SCOTUS
o John Marshall intentionally interprets the Act of 1789 as authorizing original jurisdiction to the SCOTUS – holds this act is unconstitutional
§ Marshall says nothing comes under original jurisdiction except Type A (cases in which an ambassador, public minister or consuls is a party) or Type B (cases in which the state is a party) cases that are specifically proscribed by Article III
o Rule: Judicial Department has the constitutional power to review executive decisions – Divided Executive World into 2 Parts:
§ Discretionary decisions – political à No authority for Judicial Review
§ Legal Duty Decisions à Authority for Judicial Review
· John Marshall says the duty to deliver the commission was a legal duty decision – authority for judicial review
o Principle: Constitutional Avoidance: Federal Courts will not decide constitutional questions unnecessarily
o Rule: SC can review Congressional Acts to Determine Constitutionality –
§ JM declared Act of 1789 Unconstitutional
o John Marshall is an originalist – something written in the constitution must be interpreted exactly as stated. Only way to change it is to amen the constitution (not be creating legislation – Act of 1789).
§ Original Jurisdiction for SCOTUS cases must be explicitly proscribed under Article III of the Constitution
Who is the Ultimate Arbiter of the Constitution? – Paradigm
1. All Branches Interpret the Constitution
a. Each branch has ultimate authority
b. All 3 Branches participate – at any moment each branch interprets
c. Checks powers of each branch
2. Each Branch Interprets the Constitution in their own area/Sphere of Expertise
a. Each branch has sphere of expertise – within that area, each branch is their own ultimate arbiter.
b. Each branch interprets their own article
i. Legislative: Article I
ii. Executive: Article II
iii. Judiciary: Article III
c. Marbury supports this idea by stating President is ultimate arbiter when there is a discretionary decision, but Court is ultimate arbiter under Article III
3. The Supreme Court is the Ultimate Arbiter
a. Marbury v. Madison – “It is emphatically the province and duty of the judiciary to say what the law is”
· Must pick which one you think is correct and use cases to support decision. Also use dissenting opinion to strengthen your argument. Don’t ignore the dissents.
· 2&3 supported by Marbury
Role of Judiciary: Power and method of constitutional interpretation
· US v. Nixon – “No Man is Above the Law” – Judicial authority to review Legal executive actions – (327-333)
o Executive Powers:
§ Discretionary – no judicial authority for review
§ Legal, duty to obey the law- authority for judicial review
o Court will determine if the executive privilege is in the discretionary or duty to obey the law realm of executive decisions – court found Nixon must surrender tapes under a legal duty
o Check on Executive Branch – Judicial power to check the executive branch
o “No man is above the law”
o SOP –
§ Nixon says: absolute independence of branches – no judicial review
§ Court says: Evidence at criminal trial falls under court’s authority of Article III to review legal duty executive decisions – if this were a discretionary decision dealing with military secrets, different result
· DC v. Heller – (11-34)
o Establishes principle that courts are there to protect minority from majority oppression
o Shows what types of sources the courts use to interpret the law
§ Majority (Scalia) – text, historian, dictionary, state constitution, cases
§ Dissent- statistics, text, history
o Originalist (Scalia) – narrow, framer’s intent
o Nonoriginalists (Breyer, dissent) – broader
o Principle: Dual nature to democracy. Court’s role to protect the minority from majority oppression when necessary
§ Sometimes individual wins against the majority
Division of Powers between the Executive and Legislature
Inherent Executive Power
· Youngstown- When does the President have inherent executive power and what limits that power? – (317-327)
o Korean War – President seizes the steel mills to prevent a strike that would halt production– steel needed to produce military weapons
o Did the President have the power to seize the steel mills?
o Article II- Executive Powers: Argue that as Commander in Chief of the Army and Navy, the President had power to seize steel mills because it was necessary for war efforts – Court says no power to seize the mills
o This case stands for recognizing the President has Inherent Executive Power –
IEP Paradigm –
* Note: The power of the president is greatest when he and congress work together – but it may not always be Constitutional
1- No, Never
2- Sometimes – if not Usurping other Branches
3- Sometimes – unless/until Congress Stops his Actions
4- Sometimes, Unless Constitution Stops his Actions
5- Yes, Always
Black – Majority opinion in Youngstown –
President can only act if he has authority from the Constitution or an Act of Congress
President only has power specifically enumerated in the constitution under Article II or expressly given by Congress
Originalist Argument
Douglas – Concurring Youngstown Opinion – President cannot act if it usurps the power of Legislative or Judicial branch. – Douglas says in Youngstown, President did not have IEP because it usurped Congress’s “power of the purse”
President cannot usurp the power of another branch or keep another branc
ts highest when Congress and President are acting together
§ Does not mean it is Constitutional!
o Treaty: Agreement between US and foreign country negotiated by the president and effective when ratified by the Senate
§ Senate approval required
o Executive Agreement: Agreement between the US and a foreign country that is effective when signed by the president and the head of the foreign government
§ No senate approval required
o President has IEP so long as action does not violate the Constitution in areas of foreign affairs
o In area of foreign affairs, President is sole decision maker so long as actions are constitutional –
o President has plenary and exclusive power as the sole organ of federal government in the field of international relations – presidential foreign power does not require an act of congress
· War Powers Resolution – symbolic of president’s power to send troops abroad (369-393)
o Enacted after the Vietnam War – President sent troops – Congress never declared war
o Congress wanted to take back power to declare war – president continued to send troops and engage in foreign hostilities without an official declaration of war from congress
o Congress issued War Powers Resolution to limit president’s ability to send troops without congressional approval
o Struggle between Executive and Legislative Branches
· Dames & Moore – Executive Agreements (President only)- Treatise (Senate approval) – (369-393)
o During Iranian Hostage Crisis, President Carter agreed to dismiss all legal claims against Iranian citizens in the US in exchange for return of the hostages.
o Congress did not approve or disapprove
o Can the president issue an order settling legal claims if the order related to major foreign policy issues and Congress acquiesces to the decision? – yes
o Previous legislation that allowed similar acts can be persuasive regarding congressional consent –
· Hamdi – President acts until Constitution stops him – (369-393)
o Congress cannot authorize the president to violate the constitution by placing Hamdi (American Citizen) in prison without due process
o Does the president have power to detain citizens who qualify as “enemy combatants” without due process
o Congress gave the president authority to use all necessary and proper force to fight terrorism – Congress declared war and gave power to President
§ SCOTUS held president violated due process clause
§ Court protects individual liberties – even during war
o President does not have unlimited power
o Congress and the President acting together does not mean they are acting constitutionally
o Marbury v. Madison alive and well – emphatically the province/duty of the judiciary to say what the law is
