The Allocation of Powers Among National Institutions, and Between the National and State Governments
Judicial Review
· Marbury v. Madison
o Facts: Just before president Adams was leaving office, the congress passed 2 acts which authorized the appointment of more federal judges and justices of the peace. Adams made the appointments and Congress confirmed them. The new “midnight” judges commissions were signed by Adams and sealed by the secretary of state. By the time anti-federalist Jefferson took office, several of the commissions remained undelivered. Jefferson ordered his new secretary of state, Madison, to withhold delivery pursuant to section 13 of the Judiciary act of 1789, which authorized the Supreme Court to “issue writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States.” Marbury and other frustrated “midnight” appointees petitioned the Supreme Court to compel Madison to deliver the commissions.
o Issue: Does the supreme court have the power to declare congressional acts unconstitutional?
o Holding: Yes. The court can declare an act of congress unconstitutional because of how Marshall interprets judicial power. Marshall’s arguments were:
§ The courts are the guardians of the constitution
§ Case deciding rationale
· They are supposed to decide case under law. If we think that the constitution is law, then they have to protect the constitution. Remember they are not a democratic institution
o Notes:
§ Argument for judicial review. There must be someone to resolve disputes, otherwise there would be just confusion. There must be some final decider. The supreme court is the obvious choice.
§ Argument against Judicial Review: Learned hand- not democratic. The more they intervene, the less democratic it is.
§ Consitutional Interpretation
· Originalism- a court may properly look to the text of the document itself, and whee the text is unclear, to the original extend of the constitutional Framers as well.
· Non-Originalism
o Textualists- believe the only legitimate basis for constitutional interpretation is the words of the document itself.
o Other nonoriginalsts- reject textualism, which courts may consider the text of the constitution, as well as the intent of the framers, courts are not limited to these sources.
The President
Presidential Power Affecting Congressional Power
Youngstown Sheet and Tue Co v. Sawyer
Facts: in early 1952 the United Steelworkers Union announced a planned nationwide strike. A few hours before the strike was scheduled to happen, President Truman issued an executive order directing the secretary of commerce to take possession of the steel mills and keep them running.
Issue: Was president Truman acting within his consititutional power when he issued an order directing the Sectretary of Commerce to take possession of and operate most of the nations
emphatically have withheld authority than it did in 1947.”
Concurring (Justice Jackson): Three zones of Presidential Authority: 1) when the President acts pursuant to an express or implied authorization of congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that congress can delegate. 2) 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. It is impossible to formulate general rules as to the constitutionality of actions in this area; rather constitutionality is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3) When the president takes measures incompatible wit hthe expressed or implied will of congress, his power is at its lowest ebb. The presidential power in this case will only be allowed if the law enacted by congress is unconstitutional. Jackson concluded that this action fell within the third category because congress has no
