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Constitutional Law I
University of South Carolina School of Law
Black, Derek W.

Constitutional Law, Spring 2013 | University of South Carolina School of Law

Professor Derek Black

Magic Words are Underlined

Cases are in Boxes

The Judiciary

· Judicial Review:

o Marbury v. Madison: Madison refuses to give Marbury judicial commission, Marbury sues in SCOTUS’s original jurisdiction.

Holding: Congress’s act gives the Supreme Court broader jurisdiction in its scope as a court of original jurisdiction than constitutionally provided

Creates authority for Judicial Review of Leg. & Exec. actions

§ “Province & duty of the judicial department to say what the law is”

· Review of State Supreme Courts: Supreme court has the power to review the constitutionality of state court judgments and the acts of state officials

o Martin v. Hunter’s Lessee

o Cohen v. Virginia

· Justiciability:

o The Supreme Court cannot give advisory opinions

o Standing: “Cases and Controversies”

§ Injury: Actual or threatened injury

· Asserts the rights of the plaintiff, not the rights of another person not before the court

· Plaintiff cannot be suing solely as a citizen or as a taxpayer interested in the government following the law

o Only Exception: taxpayers have standing to challenge government expenditures as violating the establishment clause. Establishment Clause is meant to be a limit on the congress’s tax and spending power: not government grants of power, not general executive revenues, and not tax exemptions

§ Causation: the injury must be traceable to the Defendant’s conduct

§ Redressability: whether the ruling would bind the Defendant and have an effect for the Plaintiff

· Must raise a claim within the zone of interests protected by the law

§ Ripeness: when review is appropriate

Purpose: Discourages premature suit

· Ask:

o What hardship to the parties would result from withholding a decision?

o What is the fitness of the issues for judicial decision?

§ Mootness: Controversy at all stages of litigation

· Moot if:

o Criminal defendant dies

o Parties Settle

o Law at question is repealed

· Exceptions:

o There are collateral or secondary injuries

o Issue capable of repetition, yet evading review (Roe)

o Defendant voluntarily desists action, but may legally resume them at any time

o Properly certified class actions

§ Political Question Doctrine: the court will decline to hear cases better left to the political process for determination.

· Marbury: where official acts in an area the in which the Executive has “constitutional or legal discretion”, the acts are political and not subject to judicial scrutiny

Where the law assigns the Executive a duty on which “individual rights depend”, that individual has a legal remedy in court

The Executive

Inherent Presidential Power

· Text:

o Article I § 1: “the executive power shall be vested in a President…”

· Youngstown: Truman seizes steel mills in anticipation of labor strike, which could hurt efforts in the Korean War. Relies on Inherent Authority. Congress had passed the Taft Hartley Act, addressing procedures for nationwide strike, and not including seizure of mills by the Executive.

Hold: 6-3 Plurality holds seizure unconstitutional

o Jackson Concur: 3 Categories of Executive Action & Consequence

1. Presidential action pursuant to congressional authority

a. President’s power is at its zenith because it includes all of his authority, and all that Congress may delegate

b. Challenge to this authority has to show that the fed. gov. in its entirety lacks authority to act in that sphere

2. Presidential action where Congress is silent; “Zone of Twilight”

a. President’s power to act is nebulous, because Congress has failed to address or cast intent on that area despite its effective authority over it.

b. Validity of Presidential action will depend only on his independent authority

c. Efficacy will “depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”

d. Assumes some inherent power exists, but 2 limitations:

i. President cannot violate other constitutional provisions

ii. President cannot act contrary to statutory provisions, or he risks falling into category 3

3. Presidential action contrary to congressional direction

a. Presidential power at its lowest; it encompasses only the president’s powers minus the powers of Congress in that area

b. President’s claim depends on the merits of his claim to act contrary to congressional authority

o First Mover Advantage: President acts in his authority as the Executive, and only later faces rebuke from the legislative or judicial branch.

· Executive Privilege: The Power of the President to keep and record secret conversations

o The Privilege is qualified, not absolute.

o United States v. Nixon: Nixon ordered to hand over audio recordings pursuant to the Watergate investigation, refuses to comply, citing executive privilege to withhold privileged information.

Hold: although the court recognized that “president’s need for complete candor and objectivity from advisers calls for great deference from the courts”, but the due process rights of the defendants at issue trumps privilegeà qualified immunity

§ The Judiciary is the correct body to determine the scope of the executive privilege.

o Cheney v. US Dist. Ct.: Cheney refuses to turn over minutes from secret meetings with oil companies, claiming executive privilege extends to all officials under the executive branch.

Court differentiates Nixon, Nixon forced to comply because of criminal proceeding, this was a civil proceeding. Remand without clear answer

· Immunities from Suit

o Qualified Immunity, not absolute

o Purposes:

§ Need not to divert Preside

intment power in the judiciary

· Removal Power

o The power to appoint officers impliedly creates power to remove

§ Myers v. US

o Humphrey’s Executor v. US

§ If the executive official is “quasi-legislative or quasi-judicial, the President does not have the power to remove

§ Quasi-Legislative: Officers serving as agents of the legislative body

o Wiener v. US

o Bowsher v. Synar: Gramm-Rudman-Hollings Act grants Comptroller power to impose budget cuts if spending exceeded the deficit ceiling.

Court holds that the act unconstitutionally delegated executive power to a legislative official

§ Congress cannot remove an executive official except through impeachment

o Morrison v. Olson:

Executive officials may remove a quasi-legislative or quasi-judicial official, but removal must be for “good cause”, and must file report with the judges making the appointment of the independent counsel

Foreign Policy

· Foreign Policy is intrinsically different than Domestic Affairs; the President is the “sole organ of the federal government in the field of international relations”

o US v. Curtiss-Wright: Roosevelt I, pursuant to Congressional Authority, issues order prohibiting arms sales to Chaco dispute. Defendants charged with violation, and challenge order as an invalid delegation of Congressional authority.

Court Holds that domestic affairs (Congress’s domain) are intrinsically different than foreign powers, and the President does not have to be delegated any power to act in that vein

Jackson Concurrence: President acting with Congressional approval, therefore at the Apex of his power.

· Treaties and Executive Agreements

o Text: Article II, § 2 the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

o Treaties Require Senate approval to be effective and may give advice, although the President is solely responsible for their negotiation

o Executive Agreements: agreement between the President and the head of a foreign nation, effective when signed by the President

§ Functional difference: A Treaty is labeled “Treaty” and an Executive Agreement is labeled “Executive Agreement”

§ The Court sides with the President every time there is a dispute over the validity of an Executive Agreement