Constitution Law Spring 2017 Manheim
NOTE:
Two key questions in every constitution law issue: 1) whether the branch has the power to do so? 2) Has the branch exceed the limit of its power? à Has it violated other provisions of the constitution?
Overview of the United States Government
The Constitution and Its Interpretation
: focus of this class: structure of government
Definition
The fundamental and organic law of a nation or state that establishes the institutions and apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties.
What the Constitution Do?
(FOUCS of CLASS) The Constitution sets the structure of government in the United States by allocating power.
The Constitution protects individual rights.
Key Terms
Separation of Powers
Article I, vesting legislative power in a bicameral legislative branch
Article II, vesting the executive power in a President
Article III, vesting the “judicial Power of the United States” in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Checks and Balances
Presentment: Legislation must be presented to the President, who is given a qualified veto power (A1S7C2)
Impeachment: President, VP and officers of the U.S. may be removed from Office via impeachment for treason, bribery, or other “high Crimes and Misdemeanors” (A2S4); House has the power of impeachment (A1S2C5) and the Senate the sole power to try all impeachments (A1S3C6)
Treaty power: President may make treaties by and with the advice and consent of 2/3rds of Senate (A2S2C2)
Appointment power: President may appoint principal officers with advice and consent of Senate (A2S2C2)
Power of the purse: President’s power to enforce the laws (A2S3) is checked by Congress’s power over the purse (A1S9C7)
Federalism
Balance of powers between Federal & State government
A1S1 (all legislative powers “herein granted”)
Supremacy Clause (A6)
A1S10 (prohibiting the states from exercising certain powers)
10th Amendment (powers not delegated to the U.S. nor prohibited to the states are reserved to the States respectively, or to the people)
11th Amendment (prohibiting the federal judicial power from extending to suits against a State by a citizen of another state)
Individual Rights
The Bill of Rights (Amendments 1-10), such as the First Amendment’s protection of speech
13th, 14th and 15th Amendments (the “Reconstruction Amendments”)
Case study of the Travel Ban
An Executive Order: instruction to the member of the Executive Branch
Purpose of the travel ban: can someone look into Trump’s campaign word to find the purpose?
What did President claim that give him the legal authority to issue the order?
Statute: INA
: Any use of a delegated power must be consistent with constitutional limits (e.g., EP, DP and 1st Am.) and also any statutory limits
Modalities of Constitution Interpretation
Historical
Textual
Structural
Doctrinal
Ethical
Prudential
The Legislative Branch
How Congress Make Law
Constitution: Bicameralism and Presentment (Art. 1 §7)
Both Houses must agree, by majority vote, on the exact same language (“bicameralism”)
Congress must then present the agreed-upon language to the President, who may veto the bill (“presentment”)
NOTE: designed to have broad consensus and slow process
Practical: very complicated and difficult
How Congress Delegate Legislative-like Power
Always through Statute (Statute as a major source of presidential power)
Congress frequently delegates vast amounts of lawmaking power to actors within the executive branch, enabling those executive actors to fill in the details of statutory schemes.
Agency Rules: Notice-Commenting Rulemaking
Non-delegation Doctrine (NDD)
Trigger: concerns over delegation of law making power to executive branch undermines Constitution process
Courts developed “intelligible principle” to govern NDD
“Intelligible principle” Standard
Broad statute language, mass discretion of executive branch is good enough
Practical matter: During the 1930s, the Supreme Court used the non-delegation doctrine to strike down legislation (in, e.g., Panama Refining and Schechter) but since that time has not once invalidated a delegation of legislative authority due to a lack of an “intelligible principle.”
How does Congress Control the Executive with Respect to Powers it has delegated?
The Legislative veto à See Chadha, p160
One house by majority vote passing resolution to dissolve an executive action
NOTE: Formalism vs. Functionalism
Rules, clear line, more likely to find violation of Cons.
Standards, More Flexible way, don’t need to be clear
Formalists argue for attention to text and original understanding, for rule-bound adjudication, and for clear lines of demarcation between the branches of the federal government, except insofar as the branches have explicit constitutional authority to participate in each other’s activities; the President’s veto power is an example
Functionalists argue for flexible adaptation of the separation of powers to the exigencies of modern government, for standard-based or balancing approaches to separation of powers adjudication, and for participation by each branch in the decision making processes of other branches.On this view, the separation of powers merely prohibits one branch from appropriating or intruding upon the ‘essential functions’ of other branches
INA v. Chadha (1983), p160
FACTS: Immigration and Nationality Act (INA) delegates to the AG discretion to “suspend deportation” under certain circumstances. INA gives the House opportunity to exercise legislative veto. AG suspended Chadh
r; see A1S9C7)
The power to make law (the President has only a qualified veto power; see A1S7)
Inherent powers (to be discussed later when we get to Curtiss-Wright, see note on p11)
Statutorily granted powers
executive function
Executive Oder
Youngstown v. Sawyer (1952), p117.
FACTS: Korean war, threat of steel union strike. Truman refused to use injunctive powers under Taft-Hartley Act to halt the strike because he sided with the laborers. Truman issues an Executive Order directing the Secretary of Commerce to take possession of and operate the nation’s steel mills. Truman claims that seizure is necessary to avert the national crisis of a wartime steel shortage. Congress took no action. (However, previously, Congress rejected an amendment to the Taft-Hartley Act which would have authorized governmental seizures in cases of emergency). The companies sued.
Majority (Black-Formalist)
President’s power to issue the order must (1) stem from an act of Congress or (2) from the Constitution itself. In this case, neither was true
Here, neither is true (order cannot be viewed as a proper exercise of President’s powers to “execute” the laws or to act as Commander in Chief of the Armed Forces)
Concurrence (Jackson-Functionalism) àControlling Framework for Separation of Powers for President Analysis
First, when the President acts with express or implied Congressional approval, his power is at its maximum for it includes “all he possesses in his own right plus all that Congress can delegate”
Second, when the President acts in the face of Congressional silence, he acts in a “twilight zone” where he must rely upon his own powers but the President and Congress may have concurrent authority
Third, when President takes measures incompatible with will of Congress, his Power is at lowest ebb and President can rely only upon his own Constitutional powers
Dissent (Vinson-Evolutive Functionalism)
President enjoys broad inherent authority and may act unless his conduct violates the Constitution
Evolutive functionalism could be said to be embraced—meaning that the dissent says the Presidential action here is supported by historical precedent
Seizure was temporary and was subject to congressional direction
Oversight over Regulatory State
Enforcement and non-enforcement Decisions
i.e.: The Cold Memo on Marijuana Enforcement, non-binding guidance
