Constitutional Law
Samahon
Fall 2009
Introduction. 2
Methods of Interpretation. 2
Judicial Review & the Judicial Power. 3
Separation of Powers. 4
Commander-in-Chief Power. 4
Cases. 5
Executive Agreements. 5
Cases. 5
Executive Privileges and Immunities. 6
Immunity from Suit6
Executive Privilege for Presidential Communications. 6
Cases. 7
Legislative Veto of Executive Action. 7
Cases. 7
Delegation (non-delegation)7
Line Item Vetoes. 8
Appointments Power. 8
Removal Power. 9
Cases. 10
Political Question Doctrine. 10
Cases. 11
Justiciability. 11
Standing. 11
Cases. 12
Ripeness. 12
Cases. 12
Mootness. 12
Cases. 13
Federalism.. 14
Necessary and Proper Clause. 14
Commerce Clause. 14
Cases. 15
Dormant Commerce Clause. 15
Cases. 16
14th Amendment’s Enforcement Clause. 16
Cases. 17
Spending Clause. 17
Cases. 17
Tenth Amendment & Limits on Enumerated Powers. 18
Cases. 18
Due Process. 19
14th Amendment’s Privileges and Immunities. 19
Procedural and Substantive Due Process. 19
Presumption of Constitutionality and Tiered Judicial Review.. 19
Right to Privacy. 19
Abortion. 19
Sexual Liberty. 19
Introduction
Methods of Interpretation
I. Originalism
a. What is the plain meaning of the text?
i. Consult era dictionaries
ii. Intratextual uses
iii. Constitutional Convention
iv. State ratification records (including Federalist Papers)
b. Textual reading
i. Text itself
ii. Structure of document
iii. Purpose
iv. Historical practice
1. Pre-ratification
2. Post-ratification
c. Original intent
i. What did the author mean when he wrote?
d. Original understanding
i. Constitutional Conventions’ understandings
e. Original public meaning
i. Public’s understanding
II. Proceduralism (legal process)
a. Are groups in power preventing political change to ensure they stay in power; or
b. Although no one is actually denied the right of participation, is the majority disadvantaging a minority out of hostility or otherwise denying the minority protection afforded other groups (“discrete insular minority”)?
c. John Hart Ely (legal process theory)
i. Dual goals
1. Justify Warren Court
2. Limit future activism (by new conservative justices)
ii. Concerned about “non-interpretivism” (i.e., the idea that we don’t limit ourselves to the text; we consider values, etc.)
iii. Summary
1. Start with the text
2. Defer to democracy when text is in dispute, but two exceptions (representation reinforcement)
a. Those in power trying to maintain power
b. Process is broken
III. Critical Legal Studies
IV. “Living Constitution”
a. Precedentialism
V. Summary (from Formalism to non-Formalism)
a. Formalism
i. Objectively knowable law
ii. Objectivity
iii. Anti-consequentialism
iv. Rules
b. Originalism
c. Legal Process Theory (representation reinforcement)
d. Common Law Constitutionalism (precedentialism)
i. Stare decisis
e. Pragmatism (functionalism)
f. Critical Legal Studies
g. Non-Formalism
i. Policy
ii. Subjective
iii. Equity
iv. Consequentialist
v. Standards and principles
Judicial Review & the Judicial Power
I. Marbury v. Madison
a. Establishes that the “judicial power,” created by and self-executing under Art.III includes the power to nullify unconstitutional acts of Congress.
II. Fletcher v. Peck
a. First case in which Scotus held a state law unconstitutional (established federal judicial review of state legislatures)
b. Cites art.I, § 10 (state prohibitions): ex post facto clause and obligations of contracts clause
III. Martin v. Hunters’ Lessee
a. Establishes federal judicial review of state courts
Separation of Powers
Separation of Powers analysis
I. Has one branch exercised a power or performed a function that a specific clause of the Constitution requires to be performed by, or only in conjunction with, another body or branch?
II. Has one branch aggrandized its authority by usurping power that more appropriately belongs to another branch?
III. Has one branch encroached upon the functions of another branch so as to undermine that branch’s integrity or independence?
“Checks and Balances”: idea that the three branches are totally independent from each other, but rather, they share power in certain areas that allows each to place a check on the unbridled power of the other.
I. House and Senate perform “judicial” power when they indict and impeach government officials.
II. House and Senate must “present” legislation to President, who must sign it, before it becomes law. President may also recommend legislation.
III. Senate’s right to reject Presidential nominees for federal office.
IV. President and Senate select the judges of the federal judiciary.
V. Congress has the power to narrow the jurisdiction both of the federal lower courts and of the Supreme Court in its appellate capacity
VI. Judiciary’s power of judicial review allows it to check abuses by either Congress or the President. Marbury v. Madison.
Textual v. Structural/Functional SOP arguments
I. Textual: based on a spe
es the lasting principle: three categories of Presidential power.
II. Hamdan: President’s use of military commissions here exceeded his inherent powers, and no act of Congress authorized this exercise of Presidential powers.
III. Hamdi
IV. Boumediene
Executive Agreements
The authority to enter into these types of agreements (non-treaty international compacts) is deemed inherent in the concept of nationhood, and is an important exception to the normal rule that the powers of the national government are enumerated. Executive agreements are considered alternatives to treaties, and they can be used to address the same subject matter as would a treaty. The choice to use one or the other is a political judgment to be made by the executive branch.
The validity of the agreement theoretically depends on the scope of the granted power pursuant to which the agreement was made. Scotus has never held an executive agreement to be invalid because it exceeded the powers granted to the national government, however. Thus, generally, executive agreements are valid so long as they are made pursuant to some granted power and they do not violate the Constitutional’s guarantees of individual rights.
Valid executive treaties pre-empt state law, just as valid treaties do. When executive agreements conflict with previously enacted federal statutes and treaties, then the “later in time” rule applies if the agreement is authorized by Congress or by the terms of a valid treaty.
Types of Executive Agreement
I. Those Congressionally authorized by either a prior delegation or a subsequent implementation
II. Those authorized by the provisions of a pre-existing treaty
III. Those undertaken under the independent constitutional authority of the executive branch
Sources of Power
I. Long-standing practice
II. Implicit authorization by Congress (they know about it and don’t do anything)
Cases
I. Dames & Moore v. Regan: President Carter agrees to deal with Iran providing hostages for nullification of attachment judgments against the Iran Government. Rehnquist affirms Jackson’s idea in Youngstown, while holding that they do not represent three distinct categories, but rather, a sliding scale. Here, Rehnquist holds that Congress has implicitly approved claim settlements by executive agreements, so this case falls into the category one side of Jackson’s hierarchy.
