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Constitutional Law I
Villanova University School of Law
Samahon, Tuan N.

Judicial Review and Power

Under Marbury v. Madison, it is the Supreme Court, not the Congress, which has the authority and duty to declare a congressional statute unconstitutional if the court thinks, it violates the Constitution.

It is emphatically the province and duty of the judicial department to say what the law is.
Art. III grants federal courts subject matter jurisdiction over all cases arising under the Constitution.
Art. IV declares the Constitution to be Supreme Law of the land.

The Supreme Court could review the constitutionality of a decision by a state’s highest court. à Martin v. Hunter’s Leases , Fletcher v. Peck

Art. III grants federal courts jurisdiction over all cases arising under the constitution.
If federal courts could not review state court decisions interpreting the Constitution, then federal courts could not hear all cases arising under the Constitution, in clear violation of Art. III.

Federal Executive Power (Separation of Powers)
· Art. II of the Cons “The executive Power shall be vested in a President of U.S.A.” and it enumerates specific powers of the president.
· Debate over whether the Art II. Was intended to grant the president inherent powers not expressly enumerated in Art. II.
o Hamiltonians have argued that the difference in the wording of art. I and II reveals the framers’ intention to create inherent presidential powers.
§ Art. I “herein granted”. Art. II “The executive power” no restriction.
§ The president has authority not specifically delineated in the Cons.
o Madisonians have argued that the opening language of Art.II was simply to settle the question whether the executive branch should be plural or single and to give the executive a title.
§ The president has no powers that are not enumerated in Art. II
§ Such unenumerated authority would be inconsistent with a cons creating a government of limited authority.

Youngstown Sheet v. Sawyer: seizure of steel mills by executive order. The president reported this action to the Congress and the Congress took no action.
· 6-3 margin; the seizure was unconstitutional with four different approaches
1. no inherent presidential power
§ president may act only pursuant to express or clearly implied statutory or constitutional authority. Justice Black
2. president may act w/o express statutory or cons authority so long as the president is not usurping the powers of another branch of government or keeping another branch from performing its duties. Justice Douglas
§ In this case, it usurped the spending power of the Cong.
3. Three zones of presidential authority
§ When the president acts pursuant to an express or implied authorization of Cong., his authority is at its maximum, for it includes all that he possesses in his own right plus all that cong can delegate.
· President’s acts are presumptively valid
§ When the he 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 cong may have concurrent authority, or in which its distribution is uncertain.
§ When he takes measures incompatible with the expressed or implied will of congress, his power is at its lowest ebb.
· Because the president is disobeying a federal law, such presidential action will be allowed only if the law enacted by congress is unconstitutional.
· This case fall in this category of zone because the congress did not left the seizure of the private property an open field but has covered it by three statutory policies inconsistent with this seizure.
4. Broad inherent authority
§ The president has inherent authority, at least in some areas, and may act unless such conduct violates the constitution.
Dames and Moore: executive agreement that lifted the freeze on Iranian assets in U.S.
· The Court upheld the constitutionality of the agreement.
o It emphasized that a series of federal statutes authorized the president’s action
o Because the President’s action in nullifying the attachments and ordering the transfer of the assets was taken pursuant to specific congressional authorization, it is supported by the strongest of presumptions and the widest latitude of judicial interpretation. Youngstown’s first category
o It was constitutional because federal statutes authorized such presidential actions and because a history of such executive settlement of claims.
§ A systematic, unbroken, executive practice, long pursued to the knowledge of the congress and never before questioned… may be treated as a gloss on Executive Power vested in the President by Art. II §1. Justice Frankfurters, Youngstown.

Commander-in-Chief Power and The War on Terror
Hamdi v. Rumsfeld: He was charged as an enemy combatant and detained by U.S. military. The Bush administration asserted that by designating him as enemy combatant , the executive branch obtained the power to hold him indefinitely, w/o formal charges or proceedings so long as the war in which he had been seized continue. He challenged his status and the constitutionality of holding him w/o formal charge or proceeding

The Court concluded that U.S. did not in fact have the power to hold Hamdi w.o counsel, w/o charge and w/o opportunity for some sort of trial.
A U.S. citizen designated and detained as an enemy combatant has a due process right to challenge the underlying factual support for that designation before a neutral arbitrator.
A citizen has a right to be free from unlawful detention w/o due process.
The court must weigh the governmental interest against the individual liberty right of right of detainee
It is not necessary to provide initial due process hearings for captures, but those who must be detained further are entitled to further proceedings.

Plurality concluded that his detention was authorized pursuant to an Act of congress, AUMF.

The detainee must have an opportunity to demonstrate that gov’t’s factual assertions are not true.

The government argue that respect for separation of powers precluded Hamdi from having an evidentiary hearing on the facts leading to his detention. Considering the military context of his detention, the government argues that the federal courts should be restricted to investigating only whether legal authorization exists for the broader detention scheme. According to the government, during times of military conflict, separation of powers principles preclude courts from ordering a hearing to decide whether an individual was correctly detained by the executive branch. Such deference would show proper respect to the executive branch’s authority over military and national sec

ly relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.

Executive Immunity
· A president may not be sued for injunctions or for money damages for actions taken while in office.
· a president may be sued while in office, for conduct that occurred before taking office.

Nixon v. Fitzgerald: P alleged that his job was eliminated in unconstitutional relation for his exposing cost overruns in the testimony in Congress.
· the president’s unique status under constitution and the singular importance of the duties of the office justify absolute immunity.
o The Court feared that frequent suits against the president would detract from his or her ability to perform effectively.
o Other checks on a president exist such as impeachment and political pressure.
· A former president is entitled to absolute immunity form damages liability predictaed on his official acts.
· Dissent: other checks do not provide compensation, the decision places the president above the law.

Clinton v. Jones: Bill was sued for sexual harassment that allegedly occurred while he was the governor.
· A suit against a president should be neither stayed nor dismissed if it is based on conduct that allegedly occurred prior to his taking office.
· Immunity exists to safeguard the exercise of discretion by an officerholder; thus, there is no basis for immunity for unofficial conduct.
· The court rejected the Bill’s argument that a suit would interfere with carrying out the important and unique constitutional functions of office.
o The court observed that during 200 years, there have been only 3 suits, no substantial time need to litigate.
It is not settled whether a president may be criminally prosecuted while in office.

The Legislative Veto
· Congress created the “legislative veto” as a check on the actions of administrative agencies.
· Congress included in statutes provisions authorizing Congress or one of its houses to overturn the agency’s actions
· A typical form of a legislative veto provision authorized Congress to overturn an agency’s decision by a resolution of one house of Congress or by both houses or even by action of a congressional special committee. Something less than legislating a new law.

INS v. Chadha: an immigration judge ruled in favor of Chadha allowing him to stay in U.S and ordered that his deportation be stayed. However, House of Re adopted a resolution overturning this decision and ordering his deportation. Federal gave either house the authority to overturn an INS decision to suspend deportation.
· The Court declared this legislative veto unconstitutional.