Outline
01/29/2010
12:08
1. ARTICLE I.
1. Vesting Powers
i. All legislative powers, herein (the Constitution) granted shall be vested in the Congress of the United States.
1. legislature is one of limited and enumerated powers
a. Tax and spend
b. Armies and navies\
c. Create uniform rule of naturalization
d. Control Commerce
· Necessary and Proper Clause
2. What Powers does Congress Have to Make Laws?
i. TEXT OF CONSTITUTION:
1. Text doesn’t limit Congress to expressly delegated powers
2. There are implied powers given from the Constitution
ii. Necessary and Proper Clause
1. Isn’t a limitation on the powers because of where it is located. It is in section 8, which is where congress’s other powers are located
2. NOT AN INDEPENDENT FREE STANDING POWER
3. ONLY AN ADJUNCT TO SOME OTHER EXPRESSLY DELEGATED POWER.
· Can only do what is necessary and proper under the powers that are already given to them.
iii. Distinction Between Ends and MeansMccullough v. Maryland
1. Means – Article 1 Sec. 8, clause 18 ,
· Appropriate, not prohibited by Constitution, then those means are Constitutional.
2. Ends – Expressly stated in Article 1 Sec 8, 1-17,
· Legitimate (purpose, object, interest) if in the scope of the Constitution
iv. Rational Basis Standard- TODAY’S STANDARD
§ Used to Create laws….has to satisfy rational basis review.
· Comes from the standard laid down my Mccullough.
1. Means – Must be rationally related to achieving the government interest.
· Means cannot be arbitrary and capricious
i. MEANS THAT CANT JUST BE A RANDOM PICK OF THE LAW, ARBITRARY MEANS WITHOUT REASON, UNGUIDED WITHOUT PRINCIPAL, CAPRICIOUS-WITHOUT FORETHOUGHT
2. Ends – Government must demonstrate that a laws purpose are Legitimate
· What’s not a legitimate gov. interest?
· Discriminating for the sake of discriminating
§ If someone wants to challenge this, then the challenger must prove that it is not on a rational basis.
3. COMMERCE CLAUSE
· Commerce power is Plenary-
i. Interstate Commerce
§ Commerce is intercourse
§ Concerns more than one state
§ Can’t regulate commerce completely internal in a state
ii. Remedy to Change Law
TWO VIEW ON HOW TO GET LAWS CHANGED:
1. POLITICAL PROCESS THEORY: decides who has the power to change a law, people can vote in new people to change the laws.(if concerned that state is getting too powerful and want the feds to take power, then need to go to the legislature)
2. THE JUDICIAL ENFORCEMENT THEORY: Where people believe that it is the courts job to get laws changed. No bright line. The judicial branch is supposed to say what the law is. (use is concerned about states rights, and the federal government being too powerful)
C.What Can Commerce Regulate(Any of the 3)
1. Channels- Use of the channels of interstate commerce..congress can regulate
a. Even if the regulation takes on a police regulation of the state.
b. If it crosses the state line, the regulation is fine.
c. Can regulate, up to completely barring the interstate transportation of anything.
d. Roadways, waterways, electronics, railroads..anyway interstate commerce flows.
2. Instrumentalities of interstate commerce
a. Any person or thing that is in interstate commerce,
b. Even if the person or thing is entirely intrastate.
i. Congress can regulate vessels that navigate on the waters of the United States
ii. The people on the boats are regulated by the commerce clause
3. Substantially affect – Local Activities that substantially affect interstate commerce
a. Congress can regulate intrastate commerce if there is a close and substantial relationship between interstate and intrastate
b. THE AGGREGATION RULE: Put together all of the affects of others in order to create the substantial affect required to satisfy this rule. Wickard
c. CLASS OF ACTIVITIES RULE: Perez – If congress has the power to regulate the class of activities that one participates in, then it doesn’t matter how small the person is in that class, congress can do what it needs to do.
· Anytime congress regulates things based on race, discrimination, or anything of the sort…it is about regulating moral wrongs….not dealing really with commerce.
· LOPEZ / MORRISON FACTORS:
1. Is activity regulated economic/commercial in nature?
2. Jurisdictional “nexus”(hook) in statute
3. Findings congress has made about substantial affects
a. (Congress has never had to state why it passes a law-the court wants to look at this)
b. Just because they find that an activity affects interstate commerce, the court gets the final word about what the law is.
4. Relationship between the acts and substantial affects on interstate commerce.
D.TAX AND SPENDING POWER (Article 1 Sec. 8, clause 1)
1. History
· Madison – said that the taxing clause should only be used in conjunction with another clause in the Constitution
· Washington – Taxing clause is an independent and free s
e step analysis (functional inquiry) Three 3 Pres. Can act.
i. President acts with the express or implied authorization or ratification by congress, the Presidents power is at its maximum.
§ Strongest presumption of constitutionality
§ Challenger bears an exceptionally high burden.
§ Only way it is unconstitutional, is if we can conclude that what the President has done is beyond the authority of the entire federal government.
ii. Have presidents in the past ever done anything like this, and can we look to that to see if the President can do that. Congressional silence can be an invitation for the President to act, and can be implicit approval of what the President has done
iii. President has done what is contrary to the express or implied will of congress…..
§ executive power is at its lowest
§ Directly at odds with what congress wishes.
§ Only way to survive constitutional review, is if the President and the President alone has the authority to act on this matter.
· Analysis will end here as long as the question is of purely domestic law.
· If the Question entails matters of foreign affairs or diplomacy, then you must supplement the analysis with a Curtiss Wright Analysis.US v. Curtiss Wright Export
2. Curtiss Wright – Deals with Foreign Affairs – Discuss this if a category 2 or 3 from Youngstown.
i. The limitations that we find in the Constitution on the President, deal only with domestic matters.
ii. When dealing with foreign affairs, do not depend on anything that is in or is not in the Constitution
· National sovereigns can do whatever they want
iii. The President is our sole agent in acting in foreign affairs
3. CAN THE PRESIDENT DETAIN “ENEMY COMBATANTS” Hamdi
i. Cant detain indefinitely- AUMF doesn’t give him indefinite detention authority.
· Court said you can retained for the “duration of the conflict”
ii. Hamdi entitled to the basics of due process of law….
iii. The government will be entitled to a few presumptions
