POL 320: In-Class Notes PDF

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In-class notes for POL 320: Constitutional Law....

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POL 320: Notes Week II (9/13 – 9/16)  Supreme Court Decision Mechanisms ◦ Majority Opinion ▪ The written opinion of the majority of the judges expressing the outcome of the case and the legal reasoning ▪ Also known as binding precedence ◦ Concurring Opinion ▪ Written opinions in non-unanimous cases by judges that agree with the outcome but disagree with the legal reasoning ▪ Non-binding ◦ Dissenting Opinion ▪ Written opinions in non-unanimous cases by judges that disagree with majority opinion  Restraints on Judicial Authority ◦ Judicial Review ▪ review by the US Supreme Court of the constitutional validity of a legislative act ▪ Judiciary Act of 1789  Signed by Washington  While Article 3 established the SC, this established all other inferior federal courts ▪ Marbury v. Madison (1803)  background info  when Congress issued a writ of mandamus as part of the Judiciary Act of 1789 it violated Article III (outlining the powers of the Supreme Court) of the Constitution  Congress cannot control the Courts original jurisdiction  (1) Does Marbury have a right to his commission?  Yes. Marbury was appointed by the president and confirmed by the Senate  (2) If Marbury has a right to his commission, is there remedy?  Yes. Where a specific duty is assigned by law, an individual who considers himself injured, had a right to resort to the laws of the country for a remedy  (3) Is the Court's writ of mandamus an appropriate remedy?  No. The provision in the Judiciary Act of 1789, giving the Supreme Court the power to issue writs of mandamus is unconstitutional, because the ▪ Constitution defines the Supreme Court's original jurisdiction ▪ Congress only possesses the power to change the Court's appellate jurisdiction ▪ A law repugnant to the constitution is void; and courts, as well as other departments, are bound by that instrument. ◦ Jurisdiction ▪ define it ▪ Ex Parte McCardle (1869)  Ex parte: “for one party,” usually a court order for temporary, urgent relief ▪ May the Congress withdraw jurisdiction from the Court after that jurisdiction has been given?  Congress can withdraw jurisdiction from the Court, but it cannot withdraw jurisdiction that was previously exercised.  How does Congress withdraw jurisdiction? ▪ Amendments??

◦ Judicial Review and State Court Decisions ▪ Martin v. Hunters' Lessee (1816)  Must state supreme courts enforce rulings made by the US Supreme Court?  Yes. The Supremacy Clause allows the national gov't to override state courts in order to secure a uniform legal system. ▪ Political Questions  Court will not hear cases involving “political questions”  Separation of powers – legal question involving-co-equal branches of government  Foreign Affairs – Courts should not risk embarrassing the U.S. abroad  Judicially manageable standards are lacking, no judicial remedy or standard for review  Baker v Carr (1962)  Are cases involving reapportionment of legislative districts non-justiciable political questions? ▪ No. The question regards the consistency of state law with the federal constitution, and does not violate any previous standards set for political questions  Nixon v U.S. (1993)  Corrupt judge trialed under special Senate committee and impeached argued that the ruling was unconstitutional due to not being a full Senate vote  Is this case justicable? ▪ No. There is no evidence that the Framers intended the courts to have judicial review over impeachment powers. ▪ Judicial review with regard to impeachment is inconsistent with checks and balance ◦ Standing ▪ Article III states that the Court will hear “cases” and “controversies” ▪ Standing—Article III requires that:  (1) the party must have suffered a concrete injury or be in imminent danger of suffering such a loss,  (2) the injury must be traceable to the defendant, and  (3) the party must show that a favorable court decision will provide a remedy. ▪ Hollingsworth v Perry (2013)  Do the supporters of Prop 8 have legal standing to sue?  No. Respondents no longer suffer an injury after the state court ruling, and the state chose not to appeal the ruling.  The appellants possess only a generalized grievance and do not have a personal stake in the outcome of the case. Week III 9/20  Enumerated and Implied Powers of Congress ◦ McCulloch v Maryland (1819) ▪ Did Congress have the authority to establish the bank?  Yes. Establishing a bank is an implied power of Congress, see necessary and proper, since they can coin money and regulate commerce. ▪ Did the Maryland law unconstitutionally interfere with congressional powers?

 Yes. Maryland could not tax instruments of the national government employed in the execution of constitutional powers (Such as the coining of money and regulating of commerce). ◦ Gibbons v Ogden (1824) ▪ Did the State of New York exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce?  The unanimous Court found that New York's licensing requirement for out-of-state operators was inconsistent with a congressional act regulating the coasting trade. The New York law was invalid by virtue of the Supremacy Clause. The federal government controls interstate commerce. ▪ Commerce Clause  Includes buying, selling and transporting of goods and services. ◦ Powell v McCormack (1969) ▪ May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence as articulated in Article I Section 2 of the U.S. Constitution?  No. Chief Justice Warren concluded that since Powell had been lawfully elected by his constituents and since he met the constitutional requirements for membership in the House, that the chamber was powerless to exclude him. ◦ U.S. Term limits, Inc. v Thorton (1995) ▪ Can states alter those qualifications for the U.S. Congress that are specifically enumerated in the Constitution?  No. The Constitution prohibits States from adopting Congressional qualifications in addition to those enumerated in the Constitution. ◦ Gravel v U.S. (1972) ▪ Did the subpoena of Senator Gravel's aide violate the Speech and Debate Clause of Article I of the Constitution?  Yes. The Court held that because the work of aides was critical to the performance of legislative tasks and duties, they were nothing less than legislators' "alter egos" and thus immune from subpoenas by the Speech and Debate Clause. Week III (9/23)  Powers of Congress ◦ Gravel v U.S. (1972) ▪ Does the speech and debate clause extend to Congressional aides?  Yes. A member of Congress and his/her aide should be treated as one.  Aides are necessary to the Member's job functions, and without their protection, the Speech and Debate Clause's intention of protecting members from intimidation by the Executive branch or the judiciary is meaningless.  But, that protection does not exempt aides or Members from testifying if it proves relevant for the investigation of third-party crimes where testimony does not involve a legislative act. ▪ Does the speech and debate clause extend to the publishers?  No. The Speech and Debate Clause protects only actions essential to the operations of Congress or that threaten the integrity or independence of Congress.  Senators and aides have similar protections, but both could be questioned on issues with no direct connection to legislative process.

▪ Stewart, Dissenting in Part:  Grand juries and the Speech and Debate Clause represent competing constitutional interests and should be balanced on a case by case basis  Additionally, in most cases, Congress may decide to impose sanctions on a Representative or Senator who withholds information about a crime. ▪ Brennan, Douglas, and Marshall, Dissenting:  The majorities' decision restricts the Speech and Debate clause to an extent that it endangers the working of the legislature.  Additionally, informing the public about matters affecting government is essential to the operations of Congress and should be protected  Implied Power of Investigation ◦ Kilbourn v Thompson (1881) ▪ Congress could not investigate private business matters ▪ Areas of investigation must not “invade areas constitutionally reserved to the courts or the executive.” ▪ Must deal “with subjects on which Congress could validly legislate.” ▪ Congress must show, in the resolutions authorizing the investigation, a “congressional interest in legislating on that subject.” ◦ McGrain v Daugherty (1927) ▪ Does Congress have the power to compel a private individual to appear and give testimony?  Yes. Although there is no expressly granted power to make investigations, the power to investigate is necessary and appropriate for fulfilling the legislative function.  Additionally, a means of compulsion is essential to obtaining the information needed. ▪ Was the witnesses testimony sought in order to aid legislative functions?  Yes. The object of the investigation was to obtain information for legislative purposes. Even though Congress had no proposed legislation related to investigation at the time, the Congress could legislate the issue, and legislation would benefit from the information.  Congress can compel a private individual to testify in a Congressional investigation, but the matter must be related to a legislative function for which legislation would offer a remedy.  Relaxes Kilbourn to allow Congress to investigate issues for which legislation is not currently pending  Limits congress to public, rather than private matters ◦ Watkins v U.S. (1957) ▪ Did the HUAC committee's investigation seek exposure for exposure's sake; thus, failing to achieve a legitimate public purpose?  Yes. Citizens must cooperate with Congress, but Congress cannot investigate solely to punish those being investigated.  Watkins was not given fair opportunity to determine the intent of the investigation or his need to answer, making his conviction necessarily invalid under the Due Process Clause of the 5th Amendment. ◦ Barenblatt v U.S. (1959) ▪ Were the committee's questions sufficiently unambiguous?  Yes. Barenblatt obviously knew and understood the committee's authority and purpose. ▪ Did the committee's questions violate the 1st Amendment?

 No. The individual protections in the 1st Amendment are trumped by the necessity of governmental objectives at stake in investigating communism  Congressional investigations into Communism trump the 1st Amendment right to freedom of expression and association.  Amendment Enforcing Power ◦ South Carolina v Katzenbach (1966) ▪ Are the provisions of the Voting Rights Act necessary and appropriate?  Yes. The 15th Amendment expressly give Congress the power to enforce its provision with appropriate legislation. ▪ Does the act unconstitutionally violate equal treatment of the states?  The 15th Amendment supersedes state power.  8 to 1 vote for Katzenbach. Congress can enact whatever measures necessary to enforce the Voting Rights Act. ▪ Concurring and Dissenting, Justice Black:  Although agreeing with most of the Court's findings, Black argues that Section 5 of the Voting Rights Act that prohibits states from enacting new voting laws without first consulting a federal court is unconstitutional, because it gives improper authority to the courts and radically diminishes state power. ◦ Shelby v Holder (2012) ▪ Strikes down the pre-clearance formula of the Voting Rights Act as unconstitutional as the conditions present in states today do not resemble those of the 60s and 70s requiring a turnout of over 50% of voting-eligible citizens.  Inherent Powers ◦ United States v Curtiss-Wright Export Corp. (1936) ▪ Did the Congressional resolution delegate excessive law-making authority to the president?  No. The federal government possesses external sovereignty and does not depend on the Constitution for power in international affairs.  Authority over foreign affairs is an inherent power of the federal government as a sovereign nation, and derives from the Constitution only as the Constitution creates the sovereign entity. Week IV (missing – 10/7)  Executive Power ◦ Bush v. Gore (2000) ▪ Did the Florida Supreme Court violate Article II Section 1 Clause 2 of the U.S. Constitution by making new election law? Do standardless manual recounts violate the Equal Protection and Due Process Clauses of the Constitution?  Despite violating the Fourteenth Amendment by using disparate vote-counting procedures in different counties, Florida did not need to complete a recount in the 2000 presidential election because it could not be accomplished in a constitutionally valid way within the time limit set by federal law for resolving these controversies. ◦ In re Neagle (1890) ▪ Was the state obligated to obey the writ even though no national statute empowered the Attorney General to provide judges with bodyguards?  Yes. The Court held that the Attorney General acted appropriately since assigning Neagle as Field's bodyguard assured that the nation's laws would be faithfully executed.

▪ precedent: The Attorney General has the right to appoint U.S. Marshall's as bodyguards for federal judges ◦ Clinton v. City of New York (1998) ▪ Did the President's ability to selectively cancel individual portions of bills, under the Line Item Veto Act, violate the Presentment Clause of Article I?  Yes. Under the Presentment Clause, legislation that passes both Houses of Congress must either be entirely approved (i.e. signed) or rejected (i.e. vetoed) by the President. ◦ Morrison v. Olson (1988) ▪ Did the Act violate the constitutional principal of separation of powers?  No. The means of selecting the independent counsel did not violate the Appointments Clause. The Appointments Clause provides a source for judicial authority outside of Article III. ◦ Concerns only the appointment of inferior officers (as opposed to principal ones) which is within the bounds of the President's power. ◦ National Labor Relations Board v. Noel Canning (2013) ▪ Recess Appointments Clause  The President can fill all vacancies while the Senate is in recess ◦ appointments only last until the end of the next session of the Senate ◦ an intrasession recess appointment can last up until 2 years ▪ Does the Recess Appointments Clause grant the President the power to fill only vacancies that occur during the official recess of the Senate?  No. The President has the right and responsibility to fill all vacancies given that the intra- or inter-session recess period has exceeded no less than three days.  Executive Appointment Powers ◦ Myers v. U.S. (1926) ▪ Did the Act unconstitutionally restrict the President's power to remove appointed officials?  Yes. The President has the right to remove all executive officers without Senate approval. ◦ Humphrey's Executor v U.S. (1935) ▪ Does the Myers precedent apply to members of the FTC?  No. Whether the president has the power to remove an officer, depends on the office.  The legislative intent was to protect the FTC from political pressure.  Myers, unlike Humphrey, was an executive officer.  The president's attempted removal here violates the separation of powers. ◦ Executive Privilege ▪ Inherent power of the executive. ▪ Argues that certain conversations and documents are so closely tied to the president that they should remain confidential, and neither Congress nor the courts... ◦ United States v Nixon (1974) ▪ Does separation of powers prevent the Court from reviewing the claims regarding executive privilege?  No. It is the province and duty of the Court to say what the law is.  The needs of the judicial process outweigh presidential privilege. ▪ Can Nixon claim executive privilege in this instance?  No. The president does not base the claim of privilege on military or diplomatic reasons, and  there is no case law to support the notion that the president enjoys immunity in

general cases.  President Nixon had to comply with the investigation and turn over the tapes. ◦ Executive Immunity ▪ Whether and to what extent the president is protected from law suits while in office. ◦ Mississippi v Johnson (1867) ▪ Can the president be sued to prevent him from carrying out executive duties?  No. Executive immunity prevents suits against the president where the president is carrying out his duty to ensure that the laws are faithfully executed. ◦ This case established that the President cannot be sued for performing his executive duties ◦ Nixon v Fitzgerald (1982) ▪ Does immunity protect the president from suits for civil damages?  Yes. The President “is entitled to absolute immunity from damages liability predicated on his official acts.”  “President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history” requires such immunity.  Immunity protects the president from suits for civil damages, even if out of office at time of suit.  White, Brennan, Marshall & Blackmun, Dissenting: Immunity attaches to particular functions not particular actions. The court should adopt a functional approach. The majority's decision leaves Fitzgerald without a remedy. ◦ Clinton v Jones (1997) ▪ Can a president be sued for civil damages for actions that occurred prior to his taking office?  Yes. An elected official's immunity should only extend to acts involving the performance a particular function of office.  The federal courts have the power to determine the legality of unofficial conduct.  Immunity is based on the function performed, not the identity of the actor who performed the function. ▪ Can the suit continue while the president is in office?  Yes. The federal district court has jurisdiction, and Jones has a right to a timely decision. ▪ Important because it establishes that President's can be sued for actions taken prior to holding office  Executive Pardoning Powers ◦ Article II, Pardoning Powers ▪ “The president shall have Power to grant Reprieves and Pardons of Offenses against the United States, except in Cases of Impeachment.” ▪ Applies only to offenses against the U.S. government, not states. ◦ Ex parte Grossman (1925) ▪ Did the president violate the separation of powers when he commuted a sentence for criminal contempt of court?  Unanimous decision: While courts must remain independent of the executive, presidents will not use pardons to excess. ◦ Murphy v Ford (1975) ▪ Did President Ford have the constitutional power to pardon a former president for offenses against the US?  Yes. By pardoning Nixon, the president was taking steps to “restore the tranquility of the common wealth” (Hamilton, Federalist 74)

 The fact that Nixon was not indicted or convicted of an offense against the United States does not affect the validity of the pardon.  Federalist 74 explains that the President has the power to pardon in order to restore order in times of crisis.  War Powers... ◦ Youngstown Sheet & Tube v Sawyer (1952) ▪ Did the President's seizure of the steels mills without Congressional approval violate the separation of powers?  Yes. Congress did not authorize the president to take private property.  The President's military power as Commander in Chief of the Armed Forces did not extend to labor disputes.  “The President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.” ▪ Jackson, Concurring: Establishes a Test for the Constitutionality of Executive power  Most Power: When Congress authorizes the action.  Intermediate: When the president acts without denial or consent of Congress he acts with only his authority.  Least Power: When the president acts against the expressed position of Congress he has the least authority

◦ Zivotofsky v. Clinton (2012) ▪ Is this a political question?  No. The case involves the constitutionality of a statute, which has been the province of the courts, since Marbury. Remanded. ▪ Breyer, Dissenting: This is a political question, because it involves highly sensitive national security questions. ◦ Zivotofsky v. Kerry (2015) ▪ Does the president possess exclusive power to grant formal recognition of foreign countries?  Yes. This case falls under the 3rd prong of Youngstown.  Relies on historical tradition and Federalist 69 & 70.  The Reception Clause: presidents receive ambassadors and public ministers.  Also exec...