CAN THE COURT HEAR IT?

: case or controversy requirements

TEXTUAL SOURCE: Article III: restricts judicial power to cases and controversies. NO ADVISORY OPINIONS The court does not deal in speculations, only actual controversies. STANDING Plaintiff must 1-personally suffer or will suffer concrete and particular harm, 2-of which the opposing party is the proximate cause, 3-and the injury must be redressable by the court. Standing: -Viewing animal species for aesthetic purposes -Personal injuries No Standing: -General grievance about government with general harm to all citizens, seeking relief only tangentially beneficial to P than to general public MOOTNESS The issues time has passed. The controversy does not exist anymore. Not merely at the time of filing. Exceptions: 1-Wrongs capable of being repeated yet evanding review (Roe v. Wade). 2-criminal has already served sentence, but still faces adverse consequences RIPENESS Unripe: the issues are not presently concrete enough to justify judicial intervention POLITICAL QUESTIONS Is the court system the proper forum in which to hear the case? Better left to democratic process? First consider whether the Constitution seems to directly decide the issue textually. But always go on to the factors below. Justicability factors (very discretionary): First: Is there a textual commitment to a non-judicial branch? 1-Is challenged action is that of a co-equal branch?dont necessarily want to insult congress/president 2-Are there standards for the courts judgment? 3-Does a single, final voice need to stand, such that court should let congress/president be the final voice? 4-Would the court overstep the checks and balances of its own power? 5-Is it a purely policy issue (rather than legal)? 6-Would a decision by the court show a lack of respect to another branch? 7-Is the argument going to be so erroneous that the Constitution cannot decide the case?

8-Does the court even have an obvious adequate remedy available? 9-Would review interfere with the courts own essential functions?

CONGRESSIONAL ACTION
Congress only has such powers as are granted by the Constitution. All other powers are retained by the states and the people. NECESSARY AND PROPER CLAUSE: Congress can choose the appropriate means to accomplish any legitimate end of the Constitution by enacting laws related to the powers enumerated in Art. I 8. (McCulloch v. Maryland)

Commerce Power
Art 1 8, cl.3 gives Congress the power to regulate commerce with foreign Nations and among the Several States, and with the Indian Tribes. Lopez is the most recent Commerce Clause case, and synthesized prior commerce clause cases. In Lopez, Rehnquist noted that congress is allowed to regulate in THREE categories: 1-Congress can regulate the channels of interstate commerce. 2-Congress can regulate the instrumentalities of interstate commerce and persons and things in interstate commerce. 3- Congress can regulate activites having a substantial relation to interstate commerce 1-CHANNELS OF INTERSTATE COMMERCE A route of interstate commerce. Anything upon which or through which interstate commerce is conducted and thus facilitates interstate commerce. CHANNELS: -A railroad that runs interstate -The Internet NOT CHANNELS -airspace over the US (commercial air -Produce grown for home travel; commercial shipping) consumption -the Mississippi River -a small lake in a state park -people traveling interstate (EVEN safety regulations that concern one of the acceptable channels) 2-Instrumentalities of Interstate Commerce A vehicle of interstate commerce; anything IN WHICH interstate commerce is conducted and thus facilitates interstate commerce. INSTRUMETNALITY: -Airplanes carrying passengers between states -cell phones (used to conduct interstate business) -internet

-people??? BUT NOT -Recreational bicycles

-Produce grown for home consumption -Guns themselves -Courts/judicial remedies

3-Substantial Relation to Interstate Commerce Most ambiguous category FOUR CONSIDERATIONS 1-Whether the regulated activity is commercial in nature. (VERY IMPORTANTcongress has wide latitude to regulate commerce) Commercial: -Loan sharking -Service at a restaurant or hotel -Mining Non-Commercial: -Domestic violence -Gun possession in/near a school (Lopez) -The mere possession of an item or violence in and of itself noneconomic=not substantial. Must be in this specific instance, not aggregated 2-Whether the congressional statute contains a jurisdictional element. (a phrase that connects the regulated activity to interstate commerce) it shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce in a school zone 3-Wheter Congress reasonably found that the regulated activity substantially affects interstate commerce (less importantdeference to legislators) Morrisoncongress isnt required to show such findings, but they help evaluate affects on interstate commerce when not obvious. Generally deferential, but if the affects seem too far removed (In Morrison: guns in schools impede learning, leads to less educated people, leads to lower-productive workforce, affects interstate commerce) then that line may be rejected. Merely stating that something affects interstate commerce is not enough 4-Whether the link between the regulated activity and interstate commerce is too attenuated. In Morrison: guns in schools impede learning, leads to less educated people, leads to lower-productive workforce, affects interstate commerce Lopez pile inference upon inference Federalism Considerations Is this an activity traditionally reserved for the states to regulate? EX: marriage and divorce; criminal violence, private cultivation of medicinal marijuana, primary public school standards. There is no area that neither Congress nor the states can regulate.

IF DRAFTING, consider the Darby Bootstrap, where you prohibit the interstate movement of some bad thing (marijuana) and then as a MEANS prohibit the manufacture and possession of it and use the necessary and proper clause as justification of those actions. EXTERNAL LIMITS ON THE COMMERCE POWER: 10TH AMENDMENT the powers not delegated to the US by the Constitution, nor prohibited by it to the states are reserved to the states respectively or to the people. If a state is subject to regulation then the 10th Amendment becomes an external limit due to inherent state power. If a state is using an integral function (police, fire) then the federal government cannot touch it. BUT at times it has been argued to be just a truism. (Darby) Coyle v. OK: Congress CANNOT tell OK where to put state capital because its a state function. US v. CA: Congress CAN regulate state-owned railroads via federal statutes like any other commerce clause case because its not an integral inherent state power/function. Garcia: Congress can regulate wages and hoursoverturns prior caselaw like National League of Cities. states can protect their interests through the political process, and the court is not well equipped to decide what is integral to the states. BUT courts cannot compel state legislatures to enact federal legislation (NY v. US) NOR can Congress force (commandeer) state officials to enforce (rather than apply) federal law (Printz). States are not puppets of a ventriloquist Congress

11TH AMENDMENT The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.=Sovereign immunity. Cannot sue 1-a state as defendant, 2-as a private citizen of another state, or 3-in federal court. Seminole Tribe of FL: Congress cannot authorize citizen suits against states under the commerce clause without the states consent. Alden v. Maine: Sovereign immunity is derived not from the 11th amendment but from the structure of the constitution itself. Immunity includes federal actions brought in state court under Article I. Federal Maritime Commission v South Carolina: Even a commission cannot hale a sovereign body into court without consent.

Taxing Power:
Art I 8: Congress shall have power to lay and collect taxesto pay the debts and provide for the common defense and general welfare of the US. Butler: Congress has the broad power to tax for the general welfare so long as it does not violate other constitutional provisions. Congress has at times attempted to use taxing power when it would otherwise not be able to regulate something. Categories to consider whether legitimate or illegitimate taxing MOTIVE: 1-Psychology Does it seem to be primarily a money-collecting venture, or is the point the consequences? 2-Actual motive of Congress? Evidence: i--Size of the tax (if too small, money isnt the primary motive; if too big, coercion is the primary motive, both bad. ii--proportionality (if applied disproportionately, bad) iii--if a detailed trigger is specified, shoes regulation, not $$$ iv--scienter mens rea in the statute shows regulation>taxation v-legislative history Spending Power: Butler: Congress has the broad power to spend for the general welfare so long as it does not violate other constitutional provisions. General welfare as ambiguous Congress will try to spend to buy what they cannot coerce via conditional spending. Outer limits of conditional spending: South Dakoda v. Dole. Congress may attach conditions on the receipt of federal funds, but the power is limited by caveats: 1-General welfare requirement 2-If Congress is going to make federal funds conditional it must do so unambiguously so the state can choose knowingly. 3-Must have a reasonable relation from spending to what the goal of the condition is. (drinking age vs highway funds) 4-Cannot violate other constitutional provisions 5-Cannot be overly coercive (vague) (first two are usually met easily) Sebelius Threat/offer distinction. May break down, but generally you offer something that the other party has a right to, which is legitimate. Congress cannot threaten to take away something the states are due.

Leaves open the possibility that some offers are just too coercive. (5% highway funds no, but 100% Medicaid funds?)

War Power:
Only Congress can declare war, but the president can back us into war in an emergency without congress. Formally, war ends by 2/3s Congressional consent; but informally, president can end it. War power does not necessarily end after cessation of hostilities (Woodshousing deficit regulations/rent control after end of war)

Treaty Power:
President has authority by and with the advice and consent of the senate, to make treaties provided two thirds of the senators concur Treaties are law, though court says it will try to effect both laws before striking down the state law. The constitution expressly grants the federal government the power to make treaties and thus states cannot claim that a treaty or statute adopted pursuant to it violates the Tenth Amendment (Powers not delegated to the US by the Constitution, nor prohibited by it to the states are reserved to the states respectively or to the people). President has broad power with executive agreements. Congressional Approval is not needed for executive agreements, nor for rescission of treaty. Foreign Affairs: Difficult questions arise when there is a conflict between the president and Congress over control of foreign policy. Congress has authority over the states, generally though. Zschernig v. Miller: barring a state alien inheritance law because it intruded into the field of foreign affairs which the Constitution entrusts to the President and the Congress. BUT, conflicting views over whether a state can turn away international businesses.

LIMITS ON STATES ACTIONS

For every state regulation: Q1-Is it actually regulating interstate commerce? Commerce analysis above: Channel, Instrumentality, Subs. Relatn? Q2-Has Congress spoken-what did they say? If YES, and the state action is inconsistent with Congresss statement, then its PREEMPTION and the federal law prevails.(Gibbons

congress had spoken and allowed a monopoly so states couldnt change that) Q3-If congress has not spoken-is it exclusive or concurrent power? Exclusive/Concurrent test DORMANT COMMERCE CLAUSE 1-Facial Discrimination? -If its clearly discriminatory against interstate commerce, then its per se invalid. -ban on imports -ban on exports -discriminatory tax -discriminatory subsidy to in-state business 2-Is there a protectionist purpose? 3-Balance of burdensburdensome=too exclusive? PRIVILEGE AND IMMUNITIES CLAUSE

Preemption
1-Federal law expressly preempts (speaks on) a local law. If yes, does the state statute fall within the area preempted? 2-Did Congress make a clear showing to occupy a field and displace states from regulation on that matter? (Field Preemption) GadeIf its an area traditionally regulated by the states it should be pretty clear: 1-Pervasive scheme of federal regulation 2-Congressional act touches a field where federal interest is so dominant that federal system would be assumed to preclude states from same subject. Hines v. Davidowitz: state law the requires aliens to register with the state, carry a registration card, etc preempted because it is in a field that affects international relations, which is a federal role. Also, federal scheme, so conflict preemption too. Rice v. Santa Fe Elevator Corp: Even though Congress did not expressly preclude state regulation of grain elevators licensed by the federal government, a law doing so was preempted because there was Congressional purpose and you construe against local concerns here. 3-Conflict Preemption: compliance with both federal and state regulations is physically impossible, or state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. (Gade) Florida Avocado Growers: VALID state law which prohibited sale of California avocados not up to certain standards because the federal law was more lenient. States can enact more stringent regulations, but cant loosen federal minimums.

Wyeath v. Levine: State law about inadequate drug labeling VALID because FDA minimums did not conflict with more restrictive state standards. Crosby v. National Foreign Trade Council: INVALID state law bars buying goods from Burma. Traditional federal concern for sanctioning other countries. Govt already has a scheme for this. Pacific Gas v State Energy: federal act regulates nuclear matters, but doesnt say exclusively. States regulations are VALID when determining cost and other state concerns. So its concurrent. Feds can always consent to states regulation.

Dormant Commerce Clause:

Q1-Facial Discrimination: -BANS ON IMPORTS Philly v. NJINVALIDATED NJ law prohibits importing waste from out of state, because it even though they say theyre concerned about the environment, its still clearly discriminating against out of state business solely in favor of in state. All burden is out of state, all benefit in-state. -No political representation for out of state businesses in enactment. -DISCRIMINATORY FEES -DISCRIMINATORY TAXES Oregon Waste Systems v. Dept of Env. Quality: INVALID tax on out of state waste, which was 3X higher than in-state waste. -DISCRIMINATORY SUBSIDTY TO IN-STATE BUSINESS Generally VALID because you can subsidize what you cant penalize. The subsidy CANNOT come from taxes because otherwise its basically a tax. West Lynn CreamerySubsidy AND a tax, thus invalid. -DISCRIMINATORY REBATE on FACIALLY NON-DISCRIMINATORY TAX VALID -TAX EXEMPTION YES, DISCRIMINATORY -HOME PROCESSING REQUIREMENTS Whether importing, exporting, or inspecting basically ALWAYS facially discriminatory Dean MilkMadison WI tries to discriminate against all milk producers outside a 5 mile radius of city. Court says it doesnt matter that the policy burdens in state commerce too because it burdens ALL out of state milk in an attempt to help a section of instate business. C&A Carbone v. Clarkstownin state processing requirement that required in state recyclers to deposit at the processing plant INVALID

because the recyclers collected from out of state and would have sent recycling to an out of state plant if possible United Haulers v Oneida Waste Authoritystate run waste authority requires all waste to pass through it, with NO geographical lines drawn. Deference to state here because trash hauling is a traditional government role and theyre not discriminating against out of state vs in-state. EXCEPTIONS! When is discrimination justified? Q1-Is the end sough a good one? Compelling public health or environmental purposes? Maine v. TaylorSC VALIDATED a law that prohibited out of state, diseased bait fish because the state showed that the law was to protect healthy in-state fish from unhealthy out of state fish by the only available means. Accounting for different costs of regulating out of state business Q2-Are the means necessary to achieve the end? Maine v. Taylordeferential view when states acting with purpose. Q3-Is the state government favoring itself in the market by regulating their would-be competitors from out of state? Valid. United Haulers MARKET PARTICIPANT EXCEPTION: If a state is acting as a market participant rather than a market regulator, the dormant commerce clause places no limits on its activity. EX: -only buying/selling from in stateallowable -only employing in-state residents for government-run projects BUT NOT imposing downstream effects: Conditioning the purchase of state lumber on only processing it in-state. (Alaska) The state may not impose conditions by statute, regulation, or contract that have a substantial regulatory effect outside of that particular market. Q2-Protectionist Purpose 1. If attempting to protect an indigenous industry against out of state ones, its invalid, even if not facially discriminatory. -Bacchus--Hawaii liquor tax with fruit wine made from pineapple exemptedinvalid. 2. Hunt v. Washington State AppleWA apples graded to stricter standards, which are effectively an advertisement when compared to lower quality (NC) apples; NC statute requires removing the grades system of all apples to import. Not facially discriminatory, but effectively discriminates against WA and only helps NC.

3. BaldwinINVALID minimum NY price on milk, bad because NY is benefitted by its milk being sold at the same price as cheaper milk. Fixes the market; reduces competition, like a tariff. 4. HP HoodINVALID, NY denies a permit to a milk producer because prices in NY might lower and supply increaseprotectionist 5. Q3-Effect Discrimination? Who actually gets the benefit, and who gets the burden? If benefit is in-state and burden is out of state, then invalid. Q4-Pike Balancing Test When the statute regulates evenhandedly to effectuate a legitimate local public interest and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Does the burden on interstate commerce outweigh the benefit to the regulating state? Kassellimitations on semi truck length INVALIDATED. The local concern of safety did not outweigh when the safety differences were possibly negligible, and the inconvenience on trucking was very large. Also exceptions for in-state activities looked like they were targeting out of state trucks, specifically. Brennanconcurrence mentions that if the states actual intention is protectionist, thats something to look at. If safety is the actual motive, maybe you shouldnt actually balance at all. Can argue that Pike balancing isnt uniform/is subjective Burdens on Trade Exxon v. MD-gas station law did not discriminate against interstate dealers, prohibit flow interstate, add cost, or distinguish between in/out of state. VALID MN v. Clover Leaf Creamery-VALID state ban on plastic milk containers when in-state milk was already all sold in cartons. Not facially discriminatory. Upheld because the purpose was environmental even if disproportionate impact. Burdens on Business Entry Lewis v. BT InvestmentINVALID law prohibits ownership of investment advisory companies by out of state banks. Facially discriminatory, effect discrimination, AND fails Pike balancing because produces an undue burden which outweighs local benefits. Edgar v. MiteINVALID law regulates offers made to companies in contracts with IL. Facially discriminatory AND fails Pike. CTS Corp v. DynamicsVALID law intends to prohibit hostile takeovers. Valid, although facially discriminatory. Doesnt conflict with other states laws; applies equally to in and out of state.

Privileges and Immunities Clause of Article IV The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states Applicable when a state discriminates against citizens of another state (NOT corporations or aliens). BOTH P&I and dormant commerce clause can challenge state and local laws that discriminate against out-of-staters. BUT DCC can challenge laws regardless of corporations/aliens exception. Congress cannot consent to P&I violation like a DCC violation. NO market participant exception. TEST Q1-Has the state discriminated against out-of-staters fundamental rights that it accords its own citizens? FUNDAMENTAL RIGHT? -NOT elk hunting, so out of state fees are ok -YES shrimp harvesting (elk is sport, shrimp is livelihood!!) -right to work is a big fundamental right for P&I Clause Q2-If so, is there a sufficient justification for the discrimination. Strong presumption against state laws that discriminate regarding a fundamental right or important economic activity. -substantial reason test -If there is a substantial reason for the difference in treatment -And the discrimination against nonresidents bears a substantial relationship to the states objective. Possibly consider less restrictive means availability.

HORIZONTAL SEPARATION OF POWERS

Executive Violation

Art II: The executive power shall be vested in a president of the US. followed by several enumerated powers. Argument over whether the Executive power exceeds the enumerated powers. The best explanation is in Youngstown, but there were four differing approaches, all of which have been used since. Youngstown v. Sawyer-President INVALIDLY seizes steel mills during Korean War because a dispute between companies and employees would jeopardize national defense. He could have enjoined the strikes, sought Congressional action, but he did not. FOUR DIFFERING APPROACHES AMONG THE OPINIONS 1. NO inherent presidential power Black says that the president can only act pursuant to express or clearly implied statutory or constitutional authority. Here, there is no statutory authorization, and nobody was claiming that language in the Constitution

grants the power to seize steel mills. No undefined residuum of power which president can exercise because it seems to him to be in the public interest. 2. President can act without express statutory or constitutional authority as long as the president is not usurping powers of another branch of government or interfering with another branchs duties. Douglas says president is forcing the expenditure of federal funds to compensate the steel mill owners for taking their property, usurping Congresss spending power. 3. Legislative Accountability and Jacksons Zones of Authority Frankfurter argues that the president may take any action not prohibited by the Constitution or a statute, particularly because of custom. Similarly, Jackson spoke of three different zones of authority. In the first, the president acts pursuant to an express or implied act of Congress, the executive is within his authority. In the second, the president acts without congressional grant OR denial of authority, and there is a zone of twilight where the president and Congress may have concurrent authority. Here, no general, blanket rules can exist and validity depends on the facts of the case. Third, when the president acts in a way that is incompatible with Congresss actions, those actions will be presumed invalid unless Congresss act is unconstitutional. 4. Inherent Authority Vinsons dissent says that the president is not bound anywhere the constitution does not explicitly prohibit his actions. For example, in times of emergency. Foreign and Military Affairs Power of the President Executive Agreements: any agreements with foreign countries that does not need ratification by the Senate. Well-established that these are constitutional. US v. Belmont: Exec agreement recognizes USSR. VALID because it is an inherent role of the president to receive ambassadors from other countries, thus he has the power to recognize countries. Dames and Moore v. Regan: AFFIRMED an Exec agreement with Iran to free hostages in exchange for lifting attachments against Iranian property and end all suits pending against Iran in US and transfer to new Iran-US Tribunal. One of the Ps to the Iran suits challenges the action, but the court rejected the challenge because a series of federal statutes authorized the presidents actions. Also history of executive settlement of claims like this. SUPREME COURT HAS NEVER DECLARED AN EXECUTIVE AGREEMENT UNCONSTITUTIONAL AS USURPING SENATES APPROVAL Executive Discretion in Times of War or Terrorism Emergency Constitutionalism Text: not very explicit. No general state of emergency exception

But, Art I 9 cl 2: suspends habeas corpus when in cases of rebellion or invasion the public safety may require it. Art I 8 cl 15 gives congress the power to call the militia to suppress insurrections and repel invasions Art II 2 cl 1 describes the president as commander of state militias Art I 10 cl 3 limits powers of the states from keeping troops or ships of war in times of peace unless invaded or in imminent danger Art IV 4 congress shall protect states against invasion against domestic violence. Three views on emergency constitutionalism 1-The Constitution applies with full force in emergencies without compromise. Never bend the rules. 2-Necessity knows no law; all bets are off. Utilitarian logic. 3-Intermediate view: Constitution isnt silent, but it speaks in a somewhat different voice. Initiating War Congress must declare and end formally with 2/3rds consent, but president has informal powers in both, especially if were backed into war and must act quicklysame goes for numbers of troops etc when acting in an emergency. No assassinations without congressional approval. If challenged, likely to be dismissed as a political question (Vietnam War etc) War Powers Resolution of 1973: -President can introduce troops pursuant to a declaration of war, specific statutory allowance, or a national emergency/attack. -When possible President must consult with Congress. -Within 48 hours of Detention and Trial of Enemy Combatants AVAILABILITY OF JUDICIAL REVIEW: Habeas write does NOT RUN if: Habeas is suspended during times of emergency: Milligan: Court found that Lincolns unilateral suspension of Habeas Corpus was valid even though that provision is in Art. I of the Constitution, to Congress. President cannot do so under non-emergency/war situations. The person is a foreign national being detained on foreign soil: Eisentrager: detaining foreign nationals in Germany could not be reviewed by courts in US because writ does not run outside of territorial US. BUT Guantanamo Bay isnt foreign soil because we exercise right to own/defend it. Close enough for writ to run. Otherwise you cant review anything there, which is a bad precedent to set (Rasul and Boumediene). DETENTION: Whether an individual can be detained without trial usually hinges on their status as an enemy combatant/us citizen.

Hamdi could be detained but must be afforded due process as a US Citizen, particularly to at least argue their status as an enemy combatant. (dissent: just try them criminally for treason.) Padilla v. Rumsfeld: US enemy combatant can be held without trial; any Habeas writ must be filed in jurisdiction where being held if in US. Trial For ordinary crimes, Article III courts are most appropriate, and the defendant must be afforded full due process rights (Milligan) BUT, for war crimes, the use of military tribunals is valid if the defendant violated the laws of war and did not commit a crime that necessitates a jury trial. Lawful combatants are subject to capture and detention as POWs, while unlawful combatants are additionally subject to trial and punishment by military tribunals. Hamdan: Bushs military tribunals were not authorized by any act of congress and violate UCMJ and Geneva Conventions. Bush argued for the need for broad executive powers to deal with terrorism, but opposition argued for the need for checks and balances, particularly in such a grey-area war where no formal declaration or specific enemy exists.

GENERAL FACTORS Detainees Status: US Citizen? Enemy Combatant? Unlawful Enemy Combatant Location Of defendants activity Of capture Of the detention and trial. Charges (what charged with?) Martial law declared (=are civil courts open?) Power (whos is being exercised (Jacksons trichotomy above) Congressional (vs President) Violation Competing views. 1-Formalist: Must match structure with function: Q1-Whose function is it? (ex: Youngstown seizing steel mills is legislative) Q2-Who is exercising this function (ex: President in Youngstown) Q3-Do they match? (ex: No, in Youngstown.)

2-Non-formalist: The three branches frequently overlap and must find innovative ways to coordinate responsibility. Its not about isolating one from the other, but about ensuring that one does not overwhelm the other. NON-DELEGATION DOCTRINE: Congress may not delegate its legislative power to administrative agencies because they are essentially Executive. The Court used to be stricter on this issue and has since relaxed, but its still relevant. Today, virtually nothing is beyond delegation, however, because Congress is so busy it must delegate. Requirement: Clear statement and a reasonably strict standard of court review. But every time you pass a big statute youre even delegating to the court a power to adjudicate disputes arising under the law. In more than 60 years since Schechter, not one federal law has been declared an impermissible delegation of legislative power. ONE HOUSE VETO 1930s, Congress creates the Legislative Veto where one house of congress can override an administrative agencys action by resolution. DECLARED UNCONSTITUTIONAL in: INS v. Chadha: Congress set a standard for deportation, but they gave that administrative power to INS to enforce. Congress CAN set the standard. Congres CAN delegate the power. But they cant overrule its use with just one houses action because Congress must legislate bicamerally. Formalism inquiry is tricky here. Court says function is legislative, but theyre not legislating properly? Dont need a mismatch to be invalid. LINE ITEM VETO Statute created authority for president to veto (/cancel) particular parts of appropriation bills while allowing he rest to go into effect. Congress could overturn the veto by majority vote in both houses. Declared UNCONSTITUTIONAL in Clinton v. City of New York. The veto in effect is a legislative action being taken by the executive, which is a mismatch. (dissent points out modern practical concerns for line-item veto functionalist point of view.) REMOVAL POWER No Constitutional provision for presidents authority to remove executive branch officials. But, in general, the president may remove executive officials unless removal is limited by statute. Congress can legislate to limit removal if its an office where independence from the president is desirable and if the legislation does not prohibit removal, but instead limits instances where good cause is shown. Myers: The president has the exclusive power of removing executive officers of the US whom he has appointed, by and with the advice and consent of the Senate. Humphreys Executor: Distinction between presdients cabinet members and leaders of independent administrative agencies, who should only be fired for just cause, particularly if that idea is put into a

statute. We want independent agencies insulated from political control. See also: Weiner v. US. Browsher: Congress cannot give itself the power to remove executive officials. Morrison v. Olson: BUT Browsher distinguishable when Congress legislates to oversee a firing by an agency head? Lots of inconsistency. Generally, president has rmoval power for executive officials, but congress may limit it if the office is independent from the president and that independence is desirable. Congress cant prohibit all removal and cant give removal power to itself (other then impeachment power). Two questions: 1-is the office one in which independence from president exists/is desirable? If so, congress can limit removal power and judiciary may limit even without a statute (Weiner). 2-Are congresss limits on removal constitutional? Congress cant completely prohibit presidential removal, but it can limit removal to where there is good cause.

EXECUTIVE PRIVILEGES AND IMMUNITIES

Executive privilege refers to presidents ability to keep secret conversations with or memoranda to or from advisors. No constitutional text. Arguably necessary for president to receive candid advice, and keep national security secrets. What can Congress do to the president? Censure, perhaps, but its never actually happened. Dock pay, but not very effective. Subpoena. Impeachmentpermitted by Art II 4 for treason, bribery, other high crimes or misdemeanors. Criminal Process A president can be tried for criminal offenses committed while in office. (impeachment not the only option), but maybe not while sitting president? (Nixon, despite enormous amount of evidence went inindicted) Civil Processno immunity Caselaw division between official and unofficial acts. Nixon: President has absolute immunity from civil liability for official actions. Clinton: A sitting president does not enjoy temporary immunity from all lawsuits based on unofficial acts.