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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 issue’s 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?—don’t necessarily want to “insult” congress/president 2-Are there standards for the court’s 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?

3.Congress can regulate activites having a substantial relation to interstate commerce 1-CHANNELS OF INTERSTATE COMMERCE A route of interstate commerce. Rehnquist noted that congress is allowed to regulate in THREE categories: 1-Congress can regulate the channels of interstate commerce. INSTRUMETNALITY: -Airplanes carrying passengers between states -cell phones (used to conduct interstate business) -internet . cl. In Lopez. 2-Congress can regulate the instrumentalities of interstate commerce and persons and things in interstate commerce. All other powers are retained by the states and the people. Anything upon which or through which interstate commerce is conducted and thus facilitates interstate commerce. I §8.3 gives Congress the power to “regulate commerce with foreign Nations and among the Several States.8-Does the court even have an obvious adequate remedy available? 9-Would review interfere with the court’s own essential functions? CONGRESSIONAL ACTION Congress only has such powers as are granted by the Constitution. 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. Maryland) Commerce Power Art 1 §8.” Lopez is the most recent Commerce Clause case. 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. and synthesized prior commerce clause cases. anything IN WHICH interstate commerce is conducted and thus facilitates interstate commerce. and with the Indian Tribes. CHANNELS: -A railroad that runs interstate -The Internet NOT CHANNELS -airspace over the US (commercial air -Produce grown for home travel. (McCulloch v.

affects interstate commerce) then that line may be rejected. There is no area that neither Congress nor the states can regulate. In Morrison: guns in schools impede learning. but they help evaluate affects on interstate commerce when not obvious. primary public school standards.-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. but if the affects seem too far removed (In Morrison: guns in schools impede learning. leads to lower-productive workforce. not aggregated 2-Whether the congressional statute contains a jurisdictional element. criminal violence. . Merely stating that something affects interstate commerce is not enough 4-Whether the link between the regulated activity and interstate commerce is too attenuated. leads to lower-productive workforce. (VERY IMPORTANT—congress 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. 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. leads to less educated people. (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 important—deference to legislators) Morrison—congress isn’t required to show such findings. Must be in this specific instance. Generally deferential. leads to less educated people. private cultivation of medicinal marijuana.

CA: Congress CAN regulate state-owned railroads via federal statutes like any other commerce clause case because it’s not an integral inherent state power/function.=Sovereign immunity.” BUT courts cannot compel state legislatures to enact federal legislation (NY v. BUT at times it has been argued to be “just a truism. Federal Maritime Commission v South Carolina: Even a commission cannot hale a sovereign body into court without consent. 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. Seminole Tribe of FL: Congress cannot authorize citizen suits against states under the commerce clause without the state’s consent.IF DRAFTING. US v. consider the Darby Bootstrap. fire) then the federal government cannot touch it. or by citizens or subjects of any foreign state. EXTERNAL LIMITS ON THE COMMERCE POWER: 10TH AMENDMENT “the powers not delegated to the US by the Constitution. Maine: Sovereign immunity is derived not from the 11th amendment but from the structure of the constitution itself. 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.” (Darby) Coyle v. . If a state is using an integral function (police. or 3-in federal court. nor prohibited by it to the states are reserved to the states respectively or to the people. “states can protect their interests through the political process. 2-as a private citizen of another state. Garcia: Congress can regulate wages and hours—overturns prior caselaw like National League of Cities. OK: Congress CANNOT tell OK where to put state capital because it’s a state function. commenced or prosecuted against one of the United States by citizens of another state. Alden v. US) NOR can Congress force (commandeer) state officials to enforce (rather than apply) federal law (Printz). and the court is not well equipped to decide what is “integral” to the states.” If a state is subject to regulation then the 10th Amendment becomes an external limit due to inherent state power. Cannot sue 1-a state as defendant. Immunity includes federal actions brought in state court under Article I.

coercion is the primary motive. Categories to consider whether legitimate or illegitimate taxing MOTIVE: 1-Psychology Does it seem to be primarily a money-collecting venture. (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. bad) iii--if a “detailed trigger” is specified.” Butler: Congress has the broad power to tax for the general welfare so long as it does not violate other constitutional provisions. or is the point the consequences? 2-Actual motive of Congress? Evidence: i--Size of the tax (if too small. but generally you offer something that the other party has a right to. Congress has at times attempted to use taxing power when it would otherwise not be able to regulate something. money isn’t the primary motive. Dole. . which is legitimate. ii--proportionality (if applied disproportionately. 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. “General welfare” as ambiguous Congress will try to spend to “buy what they cannot coerce” via conditional spending. Congress cannot threaten to take away something the states are due.Taxing Power: Art I §8: “Congress shall have power to lay and collect taxes…to pay the debts and provide for the common defense and general welfare of the US. shoes regulation. both bad. May break down. Outer limits of conditional spending: South Dakoda v. 3-Must have a reasonable relation from spending to what the goal of the condition is. 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. Congress may attach conditions on the receipt of federal funds. if too big.

nor prohibited by it to the states are reserved to the states respectively or to the people). to make treaties provided two thirds of the senators concur” Treaties are law. Foreign Affairs: Difficult questions arise when there is a conflict between the president and Congress over control of foreign policy. Zschernig v. LIMITS ON STATES’ ACTIONS For every state regulation: Q1-Is it actually regulating interstate commerce? Commerce analysis above: Channel. though court says it will try to effect both laws before striking down the state law. Instrumentality. 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. generally though. but informally. (5% highway funds no. but the president can back us into war in an emergency without congress. and the state action is inconsistent with Congress’s statement. president can end it. BUT. 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. then it’s PREEMPTION and the federal law prevails. 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. nor for rescission of treaty. conflicting views over whether a state can turn away international businesses. Congressional Approval is not needed for executive agreements.(Gibbons— . Congress has authority over the states. Relatn? Q2-Has Congress spoken-what did they say? If YES. but 100% Medicaid funds?) War Power: Only Congress can declare war. war ends by 2/3s Congressional consent. President has broad power with executive agreements.Leaves open the possibility that some offers are just too coercive. Subs. Formally.

Davidowitz: state law the requires aliens to register with the state. States can enact more stringent regulations. which is a federal role. etc preempted because it is in a field that affects international relations. Hines v. -ban on imports -ban on exports -discriminatory tax -discriminatory subsidy to in-state business 2-Is there a protectionist purpose? 3-Balance of burdens—burdensome=too exclusive? PRIVILEGE AND IMMUNITIES CLAUSE Preemption 1-Federal law expressly preempts (speaks on) a local law. federal scheme. Also. .congress had spoken and allowed a monopoly so states couldn’t change that) Q3-If congress has not spoken-is it exclusive or concurrent power? Exclusive/Concurrent test DORMANT COMMERCE CLAUSE 1-Facial Discrimination? -If it’s clearly discriminatory against interstate commerce. 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) Gade—If it’s 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. Rice v. 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. If yes. but can’t loosen federal minimums. then it’s per se invalid. Santa Fe Elevator Corp: Even though Congress did not expressly preclude state regulation of grain elevators licensed by the federal government. carry a registration card. a law doing so was preempted because there was Congressional purpose and you construe against local concerns here. (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. so conflict preemption too.

-DISCRIMINATORY SUBSIDTY TO IN-STATE BUSINESS Generally VALID because you can subsidize what you can’t penalize. exporting. Clarkstown—in state processing requirement that required in state recyclers to deposit at the processing plant INVALID . it’s still clearly discriminating against out of state business solely in favor of in state. The subsidy CANNOT come from taxes because otherwise it’s basically a tax. DISCRIMINATORY -HOME PROCESSING REQUIREMENTS Whether importing. So it’s concurrent. National Foreign Trade Council: INVALID state law bars buying goods from Burma. which was 3X higher than in-state waste. -DISCRIMINATORY REBATE on FACIALLY NON-DISCRIMINATORY TAX VALID -TAX EXEMPTION YES. Traditional federal concern for sanctioning other countries. C&A Carbone v. thus invalid. Crosby v. Dept of Env. -No political representation for out of state businesses in enactment. all benefit in-state. Gov’t already has a scheme for this. Quality: INVALID tax on out of state waste.Wyeath v. Levine: State law about inadequate drug labeling VALID because FDA minimums did not conflict with more restrictive state standards. West Lynn Creamery—Subsidy AND a tax. Dormant Commerce Clause: Q1-Facial Discrimination: -BANS ON IMPORTS Philly v. because it even though they say they’re concerned about the environment. All burden is out of state. or inspecting basically ALWAYS facially discriminatory Dean Milk—Madison WI tries to discriminate against all milk producers outside a 5 mile radius of city. NJ—INVALIDATED NJ law prohibits importing waste from out of state. Pacific Gas v State Energy: federal act regulates nuclear matters. Feds can always consent to states’ regulation. Court says it doesn’t 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. -DISCRIMINATORY FEES -DISCRIMINATORY TAXES Oregon Waste Systems v. but doesn’t say exclusively. States regulations are VALID when determining cost and other state concerns.

even if not facially discriminatory. EX: -only buying/selling from in state—allowable -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. If attempting to protect an indigenous industry against out of state ones. Hunt v. 2. with NO geographical lines drawn. -Bacchus--Hawaii liquor tax with fruit wine made from pineapple exempted—invalid. but effectively discriminates against WA and only helps NC.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 Authority—state run waste authority requires all waste to pass through it. Taylor—SC VALIDATED a law that prohibited out of state. (Alaska) The state may not impose conditions by statute. the dormant commerce clause places no limits on its activity. Deference to state here because trash hauling is a traditional government role and they’re 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. it’s invalid. regulation. United Haulers MARKET PARTICIPANT EXCEPTION: If a state is acting as a market participant rather than a market regulator. Q2-Protectionist Purpose 1. which are effectively an advertisement when compared to lower quality (NC) apples. or contract that have a substantial regulatory effect outside of that particular market. 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. Washington State Apple—WA apples graded to stricter standards. Taylor—deferential view when state’s acting with purpose. Q3-Is the state government favoring itself in the market by regulating their would-be competitors from out of state? Valid. NC statute requires removing the grades system of all apples to import. Accounting for different costs of regulating out of state business Q2-Are the means necessary to achieve the end? Maine v. . Not facially discriminatory.

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

Congress cannot consent to P&I violation like a DCC violation. Strong presumption against state laws that discriminate regarding a fundamental right or important economic activity. Sawyer-President INVALIDLY seizes steel mills during Korean War because a dispute between companies and employees would jeopardize national defense. there is no statutory authorization. all of which have been used since. Possibly consider “less restrictive means” availability. but there were four differing approaches. 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. 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.” followed by several enumerated powers. The best explanation is in Youngstown. Here. NO inherent presidential power Black says that the president can only act pursuant to express or clearly implied statutory or constitutional authority. BOTH P&I and dormant commerce clause can challenge state and local laws that discriminate against out-of-staters. -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 state’s objective. He could have enjoined the strikes. sought Congressional action. FOUR DIFFERING APPROACHES AMONG THE OPINIONS 1. is there a sufficient justification for the discrimination. BUT DCC can challenge laws regardless of corporations/aliens exception. Argument over whether the Executive power exceeds the enumerated powers. but he did not.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). HORIZONTAL SEPARATION OF POWERS Executive Violation Art II: “The executive power shall be vested in a president of the US. Youngstown v. and nobody was claiming that language in the Constitution .

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

Never bend the rules. all bets are off. to Congress. especially if we’re backed into war and must act quickly—same goes for numbers of troops etc when acting in an emergency. 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. Otherwise you can’t review anything there. Initiating War Congress must declare and end formally with 2/3rds consent. but it speaks in a somewhat different voice.But. specific statutory allowance. Close enough for writ to run. DETENTION: Whether an individual can be detained without trial usually hinges on their status as an enemy combatant/us citizen. I of the Constitution. Three views on emergency constitutionalism 1-The Constitution applies with full force in emergencies without compromise. Art I §9 cl 2: suspends habeas corpus “when in cases of rebellion or invasion the public safety may require it. Utilitarian logic. No assassinations without congressional approval. 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. -When possible President must consult with Congress. or a national emergency/attack. -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 Lincoln’s unilateral suspension of Habeas Corpus was valid even though that provision is in Art. . which is a bad precedent to set (Rasul and Boumediene). BUT Guantanamo Bay isn’t foreign soil because we exercise right to own/defend it. 2-Necessity knows no law. If challenged. 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. but president has informal powers in both. 3-Intermediate view: Constitution isn’t silent. President cannot do so under non-emergency/war situations.

for war crimes.Hamdi could be detained but must be afforded due process as a US Citizen. Charges (what charged with?) Martial law declared (=are civil courts open?) Power (who’s is being exercised (Jackson’s trichotomy above) Congressional (vs President) Violation Competing views.) Padilla v. in Youngstown. any Habeas writ must be filed in jurisdiction where being held if in US. and the defendant must be afforded full due process rights (Milligan) BUT. 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. Article III courts are most appropriate. but opposition argued for the need for checks and balances. Bush argued for the need for broad executive powers to deal with terrorism. while unlawful combatants are additionally subject to trial and punishment by military tribunals. Trial For ordinary crimes. (dissent: just try them criminally for treason. Lawful combatants are subject to capture and detention as POWs. 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. particularly to at least argue their status as an enemy combatant. Rumsfeld: US enemy combatant can be held without trial. GENERAL FACTORS Detainee’s Status: US Citizen? Enemy Combatant? Unlawful Enemy Combatant Location Of defendant’s activity Of capture Of the detention and trial. particularly in such a grey-area war where no “formal declaration or specific enemy exists. Hamdan: Bush’s military tribunals were not authorized by any act of congress and violate UCMJ and Geneva Conventions.) .

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

statute. but maybe not while sitting president? (Nixon. Nixon: President has absolute immunity from civil liability for official actions. What can Congress do to the president? Censure. Clinton: A sitting president does not enjoy temporary immunity from all lawsuits based on unofficial acts. Morrison v. other high crimes or misdemeanors. EXECUTIVE PRIVILEGES AND IMMUNITIES Executive privilege refers to president’s ability to keep secret conversations with or memoranda to or from advisors. but not very effective. Criminal Process A president can be tried for criminal offenses committed while in office. Generally. Congress can’t prohibit all removal and can’t give removal power to itself (other then impeachment power). No constitutional text. Subpoena. (impeachment not the only option). 2-Are congress’s limits on removal constitutional? Congress can’t completely prohibit presidential removal. but it can limit removal to where there is good cause. Olson: BUT Browsher distinguishable when Congress legislates to oversee a firing by an agency head? Lots of inconsistency. Browsher: Congress cannot give itself the power to remove executive officials. president has rmoval power for executive officials. perhaps. but it’s never actually happened. and keep national security secrets. but congress may limit it if the office is independent from the president and that independence is desirable. Dock pay. Arguably necessary for president to receive candid advice. bribery. US. We want independent agencies insulated from political control. despite enormous amount of evidence went inindicted) Civil Process—no immunity Caselaw division between official and unofficial acts. Impeachment—permitted by Art II §4 for treason. congress can limit removal power and judiciary may limit even without a statute (Weiner). Two questions: 1-is the office one in which independence from president exists/is desirable? If so. . See also: Weiner v.