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?

(McCulloch v. INSTRUMETNALITY: -Airplanes carrying passengers between states -cell phones (used to conduct interstate business) -internet .” Lopez is the most recent Commerce Clause case. 2-Congress can regulate the instrumentalities of interstate commerce and persons and things in interstate commerce. Anything upon which or through which interstate commerce is conducted and thus facilitates interstate commerce.3 gives Congress the power to “regulate commerce with foreign Nations and among the Several States. I §8. Maryland) Commerce Power Art 1 §8. 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. In Lopez.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. 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.Congress can regulate activites having a substantial relation to interstate commerce 1-CHANNELS OF INTERSTATE COMMERCE A route of interstate commerce. cl. anything IN 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. Rehnquist noted that congress is allowed to regulate in THREE categories: 1-Congress can regulate the channels of interstate commerce. and with the Indian Tribes. 3. and synthesized prior commerce clause cases.

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

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

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

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

Hines v. 3-Conflict Preemption: compliance with both federal and state regulations is physically impossible. If yes. a law doing so was preempted because there was Congressional purpose and you construe against local concerns here. .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. (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. etc preempted because it is in a field that affects international relations. Santa Fe Elevator Corp: Even though Congress did not expressly preclude state regulation of grain elevators licensed by the federal government. or state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 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. so conflict preemption too. which is a federal role. Rice v. but can’t loosen federal minimums. -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. States can enact more stringent regulations. Davidowitz: state law the requires aliens to register with the state. federal scheme. Also. then it’s per se invalid. carry a registration card.

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

the dormant commerce clause places no limits on its activity. -Bacchus--Hawaii liquor tax with fruit wine made from pineapple exempted—invalid. 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.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. which are effectively an advertisement when compared to lower quality (NC) apples. United Haulers MARKET PARTICIPANT EXCEPTION: If a state is acting as a market participant rather than a market regulator. EXCEPTIONS! When is discrimination justified? Q1-Is the end sough a good one? Compelling public health or environmental purposes? Maine v. Accounting for different costs of regulating out of state business Q2-Are the means necessary to achieve the end? Maine v. 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. . Q2-Protectionist Purpose 1. but effectively discriminates against WA and only helps NC. 2. Hunt v. NC statute requires removing the grades system of all apples to import. (Alaska) The state may not impose conditions by statute. Q3-Is the state government favoring itself in the market by regulating their would-be competitors from out of state? Valid. Washington State Apple—WA apples graded to stricter standards. Deference to state here because trash hauling is a traditional government role and they’re not discriminating against out of state vs in-state. If attempting to protect an indigenous industry against out of state ones. Taylor—deferential view when state’s acting with purpose. or contract that have a substantial regulatory effect outside of that particular market. with NO geographical lines drawn. Not facially discriminatory. it’s invalid. even if not facially discriminatory. regulation. Taylor—SC VALIDATED a law that prohibited out of state.

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

-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. BOTH P&I and dormant commerce clause can challenge state and local laws that discriminate against out-of-staters. all of which have been used since. Strong presumption against state laws that discriminate regarding a fundamental right or important economic activity. so out of state fees are ok -YES shrimp harvesting (elk is sport. Argument over whether the Executive power exceeds the enumerated powers. Youngstown v. Congress cannot consent to P&I violation like a DCC violation. Possibly consider “less restrictive means” availability. He could have enjoined the strikes.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). shrimp is livelihood!!) -right to work is a big fundamental right for P&I Clause Q2-If so. TEST Q1-Has the state discriminated against out-of-staters’ fundamental rights that it accords its own citizens? FUNDAMENTAL RIGHT? -NOT elk hunting. NO inherent presidential power Black says that the president can only act pursuant to express or clearly implied statutory or constitutional authority. is there a sufficient justification for the discrimination. sought Congressional action. and nobody was claiming that language in the Constitution .” followed by several enumerated powers. The best explanation is in Youngstown. there is no statutory authorization. Sawyer-President INVALIDLY seizes steel mills during Korean War because a dispute between companies and employees would jeopardize national defense. HORIZONTAL SEPARATION OF POWERS Executive Violation Art II: “The executive power shall be vested in a president of the US. NO market participant exception. but there were four differing approaches. Here. but he did not. BUT DCC can challenge laws regardless of corporations/aliens exception. FOUR DIFFERING APPROACHES AMONG THE OPINIONS 1.

Third. usurping Congress’s spending power. “No undefined residuum of power which president can exercise because it seems to him to be in the public interest. 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. Foreign and Military Affairs Power of the President Executive Agreements: any agreements with foreign countries that does not need ratification by the Senate. in times of emergency. Also history of executive settlement of claims like this.grants the power to seize steel mills. Dames and Moore v. One of the Ps to the Iran suits challenges the action. 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. US v. and there is a “zone of twilight” where the president and Congress may have concurrent authority. Similarly. Here. Belmont: Exec agreement recognizes USSR. Jackson spoke of three different zones of authority. In the second. no general. but the court rejected the challenge because a series of federal statutes authorized the president’s actions. In the first. 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. No general “state of emergency” exception . thus he has the power to recognize countries. For example. VALID because it is an inherent role of the president to receive ambassadors from other countries. Well-established that these are constitutional. 3. when the president acts in a way that is incompatible with Congress’s actions. the president acts pursuant to an express or implied act of Congress. Douglas says president is forcing the expenditure of federal funds to compensate the steel mill owners for taking their property. those actions will be presumed invalid unless Congress’s act is unconstitutional. 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. 4. particularly because of custom. the president acts without congressional grant OR denial of authority. Inherent Authority Vinson’s dissent says that the president is not bound anywhere the constitution does not explicitly prohibit his actions. blanket rules can exist and validity depends on the facts of the case.” 2. the executive is within his authority.

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

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

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

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

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