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Contents
CHAPTER 3  THE SCOPE OF CONGRESS’ POWERS: TAXING AND SPENDING, WAR POWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY ......................................................................................................... 1 A. Regulation Through Taxing, Spending, And The War Power ....................................................................................... 1 1. The Taxing Power – p. 282-85 .................................................................................................................................... 1 2. The Spending Power ................................................................................................................................................... 2 B. Congress’s Enforcement Power Under The Reconstruction Amendments - p. 300-12 ................................................. 2 Congressional Power to Regulate ―Private‖ Action for Civil Rights Purposes .............................................................. 5 C. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power ................................................. 5 CHAPTER 4  THE DISTRIBUTION OF NATIONAL POWERS .................................................................................. 10 A. Introduction p. 355-358 – Federalist Papers ................................................................................................................ 10 B. A Case Study: Presidential Seizure p. 359-371 YOUNGSTOWN, ............................................................................ 10 C. Foreign Affairs ............................................................................................................................................................. 12 1. Executive Authority .................................................................................................................................................. 12 2. Legislative Authority ................................................................................................................................................ 16 D. Domestic Affairs .......................................................................................................................................................... 18 1. Executive Authority p. 400-12 NIXON ................................................................................................................... 18 2. Legislative Authority p. 412-439 CHADHA, ........................................................................................................... 19 3. The Legislative Veto BOWSHER, MORRISON ..................................................................................................... 21

CHAPTER 3  THE SCOPE OF CONGRESS’ POWERS: TAXING AND SPENDING, WAR POWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY A. Regulation Through Taxing, Spending, And The War Power 1. The Taxing Power – p. 282-85 FRAMING THE ISSUE  Can Congress use its taxation power for non-revenue raising ends? o Can Congress purchase what it may or may not be able to do by way of direct regulation o What if the taxation is designed to affect conduct in a non-revenue capacity  what if you’re trying to regulate conduct through taxation? In theory, you could regulate conduct by taxing their conduct o Case law vacillates on this – Congress can v. Congress cannot Supplement Note – health care statute (PPACA) includes individual mandate provision which says that with very narrow exceptions, unless a person is medically insured, he will have to pay a penalty o Can you basically coerce people to buy insure on penalty of a tax consequence when the purpose of the tax consequence is NOT primarily revenue raising but instead seems that primary motive is to affect conduct

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2. The Spending Power WAS NOT ASSIGNED READING B. Congress’s Enforcement Power Under The Reconstruction Amendments - p. 300-12
  Note – did not read p. 310-312 What is meant when 13th – 15th Amends authorize Congress to enforce by appropriate legislation? o 13th Amend  ends slavery – prohibits involuntary servitude / private property relationship involving humans o 14th Amend  overturns Dred Scott (which had ruled Afr-Amer is not citizen for purposes of diversity Jx)  prohibit various forms of state action – cannot limit privilege and immunities o 15th Amend  Afr-Amer right to vote  prohibit various forms of state action – cannot prohibit voting based on race 13th Amendment is different than 14th and 15th Amends in critical respect o 14th and 15th involve Congress regulating state action o BUT 13th Amend enforcement authority deals with Congress’ ability to regulate conduct of private individuals  Why is there pressure on the 13th Amendment?  If you can squeeze something into ― involuntary servitude,‖ Congress need not worry about whether what is being proscribed is State conduct § 5 – 14th Amendment – what does it mean to give Congress enforcement authority? o (1) Maybe Congress can expand who it gets to sue in order to find a violation under these provisions o (2) Maybe Congress has more subtle tools at its disposal to develop / provide remedies  in doing so, Congress is not limited to case-by-case adjudication  Can decide if individuals are entitled to bring a lawsuit before waiting for the individuals to bring a 14th Amend claim  Maybe Congress can develop remedies that the courts would have difficulty developing on their own Complex remedies from Congress o Voting Rights Act 1965 (p. 301) – Atty Gen can make factual determinations of whether literacy tests decrease voter turnout in a particular Jx  Preclearance process – State cannot make changes to voting w/p prior approval from fed authorities if prior tests were found discrim Remedy precedes the violation – occurs before the ―violation‖ occurs o 1980 – City of Rome v. United States (Marshall) (p. 302) – Congress act YES const’l  Upheld preclearance provisions of VRA  Rome’s proposed changes had discrim effect but not necessarily discrim purpose  15th Amend doesn’t necessarily only prohibit intentional discrim  There is a risk that in Jxs with long-standing history of discrim, these kinds of state practice will be founded on past discrim purposes and should be struck down o Issue – will USSC allow the regulation by Congress in advance advance even though no discriminatory purpose? Will the USSC say there is a 15th Amend violation? YES  Rehnquist (dissent) – Rehnquist’s problem with it is that Congress is able to give a remedy absent any discrim purpose or intent  absent purpose, cannot provide remedy  Preventative remedy is const’l only if USSC agreed that risk of substantive violation was substantial

302) – held that fairly administered Eng lang literacy reqmt for prospective voters ≠ violate 14th and 15th Amends  In response – Congress passed 1965 Voting Rights Act (inc. Inc. USSC will permit / defer / follow contrary agency interpretation if there is a reasonable basis for it and it falls within a permissible interpretation o 1. § 4(e) – was meant to enfranchise those who migrated from Puerto Rico to NY b/c they completed 6th grade education but it was in Puerto Rico and therefore in Spanish – NOT allowed to have literacy test o Registered voters in NY brought suit challenging const’lty under 10th Amend  Outcome – USSC upholds §4(e) – Congress is permitted to ban the literacy test  Problem is that §4(e) seems to cure a non-existent const’l violation o USSC in Lassiter – literacy tests don’t violate Const YET THEN Congress passes a statute banning the tests pursuant to its §4 and § 5 powers under 14th and 15th Amends – where was the violation if administered const’ly?  Is Congress enforcing the Reconstruction amendments or is it defining the meaning of the amendments in a way that differs from what the USSC decided to be the interpretation?  USSC analysis – Congress is viewed on rational basis test o ―we perceive a basis upon which Congress might predicate a judgment‖ o NOTE – USSC doesn’t generally defer to other institutions based on reasonable readings  NOTE: Chevron doctrine (1984 – Chevron U.to the insignificant role of abrogating only those state laws that the jud branch was prepared to adjudge unconst’l (p..)  in context of agency interpretation of statutes." to the point that the USSC itself has used the phrase "Chevron deference" in more recent cases  Why did USSC give deferential treatment to Congress’ interpretation? o b/c otherwise. would depreciate both congress resourcefulness and congress responsibility for implementing the Amend. as a condition of sustaining the congress enactment. If not. Flores (Kennedy) (p. 307) – Congress act NOT const’l .  BUT – is there really no meaningful role for Congress if the case come out differently? o Congress can give prospective rules unless and until USSC overturns those rules – is not subject to the timing limitations to which the USSC is subjected o NOT the case that Congress wouldn’t have a rule but it is the case that the role would be limited 1997 – City of Boerne v. 302) – Congress act YES const’l  regarding the power of Congress.. Northampton Election Board (p. 303)  Brennan has often been credited with introducing the "ratchet theory" for congressional legislation enacted under Section 5. The "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court had recognized. Has Congress clearly spoken? – if so. Morgan (Brennan) (p. Congress’ enforcement authority would not be meaningful o ―construction of § 5 that would require a jud determination that the enforcement of the state law precluded by Congress violated the Amend. but that Congress could not ratchet down judicially recognized rights. would confine the leg power. Inc.3 Case #1 What was Case #1 proposition Lassiter Rule – literacy tests don’t violate the 15th Amendment Smith – peyote case Miranda – right to remain silent… New Law – What did Congress do? Congress passes Voting Rights Act §4(e) – bans literacy tests Congress passes RFRA Congress passed 18 USC §3501 Case #2 – How does USSC respond to congressional action? Katzenbach – §4(e) upheld – Congress can ban literacy test Flores – RFRA struck down Dickerson – §3501 struck down 1966 – Katzenbach v. is agency’s construction based on permissible interpretation?  Chevron is the USSC clearest articulation of the doctrine of "admin deference.A. Natural Resources Defense Council.S... v. defer to Congress o 2..  Begins with 1959 – Lassiter v. pursuant to § 5 of the 14th Amend to enact laws which enforce and interpret provisions of Const o Congress may enact laws stemming from its 14th Amend enforcement power that increase the rights of citizens beyond what the judiciary has recognized.

o Response – Congress enacted 18 U. church challenged denial under RFRA Outcome – RFRA is struck down o Congress claimed to be giving more protection than the USSC had given (more protection for voting rights before and more protection for religious exercise now) o was ok for voting rights but NOT okay for religious exercise        Not so much that RFRA violates the 14th Amend as it exceeds Congress’ enforcement power o b/c there are MANY examples of neutral laws that could run up against some fairly uncommon religious practice Issue – does RFRA exceed Congress’ authority to enforce 14th Amend. it would have a very negative effect on the administrability power of States o Response – Congress passed RFRA –  took what was rational basis and turned it into strict scrutiny  RFRA was intended to protect the right of citizens to the free exercise of their religion above and beyond the degree to which the Court recognized it  statutes "substantially burdening" a person's exercise of religion must further a compelling governmental interest.4  Begins with 1990 – Employment Div.S. Smith (Scalia) (p. § 3501 which laid down a rule that admissibility of such statements should turn only on voluntariness o §3501 replaced Miranda with totality-of-the-circumstances test  Outcome – USSC said §3501 was struck down  Distinguish Dickerson from Katzenbach and/or Flores o Katezenbach AND Flores  Congress tried to increase const’l protection relative to what USSC had done – gave more protection to what states could regulate wrt interference with religious practices o Dickerson – Congress tried to revert back to narrower test . v. United States (Rehnquist) (not in casebook) – Congress act NOT const’l  Begins with 1966 – Miranda v. of Human Resources of Ore. 307) . when USSC indicated in Smith that the standard for judging state action is a fairly deferential standard and Congress sought to exceed the rule with a less deferential standard o USSC – we have already determined that when we have a law of neutral application that has an incidental effect on practice of religion and is called into question by 1st and 14th Amend – we will not allow Congress to interpret the 14th Amend in a way that has a restrictive effect on State police powers Gray area b/w congress acts that remedy / prevent unconst’l actions and congress acts that make substantive change in law – Congress should be given wide latitude BUT there is a distinction to be observed TEST –congruence and proportionality – must be congruence and proportionality b/w injury to be prevented or remedied and means adopted to that end o AND – Congress does not have a substantive. Dept. that is a presumptively okay law  deferential standard of scrutiny.Native Americans denied unemployment benefits b/c of basis for their unemployment (used peyote for religious purposes) by state statute o USSC said it was ok – non-discrim laws of general applicability o Free exercise challenge – Native Amer population was involved in use of banned substance but did so for relig. not strict  if we say that any generally applicable law that has an incidental effect on practice of religion is subject to strict scrutiny. non-remedial power under the 14th Amend RFRA is overkill  Congress used a hammer when maybe a mallet would do 2000 – Dickerson v. purposes  claim: ban interferes w/ religion o USSC – RULE – law is const’l if it is a generally applicable law that has an incidental effect on religious practice but that doesn’t target religious practice.C. Arizona (Warren) – USSC held that certain warnings must be given before a suspect’s statement made during custodial interrogation could be admitted in evidence. and use the least restrictive means of furthering that compelling governmental interest Boerne – local authorities in TX denied building permit to church.

Reagan  may be the case that observed long-term relationships / longstanding practice provide some insight into the meaning of separation of powers o There is an analytical parallel between Dames & Moore and Missouri v. and Great Britain designed to protect species of birds. 329) – Congress act YES const’l  FACTS – Treaty b/w U. Holland (Holmes) (p. Missouri v. those rules are subject to being supplanted by alternative rules that Congress may produce o Up until Dickerson. Texas (Roberts) (p. Congress passed statute that seeks to enact treaty o USSC – statute does not exceed regulatory authority  Issue – does that statute unconst’ly interfere w/ rights reserved to States by 10th Amend and thus exceed congress regulatory power?  Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution. Holland. US   Begins with the issue of treaty authority and 10th Amend as potential limit on authorization to enter treaties 10th Amend implicates other areas of the law other than commerce clause issues 1920 – Missouri v. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power p. 331) – .S. NY v. Holland 2008 – Medellin v. USSC will let Congress deal with issues of legislation BUT the exception is when the issue relates to criminal activity  When the USSC announces criminal procedure rules. US. people thought of Miranda as const’l C/L that Congress could supplant o Miranda may not be a const’l rule and Congress could supplant BUT there must be something that is better than what the USSC has done (although maybe not to the extent that RFRA did b/c that was arguably too much) Congressional Power to Regulate “Private” Action for Civil Rights Purposes p. 326-29  Differential application of 13th and 14th Amendment – as applied to private action C.making power. while treaties are declared to be so when made under the authority of the US o Treaties under Articles of Confederation are still valid b/c all treaties enacted ―under the authority of the United States‖  We do not mean to imply that there are no qualifications to the treaty. Printz v. does that mean that the treaty is therefore enhancing the const’l regulatory powers? – probably not  Doesn’t seem that the intent of treaty clause is to enhance the scope of Congress’ regulatory authority Another way to read – treaties inform the court in a way that the absence of treaties doesn’t o Treaties inform the court / provide information that may actually inform the intended scope of regulatory powers NOTE: compare to Dames & Moore v. 329-54.5 REVIEW  emphatically province of the USSC to say what the law is. but they must be ascertained in a different way    o There may be actions of sharpest exigency for national wellbeing that act of Congress could not deal with but that treaty followed by such an act would One way to read the case – treaties expand scope of delegated powers o Holmes’s formulation appears to imply that treaty power authorizes nat’l gov’t to bind nations to actions that it otherwise can’t const’lly take o If something that Congress enacts pursuant to a treaty would not have been const’l in the absence of a treaty.

S. Usery o The case probably warrants more attention than it actually received  any rule that is bound in the notion of trad’l state functions would dishonor the meaning or value of federalism o by focusing on trad’tl areas of state governance as the limiting principle.6        FACTS – Consular notification treaty. the radiations did not affect the S-E issue 1957 – Reid v. Souter. Holland as applied to individual rights  USSC – wife has const’l right to have protections in the course of her conviction that a military tribunal would not have afforded her  Const supersedes int’l treaties ratified by the Senate Modern Revival of 10th Amend Based Restraints on Fed Regulation of State and Local Gov’ts 1976 – National League of Cities v. can enter into that are S-E in the sense that the treaty alone creates rights and responsibilities as if it is governing law o BUT – there are also treaties that are structured to set up future action by pol branches of gov’t that do not of themselves create an individually enforceable right Stevens (concurring in judgment) – admonish TX. Holland. Cong is limited in CC Auth and 10th amend auth to impose generally applicable limitations/regulations on states in these relationships (govt functs)  Congress is limited in its CC authority to impose generally-applicable regulations on states wrt these gov’t functions 1985 – Garcia v. you impose a realm into which Congress can’t regulate o you are tying the States into something that they can and cannot do – States must be equally free to engage in any activity that their citizens choose for the common weal  Applying federal labor standards to San Antonio Metro. 333)  Missouri v. which include structuring labor relations. Usery (Rehnquist) (p. 334) – Congress act NOT const’l wrt state action  10th Amend. TX has responsibility to comply with U.S. Authority. coupled with limits on CC limits scope of congress authority to regulate implementation of Fair Labor Standards Act to state gov’ts  IN AREAS OF TRADITIONAL GOVT’L FUNCTIONS  In areas of tradit gov functions. 334)  Landmark case  overrules Nat’l League v. int’l obligations created through treaties Breyer. would conflict with what San Antonio would have implemented o You get to experiment by being entirely compliant with federal law  this is the irony o we don’t want to encourage the states to come up with new ideas / experiment. Medellin (Mex. nat’l) convicted of murder and sentenced to death USSC – consular notification treaty is NOT a right created under Constitution o Treaty is not self-enforcing 1829 – Foster v. 331) – treaty is S-E and thus equivalent to an act of the legislature when it ―operates of itself w/o the aid of any legislative provision‖ o There are treaties that U. Covert (Black) (p. San Antonio Metropolitan Transit Authority (Blackmun) (p. Nelson (Marshall) (p. Ginsburg (Dissent) – rejects notion of self-enforcing treaty MAIN POINT HERE – 10th Amend in a certain sense is NOW read IN as a source of limitation on the implementation of the treaty in self-executing form o Treaty is NOT a source of limitation on the internal procedural rules of states NOTE: Invisible radiations of 10th Amend will affect whether we look at this treaty as S-E whereas as in Missouri v. we’ll let Congress do that and then Congress is going to prevent experimentation  Justification .

 Absent statute. Take title provision – requiring states to "take title" and assume liability for waste generated within their borders if they failed to comply / be self sufficient  This is const’ly problematic provision  Congressional conditions on the receipt of federal funds will be const’l under Spending Clause if: 1.7 There are already safeguards in the procedural system – safeguards through which states can protect the interest of their sovereignty within the federal congressional lawmaking system as opposed to judicially created limits on state power  Const’l grant of authority to Congress to regulate IC was not qualified by any implied limitation on the right to regulate the activities of the states when they engaged in IC.  O’Connor (Dissent) – does federalism have any content independent of law-making process? – are there substantive provisions that limit what Congress can do wrt States? o Nat’l League v. the CC invalidates state regulations that interfere with commerce. surcharge is collected by Sec. by an expression of the "unambiguous intent" of Congress  Whether or not the States would be permitted to burden the interstate transport of low level radioactive waste in the absence of Congress' approval. United States (O’Connor) (p. as it has been here. which is what the Act gives them. Usery – ―tradt’l gov’t functions‖ test tried to get at the substantive provisions o OVERTURNING NAT’L LEAGUE ONLY LEAVES THE POL PROCESS WITH CONGRESS AT THE HELM – and Congress isn’t great at slef-restraint  COMMENTS o Is the original Constitution the same as today’s wrt the structural devices that might help States protect their sovereign interests? 17th Amendment and direct election of senators  If you believe the authority of State legislatures to decide who gets into Congress protects the States. states could not say ―we don’t want your waste‖ – violation of DCC  YET Congress says ―we are allowing states to limit access‖ – why is that ok? – DCC is default rule and Congress can change the rules o 3.CC has long been understood to limit the States' ability to discriminate against IC but that limit may be lifted. of Energy. so that there would no longer be waste disposal crisis o ONLY NY did not comply. conditions must be reasonably related to the purpose of the expenditure o . States are good at protecting their interest in Congress o The fact that the Constitution has been amended to include direct election of senators – seems to indicate that new Framers of the Constitution though State election of senators wasn’t as important as Framers thought 1992 – New York v. while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. then you might believe that taking that away might also take away the sovereign state interests  Blackmun – don’t worry. states that meet deadlines get surcharge money back  Not const’ly problematic  Conditional exercise of Congress’ authority under the Spending Clause o 2. expenditure must be for the general welfare 2. on the contrary. the States can clearly do so with Congress' approval. Access – states w/ disposal sites can limit access by producers of waste in other states who do not meet the various compliance reqmts  Not const’ly problematic  ok exercise of Congress' power to authorize the States to burden IC . Monetary – states with disposal states can impose surcharge on states who bring radioactive waste into their borders. 336) – Congress act NOT const’l  Disposal of low level radioactive waste  Congress passed Low-Level Radioactive Waste Policy Act of 1985 o Designed amendments to make states become self sufficient. conditions imposed must be unambiguous (say what can and cannot be done) 3. instead it sued  Issue – constitutionality of amendments to congressional act that were designed to make states self-sufficient  Congress created incentives for states to dispose of waste generated w/in their own borders o 1.

e. Congress has expanded the federal regulatory regime by commandeering state legislatures Is O’Connor right when she says Framers intended Constitution to prevent Congress from regulating through States? o Says Const was meant to regulate the people o look to Stevens dissent in Printz – (p. 348) under Articles. for the benefit of the individuals o anti-commandeering scheme has the consequence of shifting responsibility and undermining accountability  something to commend this argument in terms of policy although not as much in terms of history White (Dissenting on “take title) o NY complied until the system went south – NY is forcing its neighbors to take on this burden o "ultimate irony of the decision today is that in its formalistically rigid obeisance to 'federalism.8   4.' the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems.should this be the case though? o History of Federalist Papers (Souter opinion about Fed 27)  References that are contained in the Fed 27 typically contain jud officers  State courts are req to comply w/ fed law o Are executive officers more like judicial officers or more like legislators?  Statute is impermissible under anti-commandeering  Framers designed the Constitution to allow Federal regulation of international and interstate matters. had to ask states to give it $$$ and the states decline question in this case – whether Congress ONLY has the power to regulate states directly as opposed to indirectly (regulating states by regulating how they regulate) o CC lets Congress to regulate IC but does not authorize Congress to regulate state gov’ts regulation of IC o none of O’Connor’s quotes support argument that Constitution was intended to do anything other than enhance Congress’ power  BUT history doesn’t necessarily support this doctrine statute creates a lack of accountability that fails to appreciate what federalism is about o p. The majority arrives at the conclusion that allowing the Federal government to draft the police officers of the 50 states into its service would increase its powers far beyond what the Constitution intends . 344 – fed official. Congress only had power to regulate the states and it wasn’t a particularly effective structure  i. if Congress wanted to tax. 347) – Congress act NOT const’l  obligations under fed handgun statute to state law enforcement officers are prohibited by application of anticommandeering doctrine o Congress is NOT allowed to enforce the statute that reqs state officials to perform background checks before individual citizens can purchase guns . in choosing b/w choosing location or forcing States to choose. both state and federal. United States (Scalia) (p. conditions imposed by the Act must not violate any independent const’l prohibition Take Title Provision is problematic b/c: o Anti-commandeering Anti-commandeering o What does commandeering have to do with any of this?  Congress is telling the states that they HAVE to do something  critical option missing is the option to do nothing  legislatures ought to have the ability not to act. not internal matters reserved to the State Legislatures. is somewhat fundamental to what legislatures ought to be able to do Congress cannot use states as implements for fed regulation  Congress cannot commandeer state legislatures to regulate o State legislative authorities MUST have the option to do nothing  instead. would prefer States to choose b/c can shift responsibility for decision and vice-versa o federalism is about preserving the importance of accountability." o     1997 – Printz v.

Thomas)  as a matter of statutory interpretation. 349) – Congress act YES const’l  Unanimous decision  Fed Driver’s Privacy Protection Act does not violate anti-commandeering principle o Obligations act to control disclosure of information  State argument against – cannot compel executive branch compartments to act (see Printz)  USSC  program involves the States collecting and distributing information.9   Stevens (Dissent) – opposite of O’Connor in New York. it’s already been established  Hamilton was not such a bad writer to express in such a bizarre way that federal law was supreme  P. does this make any sense? 2006 – Gonzales v.. 353)  10th Amend and state power  states cannot impose limits on congressional terms  . Scalia. Term Limits v. this is an area in which states presumptively have been engaging in regulation and will assume that Congress did not intend to upend that regulatory division of power o CSA not meant to displace state regulation of medicine  Dissent (Roberts. Oregon (Kennedy) (p. Atty Gen construction is reasonable 1995 – U. Hamilton makes plain that the federal gov’t can employ states in various capacities  Federal gov’t with a rudimentary bureaucracy will be able to employ the bureaucracies that exist in more complex ways at the state level o Majority reads it to mean that states cannot obstruct federal law  Souter asks – why would the Majority need to say that. Thornton (Stevens) (p. it would lack the ability to do so. Condon (Rehnquist) (p..But I doubt that Hamilton's English was quite as bad as all that. not in a regulatory capacity but in an entrepreneurial capacity  Did not regulate states exclusively  Introduces something akin to market participant doctrine as a limitation on the application of the anti-commandeering doctrine o BUT. when Congress exercises delegated powers. 353 – debate over comparative law analysis o Breyer (Dissent) – what is going on in other parts of the world can inform our understanding 2000 – Reno v.S. if Congress did this. BUT rather.  Souter is saying – in Federalist 27." with the consequence that any obstruction is invalid. 351) – Congress act NOT const’l  10th Amend and statutory interpretation  FACTS – challenge to Controlled Substances Act o Atty Gen made Interpretive Rule of CSA wrt assisted suicide  we would not expect Congress to make this radical move unless it was clearly expressed that Atty General intended to give this power to Congress  Not a question of whether. it may do so to impose affirmative obligations on exec and jud officers of state and local gov’ts as well as ordinary citizens Souter (Dissent) – state regulatory bureaucracies were extremely underdeveloped at the time of Framers o What regulatory bureaucracies do today is that which jud officers did then o BUT think of how underdeveloped the federal bureaucracies were back then Debate between Majority in Printz and Souter’s dissent o Souter responded to majority’s reading of Hamilton’s analysis  USSC reads Hamilton's description of state officers' role in carrying out fed law as nothing more than a way of describing the duty of state officials "not to obstruct the operation of fed law.

v. A Case Study: Presidential Seizure p. 358) . coercive duties upon state legislators or executive officials. 359-371 YOUNGSTOWN. affirmative.10    State argument – b/c this is not taken away from the states. 355-358 – Federalist Papers  Federalist 47 – Madison o critiques anti-federalists’ proposition that powers of respective branches of gov’t must be sealed to adhere to notion of separation of powers o response – virtually all Consts admit to some sort of overlapping functions to have the Const survive o clearly we don’t want essential leg functions to reside in the person who will execute those laws BUT that doesn’t mean that there can’t be some overlapping functions to make the system meaningful or functional  Federalist 48 – Madison o Can’t just demarcate boundaries between branches o Must create a jealousy between the branches to preserve the separation when each branch tries to reach too far  TODAY o modern history seems to suggest that Madison’s concern might be overexpressed in the modern context at least in terms of comparative power with exec branch o we have highly interactive functioning among the 3 branches of gov’t o However. Sawyer (Steel Seizure Case) (Blackmun) (p. United States and Printz v. Maryland –case is better placed there Thomas (Dissent) – this dissent argument doesn’t seem to appreciate that argument from McCulloch’s second holding o Gives the exact argument that the McCulloch court rejects CONCLUSIONS o (from online) . which has increased the profile of the president in the political realm.anti-commandeering doctrine. 1952– Youngstown Sheet & Tube Co. announced New York v. prohibits the fed gov’t from commandeering state governments: more specifically. from imposing targeted. United States. outside of pres powers  also did not anticipate the growth and development of bureaucracies and the regulatory state o NOTE – this is entirely consistent with Souter’s observation in the Printz dissent B. nothing expressly forbids states from imposing those limits and there is nothing in the Const says that states cannot add to the list of reqmts for serving in Congress USSC – there are some powers that states never had to begin with and therefore cannot be stricken o look at this in connection to McCulloch v. o If what’s going on in Printz and Reno. the Framers did not anticipate the rise of the party system (noted in Youngstown). doesn’t seem to undermine accountability in the same  way as a situation in which there is an ability to run back and forth and not know who to blame  Policy result  seems like New York is better reasoned o DOMINANT BLOC ON THE USSC TODAY HAS MUCH SYMPATHY FOR USERY PROJECT AND LESS SYMPATHY FOR THE GARCIA DECISION  THERE IS A REAL TENSION IN THIS AREA OF THE LAW CHAPTER 4  THE DISTRIBUTION OF NATIONAL POWERS A. this is a power that the states continue to hold – model of federal gov’t is ―Stricken and granted‖ o mistake that the states are making  supposition that by looking at the Const. Introduction p.

Congress was silent so therefore it didn’t intend to approve the President Frankfurter (concurring) o Much more deferential to the President o Focuses on how history matters  History is important in interpreting the constitution – can give meaning to text or supply meaning o ―systematic. United States as applied to Congress instead of as applied to States?????  PRESUMPTION IS THAT UNLESS CONGRESS HAS CHANGED THE EXISTING STATUS QUO.. Truman authorizes seizure of mills  gave notice to Congress through executive order that Sec of Commerce could seize mills o Congress did not act and companies obeyed Congress’ orders under protest o Steel companies brought suit limited the power of the Pres to seize private property in the absence of either specifically enumerated authority under Art II of Const or statutory authority conferred by Congress. THEN IT STILL EXISTS     BUT Truman seems to want to flip the status quo and say ―We’re changing the state of the law unless you say no‖ THIS CASE STANDS FOR FIRST AND FOREMOST  EVEN THE PRES DOESN’T GET TO SHIFT THE BURDEN OF CONGRESSIONAL INERTIA o Rejection of that principle. unbroken.. executive practice. national interests wrt Korean War o Multiple but failed efforts to resolve strike o Pres. but a history of long unbroken practice gives us a gloss on the constitution and allows us to see how this may be permitted  Much more full analysis than a strict textualism  rigid textualism that Black embraces fails to observe that the Constitution is a structural document  ANYTHING NOT PERMITTED IS PROHIBITED ANALYSIS – BLACK AND TODAY. SCALIA Black – came on the USSC with a liberal agenda to further New Deal policies. Through Statute enacted in pursuance of Const o Apply the two ways to act to this case  1. Reed.S. which is why Vinson is in dissent Majority o Two ways for President to have authority to act  1. holding that the President had no power to act except in those cases expressly or implicitly authorized by the Constitution or an act of Congress. b/c the pres could not have made more plain that Congress has the ultimate decision-making authority and would listen to what Congress wanted him to do  BUT Congress did nothing o why does the Majority not join this decision?  It’s NY v.  .11  FACTS – concern that a strike at steel mill would have a security effect on U. Constitutional clauses don’t go as far as to authorize the action as expressly conferred powers or as an issue of implied powers  2.   Dissent (Vinson. BUT upon the movement from policy-driven to rights-driven era. minimalism becomes a conservative issue o absolutist view.may be treated as a gloss on ―Exec power‖  history doesn’t allow basis for violating the constitution. Through Constitution – Article II  2. Minton) o We can’t call this an instance of the Pres seizing power. long pursued to the knowledge of the Congress and never before questioned.

as a nat’l sovereign means that it takes its sovereignty from Britain  subsidiary states NEVER had international sovereignty in that way  As a result. Pres and Congress have concurrent authority. Twilight zone a. 1981 – U. Pres acts pursuant to implied or express authorization of Congress a.S. and to transfer such claims to IUSCT . pursuant to Int’l Emergency and Eco Powers Act (IEEPA) – blocks removal and transfer of all property of Iranian gov’t in U. courts to secure any judgments against Iran. KEY POINT – the intuition that states reserve powers that relate to int’l relations misunderstands the notion of nat’l sovereignty o When the U. there were no powers for the states to reserve to prohibit the executive from acting in the realm of foreign affairs The stricken and granted model doesn’t apply here sweeping language of Curtiss-Wright is regularly cited to support executive branch claims of power to act without congressional authorization in foreign affairs. 371-395 US v Curtiss-wright. Pres authority at max b. Foreign Affairs 1. became the U.S. or the zone is not clearly defined b. 371)   concluded not only that foreign affairs power was vested in the national government as a whole. 373) .S. Hamdi. Dames & Moore. but that the President of the United States had ―plenary‖ powers in the foreign affairs field not dependent upon congressional delegation. Curtiss-Wright Corp.   1981 – Dames & Moore v. REGAN  FACTS .1979 Carter.S.S. and Iran submit disputes to binding arbitration  Reagan – issued Exec Order nullify attachments against Iranian property entered by U. o Jan. especially when there is no judicial intervention to interpret the meaning of that text. Regan (Rehnquist) (p. 1936 – United States v.12   o Minimalism is liberal if your intuition is leave Congress alone o Minimalism is conservative if your intuition is let the USSC find rights????? Jackson (concurring) o three-tier test for evaluating claims of presidential power vis-à-vis Congress 1. Overwhelming presumption in favor of Pres’ power being permissible 2. and splits from Britain..DAMES & MOORE v. Executive Authority p.S. the notion of the U. (Sutherland) (p. Pres acts incompatible with express or implied will of Congress o Pres authority at lowest ebb o Pres can only act upon his const powers minus and const powers of Congress over the matter o Silence is tantamount to NO – we are in the acting incompatible case / category #3 case  relates very much to Frankfurter analysis but creates a framework for applying the Frankfurter analysis into a broader opinion  But is it exactly????? – just in this case? Douglas (concurring) – legislative branch has the power of just compensation when it exercises the seizure power o The institution that has the power to seize should be the institution that has the power of compensation C. No congressional denial or grant 3.

S. it means that Pres can redefine state criminal processes  gets right to the heart of state sovereignty issues  no examples of a case in which the Pres has unilaterally interfered with state criminal procedures based on the need to implement a treaty  not a single instance of Congressional acquiescence here  BUT. but I can throw you Dames & Moore‖  how does Roberts resolve this tension?  Given the assumption that the treaty is NOT S-E and there is tension in case law b/w instances in which Pres has been foreclosed from seemingly unilaterally expanding authority and has not been foreclosed – how is it that this USSC gravitates toward Youngstown? o Roberts puts GWB memo into Jackson’s 3rd Youngstown category  How does this get to be category #3 as opposed to category #2? o criminal law issue – is an area of core state function  Why would the USSC be particularly sensitive to notion that Pres could unilaterally interfere with state criminal law processes (by signing convention requiring notification of consular rights)? concerned that if Pres has the authority to make treaty S-E. did the USSC have to go this far?????? Couldn’t it have stopped at S-E and said that Congress must implement and Pres cannot????? Allocation of Warmaking Authority  . that’s fine  Reagan does more than Carter tried to do o Does (1) nullify attachments and (2) authorize transfer of funds. BUT also (3) stays or suspends any cases in which Iran is involved  ISSUE: Does Reagan have the authority not only to nullify and transfer.13 If claims pending in U. GWB memo o GWB Memo – says he would discharge U. 375)  Arises in the context of a habeus proceeding – Can only file federal habeus when state court denies relief o Civil challenge regarding legality of methods used to bring about a conviction  Particular piece of evidence on which Medellin relies  Pres. but also to suspend the existing claims?  Connection to Youngstown o Relation to Jackson opinion  On the facts of the case in which Jackson developed the test. we can take that historical set of practices as a sort of gloss (Frankfurter) that may shade the boundaries of these three categories (Jackson) to say that long standing history of congressional acquiescence to mean that there must be some play in the joints – the stakes are too high to use rigid textualism 2008 – Medellin v.S. he inferred from Congress silence the equivalent of Congressional NO o Relation to Frankfurter opinion  If the Pres has been acting a certain way and Congress has not enacted a statute prohibiting it. then it seems that there has been consent  Application of Youngstown o Must have some degree of flexibility and if Congress has consistently acquiesced. Texas (Roberts) (p. are discharged and the IUSCT awards recovery. int’l obligations under ICJ decision and would have State courts give effect to ICJ decision  State courts are obligated to enforce the Vienna Convention  USSC  Pres authority needs to come from Constitution or from Act of Congress o Prof Stearns – ―you can throw me Youngstown.

Breyer o Souter. Confrontation right  3. process is only due when will be held indefinitely and in these cases different things will apply  Ordinarily we don’t admit hearsay. Stevens – dissent o Thomas – dissent  FACTS – Hamdi is U. Notice  2. but in this case we will general permit hearsay  Burden of proof BRD is shifted  Ultimately entitled to access to counsel o Hamdi is entitled to:  1. or coalition forces in Afghanistan and engaged in armed conflict there  What is the claimed basis for the detention? –Pres has authority pursuant to Act of Congress (AUMF) o BUT nothing of that nature is explicitly mentioned in AUMF  Is there anything special about these circumstances that strengthen Hamdi’s claim?  this is a new kind of war that may not have an end. history has overtaken that general understanding o Division b/w repelling attack and initiating a war no longer stands the test of time  U.S. Congress has authorized Pres to make the detentions o there is a new set of rules. role in the world was far beyond the comprehension of Framers Practices that occur do not match Const’l language or more recently-created statutory language War of Terror  Joint Res of Congress Authorizing Use of Force (09/18/2001)  authorizes Pres to use ―all necessary and appropriate force‖  (1) What does it mean to say that the Pres has the authority to use ―all necessary…‖  does that include the authority to detain enemy combatants for indefinite period of time?  (2) Authorization for Use of Military Force Against Iraq resolution 2004 – Hamdi v. Rehnquist. citizen and is declared enemy combatant by U.S. Rumsfeld (O’Connor) (p. a bit like the war on drugs o How does the USSC respond to this? – kind of agrees with Hamdi on this respect  Plurality opinion  even though there in no express language in AUMF wrt detention.14     Appears to be the case that the debates contemplated the authority of the Pres to REPEL an attack w/o getting prior Congressional approval BUT Congress is vested with power to declare war to INSTUTE military action HOWEVER.S. Ginsburg – concurrence in judgment o Scalia. can be held indefinitely w/o formal charges o Enemy combatant = individual who gov’t alleges was part of or supporting forces hostile to the U. Before a neutral decision maker (not before the Pres) o Where do these rules come from?  THE RULES ARE MADE UP – THEY ARE A CREATION OF HAMDI PLURALITY o Whatever it is that the gov’t is doing has to at least accord with military tribunals (and we’re doing less here)  doesn’t square entirely with courts of mil justice  Maybe the Plurality is right and maybe it’s fair. o If enemy combatant. Kennedy.S. BUT does that make it controlling? o This may not be the holding that controls in the case  Souter (Concurring) . 381)  NON-MAJORITY CASE  THIS MATTERS  Nominal breakdown o O’Connor for plurality – judgment of USSC.

if a plurality decision sustains a challenged statute. unmodified DP rights NARROWEST GROUNDS o Which is narrower – unmodified or modified DP rights?  O’Connor gives gov’t more latitude  therefore it is the NARROWEST opinion b/c restraints on gov’t control are narrower o What makes it narrower is the operation of the rule as a matter of precedent o MARKS – which has the least impact on the law?  that is the basic idea  Under the application of Marks to Memoirs – which allows gov’t most latitude to prosecute individuals? – the plurality opinion  NARROWEST = WHEN LATITUDE IS HIGH BUT RESTRAINT IS LOW o Generally. BUT HE WON o   Thomas (Dissent) ―Jail him forever‖ O’Connor (Plurality of 4) Modified DP Souter (concur in judgment) Unmodified DP Scalia (Dissent) Let Him Go . could have concurred in the judgment in part that the opinion below should not be affirmed  could have said ―I would go further‖ HAMDI WON IN THIS CASE – DIDN’T GET EVERYTHING HE WANTED.15     o statutory authority preventing application of the holding – Non Detention Act o How broadly or narrowly to read Non Detention Act – ―the tone of which is severe‖ o Plurality response – claims AUMF § 4001(a) satisfies the Act – BUT not clear it gives right to hold indefinitely Difference between Souter and Plurality? o Souter – do these circumstances warrant an exception to the reqmt of express congressional authorization  there is 1 exception (clear ticking time bomb)  This is not the case here  Hamdi was entitled to full extent of due process Opinions that afford Hamdi relief – which is narrower b/w plurality and concurrence? o O’Connor – entitled to some due process but not all. Thomas (Dissent) o In a time of war. modified DP rights  Modified DP allows the Pres more latitude going forward whereas under Souter’s regime. but this is a case of first instance Scalia & Stevens (Dissent) o Congress has a choice to suspend habeus or not. you have to treat Hamdi as any other criminal D o Souter – entitled to all due process except for 1 exception. Pres should not have to think about due process If Thomas Dissent is starting point. so the U. Conversely. which did not happen in this case.S. if the decision strikes down a statute as unconstitutional. the opinion consistent with the judgment that would strike down the fewest statutes is the narrowest ground opinion. then it makes sense that O’Connor is the narrowest. gov’t must let Hamdi go o Are they right to dissent?  WRONG LABEL FOR THE OPINION  Seems quite obvious that you can’t be dissenting all the way on the left and all the way on the right  There is no doubt that this was a concurrence in the judgment (although it was on the broadest possible grounds) o Scalia called this a dissent b/c he was angry at the Plurality opinion  In terms of breadth of relief. then the opinion consistent with the judgment that would sustain the fewest statutes is the narrowest ground.

Marshall. 390)  2001 executive order establishing military tribunals overturned by USSC  UCMJ does allow mil tribunals but cannot violate general processes of mil commissions o Brings in terms of Geneva Conventions  Plurality opinion from Stevens (Souer. not having a Bank during War of 1812 – country was not able to operate during time of crisis)  affirms Marbury – ―emphatically the province and duty of the jud department to say what the law is…‖ o Is Marbury doing any work in this instance?  could say it is emphatically the province to say what the law is. Legislative Authority p. 403 second full paragraph)  FACTS – 6 indicted and 1 unindicted (Nixon) co-conspirators o Subpoena duces tecum issued by Special Prosecutor to Pres. this is const’l b/c the USSC is ok-ing it  DO WE ACKNOWLEDGE THAT SOME INDIVIDUALS SOME OF THE TIME MAY VIOLATE RULES AND INTERNALIZE THE COSTS? –OR.C. HAMDI PLURALITY DOES NOT CONTROL o USSC NOT BOUND BY PRECEDENT IN NON-MAJORITY DECISIONS – DON’T NEED A MAJORITY TO REJECT PLURALITY B/C USSC IS NOT BOUND TO ADHERE TO PLURALITY OPINIONS FINAL CONCLUSIONS  Were all of these rules meant to constitutionalize occasional exceptions to stringent const’l requirements? o Notes seem to reflect an infinite regress problem  Jackson p.S. Court of Appeals for the D. 394 – is getting at in Korematsu.16 2006 – Hamdan v. 391)  Response to Detainee Treatment Act o DTA unconst’ly restricted writ of habeus corpus o Deficiencies in combatant status review tribunals (CSRTs)  Rejects gov’t argument that case conforms to reqmts from Hamdi  USSC – B/C PLURALITY.e. Nixon – ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial  Basis of President’s Argument o Generalized interest in confidentiality respecting Nixon as President  Risks and dangers associated with absence of recognizing privilege based on that interest o Embarrassment – bad things will happen if I have to disclose the documents – (i. violate const’l requirements due to exigent circumstances. 2008 – Boumediene v. BUT that doesn’t tell us what the law actually is. Bush (Kennedy) (p. for good reasons and motives. Rumsfeld (Stevens) (p. 400)  right to the production of all evidence at a crim trial similarly has const’l dimension (p. 391)  Responses from Congress o Detainee Treatment Act (DTA) – Provided limited review in U. so we need to figure out what the law is  could be that the law is for Nixon to define the scope of executive privilege o is it possible and consistent with Marbury to reach the opposite holding in Nixon and allow Nixon to define the limits of executive power? – YES o Renders Marbury window dressing in this instance  has NOTHING to do with the case  Rejects notion of absolute privilege – there is a privilege but it’s not unqualified . 395-400 1974 – United States v. then it is creating const’l permissibility to do the thing that violated the constitution – in effect. and IF the USSC signs off on it. Nixon (CJ Burger) (p. there are moments that arise in the real world in which the exec branch will. Ginsburg. Breyer) o Conspiracy charge not punishable under laws of war  Attempted fix to Hamdi that the USSC did not sign off on  Not directly hitting the const’l issues but suggests the possibility that those issues might be implicated – footnote about presidential power (p.DO WE WANT TO LIVE IN A WORLD IN WHICH WE RETROACTIVELY AUTHORIZE SOMETHING AFTER THE FACT? 2.

Fitzgerald (p. Johnson (p. in fact if he fails to do them he could be violating the Constitution.17 argument against the unlimited executive privilege is ―the right to the production of all evidence…‖ and would impair functioning of judicial system o Whatever embarrassment concerns might be. 406) o Scope of executive privilege o Involves question of access to info  When have committees meeting w/ non-gov Ees on them  committee has only gov EE's on it but USSC treats non-gov attendees as de-facto members . U. Jones (Stevens) (p. 404) o Damages for misconduct while in office o discharged gov’t Eee who claims violation of free speech rights does not get to sue Pres for discharge o pres occupies unique position w/in const’l scheme  ―singular importance of Pres’ duties‖ – juxtapose with Clinton v. District Court (p. Discretionary tasks are ones the president can choose to do or not do.S. what is this case? o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS  -ORo Has everything to do with the appearance that the President is not above the law POINTS OF THE CASE o This case was a political statement. 405) o Damages for claims unrelated to service in office – none of the events giving rise to the initial suit are the product of activities engaged in while Clinton was pres o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YES o USSC view seems almost naïve – said if district court is appropriately deferential to pres’ schedule it shouldn’t take up too much time  HOWEVER. 405) – presidential immunity does not extend to pres aides  1997 – Clinton v.  1982 – Nixon v. the documents will be subject to in camera inspection by Article III judge under extraordinarily controlled security measures Is there anything ironic going on here? – o Gov’t is seeking the right to produce evidence b/c it wants incriminating evidence against six coconspirators  This isn’t exculpatory evidence that Ds would have right to have produced o Who has a right? – Burger is saying that it’s essentially the gov’ts right to produce evidence o BUT the Constitution is essentially a guarantee of individual rights THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW  SO. Fitzgerald (p. Ministerial tasks are ones required by his job. The court ruled that by enforcing reconstruction Johnson was acting in an "executive and political" capacity—a discretionary rather than a ministerial one—and so he could not be sued. but not a legal statement o Precedent of the case  the President now has a limited executive privilege o FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGE – CONSTITUTION DOESN’T MENTION IT AT o ALL    o Executive privilege is implied. the case did occupy a lot of Clinton’s time and ended up providing information for impeachment  NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could have ordered Atty Gen to fire the Special Prosecutor in Nixon o Narrow class of potential Ps that would raise such a claim against the Pres although the Majority does seem to be wrong on the scheduling side  2004 – Cheney v. but there are limits on it NOTES – Executive Privilege and Presidential Immunity  1867 – Mississippi v. Jones  1982 – Harlow v.404) – maybe doesn’t survive under Nixon o Immunity from injunctive relief o prevented crim process against Johnson during Reconstruction o President has two kinds of task: ministerial and discretionary.

the documents will be subject to in camera inspection by Article III judge under extraordinarily controlled security measures  Is there anything ironic going on here? – o Gov’t is seeking the right to produce evidence b/c it wants incriminating evidence against six coconspirators  This isn’t exculpatory evidence that Ds would have right to have produced o Who has a right? – Burger is saying that it’s essentially the gov’ts right to produce evidence o BUT the Constitution is essentially a guarantee of individual rights  THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW  SO. Marshall. 407)  What does ―high crimes and misdemeanors‖ actually mean?  Clinton defined sexual relationship to include his particular relationship  Famous Gerald Ford quote  impeachable offense is whatever Majority of House thinks it is at a given moment in history  P. 411 – Klarman ―certitude with which politicians and academics espoused wide variety of const’l interpretations notwithstanding the thinness of const’l law governing impeachment‖  Prof Stearns. Domestic Affairs 1. Nixon – ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial  Basis of President’s Argument o Generalized interest in confidentiality respecting Nixon as President  Risks and dangers associated with absence of recognizing privilege based on that interest o Embarrassment – bad things will happen if I have to disclose the documents – (i. but not a legal statement .18 o o o Civil litigation is diff from Crim litigation . so we need to figure out what the law is  could be that the law is for Nixon to define the scope of executive privilege o is it possible and consistent with Marbury to reach the opposite holding in Nixon and allow Nixon to define the limits of executive power? – YES o Renders Marbury window dressing in this instance  has NOTHING to do with the case  Rejects notion of absolute privilege – there is a privilege but it’s not unqualified o argument against the unlimited executive privilege is ―the right to the production of all evidence…‖ and would impair functioning of judicial system o Whatever embarrassment concerns might be. what is this case? o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS  -ORo Has everything to do with the appearance that the President is not above the law  POINTS OF THE CASE o This case was a political statement. this quote is absolutely right o Everyone thought they were right. 400)  right to the production of all evidence at a crim trial similarly has const’l dimension (p. but no one had any const’l basis for it D. 403 second full paragraph)  FACTS – 6 indicted and 1 unindicted (Nixon) co-conspirators o Subpoena duces tecum issued by Special Prosecutor to Pres. BUT that doesn’t tell us what the law actually is. Nixon (CJ Burger) (p. not having a Bank during War of 1812 – country was not able to operate during time of crisis)  affirms Marbury – ―emphatically the province and duty of the jud department to say what the law is…‖ o Is Marbury doing any work in this instance?  could say it is emphatically the province to say what the law is.so not same kind of information that can be revealed so committee meetings protected from disclosure civil litigation for disclosure  no restraints in civil litigation for filtering out insubstantial legal claims as there are in crim justice system USSC – concerns raised in Nixon criminal adjudication does not allow disclosure of evidence in this case  Nixon was narrow subpoena order and Cheney was broad discovery request NOTES on Impeachment (p. Executive Authority p.e. 400-12 NIXON 1974 – United States v.

in fact if he fails to do them he could be violating the Constitution. U.19 o o o Precedent of the case  the President now has a limited executive privilege. but no one had any const’l basis for it 2. District Court (p. 405) o Damages for claims unrelated to service in office – none of the events giving rise to the initial suit are the product of activities engaged in while Clinton was pres o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YES o USSC view seems almost naïve – said if district court is appropriately deferential to pres’ schedule it shouldn’t take up too much time  HOWEVER. 411 – Klarman ―certitude with which politicians and academics espoused wide variety of const’l interpretations notwithstanding the thinness of const’l law governing impeachment‖  Prof Stearns. the case did occupy a lot of Clinton’s time and ended up providing information for impeachment  NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could have ordered Atty Gen to fire the Special Prosecutor in Nixon o Narrow class of potential Ps that would raise such a claim against the Pres although the Majority does seem to be wrong on the scheduling side  2004 – Cheney v. LEGISLATIVE AUTHORITY Background / Introduction  Question of Const delegation . Jones  1982 – Harlow v. 405) – presidential immunity does not extend to pres aides  1997 – Clinton v.S.  1982 – Nixon v. Discretionary tasks are ones the president can choose to do or not do. 412-439 CHADHA. Jones (Stevens) (p. The court ruled that by enforcing reconstruction Johnson was acting in an "executive and political" capacity—a discretionary rather than a ministerial one—and so he could not be sued. 404) o Damages for misconduct while in office o discharged gov’t Eee who claims violation of free speech rights does not get to sue Pres for discharge o pres occupies unique position w/in const’l scheme  ―singular importance of Pres’ duties‖ – juxtapose with Clinton v. 407)  What does ―high crimes and misdemeanors‖ actually mean?  Clinton defined sexual relationship to include his particular relationship  Famous Gerald Ford quote  impeachable offense is whatever Majority of House thinks it is at a given moment in history  P. Johnson (p. Fitzgerald (p. Ministerial tasks are ones required by his job. but there are limits on it NOTES – Executive Privilege and Presidential Immunity  1867 – Mississippi v. this quote is absolutely right o Everyone thought they were right. Legislative Authority p.404) – maybe doesn’t survive under Nixon o Immunity from injunctive relief o President has two kinds of task: ministerial and discretionary. FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGE – CONSTITUTION DOESN’T MENTION IT AT ALL Executive privilege is implied. Fitzgerald (p. 406) o Scope of executive privilege o civil litigation for disclosure  no restraints in civil litigation for filtering out insubstantial legal claims as there are in crim justice system o USSC – concerns raised in Nixon criminal adjudication does not allow disclosure of evidence in this case  Nixon was narrow subpoena order and Cheney was broad discovery request NOTES on Impeachment (p. President is not above the law.

20  Leading up to 1937 switch in time that saved nine – there were series of doctrines that interfered with New Deal reform projects o Included in this was nondelegation doctrine  Congress’ ability to convey lawmaking authority to external institutions is limited by intelligible principle  Ultimately. blame judiciary if it goes poorly and take responsibility if go well  not formally nondelegation doctrine. past the expiration of their visas  WHY struck down? o Violation of Art.S. 1 Sect. 417)  RULE: 1 house veto is unconst’l b/c violates separation of powers  FACTS – Chadha would suffer serious personal hardship if he was subjected to deportation o Immigration and Nationality Act – one house of Congress can veto the suspension of deportation of those who have stayed in the U. Stearns says that Scalia is wrong b/c line item veto act is a default rule that applies across all legislation whereas the appropriations statutes are particular to individual statutes    1983 – INS v. congressional action altered Chadha’s status . and to create a law must have bicameralism (signed off by both houses of Congress)  How do we know if something is a law? o 1. so doesn’t address balance of powers  This analysis was satisfactory  BUT could also have rested on separation of powers argument – Stevens could have done this but he opted not to do so o construed the silence of the Constitution on the subject of such unilateral Presidential action as equivalent to "an express prohibition". U. – that concern about responsibility shifting b/w state and federal legislatures is similar to nondelegation o Even in Lujan . USSC has used nondelegation principles to interpret statutory delegations so as to avoid Const nondelegation argument o If ambiguous delegation and construe it narrowly. 1. 7. agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single.S. Section 7 – bill must be presented to Pres for signature. o Dissent (Scalia) – if you have an appropriations statute that contains the authority of the Pres not to spend sums. 7 and reqmt of bicameralism and presentment? YES – is NOT const’l  line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of Const because it impermissibly gave Pres the power to unilaterally amend or repeal parts of statutes that had been duly passed by Congress o analyzes under Art 1 Sec. that would be ok. Byrd (1st case to address line-item veto but struck down on stranding) o ISSUE: does line item veto act violate Art. but there seems to be a consistency of shifting accountability concerns 1998 – Clinton v. 416) o strikes down line-item veto act that allowed pres to veto tax provisions or expenditures  lets pres decline to spend allocated sums benefitting narrow classes or expenditures  Raines v. finely wrought and exhaustively considered. procedure" and that a bill must be approved or rejected by the President in its entirety.delegated to private litigants to litigate cases in cts. the line item veto act accomplishes the same result – Prof. if not go well blames agency o New York v. ―essentially legislative in purpose and effect‖  Chadha – affects people who are outside the chambers of Congress.never used this to strike down delegation except in Schecter and other case HOWEVER. takes responsibility if it goes well. City of New York (Stevens) (p. can avoid nondelegation challenge to the delegation  federal courts have done this o Other contexts in which nondelegation concerns arise outside of formal nondelegation doctrine Issue w/ shifting responsibility concerns all over the place o concern is Cong delegates power to agency. Chadha (Burger) (p. USSC declares end to intelligible principle test .

not really judicial b/c doesn’t include all judicial protections  Is this an argument in support of or against Powell? – it in fact SUPPORTS Powell’s analysis  The fact that something is an imperfect judicial process does not bolster the argument that something is unconst’l  Dissent (White) o Majority is failing to recognize that the rise of the bureaucratic state is ultimately the function of allocation from Congress to other agencies of regulatory capacity and we want Congress to at least be able to pull back when the agencies go too far  to say we’re preventing separation of powers by limiting congressional review of regulatory agencies is a bizarre assertion o Majority has just prevented Congress from maintaining a check on the exercise of lawmaking power that originates with Congress o const’l ruling strikes more provisions of fed law than any other single case in the history of the USSC  These are all invalidated under Chadha b/c of the rigid wooden formalism of Majority opinion 3. United States (p. neglect of duty. Congress CAN impose limitations on Pres’ removal authority wrt FTC commissioners  distinguished b/w exec officers and quasi-leg or quasi-jud officers. is executive function. Senate power to ratify treaties  Possible to reach opposite result and be consistent with Marbury? . and therefore the President could not fire an FTC member solely for political reasons. 424)  can Congress impose limitations on removal authority of Pres wrt a Cabinet Member? – NO  Pres has the exclusive power to remove exec branch officials. WHAT THESE 2 CASES MEAN  wrt core executive functions – Pres cannot be limited  wrt quasi-legislative function – the independence of the agency permits Congress to interpose limits on the removal authority of the President  . House power to nitiate impeachments o 2. The latter may be removed only with procedures consistent with statutory conditions enacted by Congress.  USSC – CJ Taft – limitation on Pres removal authority is unconst’l. thus. Senate power over presidential appts o 4. Senate power to conduct trials following impeachment o 3. the former serve at the pleasure of the President and may be removed at his discretion.YES o very statute that set up the one house veto satisfied the requirements of bicameralism and presentment  so begs the question of whether the use of said veto must also satisfy those requirements. Congress seems to be acting in an adjudicative manner – should be kept out of the Houses of Congress o Burger – Powell’s decision is that 1 house veto is judicial act. The Legislative Veto BOWSHER. lesser issue but a ―different‖ issue 1935 – Humphrey’s Executor v. MORRISON NOTES – Administrative Agencies and Separation of Powers (p. Humphrey's firing was improper. 425)  removal for inefficiency. we agree there is some judicial cast since it purports to review executive action. is not ordinary lawmaking. but this isn’t one of them o 1. United States (p. and does not need the approval of the Senate or any other legislative body. take care clause vests authority to execute laws in the Pres  Dissent – Congress could eliminate an agency  USSC – greater does not necessarily include lesser  it is not a greater v. 424) 1926 – Myers v. malfeasance  Vitally important case  b/c the FTC engages in quasi-judicial / quasi-legislative functions. it performs functiosn independent of the executive branch  is an independent agency and as such.21 There are 4 examples of when there is no need for bicameralism. The Court ruled that the FTC was a quasi-legislative body because of other powers it had.  Debate b/w Powell and Burger o Powell (concurring) – this is quasi-legislative authority.

Synar (Burger) (p. is still unconst’l  Congress cannot delegate to a subunit of itself a lawmaking provision that binds the nation as a whole – comes from Chadha . who was then required to issue an order effecting the reductions required by the Comptroller General unless Congress made the required cuts in other ways within a specified amount of time. the functioning of the war claims commission and the fact that the commission engages in adjudicative functioning implies a limitation on the Pres’ power to remove  This case reasons backward relative to other two cases o other 2 cases –look at removal provisions and ask if in light of functions. 'neglect of duty. in the Courts of Law.  Does this scheme create incentives to bring federal budget into balance? o NO – b/c Congress could pass responsibility ―buck‖ o NO – members of Congress want everyone else to observe constraint while they themselves do not exercise constraint  If budget doesn’t come into balance  there would be automatic across the board cut SO the result would be to raise the budget as high as possible b/c you know that it will inevitably be cut  Court – Comp Gen’s duties are executive  what is best argument for executive duty? –Comp Gen would have to work to reconcile inconsistent views on the cuts  exercising such a level of discretion would be tantamount to executive decision making process  Stevens (Concurring)  legislative power issue b/c Comp Gen is assigned functions that would require him to make policy decisions that affect the country o Comp Gen performs – executive o Fallback provision – legislative function o Assume it’s legislative – argument in its best light. is removable only by impeachment or a joint resolution of Congress (which requires majority votes in both houses and is subject to the veto).' or 'malfeasance.. 427)  FACTS – Ultimate authority over Comptroller General’s job security – nominated by Pres and subject to removal by impeachment or joint resolution of Congress subject to Pres. is pres allowed complete authority to remove – w/ no answer.. in the President alone. unusual composition  Pres is not doing the appointing of the commissioners whose functions would be regarded as executive  USSC – not going to say that commission is unconst’l BUT certain of the designated functions cannot be performed by commission with such a composition.made a recommendation to the President.  ISSUE: what does inferior office mean – what is distinction b/w inferior and the alternative (principal)?  USSC – even in 2010 noted the lack of clarity on the distinction  Morrison (1988) – dissent b/w Scalia (Dissent) and Rehnquist Majority 1976 – Buckley v.. are the provisions permissible? o This case – looks at the function and ask if. including "inefficiency. as they think proper.. 425)  where statute is silent on removal. Valeo (p. The Comptroller . United States (1958) (p. or in the Heads of Departments. 426) – 8 member Federal Election Commission.  OUTCOME: struck down the Gramm-Rudman-Hollings Act as an unconstitutional usurpation of executive power by Congress because the law empowered Congress to terminate the United States Comptroller General for certain specified reasons. BUT it is OK to perform advisory functions 1986 – Bowsher v.22 1958 – Wiener v..Congress may by Law vest the Appointment of such inferior Officers. there are limits  Implies limitations on pres removal auth Appointments clause  . veto o All meant to balance the federal budget o The Comptroller General. it can’t delegate it to its agents.'"  ISSUE: is automatic sequestration provision const’l? – NO  Congress cannot control the execution of its laws. in light of removal authority. since it doesn’t possess this power..

If executive officer performing executive function. then there is Chadha problem o That is why there was a fallback provision This holding was NOT a surprise o Majority – struck down automatic sequestration provision and said do it through the fallback provision statute    1988 – Morrison v.23  White (Dissent) o Expediency point – applying mechanical separation of powers rules to limit ability of Congress to come up with practical solutions to problems  Congress has power to control administration through imposing duties or substantive restraints on executive officers o Fallback provision problem – it does not work politically o Classic Justice White opinion o Removal of Comp Gen satisfies bicameralism and presentment laid down in Chadha  Can’t violate Chadha b/c removal requires both Houses of Congress and President to be involved  Problem with this analysis – if we assume that the Comp Gen is performing exec functions. the language of this "excepting clause" admits of no limitation on interbranch appointments. The relevant language of the Appointments Clause is worth repeating. Hunter’s Lessee  wherever you vest final decisional authority.S. in the courts of Law. o On its face. which includes the removal of officers who perform core executive functions o Could be partisan issue wrt prosecutor’s function BUT also an issue that normally prosecutors are subject to political considerations BUT the independent prosecutor is not subject to such constraints  May be a peripheral violation in the real world but be a core violation in the world of the independent counsel / prosecutor o NOTE – Connection to Martin v. in the President alone." in which an officer of one branch is appointed by officers of another branch. Olson (Rehnquist) (p. . If legislative function. . then the framework would be super helpful  Rehnquist’s analysis o Good cause removal provision does not impermissibly burden the Pres’ power o contend that the Clause does not contemplate congressional authorization of "interbranch appointments. but the majority doesn’t agree that the answer is NOT yes  1. executive officials in the "courts of Law. the inclusion of "as they think proper" seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of. 430)  Independent Counsel Act – independent counsel can only be removed by impeachment or by personal action of Atty Gen  What does ―our present considered view‖ mean?  it’s a way of saying ―we need to re-write history b/c history is not helping us in our decision‖ o This case against that framework isn’t going to work IF we are going to sustain the challenged provision o IF the USSC were to strike down the provision. which removes the authority from DoJ – so that implies it is principal function o Pres has the ENTIRE executive authority. or in the Heads of Departments."  Scalia (Dissent) – accuses Rehnquist of using a balancing test when must look exclusively to Constitution o Not only are the answers to the 2 part test YES. THEN must call into question anything that limits removal power 2. principal argument – independent counsel is at least a principal officer and not an inferior officer  Independent prosecutor has EXLCUSIVE investigatory authority. Indeed. It reads: . as they think proper. Does statute deprive Pres of U. for example. but the Congress may by Law vest the Appointment of such inferior Officers. Is conduct of a crim prosecution the exercise of purely exec power?  2. Scalia’s . it’s subject to abuse  it’s true that final decisional authority is always subject to abuse  HERE. exclusive control over that power? o Inferior v. then the question isn’t whether Pres is involved in removal BUT rather whether anyone BUT the Pres is involved in removal 1.

v. Sentencing Commission o Independent commission located w/in the judicial branch o Purpose – look at particular offenses for which people were convicted under federal law and the background of people who committed offenses  there was GREAT disparity that was considered unfair o Proposal for mandatory sentencing guidelines – would be binding unless overturned by Congress  LATER CASES – USSC struck down guidelines as violating jury right – BLAKELY  Interesting argument – leveled in favor of const’lty of commission by Justice Blackmun o Is the commission exercising powers that are non-judicial and that are specifically legislative?  placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority.24 point is that argument in favor of counsel is ―do we trust the executive branch to investigate itself?‖ – executive branch may not investigate itself so therefore subject to abuse BUT creating an independent counsel isn’t the best idea b/c could also be subject to abuse Does replacing a clear cut doctrinal rule with a balancing test make good sense or not? – interesting question Congress let Independent Counsel provision lapse after Clinton impeachment   2010 – Free Enterprise Fund et al. decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. as an aggregate. in placing the Commission in the Judicial Branch. It was the everyday business of judges  Accordingly.  Thus. United States (Blackmun) (p. Prior to the passage of the Act.Pres should not have to go through numerous layers to remove o can be subject to one degree of removal and not two until USSC distinguishes it  This is a new rule . the Judicial Branch. 437)  U. although Congress has authorized the Commission to exercise a greater degree of political judgment than has been exercised in the past by any one entity within the Judicial Branch.  Argument – prior to commission individual judges gave sentences. Congress cannot be said to have aggrandized the authority of that Branch or to have deprived the Executive Branch of a power it once possessed. this authorization does nothing to upset the balance of power among the Branches. in the unique context of sentencing.double removal protection rule 1989 – Mistretta v. Public Company Accounting Oversight Board (supplement)  Multilevel protection from removal in context of indep agency that is subject to limits on pres removal  Limits of removal authority on members of SEC by the board  Does this trigger separation of powers violation b/c triggers 2 levels of removal? o YES – violates the law  Dissent – problems for civil service system and for any agencies in which agency can appoint people and give some job security (also military) o What about the need for expertise and independent judgment? o Good job of showing potential huge problems o Majority – says that military analogy is attenuate  Whereas CJ Roberts says ―you’re panicking‖  Nesting doll analogy  pres shouldn’t have to keep opening up the dolls  Classic example of not knowing what a case means until it’s applied  will it be limited or not?  Case rests on . added up there were ranges of sentences  the commission does the same thing but it in the aggregate – the aggregation of individualized sentencing determinations is no different  Is Blackmun right?  o Maybe not because this is pretty removed from case or controversy  keep in mind that state and federal legislatures provide sentencing ranges all the time o prospectivity may be the thing that draws the line b/w judicial and legislative function .S.