11/08/2017

Overview

 U.S. Constitution

 Constitutional amendments

The Declaration of Independence

 Adopted on July 4, 1776

 Unanimous Declaration of
the thirteen United States
of America

“We hold these Truths to be self-evident, that all

Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that
among these are Life, Liberty and the Pursuit of
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Happiness….”

Declaration of Independence

“But when a long train of abuses and usurpations

…evinces a Design to reduce them under absolute
Despotism, it is their Right, it is their duty, to throw off
such Government, and to provide new Guards for their
future Security.”
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Historical Background
 1775-76: Battles between British and revolutionary troops.

 1776: Declaration of Independence adopted.

 1777: Articles of Confederation adopted, with Congress

as sole authority of new nation.

 1777-83: Revolutionary War fought.

 1787: New Constitution drafted.

 1788: New Constitution ratified by states.

 1789: George Washington sworn in as first President. 4

Federalist vs. Anti-Federalist

 During ratification, the Anti-Federalists argued that
the new Constitution gave too much power to a
central federal government, while the Federalists
argued a strong central government was necessary.

Hamilton: a founding father

takes to the stage
 https://www.youtube.com/watch?v=HAiEVj
W-GNA

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The U.S. Constitution

 Three major functions:

1. Creates a national government and
separates power among 3 branches:
• Legislative
• Executive
• Judicial
2. Divides power between federal and state
governments
3. Protects individual liberties

The U.S. Constitution

Key concepts of the U.S. federal system:

 Checks and balances: no one branch is allowed

undue power.

 The federal government is one of strong but

limited powers: the states and the people retain
all powers not specified in the Constitution

 Individuals need protection from improper acts of

the federal government
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The Constitution’s provisions

 Article I: Legislative power
 Article II: Executive power
 Article III: Judicial power
 Article IV: Full faith and credit
 Article V: Amendment process
 Article VI: Supremacy clause
 Article VI: Ratification requirements

 Amendments 1-10 (1791, Bill of Rights)

 Amendments 11-27 (1798-1992)
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Art. I: the Legislative Branch

All legislative powers vested in Congress,

which is divided into two houses:
• Senate (100 members – 2 Senators per state)
• House of Representatives (435 members – elected in
proportion to state population)

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Art. I: the Legislative Branch

 Proposed legislation must be passed by both

houses and approved by the President

 Art. I Section 8 of the Constitution enumerates

Congress’s powers, including the power to:
• Collect taxes
• Provide for the common defense and general welfare
• Create lower federal courts
• Declare war
• Borrow money
• Protect copyright and patents
• Regulate commerce
• Make laws “necessary and proper” to execute foregoing
powers
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The Commerce Clause

 “[The Congress shall have Power] To
regulate Commerce with foreign Nations, and
among the several States, and with the
Indian tribes;”

 What affects interstate commerce?

 Heart of Atlanta Motel v. US, 1964:

• Commerce Clause gave Congress power to pass Civil
Right Act of 1964, which prohibits discrimination in
public accommodations.

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The Commerce Clause

 What affects interstate commerce?

 US v. Lopez, 1995:
• Federal law mandating a "gun-free zone" near public
schools was struck down because it did not affect
interstate commerce, and there was no other clause in
the Constitution giving Congress the power to enact
such a law.

 Gonzales v. Raich, 2005:

• Commerce clause allows Congress to prohibit medical
marijuana that is legally grown and used in California.

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The Commerce Clause and

the Affordable Care Act
 Federal health-care law passed by narrow
margin in Congress, signed into law by
President Obama in 2010. It is sometimes called
“Obamacare.”

 Key provision: individual mandate, requiring

people to buy health insurance or face tax
penalties

 Challenged as unconstitutional by coalition of

state attorneys general arguing it exceeded
Congress’ power under the Commerce Clause.
N.F.I.B v. Sebelius (U.S. 2012)
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N.F.I.B v. Sebelius (U.S. 2012)

 Majority (Chief Justice Roberts plus four liberal

justices):
 ACA is constitutional as a tax
 Roberts separate opinion:
 law is unconstitutional as an exercise of power to
regulate commerce
 Ginsburg opinion (joined by 3 liberal justices:
 law is also constitutional as an exercise of power
to regulate commerce
 Dissent (Kennedy plus 3 conservative justices):
 ACA is unconstitutional.
 Individual mandate is not a tax
 It is not within Congress’ power to regulate
commerce. 15

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Impeachment

 Impeachment by the House: The House of

Representatives has the sole power of
impeachment (Article I, Section 2, Clause 5 U.S.
Constitution).

 Conviction by the Senate: The Senate has the

sole power to try all impeachments (Article I,
Section 3, Clause 6 U.S. Constitution).

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Art. II: the Executive Branch

 Executive powers are vested in the President of
the United States

 The President is elected every four years; serves

no more than two terms in office; selects cabinet

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Art. II: the Executive Branch

 Presidential powers are enumerated in Art. II,
Section 2, including:
• Commander-in-Chief of Army and Navy
• Pardon power
• With “advice and consent” of the Senate,
power to:
• Nominate executive officers
• Make treaties
• Nominate federal judges

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Executive Orders

 The executive power shall be vested in a

President of the United States of America.
Article II, Section 1, Clause 1 of the
Constitution.

 He [the President] shall take care that the

laws be faithfully executed….
Article II, Section 3 of the Constitution.

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Executive Orders
 EOs are legally binding orders given by the
President, acting as the head of the
Executive Branch, to Federal Administrative
Agencies.

 Used to direct federal agencies in their

execution of congressionally established
laws or policies.

 Do not require Congressional approval to

take effect but they have the same legal
weight as laws passed by Congress. 20

Number of Executive Orders by

President
4000 3,721

3500
3721
3000

2500

2000

1500
1,081
1081
1000

500 346 364 291 276

214
214 346 364 291 276
88 48
48 3737
0

EOs issued by President

*As of June 20, 2017. 21

Data from: http://www.presidency.ucsb.edu/data/orders.php

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Executive Order: Travel Ban

Action Who? Description
01/27/2017 President Bans people from Iraq, Iran, Syria, Yemen, Libya,
EO #13769 Trump Sudan and Somalia from entering the US for 90 days.
Temporarily halts refugee resettlement program,
suspends resettlement for Syrian refugees.
03/06/2017 President Drops Iraq from the list for some provisions.
“Revised” EO Trump Includes case-by-case waiver process for refugees.
#13780
05/25/2017 US Court of “Revised” EO is unconstitutional. Recognized that in
Int’l. Refugee App. for the context it “drips with religious intolerance, animus,
Assistance Project Fourth and discrimination.”
v. Trump Circuit
06/12/2017 US Court of President “exceeded his authority” in issuing an order
Hawaii v. Trump App. For excluding nationals of specified countries from entry
the Ninth into the U.S. and decreasing the number of refugees,
Circuit since there were no adequate findings that their entry
would be detrimental to the interests of the US.
06/26/2017 Supreme Granted review of both cases and will hold oral
Int’l Ref. and Hawaii Court arguments on October 10, 2017. 22
(consolidated)

Impeachment

 “The President, Vice President and all Civil

Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction
of, Treason, Bribery, or other high Crimes and
Misdemeanors”.
Article II, Section 4 U.S. Constitution.

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Indictment
Can a President be investigated for crimes
while still in office?

The closest the Constitution comes to

addressing the issue is in Article I, Section 3:
“Judgment in cases of impeachment shall not
extend further than to removal from office, and
disqualification to hold and enjoy any office of
honor, trust or profit under the United States:
but the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment
and punishment, according to law.”
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Emoluments Clause

 “No title of nobility shall be granted by the

United States: and no person holding any
office of profit or trust under them, shall,
without the consent of the Congress,
accept of any present, emolument, office,
or title, of any kind whatever, from any
King, Prince or foreign State.”

Article I, Section 9, Clause 8

of the U.S. Constitution
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 The Attorneys General for

Emoluments the District of Columbia
Clause and and Maryland announced
a lawsuit accusing
Impeachment President Trump of
improperly accepting
payments from foreign
governments to Trump’s
D.C. hotel, in violation of
the Emoluments Clause.

 President Trump retained

ownership of his
businesses when he took
office, creating conflict of
interest issues.
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Art. III: the Judicial Branch

 “The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.
The Judges, both of the supreme and inferior Courts,
shall hold their Offices during good Behavior, and shall,
at stated Times, receive for their Services, a
Compensation, which shall not be diminished during
their Continuance in Office.”

 Key protections:
• Life tenure
• Guaranteed salary

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Art. III, § 2: Federal Judicial Power

“The judicial Power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made . . . under their authority;
--to all cases affecting ambassadors, other public ministers and
consuls;
--to all cases of admiralty and maritime jurisdiction;
--to controversies to which the United States shall be a party;
--to controversies between two or more states;
--between a state and citizens of another state;
--between citizens of different states;
--between citizens of the same state claiming lands under grants of
different states, and between a state, or the citizens thereof, and
foreign states, citizens or subjects.”

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Art. III: Federal Judicial Power

 Cases “arising under” the Constitution, laws
or treaties of the U.S.
 Cases in which the U.S. is a party
 Controversies between
• two or more states
• a state and citizens of another state
• citizens of different states
• a state, or its citizens, and foreign states, citizens
or subjects
 All admiralty and maritime cases
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Article IV:
Full Faith and Credit

“Full faith and credit shall be given in each

State to the public acts, records, and judicial
proceedings of every other State.”

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Article V:
Amending the Constitution
 Vote of 2/3 (supermajority) of both houses of
Congress is required.

 Then, amendments must be either:

 Ratified by the Legislatures of ¾ of the States, or
 Ratified by Constitutional Conventions in ¾ of the
States

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Article VI: Supremacy Clause

“This Constitution, and the Laws of the
United States…and all Treaties made, or
which shall be made…shall be the
supreme Law of the Land….”

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CHECKS AND BALANCES

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Is there a “Fourth Branch” of Government

not mentioned in the Constitution?
 Administrative Agencies are sometimes called the
“Fourth Branch”
 A few examples:
Environmental Protection Agency (EPA);
Federal Communications Commission (FCC);
Federal Trade Commission (FTC);
Food and Drug Administration (FDA);
National Labor Relations Board (NLRB);
Securities and Exchange Commission (SEC)
 Created by Congress. Administrative agencies resemble the
other 3 branches in having powers that are
 quasi-legislative (through delegated rule-making authority)
 quasi-executive (agencies investigate, execute, and enforce rules)
 quasi-judicial (agencies apply, interpret, and enforce compliance with
rules)
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Administrative Law
 The Administrative Procedure Act of 1946
 Governs the process by which agencies develop
and issue regulations
 Includes requirements for publishing notices of
proposed and final rules in the Federal Register,
and provides opportunities for the public to
comment on proposed rules

 Chevron USA v. Natural Resources Defense

Council (1984)
 Supreme Court requires courts to defer to agencies’
interpretations of statutes unless unreasonable
 Known as “Chevron deference” 36

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Bill of Rights:
First 10 Amendments (ratified 1791)

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Bill of Rights

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First Amendment

Congress shall make no law respecting an

establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom
of speech, or of the press; or the right of the
people peaceably to assemble; and to petition
the government for a redress of grievances.

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Separation of Church and State

1. 1st Amendment Establishment Clause

• Government cannot establish an official
religion.
• Government cannot prefer one religion over
another.
2. 1st Amendment Free Exercise Clause
• Government cannot interfere with an
individual’s religious beliefs and practices.

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Freedom of Speech

Abrams v. U.S. (1919):

• Dissenters Justices Holmes and Brandeis argued for
stronger speech protection based on a “marketplace of
ideas.” “The best test of truth is the power of thought to
get itself accepted in the competition of the market.”

Texas v. Johnson (1989):

Johnson had burned an American flag outside the Republican
Nat’l Convention in 1984, violating Texas state law. Court said
flag-burning was protected speech.
 “If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit
the expression of an idea simply because society finds
the idea itself offensive or disagreeable.” Justice Brennan
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Snyder v. Phelps, 562 U.S. 443 (2011)

Recent Free Speech Case
 https://www.youtube.com/watch?v=JC_EE
gvtLMQ
 https://www.youtube.com/watch?v=ZM6Zz
EwJJs0

 The gay father of a Marine who died in the

Iraq War sued the Westboro Baptist Church
for intentional infliction of emotional
distress. Church members picketed the
funeral, displaying signs protesting tolerance
of homosexuality in the U.S.
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Freedom of the Press

 NY Times v. Sullivan (1964):
• Greater protection for speech about public
officials; need “actual malice” to prove
defamation
 NY Times v. US (1971)
 The “Pentagon Papers” case: US government
cannot stop NY Times from publishing classified
Defense Dept. study of Vietnam War
• Affirmed principle of “no prior restraint.”
• Government can punish speech that violates the
law after the fact, but can’t stop it in advance.
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First Amendment speech rights

are not absolute
Under certain circumstances, some speech may not
be protected:
• Advocacy of illegal action
• Defamation and invasion of privacy
• Obscenity and child pornography
• Hate speech promoting imminent violence
(“fighting words”)

Some speech receives less protection:

• Commercial speech

Speech can be regulated in special settings:

television and radio broadcasts
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Trump Presidency and the First

Amendment
 President Trump and his Administration have
attacked the media as “dishonest” and “fake
news” and have attacked individual reporters.
Trump called the media the “enemy of the
people”.

 The White House has prevented certain media

outlets including BBC, CNN and The New York
Times from entering press briefings.

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Trump Presidency and the First

Amendment
 Knight First Amendment
Institute v. Trump: On July 11,
2017, a group of Twitter users
sued President Trump in
Federal District Court arguing
that his account amounts to a
public forum from which he
cannot bar people.

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Second Amendment

Right to bear arms.

Recent decisions:
• District of Columbia v. Heller, 2008
• McDonald v. City of Chicago, 2010

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Open Carry (2016)

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Campus Carry – States that Allow Guns on

College and University Campuses (2017)

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Third Amendment
Right to be free of arbitrary quartering of
soldiers in the home

“No Soldier shall, in time of peace be

quartered in any house, without the consent
of the Owner, nor in time of war, but in a
manner to be prescribed by law.”
http://www.theonio
n.com/articles/thir
d-amendment-
rights-group-
celebrates-
another-su,2296/

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Fourth Amendment
Pre-arrest:
• Protection against unreasonable searches and seizures
• Mapp v. Ohio

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or
things to be seized.”

Major issues:
• Warrant requirement
• Probable cause
• Stop and frisk
• Exclusionary rule
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• What is a “search”?

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Fourth Amendment cont.

Changing technology has forced the Court to clarify the Fourth
Amendment’s protection against unreasonable search and seizure

United States v. Riley v. California (2014)

Jones (2012)
Holding (9-0, unanimous): The
Holding (9-0, but
warrantless search and seizure of
not unanimous):
the digital contents of a cell phone
Fourth Amendment
prohibits law during an arrest is illegal
enforcement from
using GPS devices
to conduct
The Court rejected the state’s
surveillance on arguments that cell phone searches
suspects without a were necessary to protect police
warrant in the case. officers and/or evidence 52

Fifth Amendment

Key provisions:
 Double jeopardy
 Privilege against self-incrimination
 Due process clause:
 No person shall “be deprived of life,
liberty, or property, without due
process of law.”
 Takings clause:
 Taking private property for public use
requires just compensation.
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Sixth Amendment

 Right to criminal trial:

 Speedy and public trial
 Impartial jury
 Confrontation by witnesses against
you
 Assistance of counsel

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Seventh Amendment

 Right to jury trial in civil cases.

 "In Suits at common law, where the value in

controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and
no fact tried by a jury, shall be otherwise re-
examined in any Court of the United States,
than according to the rules of the common
law."

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Eighth Amendment

• Punishment

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Eighth Amendment continued:

Capital Punishment
Supreme Court decisions:
 Furman v. Georgia (1972):
 Death penalty held invalid as applied
 5-4 decision with 9 separate opinions
 Court cited “evolving standards of decency”
 States redrafted statutes
 Atkins v. Virginia (2002):
 Eighth Amendment prohibits the execution of
a mentally retarded person.
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Eighth Amendment continued:

Capital Punishment
 Roper v. Simmons (2005) Miller v.
 Is Death Penalty “cruel and Alabama (2012)
unusual punishment” for 16 and 5-4 decision
17 year olds convicted of murder? Eighth
Earlier case had ruled no DP for Amendment
those under 16. prohibits
 Court holds that Eighth mandatory
Amendment prohibits execution of sentence of life
anyone under the age of 18. without parole
Deterrence less effective on for murder
adolescents; immature mind less committed
culpable so punishment not before defendant
proportional. Society has turned 18
changed: evolving standards of 58
decency.

The Ninth and Tenth Amendments

Amendment IX:
“The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others
retained by the people.”

Amendment X:
“The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”

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The Eleventh Amendment, 1795

The Twelfth Amendment, 1804
XI: State sovereign immunity
“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.”
XII: Procedure for election of President and
Vice-President
Modifies Constitution’s rules for Electoral College
process

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The Electoral College

 “…But in choosing the President, the
votes shall be taken by states, the
representation from each state having one
vote; a quorum for this purpose shall
consist of a member or members from
two-thirds of the states, and a majority of
all the states shall be necessary to a
choice.”
Amendment XII to the Constitution

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US ELECTORAL COLLEGE MAP

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ELECTORAL COLLEGE MAP – U.S. ELECTION

2016

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POPULAR VOTE MAP – U.S. ELECTION 2016

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POPULAR VOTE PRISM MAP – U.S. ELECTION

2016

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Civil War Amendments

 Thirteenth Amendment (1865)
• Abolition of slavery

 Fourteenth Amendment (1868)

 Section 1:
 “All persons born or naturalized in the
United States . . . are citizens of the United
States and the State wherein they reside.”
 “No State shall “deprive any person of life,
liberty, or property, without due process of
law;
 “nor deny to any person within its jurisdiction
the equal protection of the laws.”

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Enforcement of Civil Rights

under the Constitution
*Brown v. Board of Education, 1954
Racial segregation in public education “inherently unequal”
*Heart of Atlanta Motel v. U.S., 1964
Upholds Civil Rights Act of 1964 which prohibited discrimination
in public accommodations like motels and restaurants
*Loving v. Virginia, 1967
Marriage a fundamental right; states cannot prohibit inter-racial
marriage
*Regents of University of California v. Bakke, 1978
Affirmative action for minorities justified by educational interest
in student diversity
*Obergefell v. Hodges, 2015
States cannot prohibit same-sex marriage; fundamental right to
marry applies to homosexuals 67

Voting Rights Amendments

 Fifteenth Amendment (1870)

• The right to vote “shall not be denied or
abridged . . . on account of race, color,
or previous condition of servitude.”

 Nineteenth Amendment (1920)

• The right to vote “shall not be denied or
abridged . . . on account of sex.”

 Twenty-Sixth Amendment (1971)

• Guaranteed the right to vote to those 18
or older.

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25th Amendment – President

unable to discharge duties
“Whenever the Vice President and a majority of
either the principal officers of the executive
departments or of such other body as Congress
may by law provide, transmit to the President pro
tempore of the Senate and the Speaker of the
House of Representatives their written declaration
that the President is unable to discharge the
powers and duties of his office, the Vice President
shall immediately assume the powers and duties
of the office as Acting President.”
AMD. XXV to the Constitution, Section 4, Clause 1 (1967)
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