Constitutional Law – Key Points

I. Judicial Power

KEY POINTS:
 Goal of Constitution:
o Face Value: Preamble
o Determine:
 (1) Horizontal Separation of Power
 Rights between branches
 (2) Vertical Separation of Power
 Rights retained by people / states

RULES:
1) Executive Commissioning of Officers (Art. II Sec. 2):

a. RULE: Commission is valid and the officer receiving the commission has a right to the
office when it is signed and sealed – does NOT need to be delivered

2) JUDICIAL JURISDICTION:

a. RULE: To have jurisdiction by the Supreme Court – harm to an individual must be

present
i. NO JURISDICTION: executive powers that are political – i.e., they concern the
power of the office or position itself not individual rights
ii. JURISDICTION: deals with individual rights – there is a right to resort to the law
for a remedy
iii. PRESUMPTION: courts have no business telling executive or legislative branch
what to do  BUT intervene when individual gets hurt

3) ORIGINAL vs. APPELLATE JURISDICTION (Art. III, Sec. 2, Cl. 2)

a. RULE: Congress cannot expand the original jurisdiction of the Supreme Court (SEE:
“APPLICABLE LAW” #1 & R&A #1)
b. RULE: Congress CAN, however, limit the appellate jurisdiction of the Supreme Court
(SEE “APPLIED EXAMPLES” #1)

4) POWER OF CONSTITUTIONAL REVIEW – (JUDICIAL REVIEW)

 a. RULE: Although Constitution does not expressly state it – Judiciary has the final say or
authority to determine the constitutionality of a government action. (Marbury)
b. SUPPORTING ARGUMENTS AND REBUTTALS:
i. Argument #1: Judges are sworn to uphold the Constitution.
1. Rebuttal: “Oath Clause” in Article VI makes every federal officer take
this oath
ii. Argument #2: Absence of Political pressure because federal judges generally
have life tenure
1. Rebuttal: because of life tenure, judges are not accountable to the
majority like the other branches
iii. Argument #3: unless the judiciary has final say, the Constitution is meaningless
1. Rebuttal: another branch could take this responsibility or be properly
suited
iv. Argument #4: it is a classic task for the judiciary to interpret and apply the law
1. Rebuttal: the Constitution is not ordinary law and should not be
incorporated into this classic task

APPLICABLE LAW:
 CONSTITUTIONAL PROVISIONS:
o (#1) Art. III Sec. 2 Cl. 2: “In all Cases affecting Ambassadors, other public ministers and
consuls, and those in which a State shall be Party, the SC shall have original jurisdiction.
In all other Cases before mentioned, the SC shall have appellate jurisdiction, both as to
law and fact, with such exceptions, and under such regulations as the Congress shall
make.
 CASES:
o (#2) Marbury v. Madison

ANALYSIS:
1) What power is at issue?  Who is exercising it?  What other party may have an interest?
2) What branch interprets constitution  arguing interpretations of Marbury:
a. This case doesn’t say that the Judiciary gets to decide the Constitutionality of everything
 instead, the principle that it stands for is that no branch can be forced to violate the
Constitution and that such branch can say no (i.e., every branch has their own power to
define the Constitutionality of actions within their branch) – NOTE: not a well-accepted
argument

APPLIED EXAMPLES:
#1 – If Congress did not want to let the Supreme Court rule on a certain subject (e.g., gay marriage,
abortion, etc.) or didn’t want them to overturn a case  Congress could pass a law restricting the
Supreme Court’s appellate jurisdiction on these subjects
II. Standing Doctrine

KEY POINTS:
 ADVISORY OPINION
o Defined: asking court to opine on issue of law outside the adversarial process

 PRUDENTIAL STANDING DOCTRINE

o Defined: even if there is injury and standing, court may still choose not to hear case

RULES:

1) ADVISORY OPINIONS
a. At federal level, court cannot give advisory opinions – considered one of biggest
restraints on judicial power. (SEE: Article 3 § 2 – “case or controversies”)
i. Argument FOR: parties have stake in outcome and will fight fervently for side
ii. Argument AGAINST: collaborative environment / take long time to settle issue

2) “CASE OR CONTROVERSY”
a. Issue is not a “case or controversy” where both parties agree (SEE: Windsor)
b. What if third party stepped in to alleviate case or controversy concerns (E.g., Group of
House Republicans step in to advocate for DOMA in Windsor)
i. Answer: yes – now presents valid case or controversy (Windsor)
1. Argument FOR: both sides are advocated for
2. Argument AGAINST: third party can’t just come in b/c controversy
needs to be between plaintiff and defendant (ALSO SEE: Scalia dissent –
separation of power concern E&A #2)

3) STANDING DOCTRINE
a. 3 Elements:
i. (1) Injury in Fact
1. Defined: injury to person / entity that’s (1) specific and (2) concrete –
must be imminent
a. Easier to establish if violation of private right rather than public
right
2. Remote or Speculative Injury:
a. Courts tend to require at least some likelihood that injury will
occur without judicial action
i. EX: Courts willing to protect things like neighborhood
characteristics and environmental quality – OR could
even be a desire to see an animal if plans to see those
animals
b. “Hope” or “Vague Expectations” NOT satisfactory (Lujan)
 3. Generalized Grievance: if something that hurts everyone, no injury in
fact – thus, no standing
a. Can be addressed through political process – reinforces
separation of powers (i.e., don’t want judiciary replacing what
could solved by Exec. or Legis.)
b. EXCEPTIONS:
i. Voting – not generalized grievance
ii. Flast v. Cohen – interest as a tax payer is sufficient injury
if the challenge is brought under the Establishment
Clause as to Congressional appropriation.
ii. (2) Traceability
1. Defined: must demonstrate causation – showing that alleged harm is
fairly traceable to defendant’s conduct (i.e., relationship can’t be too
remote or speculative)
iii. (3) Redressability
1. Defined: must show that relief requested would, if granted, redress or
remedy plaintiff’s injury (i.e., court can provide remedy that cures or
prevents harm)

4) CONGRESS DEFINING INJURIES / STANDING

a. Congress generally does not have the authority to define what constitutes an “injury” or
give someone standing through law (i.e., give them standing):
i. Two Concerns:
1. Separation of Powers: citizens would be enforcing the law – which is
granted in the executive
a. Art. II Section I
b. Art. II Section III
2. Legislating away constitutional minimum: standing doctrine and “injury
in fact” requirement is a constitutional minimum  Congress cannot
legislate away a Constitutional minimum
ii. EXCEPTION: “Freedom of Information Act” (FOIA) – doesn’t get requested
information – they are presumed to have standing
1. SEE: “Applied Examples”

APPLICABLE LAW:
 CONSTITUTIONAL PROVISIONS:
o (#1) Article III Section 2: “Judicial Power shall only extend to Cases or Controversies”
(a.k.a., an adversarial proceeding)
o (#2) Article II Section 1: “The executive power shall be vested in the President”
o (#3) Article II Section 3: “he shall take care that the laws be faithfully executed, and shall
commission all the officers of the U.S.”
 CASES:
o (#4) Windsor (case or controversy)
  Defense of Marriage Act – wants marriage to be recognized for tax benefits
 o (#5) Lujan v. Defenders of Wildlife (Standing & Congress granting standing)
o (#6) FEC v. Akins
  See Applied Example #2

ANALYSIS:
 Advisory Opinion?
 Case or Controversy?
 Standing?

APPLIED EXAMPLES:
 (1) Discussion Set B – Q3(c): Suppose the citizen suit provision were amended such that any
successful plaintiff would recover a $5000 “bounty”: from the federal government. If the Lujan
plaintiffs proceeded under this revised statute, would they satisfy standing requirements?

Opinion Language: “this is not the unusual case in which Congress has created a concrete private
interest in the outcome of a suit against a private party for the government’s benefit, by providing a
cash bounty for the victorious plaintiff.”

This language seems to suggest that all you have to do is pair a citizen suit with a dollar figure 
however, while you have a stake in the outcome, in no meaningful respect is this causing you actual
harm (i.e., this harm does not directly result from the illegal act)

Conclusion – this would likely not be sufficient for the traceability requirement, but the court leaves the
answer to this issue unclear

 (2) Discussion Set B – Q4: Under the Freedom of Information Act, Congress allows any person to
request documents from federal agencies. If a request is rejected, FOIA allows the requester to
sue the agency for the documents.

Bill is an individual who is curious about documents held by the Social Security Administration.
He requests documents from the SSA under FOIA, solely because he is bored. The documents do
not in any way relate to his own Social Security benefits nor does Bill intend to use the
documents for any productive purpose (e.g., to write a newspaper story). If the SSA rejects Bill’s
request would Bill, under FEC v. Akins, have standing to maintain a lawsuit against the agency?
Was FEC v. Akins correctly decided? (See S&F, case note 8 following Lujan).

Under FOIA, anyone can request documents and they don’t even need to have a reason. Without even
questioning the reason, if someone doesn’t get the documents, they are presumed to have standing.

Class Note: “FOIA proves that the whole doctrine of standing is a farce”

There is the notion that Congress can define whatever it wants to be an injury (e.g., if someone doesn’t
get documents under FOIA, they are injured) – however, the whole standing doctrine crumbles if
Congress can just do this.

Open Question: to what extent can Congress define injuries by statute?

APPLIED EXAMPLE:

FEC v. Akins: P suing FEC b/c FEC wasn’t imposing reporting requirements on a private group.

Takeaway: reasoning of majority – it affected your ability to vote and that is a fundamental right, so
there was injury (argument would be that everyone was hurt b/c it affected everyone’s ability to vote)
III. Political Question Doctrine

KEY POINTS:
 POLITICAL QUESTION DOCTRINE:
o (1) Prudential Version
 Defined: start with standing analysis and it is satisfied  then, use PQD to push
case out of the court due to various factors
  Judge using a different branch’s determination to settle factual
question
 NOTE: different than what we see today
 Example: Congressman brings suit alleging his political party doesn’t have
enough seats on subcommittee. Court said there is standing, but dismiss case
b/c don’t want to get involved in political matter.
o (2) Mandatory Version
 Defined: start with PQD, not standing
 Example: Nixon

RULES:

 POLITICAL QUESTION DOCTRINE

o Defined: a non-justiciable political question incapable of judicial adjudication

o FACTORS – (focus on first two):
 (1) Textually demonstrable commitment: There is a textually demonstrable
commitment to another branch
  if constitution says another branch should address this matter –
judiciary shouldn’t have authority over it
 E.g., Nixon – senate shall have “sole” power to “try” all impeachments
(SEE “Applied Examples” #1)
 (2) Lack of Judicially Manageable Standards for resolving
 (3) Risking Embarrassment to other branch (NOTE: not really focused on)

 JUDICIAL REVIEW OF PROCEDURAL vs. SUBSTANTIVE CONSTITUTIONAL PROVISIONS

o Takeaway: If Constitutional standards are clearly spelled out and violated by another
branch  court can review them (Note: if couldn’t review, constitutional provisions
become meaningless)
 (1) Procedural  specific requirements
 E.g., age and other fixed requirements to run for House seat met but
House refuses to seat him (Art. I, Sec. 2, cl. 2) – Powell
 (2) Substantive  meaning / interpretation of words in a provision
 E.g., meaning of the word “sole” and “try” – Nixon
 IMPEACHMENT (Nixon)
 o Congress has the sole power to try all impeachments (Art. I, Section 3, Clause 6)
 Court Held:
 Textually demonstrable commitment
 Lack of judicially manageable standards
 Other Supporting Arguments:
 Court is skeptical it could even provide a remedy:
o (1) lack of finality inherent in exposing the country’s political life
o (2) difficulty of fashioning judicial relief other than simply setting
aside Senate’s judgment of conviction
 Counter Arguments:
 Presidential impeachment might be treated differently than
impeachment of a judge – as it was in Nixon
o VP presides over senate impeachment trials UNLESS it is the president being tried
  due to conflict of interest b/c VP would be president upon conviction

APPLICABLE LAW:
 CONSTITUTIONAL PROVISIONS
o (#1) Article I, Section 3, Clause 6: gives Congress the sole power to try all impeachments
o (#2) Article I, Sec. 2, cl. 2: fixes requirements to run for House of Rep.

ANALYSIS:

APPLIED EXAMPLES:
 (1) Senate shall have the sole power to try all impeachments – textually demonstrable analysis:
o COUNTER-ARGUMENT:
 Framers might’ve meant “sole” as in some other body doesn’t have power to try
impeachments – Nixon argued that the word “sole” by itself doesn’t answer the
question
o COURT’S HOLDING:
 “Sole”
 Court concluded that “sole” meant that the procedures for impeaching
Nixon were not judicially reviewable
 “Try”
 Here, Court said that “try” could mean various things – how are they
supposed to resolve that
 (2) CLASS HYPO:
o QUESTION: President validly impeached by House. Senate holds hearing in front of 20-
Senator committee. Committee doesn’t provide report to Senators as a whole.
Nevertheless the senators unanimously vote to convict. Valid?

- ANSWER: Court in Nixon acknowledges that some egregious circumstance could

happen – but that that is far-fetched.
 o  However, this acknowledgement doesn’t change the legal issue: that under
the holding in Nixon, the Court would still not be able to review this.

 (3) Power to Conduct Late Impeachments (i.e., TRUMP):

o Article 1 Section 3
 “the senate shall have the sole power to try all impeachments”
 ARGUMENT FOR AUTHORITY: Argue over “sole” and “try all
impeachments” – might emphasize that the authority extends to all
impeachments and thus covers even a late impeachment
 ARGUMENT AGAINST: there is nothing to try anymore because the
presidency has already ended
 “Judgment in cases of impeachment shall not extend further than to removal
from office, and disqualification to hold and enjoy any office of honor”
 ARGUMENT AGAINST: Could argue that “Judgment…office” is a
prerequisite for the clause following the word “and”
o Constitutional practice has been to treat these as two separate
provisions
 ARGUMNET FOR AUTHORITY: Argue that this clause contemplates
former officials because there is a purpose to it  to preclude an officer
from holding office again
 Policy Argument
 ARGUMENT FOR AUTHORITY: Intention was to prevent someone from
running for office again to prevent future harm
o COUNTER-ARGUMENT: Impeachment only has one purpose –
prevent further harm by impeaching someone that currently
holds the office
o Historical Influence:
 1876 – House impeached and senate tried federal official after he left office.
 ARGUMENT AGAINST:
o Stare Decisis is a check (limit) on judicial power  legislature is
not bound in the same way
o An issue that was decided in 1876 should not be determinative
of the present issue – very different circumstances
IV. Congressional Standing

KEY POINTS:
 Legislative Process:
o Bicameralism and Presentment
 (1) Bill goes through house / senate and (2) signed by president
 Ripeness
o There is no injury yet – imminent or actual
 Mootness
o Subsequent action taken or circumstances that render the suit null because the injury
has been resolved or has gone away

RULES:

 INJURY-IN-FACT REQUIREMENT

o Injury must be personal – two aspects to consider:

 Institutional Injury: not personal but an injury to Congress as a whole – affects
every member of Congress
 NOTE – Matching Plaintiff to Injury : consider whether lawsuit is
maintained by entire chamber (House or Senate) or by a small subgroup
of members of that chamber?
o SEE APPLIED EXAMPLE #1 for Analysis
 Official Harm (a.k.a., “Generalized Grievance”): not personally entitled to the
power that was taken from them – rather it was an injury to the “office” and the
constituents of the state the office represents.
  injury runs w/ the member’s seat, a seat which the member holds as
trustee for his constituents, not as a prerogative of personal power.
  if member retired tomorrow – he would no longer have claim
o Supreme Court gives list of adjectives that are covered by Article III that help constitute
a case or controversy:
 “Specific”
 “Concrete”
o EXCEPTION:
 Coleman court held that if your vote is completely nullified, then you have
standing
  seems contradictory to fact that legislator is only a representative of
his constituents
 NOTE: this has been distinguished b/c only applies at state level, not
national – b/c separation of powers concerns were not present
APPLICABLE LAW:
 CONSTITUTIONAL PROVISIONS:
 CASES:
o Raines v. Byrd
o McGhan

ANALYSIS:

APPLIED EXAMPLES:

 (1) Matching P to Injury:

o In Raines, the Court said that the individual legislators couldn’t bring suit because it was
an institutional injury – but it may be different if the institution itself is bringing the suit
 ARGUMENT FOR STANDING: there would be a match between the plaintiff (the
institution) and the claimed injury (institutional injury)
 COUNTERARGUMENT: the body as a whole is not functionally a “private citizen”
but rather a body that represents its constituents (the individual citizens of the
entire U.S.)

 (2) If ordinary citizen’s vote in an election were nullified or prohibited, would she suffer a
judicially cognizable injury?
o Yes – vote is personal to you, not wielding vote on behalf of another body

 (3) The D.C. Circuit held, in Maloney v. Murphy, that seven congressional members had standing
to maintain a lawsuit authorized by 5 U.S.C. § 2954. Based on the information in the blog post,
do you believe that that opinion is faithful to Raines v. Byrd?
o Specifically, consider whether (i) the presence of a statute or (ii) the nature of the
claimed injury (request for information) provides a distinction from Raines?

APPLICABLE LAW:

“An executive agency, on request of the Committee on Government Operations of the House of
Representatives, or of any seven members thereof, or on request of the Committee on Governmental
Affairs of the Senate, or any five members thereof, shall submit any information requested of it relating
to any matter within the jurisdiction of the committee.”

o F: 7 member committee of Congress were not given access to certain information by the
executive agency – brought suit.
o In what sense do they have personal injury not associated with their membership in
Congress?
 Power is granted to them as individual members of the committee
 Not able to get the information personally – so not an institutional problem
o Other issue: Generalized Grievance
  Could be argued that they are not suffering an injury themselves, but rather the
people are suffering the injury
o Different than FOIA:
 Not creating a federal right to information for everybody but rather specifically
for members of Congress

District Court Held NO Standing:

- Yes, suffered personal injury in the colloquial sense – but not in the sense of Article III doctrine

D.C. Circuit reversed and said SUFFICIENT Standing:

- Said that this law forms the basis for standing (seems to be a little at odds with Rains v. Byrd)
V. Constitutional Design
VI. Legislative Power

KEY POINTS:
 NECESSARY AND PROPER CLAUSE
o Does not seem to be an independent grant of power – usually connected with one of
the “foregoing powers”
 McCulloch Court:
 Does NOT tie this to an enumerated power but rather treats the N&P
Clause alone as an independent grant of authority
  Supporting Argument: could have purposefully been left ambiguous
b/c in early stage of gov’t, if Marshall would’ve pointed to a specific
power, it may have caused concern for the federal government’s power

RULES:

 TEST FOR AUTHORITY UNDER N&P CLAUSE

o Ends and Means Test (McCulloch Court View)
 “Let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the constitution, are
constitutional.”
 COUNTER-ARGUMENT (Narrower View)
 “Necessary” implies that it must be absolutely and completely necessary
(have to show that the republic would crumble w/ out it)

 TEST FOR STATE ACTING UPON FEDERAL GOVERNMENT

o Two Concerns:
 (1) Interfering with Federal Government “Operations”
 States cannot interfere with the operations of the federal government
o Ex: taxing national bank’s operations vs. property tax
 (2) Uniform Application
 If the state’s action imposes a burden that would be uniformly applied
to both the federal institution and the citizens of the state  it would
provide protection to the federal government through political
accountability between the citizens of the state and the state
government
  if there is not uniform application – i.e., only applies to federal
institution – there is no political accountability allowing for federal gov’t
to keep state gov’t in check

 PRIOR FEDERAL STATUTE AS BASIS FOR ENACTMENT

 o Should the First Congress’ passing of a statute that authorized a national bank be
relevant?
 ARGUMENT FOR: Relying on the first Congress which was populated with the
Framers implies that congressional intent can be a way of interpreting the
Constitution
 More of an original intent approach – these people were involved in
making the document so we should prioritize their views from the first
Congress
 COUNTER-ARGUMENT: Framer has different concern when he was creating the
Constitution than when he was representing a state in Congress.
 Early Congress also passed some seemingly unconstitutional acts – so
might have concern of giving early Congress’ decisions too much
authority

 CONSTITUTION EMANATING FROM STATES OR PEOPLE – (McCulloch Court View)

o Constitution emanates directly from the People  NOT from the States as sovereigns
 If Const. emanated from states gov’t would be weaker b/c the states would be
reluctant to give up their powers  narrower understanding of fed. power
 Each state chose their delegates to ratify the Const. which implies the people
formed the union, not the states themselves

 CONSTITUTIONAL INTERPRETATION
o It’s important that it is specifically the Constitution that we are concerned with.
 Different than how a federal statute is enacted in which votes are taken to enact
it by representatives of the people
 The Constitution, on the other hand was voted on by the people themselves,
who chose what delegate to send to the convention – this document was meant
for the people, for their digestion and consumption
 This justifies that the document is written in broad outlines (won’t read
it so narrowly), as opposed to being very specific like that of a federal
statute
 Also, here, we aren’t concerned with express constitutional language
about specific delegations

APPLICABLE LAW:
 CONSTITUTIONAL PROVISIONS
o Article I Section 8 (Necessary and Proper Clause): Congress has the power to make all
laws which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by the constitution in the government of the
United States or in any department or officer thereof.
 CASES
o McCulloch v. Maryland
  Summary: creating national bank

ANALYSIS:

APPLIED EXAMPLES:
VII. Necessary and Proper Clause

KEY POINTS:
 Policing Power: state’s authority to regulate the (1) Health, (2) Safety, and (3) General Welfare
of its citizens
o  fed. gov’t doesn’t posses the policing power that state’s have
o Art. I Sec. 8 limits fed. gov’t. – often thought of as conferring defined set of powers on
Congress and remainder left to the states
 Tenth Amendment
o 2 Views:
 (1) states what we would otherwise infer – that states have power wherever
fed. gov’t does not
 (2) reading this as an affirmative restriction on the federal gov’t

RULES:

 NECESSARY AND PROPER CLAUSE

o Rational Basis Test (Comstock)
 In determining whether N&P Clause grants Congress authority – we look to see
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerate power – 5 FACTORS:
 (1) N&P Clause grants Congress broad authority to enact federal
legislation
 (2) statute constitutes modest addition to a set of federal prison-related
mental-health statutes that have existed for many decades.
 (3) Congress reasonably extended its longstanding civil-commitment
system to cover mentally ill and sexually dangerous persons who are
already in federal custody.
 (4) Statute properly accounts for state interests.
o Ex: does statute mandate that states are given opportunity to
exercise their power over the matter first
 (5) Link between statute and an enumerated Article I power are not too
attenuated, nor is the statute too sweeping in its scope
o Majority rejects the “no more than one step” analysis
 ARGUMENT AGAINST
 Dissent argues that you could keep marching step by step until it goes
too far – by the time you get to the point where you are holding
prisoners beyond their sentence, this is way too far removed

APPLICABLE LAW:
 CONSTITUTIONAL
 CASES
 o Comstock

ANALYSIS:

APPLIED EXAMPLES:
VIII. Commerce Clause

KEY POINTS:

RULES:

 3 CLASSES OF ACTIVITIES CONGRESS MAY REGULATE UNDER THE COMMERCE CLAUSE

o (1) The use of the channels of interstate commerce
o (2) Regulate or protect the instrumentalities of commerce – including persons or things
in interstate commerce
o (3) Activities that substantially affect commerce – including purely intrastate activity
 FOUR FACTORS (Lopez):
 (1) non-economic nature of the activity
o Commercial hook
 (2) link is too attenuated such that Congress’ power to regulate any
activity would not be limited
 (3) Lack of jurisdictional element
 (4) Lack of Congressional findings
o Proves too much: (aka, attenuated link but use “proves too
much” on the exam and talk about infringing on state
sovereignty) – that if Congress can regulate this activity even if
the state’s have legalized it, then that gives Congress the power
to regulate anything
o ADDITIONAL CONSIDERATION:
 Broader Statutory Scheme: if the contested provision were invalidated – it
would undercut a broader statutory scheme

APPLICABLE LAW:
 Commerce Clause: “Congress shall have the power to regulate Commerce with foreign nations,
and among the several states, and with Indian Tribes.”

ANALYSIS:
1. Start with three prongs

2. Analyze whether it’s clearly commercial activity  if yes then can say it’s appropriate under the
rational basis test

3. If it is unclear whether it is economic activity  Lopez test

4. Analyze whether it’s part of a broader regulatory scheme

IX. Lincoln

KEY POINTS:

RULES:

 EMANCIPATION PROCLAMATION
o How was it constitutional?
 Answer: really no statute that authorized his actions (technically – Congress did
enact certain confiscation acts that could support, but wouldn’t support the full
scope)
o Lincoln’s Reasoning:
 Referred to the authority to “seize property” used against the U.S.
 This was a little off: he was an abolitionist who opposed slavery but was
essentially calling these slaves “property”
 Takings Clause in the 5th Amendment: property seized by gov’t needs
just compensation
 Statute said that gov’t could seize property from citizens of rebellious states.
 Lincoln previously refused to recognize these states as being in rebellion
– he said individuals were rebelling, not the states themselves
o This statutory fit, thus, seems quite weak.
o Emancipating ALL Slaves
 Lincoln might’ve faced political backlash from Union states
 He may have truly thought he lacked the authority to emancipate all slaves
o Paulson Argument – Emancipation = Legal (3 Steps)
 (1) outlining the commander in chief clause of the constitution and that
president had full executive war power
 Commander in Chief Clause: “President shall be Commander in Chief of
the Army and Navy of the United States, and of the Militia of the several
states”
 Different Way of Reading the Commander in Chief Clause:
o Congress holds the power to declare war and if president can do
so sua sponte, then undermines this authority – this would
signal that the commander in chief clause should be interpreted
that the president is given the authority as commander in chief
but only under the direction of Congress
 2 Modern Competing Views:
o (1) This clause gives president inherent authority to take action
by himself
o (2) President can execute this authority only after Congress has
established the army / navy and has given this authority.
President can’t act outside Congress
  (2) force against the enemy can include the seizure of property
 (3) those powers were triggered even if not a “declared war” bc there was still
clearly a state of war
 COUNTER-ARGUMENT:
 President didn’t have authority b/c wasn’t at war with a foreign nation –
rebellion might not be seen as a “belligerent nation”
o Other Example: Bush admin. taking action against terrorist
network not associated with any government or sovereign
 Too Broad
o There were loyal people within the rebellion states, and they
are still “part of the union” but not in the union  their slaves
were freed
o Should we care?
 Why we shouldn’t care:
 Basic human rights
 Slaves would’ve had no moral obligation to abide by a document (the
constitution) that restricted their freedoms
 Why we should care:
 Government actor is violating the constitution
o This creates a contradiction – gov’t actor gets his authority
under the constitution but at the same time the actor is
rejecting the validity of the document
 Lincoln set a standard that future presidents could use as justification
 Infringement of civil liberties by the federal government

APPLICABLE LAW:

ANALYSIS:

APPLIED EXAMPLES:
X. State Sovereignty

KEY POINTS:

RULES:

 FEDERAL TAX ON STATE ACTIVITIES:

o NOTE: Direct command to states that they cannot reduce their taxes does not fall under
Congress’ commerce authority b/c it infringes on state sovereignty (Rescue Act)
o Coyle: Congress didn’t have authority to choose where Oklahoma’s capital would be
located within the state.
o New York: dealt w/ federal tax on state activities (selling mineral water) – held it was
constitutional
 Plurality Opinion (1st Approach):
 Congress does not infringe on state sovereignty when it imposes a tax
that applies equally to all and does not impede state functions
 Concurrence (2nd Approach):
 Mere general regulation not enough – could be some interference in
state operations
 Dissent (3rd Approach):
 If a state is doing the activity, it is a state function – infringing on state
sovereignty

 SPENDING CLAUSE POWER (South Dakota v. Dole)

o IMPORTANT TAKEAWAY:
 Congress can indirectly accomplish through the Spending Clause something that
it would not otherwise be able to accomplish directly
o 4 ELEMENTS – SPENDING CLAUSE POWER:
 (1) must be in pursuit of the general welfare (court usually refers to Congress on
this);
 (2) language cannot be ambiguous – must put states on notice of the choice;
 (3) must be related to the federal interest of the program;
 Applied: drunk driving  road funds
 (4) cannot be some other constitutional provision that would prohibit the
legislation in question
 State sovereignty cases could help with analysis of this element (New
York and Tenth Amendment challenge)

 BREAKDOWN IN POLITICAL PROCESS

- What about political process is relevant as to whether Congress has infringed on state
sovereignty?
o Exception (South Carolina v. Baker) – show breakdown in political process:
  If the state can show that it was singled out in a way that left it isolated and
powerless, then they can claim that the political process was operated in a
defective manner.
o Breakdown in Political Process
 A statute getting passed that is simply contrary to what you want is not a
“breakdown in the political process” – but rather this is the political process
itself
 Excluding senators or Congressmen from a committee is not a breakdown of the
political process either – these people still have the power to vote on the
legislation

 ANTICOMMANDEERING – DIRECT COMMAND TO STATE LEGISLATURE

o Important Ideas (New York)
 2 Important Ideas Present:
 (1) Political Accountability
o Citizenry won’t know who is behind the regulation – the states
or the federal gov’t
 (2) Proper Subjects of Congressional Regulation
o Individuals, not states
 NOTE: Neither of the “choices” would be constitutional as stand-alone
provisions
 DISSENT: Majority isn’t alleging any breakdown in the political process – this is
actually an example of the political process working (represents cooperative
federalism – states are working with the federal government to solve an issue)

 ANTICOMMANDEERING – COMMAND TO STATE OFFICIALS

o Fed. Gov’t can’t commandeer state officials to take affirmative action and regulate
pursuant to federal goals.
  Fed. gov’t puppeteering state gov’t officials on ministerial task makes it
worse
 State officials lack discretion in carrying out these tasks so when people
get mad, these officials have no insulation
o State Courts vs. Executive Branch Officials:
 Majority Distinction between state courts and state executive branch officials:
 (1) state courts are of course going to be in some sense commanded by
the Constitution and bound by the Supremacy Clause
 (2) Early Constitutional design of the judiciary – performing only
adjudicative duties
o Article III does not mandate any other court besides the
Supreme Court – leaves power to establish other courts – thus,
it implies that SC wouldn’t be able to hear every case, so some
state courts would be responsible for resolving federal matters
 DISSENT
  Early State Courts were performing executive duties, not just
adjudicative duties
o “First Congress enacted legislation requiring state courts to
serve, functionally, like contemporary regulatory agencies in
certifying the seaworthiness of vessels – the majority casts this
as an adjudicative duty”
o Breaks down the Article III judicial power argument
o Structural Issues w/ Commanding State Officials
 Transfers authority from the president to these state officials – President is the
one that is the one that is supposed to “take care” that federal law is enforced
 NOTE:
  don’t have same sep. of powers concern when “take care” clause
applies to federal executive officers b/c under command / authority of
president
o ARGUMENT
 Political process protections – states already got their say on the matter in
Congress, so this is okay

APPLICABLE LAW:
 CASES
o Coyle
o New York
o South Dakota v. Dole
o New York (2nd)
o Printz

ANALYSIS:
 KEY POINTS:
o (1) Regulation of states as opposed to individuals
o (2) Dual Sovereignty
 States as a barrier against the government with respect to liberty
o (3) Puppet argument
 Ministerial task – lack discretion
o (4) Political Process argument (i.e., lack of political accountability)

APPLIED EXAMPLES:
XI. Federal-State Tribal Relations

KEY POINTS:

RULES:
 SUPREMACY CLAUSE
o Why might supremacy clause support authority
 Just as congress can pass laws they can pass more that repeal them
o Supremacy clause does not place treaties over statutes or statutes over treaties
 So later made one wins out under supremacy clause
o Really a separation of powers question – the courts recognize that congress has
authority to break its treaties by statute because neither is placed on a higher level than
the other
o

APPLICABLE LAW:
 STATUTES
o 1856 Treaty

ANALYSIS:

APPLIED EXAMPLES:
XII. Executive Power

KEY POINTS:

RULES:

 CONSTITUTIONAL ARGUMENTS
o Commander in chief argument—didn’t authorize him as the power to take possession
of private property belonged to Congress as the lawmakers
 Action did not relate to “theater of war” scope as action of seizing private
property is going too far
o Vesting clause and take care clause
 Executive power means he executes whatever congress legislates and congress
has not passed a statute allowing him to seize steel mills
o Also would have a takings law question if this kind of statute did exist

 PRESIDENTIAL AUTHORITY: THREE-PART FRAMEWORK (JUSTICE JACKSON)

o (1) Presidential Authority at its HIGHEST
 President’s authority is at its highest when it is an act that Congress that has
expressly or impliedly authorized by statute—basically when Congress says yes
it’s okay
o (2) Presidential Authority in the MIDDLE
 Authority is in the middle (twilight zone) when Congress hasn’t said anything at
all over an act (hasn’t said yes or negated)
o (3) Presidential Authority at its LOWEST
 Authority at its weakest when he takes measures incompatible with the
express or implied will of Congress—he can rely only upon his own
constitutional powers minus any powers of congress over the matter (Congress
has expressly told Pres you can’t do that so he only has inherent authority left)

 NON-DELEGATION DOCTRINE
o Congress cannot legislate away its Constitutional law-making authority to another
branch
 Vague laws

APPLICABLE LAW:
 CONSTITUTIONAL
o Vesting Clause
o Commander in Chief Clause
o Take Care Clause
XIII. Executive Power & Foreign Relations

KEY POINTS:

RULES:

 RECOGNITION POWER
o DEFINED: “president shall appoint ambassadors, other public ministers, and consuls” –
Power to formally acknowledge an alleged political body as a country and recognize
them as such
 Why does it matter?
 Allows them to sue in the courts, have diplomatic immunity, and various
other rights
 What is at stake is who within the US govt enjoys the recognition
authority and whether it is exclusive
o Exclusive to President
 Reception Clause (Zivotosky)
 Majority points to reception clause—Art II, §3, he shall receive
ambassadors and other public ministers
o Supports idea that Pres has recognition authority because if you
are welcoming the ambassadors you get to decide whether the
reps of these countries are in fact countries
o Dissent characterizes reception clause as a duty rather than a
power—aka something he must do as an obligation while
majority reads as power
 Power to Make Treaties (Zivotosky)
 Majority also points to Pres power to make Treaties
 Supports idea in that he had power to create treaty so in order to make
that agreement you would have to recognize that they exist--so implies
authority in that way
 Appointments Clause (Zivotosky)
 “President shall appoint ambassadors, other public ministers, and
consuls”
o If you are going to have an ambassador for a country you must
have recognized them as such
 Counterargument—power doesn’t rest solely with Pres as he has to
have consent of the Senate
 POLICY REASONING:
 Recognition is a topic on which the nation needs to speak with one
voice, not something that you want to go back and forth on because
then countries will not know where they stand
  Majority emphasizes that only the President has unity at all times since
he is but one person while Congress is made up of so many different
voices

APPLICABLE LAW:
 CASES
o Zivotosky

ANALYSIS:

APPLIED EXAMPLES:
XIV. Separation of Powers (Pres. v. Legis.)

KEY POINTS:
 LEGISLATIVE VETO = way for Congress to check the executive power by passing a law allowing
the President or some executive agency to do something and reserves itself the power to nix
that action through the power to veto (in Chadha it was a one house veto)
o Point is that Congress is acting through some measure short of legislation and that
Congress is overriding the actions of the executive branch
o Seems this is an infringement on the executive’s power

o

RULES:
 ONE HOUSE LEGISLATIVE VETO
o Held Unconstitutional – 2 Aspects:
 (1) Violates Bicameralism Requirement
 DEFINED: legislation must pass by a majority of both the House of Rep.
and the Senate
 Purpose:
o Court explains purpose of bicameralism
 House is governed by population of states to represent
popular view
 Senate is 2 per state so every state has equal pull
 Issue with one house legislative veto is that Constitution contemplates a
different sort of representation before legislation is passed—two bodies
might represent different interests and both are to be reflected (one
house veto takes that away)
 (2) Violates Presentment Requirement
 DEFINED: all legislation must be presented to the president for
approval before becoming law
 Whose interest is the President supposed to represent?  National
perspective--elected through electoral college on a national level
o Legislative veto would compromise that value by throwing him
out of the legislative process

 NATURE OF THE ACT

o Court decided it was a legislative act:
 House’s actions were altering the legal rights, duties, and relations of persons
outside the legislative branch—now looks like Congress is trying to exercise a
power and not engaging in mere housekeeping
o INS v. Chadha tells us (rightly or wrongly) that when the legislature is acting to affect the
rights outside of the legislative branch in those circumstances it is exercising legislative
power
  If it is exercising legislative power then it must follow the single finely wrought
procedure described in the Constitution—bicameralism and presentment
o

APPLICABLE LAW:
 CASES
o INS v. Chadha

ANALYSIS:

APPLIED EXAMPLES:
XV. Separation of Powers (Appointment Authority)

KEY POINTS:

RULES:
 APPOINTING
o PRINCIPAL OFFICERS: President and only president can appoint principal officers
(Principal Officers = Superior to Inferior Officers).
o INFERIOR OFFICERS: Congress may by Law vest the appointment of inferior officers as
they think proper – in the:
 (1) President alone;
 (2) Courts of Law; or
 (3) Heads of Departments
o Inferior Officer DEFINED = depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a higher rank, or possess
responsibilities of a greater magnitude. (Edmond v. U.S.)

 CONGRESS’ POWER
o Court HOLDS: “In our view, Congress’ power under the Clause to vest the
“Appointment” of inferior officers in the courts may, in certain circumstances, allow
Congress to give the courts some discretion in defining the nature and scope of the
appointed official’s authority.”
 Interpretation: They say it’s incident to the appointment authority.
o NOTE:
  Argument that it could upset overall balance of power – Congress usurping
executive authority

APPLICABLE LAW:
 CONSTITUTIONAL
o ARTICLE II: (Powers of the President) Appointments Clause in the Constitution:
 President shall appoint ambassadors, other public ministers and Consuls, Judges
of the Supreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.
o

ANALYSIS:
XVI. Separation of Powers (Removal Authority)

KEY POINTS:
 COMPETING VIEWS OVER SEPARATION OF POWERS:
o (1) Functionalist Approach
 Some justices are more concerned about preserving the overall structure of
government as opposed to absolutely ensuring that each branch stays within
the relevant sphere
o (2) Formalist Approach
 Formal effort that the legislative power must be exercised by Congress in a
particular way (bicameralism and presentment)
 Only the executive can exercise the executive power

 UNITARY EXECUTIVE THEORY

o 2 Theories:
 (1) Robust Version
 In its strongest form, Art II vests executive power in the President and
that the President is the entire executive branch
 Anything that a statute says the executive branch can do, the President
can do
 (if congress passes statute saying the solicitor general is authorized to
present cases in the Supreme Court—even though statute only refers to
SG the President themself can exercise that authority)
 (2) Fractured Version
 Views the vesting clause more as a placeholder
 Framers weren’t trying to say that executive power belongs to one
person but were making a distinction between a single president and
multiple presidents

RULES:
 “GOOD CAUSE” STANDARD
o NOTE: upheld in Morrison but struck down in Free Enterprise – why?
o What made statutory regime in Free Enterprise different than Morrison?
 Inferior officers here were twice removed from Pres’s control
 Board reported to the SEC commissioners (Pres—SEC—PCAOB)
 What standard applied to the removal of the SEC commissioners? Good cause
standard
 Who could remove the board members? The SEC
 President couldn’t order board member removed under a good cause
standard, instead had to rely on a commissioner to do so
 President didn’t have direct authority to remove someone under a good
cause standard
o Justice Breyer’s dissent
  Referred to legislative aggrandizement principle—Congress was not trying to
give itself more powers (unlike in Chadha) at the expense of the executive
branch
 Also adopted functional approach—still is room for executive oversight

 AUTHORITY TO REMOVE
o Where does the power to remove someone come from?
 If power to remove was incident to power to appoint why might something
weird happen? (Who could potentially appoint 100 US attorneys within the
DOJ?)
 Appointment power can be vested in courts of law or heads of dept also
 Would mean that courts could appoint 100 attys in the DOJ (inferior officers)
and then those persons would have to go to courts to be terminated (so judicial
branch might be supervising prosecutors)
o Court is tracing the removal authority to the vesting clause as supplemented by the
take care clause
 Thought at least within executive branch that power to remove is incident to
power to appoint
 Aka default rule is that if a dept head is granted authority to appoint inferior
officer then he is the one to remove that person also
o Political accountability principles support
 Public will be confused if Pres doesn’t control those agencies by removal

 TWO EXCEPTIONS TO PRESIDENT’S REMOVAL AUTHORITY (Seila Law)

o (1) Humphrey’s Executor—expert agency was led by a group of officers and the
agencies were not those that wielded substantial executive power
o (2) Morrison—inferior officers with limited duties
 Is this fair description of Morrison? Debatable, IC seemed to wield quite a lot of
power
o KAGAN DISSENT:
 Distinguishes this single vs multi-member issue
 Believes an individual member would be easier to supervise and control
 What’s more threatening to the Pres—having one person at the head of an
agency or five people?
 Depends on context
 Novelty angle
 Kagan says this isn’t as novel as they think and that there are several
agencies that are led by a single director and that it isn’t the test of
constitutionality anyway
 Factors heavily for majority
APPLICABLE LAW:
 CASES
o Morrison v. Olson
o Free Enterprise
o Humphrey’s Executor
Reasonings and Arguments (R&A)

#1 (Reasoning):

o Does this clause permit Congress to expand the original jurisdiction of the Supreme
Court? – NO
 Court in Marbury held no – textual argument:
 The enumerated instances of original jurisdiction is a ceiling (not a floor)
and the “exceptions” was not modifying “original jurisdiction” – thus, it
is unconstitutional for Congress to define the Court’s original
 Policy Reasons:
 If Congress could just decide what has original jurisdiction – what was
the point of enumerating the list of cases that have original jurisdiction
in the first place

#2 (Reasoning):

 Do the justifications for forbidding advisory opinions still apply where, as in this case, there are
zealous advocates for and against the constitutionality of the statute at issue? Is the separation
of powers—the confinement of the judiciary to its proper role—the real value at stake here, as
Justice Scalia maintains?

Question of perspective (2 Ways to Look at it):

1. President Disregards Legislative Branch Pursuant to Constitution: One way to look at it is that
what the president should do is voluntarily refund the taxes – declare statute unconstitutional
and say he won’t follow it. If refund is issued – there is no lawsuit because money has already
been put into Ms. Windsor’s hands. President is undermining the legislature only in the sense
that he is acting pursuant to the Constitution.

2. President Shows Deference to Legislative Branch and Waits for Court: President should, out of
respect to Congress, follow DOMA and wait for the Court to decide whether or not it’s
unconstitutional. Can be argued that this approach is correct bc president is respecting the
legislature. Conversely, can be argued that president is shunting his duty to uphold the
Constitution.