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Theories of the Constitution Constitutional Law I General Constitutional Argument Types

Note: Could be a mix of any of the arguments below; especially textual and historical together. Democratic Theory- The Constitution is supposedly the voice of the sovereign/the voice of the people. We the people dont always trust ourselves to make the right decisions. Therefore we have the Constitution as a self-imposed paternalism. It restrains us from acting in certain ways that we will regret in hindsight. Anti-Democratic Theory Judicial Review should be anti-democratic. Our founders were all white, land owning men. Still the constitution is designed to protect the minority. The reason the framers wrote the constitution down was because they feared the will of the elected officials to listen to the majority who votes for them. Therefore, the members of congress would decide based on the votes they get. The whole point of having a constitution is to have limits on political actors to act.

Textual Argument Interpretation based on words and structure of Const.

Historical Arguments

Intent Looks to what the drafters intended for a provision to mean/say. Mix of Opinion ArgumentsConsider these factors

Specific Intent of Framers Natural Law/Rights Processes/Rights of Govt

Application at time of Const. Drafting Contemporary Values/Evolving Standard Traditional Values

Structural Argument Looks more broadly at Const. provision, and its place within the rest of the document.




Broad Interpretation of Precedent Precedent / Stare Decisis Narrow Interpretation/Distinction

Social / Policy Considerations Note: Much less important to Originalist viewpoint.

Consistency in interpretation - We can have confidence in what the document means and this meaning will NOT change. Democratic Values - The Const. was ratified by the people, and should therefore bind on all judges. Higher Law - If the Const. means only what we want it to mean, it is just a makeview, and not law in its own account. Contract - The Const. is a contract, and this contract specifies how we can change it if we want to do so. Constraining Judicial Discretion/Activism - Constrains the ability of judges to impose their views.

Flexibility - The Const. is not a tax code; it is intentionally broad. Indeterminacy - There is no reference to the current issues in the Constitutional Debates. Therefore, Originalists just get to pick and choose their historical evidence to support their arguments, and support their own views as well. Legitimacy - We follow the Const. because its legitimate, but to the extent it diverges from our values today, it is less viable and legitimate. Anti-Democratic Values - Originalism constrains the Court from protecting new groups of people from injustice.

Judicial Supremacy Under this Judicial Powers and Review

doctrine, decisions of the court interpreting the Const. Are the supreme law of the land for purposes of Article VI of the Const, and are therefore binding on all state officers. Cooper. V Aaron. Note: This is an assertion by the Court, they do not actually have supreme power: a. Court must rely on other political powers to enforce their decisions. b. Court has no weapon available to battle presidential and congressional defiance. What they have is the weapon of respect. Without the support of the people their decisions would mean nothing. Court is always mindful of risk of expressing their authority with judicial supremacy/review.

Judicial Review The Court can review

and invalidate statutes found to be unconstitutional. Marbury v. Madison

Judicial Power, Generally: Article III 1- The judicial power of the United States, shall be vested in on 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.

Marshalls Opinion in Marbury Established Courts Role in Interpreting the Const. The Const. is the Supreme Law of the U.S., and it is the Supreme Courts job to interpret it. Placed important limitations on review of Executive and Legislative decisions: 1) Political Question Doctrine 2) Cases and Controversies Reqt 3) Legis. Control of Jurisdiction

Judicial Control Courts control: a) Cases arising under the Constitution or federal statutes b) Cases of admiralty c) Cases between 2 or more states d) Cases b/w citizens of different states e) Cases b/w a state or its citizens and a foreign country or foreign citizens f) Congress Control of Federal Judicial Power g) Control of Supreme Court Docket

Textual Defenses of Judicial Review Appellate Review of Problems arising from the Const. Issues Especially for the Courts Judges take an Oath to the Const., and thus, must uphold it via review. Supremacy Clause Laws must be made pursuant to the Constitution.

Arguments for Judicial Review Judicial Expertise - "It is emphatically the province and duty of the judicial department/branch to say what the law is." This also speaks to why we don't allow judges to rule on political questions: they speak from judgment, not will. See Political Question Doctrine under Exceptions. Institutional Logic - It wouldn't make sense for Congress to have the power of judicial review, because they would just find all their rules to be constitutional (else they wouldn't have passed them.) Notes: (Counter) There would still be presidential veto; (Counter-Counter) they would still all be elected, and the point of the Constitution may indeed be anti-democratic in nature.

Limits on Judicial Power: The Political Question Doctrine Political Question

A question is non-justiciable if it raises a political question that the Courts are not authorized to answer, or should not for policy reasons. Determining whether a P.Q. exists in a case depends on the following six factors from Baker: 1) Is there a textually demonstrable commitment in the Constitution of the issue to Exec. Or Legis.?
Notes: A case will be found to pose a non-justiciable political question if it raises an issue whose determination is clearly committed by the Constitution to another branch of the federal government rather than the judiciary.

Political Question Deference Spectrum

Extreme Deference (e.g., Pres. Veto) Court wouldnt get involved at all. Middle of Deference Spectrum Most cases fall here, e.g., Souters Conc. in Nixon No Deference (e.g., Congress passes Court would Substitute their judgment.

Example Cases:
Baker v. Carr (1962)
Facts - Charles Baker (P) was a resident of Shelby County, Tennessee. Baker filed suit against Carr, the Sec of State of TN. Bakers complaint alleged that the TN legislature had not redrawn its districts since 1901, in violation of the TN Const. which required redistricting every 10 years. Baker, who lived in an urban part of the state, asserted that the demographics of the state had changed shifting a greater proportion of the population to the cities, thereby diluting his vote. Issue - Do federal courts have jurisdiction to hear a Const. challenge to a legislative apportionment? Holding - Yes. Federal courts have jurisdiction to hear a constitutional challenge to a legislative apportionment. The P.Q. doctrine is based in the separation of powers and whether a case is justiciable is determined on a case by cases basis. The court held that this case was justiciable/ did not present a political question. The case did not present an issue to be decided by another branch. The court noted that standards under the Equal Protection Clause were well developed and familiar, and it had been open to courts since the enactment of the 14th Amendment to determine if an act is arbitrary and and reflects no policy. When a question is enmeshed with any of the other two branches of the government, it presents a political question and the Court will not answer it without further clarification from the other branches.

2) Are there judicially discoverable and manageable standards for resolving the question?
Notes: An issue may be non-justiciable if there are no manageable standards to guide the judiciary in deciding.

3) Does resolution of the question call for policy decisions inappropriate for judicial resolution? 4) Will resolution of the question express a lack of due respect for other branches of government? 5) Is there an unusual need for unquestioning adherence to a political decision that has already

Nixon v. United States(1993) (NOT 1974 with Richard Nixon)

Facts - Nixon, a Federal Judge, was convicted of a felony, perjury. The House of Reps voted three articles of impeachment; impeachment in the Senate followed. A Senate committee heard the evidence and reported its findings. The Senate convicted Nixon and sought to remove him. Nixon challenged in federal court on the ground that the rule violated the impeachment clause of the Constitution, which declares that "the Senate shall have the sole Power to try all Impeachments." Issue Is Nixon's claim --the Rule violates the Impeachment Trial Clause -- justiciable, i.e., appropriate for judicial resolution? Holding - No. The question of whether or not the Senate rule violated the Constitution was nonjusticiable since the Impeachment clause expressly granted that the "Senate shall have sole Power to try any impeachments." The clause laid out specific regulations that were to be followed and as long as those guidelines were observed the courts would not rule upon the validity of other Senate procedures regarding impeachments. Court observed that while it was the "ultimate intrepreter of the Constitution," a matter would be deemed nonjusticiable when there was "a constitutional commitment of the issue to a coordinate political department."

6) Is there a potential for embarrassment from inconsistent resolutions of the issue by the court and one or more of the political branches?
Note: Bakers 6 factors give the court a large amount of discretion to find a political question. The flexibility can be used as a route to take the Court out of the situations in which they shouldnt be involved / will damage their legitimacy and view in the public.

Limits on Judicial Power: Non-Justiciability / Cases and Controversies Requirement

The Judicial Power under Art. III extends only to cases and controversies, and accordingly, the court lacks the authority to issue advisory opinions about the resolution of abstract legal questions without an actual dispute between adverse litigants. Note: The Cases and Controversies Req't also precludes Congress from conferring jurisdiction on the federal courts to decide abstract legal questions. See Muskrat v. United States.

Timeliness Requirements
Ripeness not yet blossomed
into actual controversies. E.g. cannot file a lawsuit enjoining Congress from passing a law that would hurt your business; there is no legal obligation yet imposed on you. Case must be Concrete, certain, ripe for review. Hypo Injury Considerations: a) probability of inj. occurrence b) hardship if denied c) fitness of record

Mootness Cases that are no

longer live; the parties no longer have anything at stake. E.g. improper detention with the remedy asks for release, and you are released while action is pending; however, could seek to recover damages

Standing Requirements
Personal injury fairly traceable to s allegedly unlawful conduct and redressed by the requested relief. 1) Injury in Fact must be: a) Distinct and palpable; b) Not abstract / hypothetical c) Personally injured 2) Causation injury must be fairly traceable to action of ; measures s stake in the outcome. 3) Redressability Would the ruling bind and produce desired fix for s injury?

See e.g., Lyons (Failure to show possible future injury); Mass v. EPA (Congress giving power to create IIF) See e.g., Lujan (Failure to purchase airline ticket, not imminent enough b/c speculative) See e.g., Richard (Actual payment of child support is not guaranteed)

Common Triggers for Standing Problems Generalized Grievance e.g., Govt failed to follow and bringing suit to compel them to, without injury in fact. Third Party Actor e.g., Govt failed to regulate some third party, raises qs about cause and redressability. See, e.g., Allen v. Wright, (IRS failure on tax exemptions for racially segregated schools) Separation of Powers Problem e.g., Court doesnt have the ability to determine law, there are concerns about overstepping.

Limits on Judicial Power: Congress Control of Courts Jurisdiction / Checks on Judicial Power
Congressional Control Over Federal Court Jurisdiction/SCOTUS Power
Textual Basis - Section 2, Cl. 2 says that the S. Ct. has appellate jurisdiction
subject to such Exceptions, and under such Regulations as the Congress shall make. Further, Art III Section 1 provides that federal judicial power shall vest in the Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." Therefore, the lower federal courts do not even exist until Congress creates them."

Pros and Cons of Congressional Check on Judiciary

Positives a) Power Check - The power to strip jurisdiction is an important check on the Courts power b) Democratic Values - The Court is not elected, and thus lacks an essential democratic element. Negatives a) De Facto reversal of SCOTUS precedent b) Essential Functions - If Congress can strip the Court of its powers, then the Courts check on Congress actions under the Constitution / protection of the minority from the tyranny of the majority is eliminated. c) Uniformity / Rule of Law - The Constitution would mean different things in different places d) Anti-Democratic Value - We dont want to leave to Congress the sole responsibility to protect the minority, because they represent the majority.

Congress thus has the power by statute to limit opportunities for judicial review by restricting the jurisdiction of both the federal courts and the Supreme Court.
See, e.g., Ex Parte McCardle (Congress Has Some Power to Control Boundary of Sup. Ct. Jurisdiction) Facts - After the Civil War, Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous/inflammatory articles. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. The Act authorized fed. courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. The circuit court denied McCardles habeas corpus writ but the S.C. sustained jurisdiction to hear an appeal on the merits. After arguments were heard, Congress passed an act repealing the portion of the 1867 Act that allowed an appeal to the S.C. and the exercise by the Supreme Court of jurisdiction on any such appeals, past or present. Issues - (1) Does Congress have the power to make exceptions to the Supreme Courts appellate jurisdiction in cases in which it has already granted jurisdiction? (2) Must the Court always first determine if it is has jurisdiction to review a case? Holdings - (1) Yes. The Constitution gives the Supreme Court appellate jurisdiction, but it gives Congress the express power to makeexceptions to that appellate jurisdiction.The court held that appellate jurisdiction of the Court is not derived from acts of Congress, but from the Constitution, and is conferred with such exceptions and under such regulations as Congress shall make. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions in certain cases, it operates as a negation or exception of such jurisdiction in other cases. (2) Yes. The Court must always determine if it is has jurisdiction. In this case, the repeal of the act necessarily removed jurisdiction.

Other Methods of Checking the Court Besides Jurisdiction Stripping

A) Power of Appointment - The President nominates Justices to the Supreme Court Counter-Arg - Its difficult to predict how judge will rule in the future / justices take very seriously stare decisis and prior precedent / appointments are infrequent because justices serve for life. B) The Senate Must Confirm Appointments - Appointment will not be effective unless the President obtains the advice and consent of the senate. C) The Impeachment Process - Congress has the power to impeach federal judges. Counter-Arg - Its a difficult process because needs supermajority to convict. D) Amendments to the Constitution - Article V provides for the process of adopting amendments to the Constitution. Counter-Arg - The Constitution does NOT get amended frequently (only 4 times), and achieving supermajorities in Congress as well as the States is difficult E) Regulating the Court's Procedure - Congress can regulate the size of the Court / Set the time of their Meetings Counter-Arg - May seem like interference with independence of the judicial branch F) The "Bully Pulpit" - If there are enough attacks on the Courts decision, it can affect their future decisions / lead to reversals. G) The threat of Non-Acquiescence - Not an effective technique though b/c people DO hold the Court as the supreme law of the land, and if the political branch does not follow Court decisions, the public will view them as lawless H) Budget Constraints Cant diminish a justices salary, but can reduce it.

Federalism The Scope of Federal Powers

Specific Powers The Concept of Federalism
Conceptual Basis - The allocation of power between, and among, the states and the federal government. Premised on the idea that power should sometimes be de-centralized and divided. States rights - The limits on the federal government because of the existence of the states In writing the Constitution, the framers were influenced by 2 sets of historical concerns: Articles of Confederation - States were too strong, while the Central government was too weak Despotic Government - States were too weak; Central government much too strong There is no general federal police power (no right of the federal government to regulate for the health, safety or general welfare of the citizenry, like the states have), so instead, each act of federal legislation or regulation must come w/in one of the very specific enumerated powers (i.e. the Commerce Clause, the power to tax and spend, etc.) If Congress is seeking an objective that falls w/in the specifically enumerated powers, Congress may use any means that is rationally related to the objective being sought, and that is not specifically forbidden by the Constitution. All legislative powers herein granted Art I, 8 1) Lay and collect taxes (Taxing Power) 2) Provide for the defense of the country 3) Borrow money on the credit of the US 4) Regulate commerce w/ foreign nations, and among the several states (Commerce Power) 5) Regulate immigration and bankruptcy 6) Establish post offices 7) Control the issuance of patents and copyrights 8) Declare war 9) Pass all laws needed to govern the District of Columbia and federal military bases 10) Make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States

Arguments for Centralized v. De-Centralized Governments Pro Centralized Govt Promote Liberty - We dont want to leave it to individual states to protect essential rights Nationhood - There are certain fundamental values we hold as a nation that should be uniform. If you concentrate power in a large central government, the power of one homogenous faction will be diluted and wont be able to impose their views on others Maximize Welfare - If will benefit the entire nation if the federal government can regulate the economics of the country. Pro De-Centralized Govt Maximizes Overall Welfare - A federal solution is almost always a uniform solution, but conditions on the ground vary from state to state. If we had smaller communities, they could better channel that money to fit peoples needs and could offer better services to people Democratic Values - If you represent less people, you are more responsive to them. Promote Liberty Small communities can decide what rights they prize and allocate accordingly.

Necessary & Proper Clause Use must be tied to power from 8. McCulloch v. Maryland: Marshall gives broad interpretation of N&P clause, importance of Const. in regulation of people, not States / implied inherent powers justified.

Commerce Clause Flowchart

Does it seek to regulate commerce itself? NO Does the thing being regulated have a substantial effect on interstate commerce?


Regulation INVALID

Other Considerations:
a) What is the size and power of the target? b) Is Congresss purpose frustrated by targets activity? c) When aggregated, would the targets activity substantially affect IC? d) If targets are difficult to distinguish from nontargets (i.e., adulterated and unadulterated food products), does the commingling / intermingling of them affect IC? e) Does the regulation seek to promote and regulate a prohibition on interstate commerce by directly regulating production and manufacture? (i.e., products of child labor forbidden to be distributed in IC; thus, child labor laws enacted to regulate production) f) Does the physical association of the target with IC (i.e. location directly next to an interstate hwy McClung) substantially affect IC?

YES Does it regulate the channels of interstate commerce? E.g.,

Roads, Waters, Airway, Internet

YES Probably VALID under Commerce Clause BUT Is Congressional act forbidden by some external constraint on federal power? (ie, state autonomy) CONSIDER a) Is the law a law of general applicability (a.k.a. applies to States and private parties alike)? b) Is there a coercive element (a.k.a. compelling the States or their agents to do something)? NO

OR Does it regulate the instrumentalities of interstate commerce?

i.e., persons/things moving b/w states

BUT Note: Garcia purports to abandon Hodels test and give broad authority to Congress; but it is unclear that traditional matters of the state has actually been abandoned as a factor for determining whether an act of Congress unjustifiably infringes on state autonomy (see language in Lopez)

Test from Lopez:

a) On the face of it, does it affect economic activity? This is the most significant element. Here, the act being forbidden is possessing a gun near school, while an actual economic activity is like a farmer is using wheat that he grew on his farm, and therefore is not buying it from the national economy (see Wickard) b) Jurisdictional element present? c) Are there any findings/tests that indicate affects on commerce? d) Does it impede on traditional areas of state law? (criminal, family, etc) e) Attenuation

Regulation INVALID


(3.) Is whats being regulated a matter of exclusive or traditional state concern?


Regulation VALID

Separation of Powers Doctrine Federal Executive Powers

Article II, 1 Executive Powers; Art II, 3 Take Care Clause

Green Light Having Congressional Approval (either Explicit or Implicit)

Youngstown Framework: The Stoplight Analogy Yellow Light Inaction by Congress or Conflicting Congressional
Requires a) Either absence of Congress grant/denial, OR b) Acting on independent presidential responsibility c) Congressional inertia or indifference d) Doesnt necessarily require any lawmaking process, may just have legal repercussions.

Red Light Inaction by Congress or Disapproval by Congress

Presidents power is at highest ebb: a) Maximum Power b) Strongest presumption in favor of Congress c) Burden of persuasion falls on party The Presidential action must be challenged to a statute, and the Court must evaluate the constitutionality of the statute in question, giving strong deference to Congress. Clinton v. New York the Line Item Veto Both Exec and Legis agree, but Court finds the

Presidents power is at lowest ebb: a) President has taken measure that is incompatible with express or implied will of congress b) Action is maintained only if able to disable Congress from decision. E.g., Youngstown (1952) (Steel Seizure) Presidents decision is covered by statute so this is NOT a war power. This is a clear indication of unconstitutionality. The Pres cannot MAKE laws; he can only carry them out.

Nature of the L.I.Veto Specific regulations on how and why the Pres could veto the spending section of bill, after it had been passed.

Dissent Different form of Govt nowadays, the Court has interpreted broadly the ideas of legis and exec, no need to referee their behavior.

Problems Violation of Presentment / Bicameralism The L.I.V. is not in line with the finely wrought law-making procedures of the Constitution Must have an amendment if you want this power, even though following the law is unacceptable.

Federal Executive Powers

Executive Agreements - An executive agreement is an agreement b/w the US and a foreign country, that is effective when signed by the President and the Head of the foreign nation If the document is titled an executive agreement, no senate ratification is required Note: If the document is titled a treaty, senate ratification is required / not effective without it. - No limit exists on the ability to use executive agreements for foreign policy commitments. Anything that can be done by a treaty can be done by an executive agreement. An executive agreement has never been struck down as unconstitutional or invalid - Executive agreements prevail over conflicting state law, but never over conflicting federal law or the Constitution Dames & Moore (1981) (President foreign claim suspension was within the Presidents constitutional authority / the President has the power to suspend pending claims against foreign governments where such action is necessary to the resolution of a foreign policy dispute and where Cong. has acquiesced. Pros and Cons of Exec. Agreements
Pros - President cant act on these executive agreements without implicit Congressional authorization. Therefore, Congress still plays a role / not problematic. - There is a modern need for flexible government action in regards to executive agreements In todays world, President may need to act fast- do we want President to have to tell hostile nation holding hostages to wait until he has ratification to make a valid agreement? Cons - Encroachment on Senates power to ratify treaties - Divests them of the power to do so - If executive agreements are the legal equivalents of treaties, they would superseded previous legislation - This, in essence, allows the President to make law and strike down laws duly enacted by Congress

Executive Privilege
Executive privilege is asserted to say that certain communications b/w the President and high-ranking government officials should NOT be disclosed In Nixon, the Court recognized in general terms a constitutionally-based doctrine of executive privilege, but held that the privilege was only a QUALIFIED one, which was overcome on the facts of Nixon by the needs of a pending criminal investigation Executive privilege protects presidential papers and conversations, but such privilege must yield to overriding needs for the information.

Executive Immunity
Nixon v. Fitzgerald (Pres. Has Absolute Immunity From Civil Liability for Official Acts) The Court held that the President has an absolute immunity from CIVIL liability for any official act done while carrying out the presidency, at least where Congress has not expressly provided otherwise by statute. Since there is no constitutional provision saying that the President is immune from civil suits for his official actions 2 issues: (1) CHILL DISCRETION If the President doesnt have civil immunity for his official actions, might be unduly cautious in his duties (2) DISTRACTION Might sap up the Presidents energy and job in running the country if we opened up the floodgates / allowed people to sue Pres. for his official actions Clinton v. Jones (No Civil Immunity for Presidents Actions Taken Before Office) Paula Jones filed a civil lawsuit for private damages against President Clinton while he was in office. Jones claimed that while she was employed by the state of Arkansas and Clinton was Governor of Arkansas, Clinton made illegal sexual advances at her. Clinton argued that he should have temporary immunity, to last while he in office, against virtually all civil litigation arising out of events that occurred before he took office The Court held that there was NO immunity, not even qualified immunity, for acts that the President takes that are completely unrelated to the carrying out of his job (i.e. unofficial acts). Crux of the Courts argument is functional. Why should we give the President immunity from civil suits for nonofficial action? Pro-Immunity Allowing the Court to oversee exec. actions will have an effect on the ability of the President to carry out responsibilities. The Exec concentrates power in one person! Pres is not asking for perm. immunity, just a stay of the proceedings. AGAINST-IMMUNITY The Court has long overseen actions of the President through judicial review. Judicial review will not unduly undermine the ability of the executive branch to function. While the office of the President is demanding, important, and time-consuming, separation of powers does NOT bar the judiciary from compelling the President to defend the suit against him.

Executive Encroachment: War Powers and the War on Terror

Writ of Habeas Corpus Entitles a person who has been imprisoned by the government to force the government to justify his detention. Affords a procedural right to a hearing to show why you shouldnt be detained The Constitutions Suspension Clause (Art. 1, 9) The privilege of the writ of habeas corpus shall NOT be suspended, unless then in cases of rebellion or invasion the public safety may require it This means that the Government can ONLY suspend the writ of habeas corpus to protect the public safety in times of invasion, or rebellion Since Article 1 delineates the power to Congress, we can infer it is Congress who has the authority to suspend the writ of habeas corpus. Non-Detention Act No Citizen shall be imprisoned or otherwise detained by U.S. except pursuant to an act of Congress. After WWII detention of Japanese.

Roles Within the War Power Congress power to declare war (Art 1, 8, cl.11) & to raise and support armies and navies (Art. I 8, cl. 12 & 13) President Authority as commander-in-chief of the armed forces (Art. 2, 2)

Executive Powers in The War on Terror

Authorization of Military Force (AUMF) All necessary and appropriate force against nations, organizations, or persons associated with Sept. 11 . The US may detain for the duration of hostilities if engaged in armed conflict of U.S.

Hamdi v. Rumsfeld Facts Hamdi, a US citizen, was captured fighting against in Afghanistan. US forces designated Hamdi an enemy combatant and held him in US. Hamdi sought habeas relief. Govt argued that Hamdis status as a combatant justified holding him indefinitely without charges or proceedings. Holding - The Court held that the government may detain citizens as enemy combatants, but due process demands that they be afforded a meaningful opportunity to contest the factual basis for the detention before a neutral decisionmaker. Congress has specifically authorized the Presidents acts of detention through the AUMF gives the President authority to use all necessary and appropriate force against persons associated with the Sept. 11, 2001 terrorist attacks) and the Non-Detention Act (passed by Congress in 1948, it says that no citizen should be detained by the US EXCEPT pursuant to an Act of Congress), and therefore the Presidents actions fall under Category #1 of executive power Hamdan v. Rumsfeld (Pres Lacks Power to Try Terrorist w/ Pro-Govt. Proced. w/out Cong Approval) Facts After 9/11, Bush issued an exec order (Nov. 13) saying that if any non-citizen who the President determined is or was a member of Al Qaeda or a terrorist was to be tried for war crimes, that person should be tried by a military commission. The procedures to be followed by such military commissions would give must less protection to defendants than they would get if they were tired by a court martial conducted under the rules set out in the Uniform Code of Military Justice (UCMJ). Ex: The accused and his counsel could in certain circumstances be excluded form the proceeding / hearsay is admissible. Hamdan was a citizen of Yemen who was captured in Afghanistan by US forces. The govt asserted that had served as bin Ladens bodyguard/driver, and that Hamdan had assisted Al Qaeda in planning terrorist attacks including the 9/11 attacks. Hamdan was held in Gitmo, and petitioned for a writ of habeas corpus. Holding The issue in the case was whether Hamdan could be tried by the use of pro-government procedures before a military commission for conspiracy to commit terrorist acts. The Court held that Hamdan could NOT be tried by a military commission operating under the pro-government procedure. The military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the Uniform Code of Mil. Just. and the Geneva Conv. AUMF did NOT expand the Presidents authority to convene military commissions. Suggests that, especially in the controversial area of the Press wartime powers, the Court will be reluctant to conclude that a vague or ambiguous Congressional statute constitutes implicit acquiescence in the Presidents exercise of the authority in question. If Congress wants to authorize the President to exercise a particular wartime power, it will have to confer that authority explicitly.

Analysis of the War on Terror Opinions

Does the AUMF authorize the President to: a) Indefinitely detain US citizens captured abroad? YES, for the duration of the conflict Hamdi b) Indefinitely detain US citizens captured at home? NO, under Padilla & Hamdi c) Try foreign enemy combatants without court martial rights? NO Hamdan The President has asserted this right, but according to Hamdan the authorization to use force does NOT confer this power.

Administration Delegation
Appointment and Removal Powers
Appointments Art III, Sec 2 President nominates w/ the advice and consent of Senate, but may vest power for inferior officers in the Pres, Courts, and Department Heads. Morrison Analysis: General Considerations 1) Incongruity 2) Power Intrusion 3) Power Expansion Principal Officer Appointment Must be selected by the President and approved of by the Senate. Inferior Officer Appointment Congress may vest the appointment power to: 1) The President; 2) The Judiciary; 3) The Heads of Departments

Non-Delegation Doctrine
Principle that Congress may not delegate its legislative power to administrative agencies Generally eroded by standards of delegation. Has Congress delegated a legislative power inappropriately?

Standards Necessary for discretionary choices made by Exec. Branch.

Intelligible Principle Congress must give criteria to guide the Agencys Discretion; Agency cannot make policy itself, but may use Congs benchmarks Whitman Trucking (05) Necessary to protect the public health Determinable Standard is not necessary even for broad reg. schemes BUT use of scientific data is allowed.

Legislative Veto This is unconst. after Chadha (05); violates presentment, bicameralism.

ALA Schecter No Restraint on Pres.s legislative choices no standards for trade, industry or activity basically unfettered discretion for enacting laws by President, so invalid.

Considerations: 1) Legislative nature of decision. 2) Framers Intent 3) Whether efficient or not is unimportant; protect through separation of powers and structure. One-House leg. veto is ALWAYS unconst.; must have both houses (bicameralism) to overturn exec. action. INS v. Chadha (83) Holding Efficiency alone wont save a delegation action; House judiciary committee tried to revoke an exec. hold on deportation of Chadha; action deemed legislative, and thus needed legislative process.

Congress may NOT reserve the power of removal for itself, except through impeachment. Principal officers may be removed for just cause

Statute may only provide certain, limited duties, that do not include policy-making.