Constitutional Law

Five Types of Constitutional Arguments

(1) Text

(2) Structure

(3) Purpose

(4) Practice/Precedent

(5) Consequences

Textual Arguments

Look at the plain meaning of the text

Structural Arguments

Draw inferences from the relationship of provisions to each other. Emphasize the location of a provision in the constitution. Emphasize the institutional arrangements created by the constitution as a whole

Purpose/Historical Arguments

Based on the historical context. Draw on the background for a provision, emphasize historical setting, the problems the text was supposed to solve, and the intentions of the drafters

Practice/Precedent Arguments

Relying or previous interpretations by the courts or other branches of government. Invokes what happens in the past

Consequences Arguments

Pragmatic Approach. Ask which interpretation produces the best results according to a specific notion of what is best

Constitutionality of the First Bank - Jefferson vs. Hamilton

Jefferson: the bank is unconstitutional. under a strict construction of federal powers, if Congress can create a bank just because it is convenient, enumerated powers stop being meaningfully limited

Hamilton’s view - the Bank is constitutional. Under a broader reading of federal powers, the government must be able to function effectively and choose appropriate means to carry out legitimate ends.

Federalist No. 51

Constitution must be structured so that government can both govern effectively and control itself. Because officials are not angels, the constitution must create internal restraints within the government

Departmentalism

Each branch should have its own will and sufficient independence. Once branch should have as little control as possible over another. This includes interpretations of the constitution

Youngstown Sheet & Tube v. Sawyer

Facts: During the Korean War, Steelworkers threatened a nationwide strike. President Truman believed a stoppage would threaten national defense. He order the Secretary of Commerce to seize and operate the steel mills.

Rule: Presidential power must come from either (1) an act of Congress or (2) the constitution itself

Holding: the president lacked authority to seize the steel mills. The seizure was unconstitutional because Truman had neither sufficient statutory authorization and no inherent constitutional authority

Reasoning: The President’s order looked like lawmaking, not law execution. The Take Care Clause empowers the President to execute laws, not create new policy. The Commander-in-chief power does not justify taking control of domestic private property outside the theater of war. Presidential practice cannot amend the constitution

Justice Jackson Three categories of presidential Power

(1) Maximum Authority: when the president acts with express or implied congressional authorization / constitutional authorization

(2) Zone of twilight: when Congress has neither granted nor denied authority: the President and congress may have concurrent authority

(3) Lowest ebb: when the President acts against the express or implied will of Congress, the Presidential power is at its weakest and can be sustained only if the President possesses exclusive constitutional power

Delegation’s Constitutional Problem

If article I vests legislative power in Congress, can Congress transfer that power to the Executive or agencies?

Post Roads Debate

The Post Roads Debate is early evidence that some Founding-era actors thought Article I might sharply limit delegation, especially where the delegated task looked like core legislative judgment rather than implementation detail

Nondelegation Doctrine

Congress may delegate legislative function to the executive if it supplies an intelligible principle. A delegation becomes unconstitutional when Congress provides no real standards and leaves the executive with essentially boundless policy discretion

• The modern doctrine is highly permissive. Many broad standards have been upheld including “public interest” “fair and equitable” “requisite to protect public health”

Schecter Poultry (Sick Chicken Case)

Facts: Congress enacted a statute saying that trade groups may propose codes of fair competition to the President who may make them legally binding on the entire industry if he finds that the group was “truly representative” of the industry and the code was “not designed to promote monopolies or to eliminate or oppress small enterprises”

Holding: the Court struck down the statute because the discretion of the President was virtually unfettered and therefore unconstitutional. Lacked an intelligible principle.

Reasoning: the statute supplied no meaningful standard for what rules should govern industries

FCC Consumer/s Research

Facts: Congress passes a statute that requires carriers to contribute to a fund used to support subsidies for: (1) low income consumers, (2) rural / high-cost services, (3) schools and libraries, (4) rural health care. The FCC sets the contribution factor, and a private nonprofit, USAC, helps administer the program, but the FCC retains final approval authority.

Issue: Whether the Congress improperly delegated legislative power to the FCC, and whether the FCC improperly subdelegated to the USAC.

Holding: Constitutional

Holdings: The Delegation to the FCC was constitutional because Congress may authorize an agency to raise industry contributions for regulatory programs without setting a numerical rate, so long as Congress: (1) defines the program’s goals and beneficiaries, (2) provides substantive criteria that limit discretion, and (3) confines collections to amounts sufficient to carry out the program. The subdelegation was also constitutional because the subordinate entity was only advisory and lacked binding decision-making authority.

Reasoning:

• The statute had an intelligible principle that provided limits to executive authority

• “Sufficient” provides a real limit

Powell holding

A chamber may not exclude a duly elected member who satisfies the Constitution’s listed qualifications. Exclusion cannot be used to evade the two-thrids requirement for expulsion

Powell v. McCormack

Facts: Powell was duly elected to the House. The House investigated him for misconduct involving misuse of public funds and salary payments to his wife. A committee recommended seating him and then disciplining him. Instead, the House voted by simple majority to exclude him, even though it acknowledged he met the constitutional requirement of age, citizenship, and residency

Issue: May the house exclude a duly elected member who satisfies the Constitution’s listed qualifications?

Holding: The house may not exclude a duly elected member who satisfies the Constitution’s express qualifications

Rule: The constitution has exclusion requirements. if the House wants to discipline a member for misconduct, it must use expulsion, which requires a two-thirds vote and applies to a sitting president

Bicameralism and Presentment - Art 1, Section 7

Federal laws need to be passed by both houses and presented to the president

Legislative Veto (Chadha)

A legislative veto is unconstitutional when Congress acts outside Article 1, Section 7 to alter legal rights, duties, or relations outside the legislative branch

Line Veto (Clinton)

Congress cannot authorize the President to cancel parts of enacted laws after presentment; that is a functional amendment/repeal that must itself satisfy Article 1, Section 7

INS v. Chadha

Facts: Chadha overstayed his visa but qualified for discretionary suspension of deportation. The immigration judge granted relief. A statute allowed one House of Congress to veto that relief. The House passed a resolution overriding Chadha’s relief without Senate approval or presidential presentment.

Holding: the legislative veto is unconstitutional

Rule: when congressional action alters the legal rights, duties, or relations of persons outside the legislative branch, the action is legislative in character. It must therefore comply with bicameralism and presentment unless the constitution specifically authorizes one-house action

Reasoning:

• The House Action was Legislative

  • The House resolution had a binding legal effect on Chadha and Executive

  • Because it changed legal consequences outside Congress, it was legislative, not merely internal housekeeping

• Legislative Acts must follow Article 1 Section 7

  • Congress cannot exercise legislative power through a shortcut

  • A one-house resolution is not enough where the Constitution requires both Houses and presentment

• Enumerated one-house powers are limited

  • the Constitution expressly allows unilateral House or Senate action in a few places. The legislative veto is not one of those expressly authorized exceptions

• Convenience does not trump structure

  • Rejected the argument that the legislative veto is justified because it is efficient or practical. Structural safeguards control even when they are cumbersome

Clinton v. City of New York

Facts: Congress enacted the Line Item Veto Act, allowing the President, after signing a bill into law, to cancel certain spending items or tax benefits

Holding: the line-item veto is unconstitutional because it violates bicameralism and presentment

Rule: The exclusive lawmaking procedure is Article 1, Section 7. Once a statute is enacted, its amendment or repeal must also go through bicameral passage and presentment. The President has power to veto whole bills before enactment, but not to unilaterally cancel parts of statutes after they have become law

Reasoning:

• Functional Amendment/Repeal: the act let the President remove the legal effect of selected provisions after enactment. The Court treated that as the practical equivalent of amending or repealing part of the statute

• Different from the ordinary veto: the constitutional veto happens before enactment and applies to the entire bill. The line-item veto happened after enactment and only to selected parts. This meant the law operating after presidential cancellation was not the same law both Houses had passed

• Congress cannot redesign Article I Section 7 by Statute: Congress cannot create an alternative lawmaking method by ordinary legislation

Kennedy Concurrence: stressed that the separation of powers protected political liberty, not just interbranch etiquette. Giving the President cancellation power increases presidential leverage over Congress

Dissent: argued that the Act could be understood as conditional delegation Congress itself created

The Power of the Purse as Congress’s Core Check on Executive Power

Congress’s appropriations power is a central constitutional check on executive action. No money may be spent without appropriation, and Congress’s control over funding is one of its principal ways to restrain executive foreign-policy and military activity

“invitation to struggle” between the legislative and executive

foreign affairs is a domain of overlapping authority between the executive and legislative. This means that there is an invitation to struggle between Congress and the President. The difficulty is identifying when Congress is exercising legitimate checking functions and when it is intruding on constitutionally protected executive functions.

Invitation to Struggle Example: Obama Statement on H.R. 1473

President Obama signed the appropriations act despite objecting to several provisions he believed infringed on executive power. He signed it to avoid a lapse in government funding, including military funding.

Issue - Guantanamo Transfer Restrictions: Obama objected to provisions that barred use of funds to transfer Guantanamo detainees into the United States, and restricted transfers to foreign countries absent specified conditions. He argued that those provisions interfered with executive decisions about prosecution and detention policy, undermined national security, impeded foreign negotiations, and reduced executive flexibility in ongoing armed conflicts. Also objected to funding restrictions affecting positions that advise the President directly.

Invitation to Struggle Example: Iran-Contra and the Power of the Purse

Issue: the Iran-Contra affair was primarily a violation of Congress’s appropriations authority. The Executive branch cannot evade Congress’s spending restrictions by raising outside funds and using covert channels to continue a policy Congress has defunded or restricted.

Why it’s problematic: Congressional committees found the NSC official violated: the constitution, federal statutes, and applicable regulations. The core problem was the diversion and concealment of funds to support the Contras after Congress had restricting funding.

the “Enterprise” as a government instrumentality: even though the “Enterprise” was nominally private, it functioned as an arm of government because it was directed, funded, and used by executive officials to conduct U.S. foreign policy.

“Purse and Sword”: the framers deliberately separated Congress’s power of the purse from the executive’s control of military and foreign policy execution. By independently raising and spending funds for foreign conflict, the Executive effectively combined purse and sword in one branch, contrary to constitutional design.

Congressional Oversight Powers

Power to Compel Evidence is an Implied Legislative Power

Standard for a valid subpoena (non-presidential): (1) must serve a valid legislative purpose, and (2) concern a subject on which legislation may be held.

• BUT: can’t be used for law enforcement, exposure, aggrandizement of investigators, etc.

  • Targets regain constitutional rights and common-law privileges

Congressional Subpoena to the President

For a subpoena to the President to be valid: (1) asserted legislative purpose, (2) no broader than necessary, (3) evidence offered to justify the subpoena, (4) minimal burdens imposed on the president

McGrain v. Daugherty

Facts: The Senate investigated alleged misconduct in the DOJ. A Senate Committee was authorized to investigate failures to enforce antitrust laws. Suspect refused to appear, the Senate ordered the Sergeant at Arms to arrest him and bring him before the Senate.

Rule: Congress has not only express powers, but also implied powers necessary and proper to carry out its legislative functions. The Power to investigate, including compulsory process, is an implied power. But Congress has no general power to investigate private affairs; the inquiry must relate to a subject on which legislation must be held

Reasoning

• Investigation is necessary to legislation: Congress cannot legislate intelligently without information

• Necessary and Proper Clause: Investigatory power is an auxiliary means of carrying out legislative power

• Compulsory process is sometimes essential: voluntary cooperation may be unavailable, so subpoenas and related enforcement mechanisms are necessary

• The investigation had a valid legislative purpose here: Congress could legislative regarding DOJ structure, the AG’s duties and appropriations, so investigating DOG administration was within legislative bounds

• Limits remain: congress cannot investigate solely for law-enforcement or exposure purposes detached from legislation, and courts may review overreach

Significance: Establishes that Congress’s investigatory power is implied in Article I. Confirms that Congress may use subpoenas and compulsory testimony in aid of legislation. But there is a limit.

Trump v. Mazars

Facts: Three House committees issued subpoenas to Trump’s accountants and banks for years of personal and business financial records. The House said the record were relevant to possible legislation involving financial disclosures, ethics, foreign influence, and related reforms. Trump wanted to block the Subpoenas.

Rule: congress has implied power to investigate and issue subpoenas in aid of legislation. But Congress may not use subpoenas simply for law enforcement, harassment, or exposure for exposure’s sake. When congress seeks a sitting President’s personal records, courts must apply a heightened separation-of-powers analysis. The Court’s four considerations are: (1) whether Congress can show a strong legislative need and whether the information is available elsewhere, (2) whether the subpoena is no broader than reasonably necessary, (3) Whether Congress has offered detailed evidence of a valid legislative purpose, (4) whether compliance would unduly burden or distract the President

Impeachment Procedures

House has soler power to impeach. Impeachment is the formal accusation.

Senate has the sole power to try impeachments: Senators sit under oath, and when the President is tried, the Chief Justice presides. Conviction requires a two-thirds vote of members present

Who may be impeached

The president, vice president, and all civil officers of the United States

Impeachment: Sanctions upon conviction

Limited to removal from office and possible disqualification from future federal office. Impeachment does not itself impose criminal punishment like prison or fines. However, after impeachment, officials may still be indicted, tried, and punished in ordinary courts

Article 2

Creates a Single President and Provides a limited set of express powers

Federalist 79 (Hamilton)

Supports a unitary, energetic executive on grounds of decisiveness, secrecy, speed, and accountability

Appointments Clause

Art 2, Section 2, cl. 2 - Principal Officers must be appointed by the President with Senate consent. Inferior officers may be pointed by the President alone, courts of law, or head of departments if Congress so provides

Principal Officer Rule (Buckley)

(1) continuing office established by law who (2) exercises significant federal authority. Must be appointed by the President with Senate consent

Recess Appointments

The President may fill vacancies that may open during the recess of the Senate, with commissions expiring at the end of the Senate’s next session.

• Noel Canning: Recess includes both inter-session and intra-session recesses. Vacancies need not arise during the recess. Pro forma sessions count if the Senate retains the capacity to do business. The Length of recession matters (3-days too short)

Buckley v. Valeo

Facts: Congress created the FEC and gave it broad rulemaking, enforcement, and litigation authority. Several FEC members were appointed by congressional leaders rather than through Article II appointment methods

Issue: Whether Congress may appoint members of an agency exercising significant executive authority

Holding: No. FEC commissioners exercised significant authority under federal law and therefore were Officers of the United States and must be appointed in Conformity with the Appointments Clause

Reasoning: Congress may create offices and define duties, but it may not itself appoint officers exercising executive power. FEC powers like rulemaking, enforcement, and civil litigation are executive in nature. The Necessary and Proper Clause cannot override a specific constitutional appointments rule

NLRB v. Noel Canning

Facts: President Obama appointed three NLRB members during a period when the Senate was holding brief pro forma sessions every few days

Issues:

• Does “recess” include intra-session recesses?

• Does “vacancies that may happen” include vacancies that arose before the recess but continued onto it?

• Do pro forma sessions count such that the Senate was not truly in recess?

Holding: The appointments were invalid because the Senate was effectively in recess for only three days.

Rules:

• Recess includes both inter-session and intra-session recesses

• Vacancies need not arise during the recess - The Clause also covers vacancies that already existed when the recess began, so long as they continue during the recess

• Pro forma sessions count if the Senate retains the capacity to do business

  • if the Senate says it is in session and can transact business under its rules, the Court treats it as in-session

Removal (Seila - Modern Framework)

Article II vests executive power in the president, which generally includes the power to remove executive officers. Congress may limit removal in narrow circumstances:

• (1) Multimember expert agencies with quasi-legislative or quasi-judicial functions (Humphrey’s Executor)

• (2) Inferior officers with limited duties and no policymaking authority

Removal Power Case Overview

Myers v. Untied States: Broad Presidential removal power over purely executive officers

Humphrey’s Executor: congress may sometimes protects official in independent multimember agencies with for-cause removal limits. Upholds for-cause removal limitation for quasi-legislative or quasi-judicial offices such as the FTC

Morrison v. Olson: Some removal limits for certain inferior officers can be valid if they do not unduly interfere with the President’s constitutional functions

• Not overruled, but cabined in Seila Law. It stands mainly for the proposition that Congress may, in some circumstances, impose for-cause removal protections in certain officers with limited functions

Free Enterprise Fund v. PCAOB: Congress cannot create excessive insulation from presidential control, such as dual layers of for-cause protection

Seila Law c. CFPB: Congress generally cannot give removal protection unless one of the exceptions applies (Humphrey’s / Morrison)

Principal Officers vs. Inferior Officers

Principal Officers: top-level federal officials. They generally must be appointed by the president with Senate confirmation. A principal officer is generally one who is not directed and supervised by other Senate-confirmed officers

Inferior Officers: Inferior officers are subordinate officials whose work is directed or supervised by higher executive officials

Removal Rules for Different Kinds of Officers

Purely Executive Principal Officers: the president usually must be able to remove them at will. If the Officer is a single head of an executive agency exercising substantial executive power, Congress cannot shield that officer from the President through a for-cause removal restriction

Principal Officers in Independent Multimember Commissions: Congress may sometimes give for-cause removal protection to principal officers serving on multimember expert commissions that are structured to be somewhat independent with quasi-legislative or quasi-judicial functions

Inferior Officers: Congress has somewhat more flexibility. Congress may vest their appointment in the President alone, courts, or heads of departments. And sometimes provide for-cause removal restrictions. However, Congress cannot impose restrictions that unduly limit presidential control over the execution of the laws.

Myers v. United States

Facts: Myers, a first-class postmaster, was appointed for a fixed term with Senate confirmation. A statute required Senate consent for removal. The President removed Myers without Senate approval

Issue: whether Congress may require Senate approval before the President removes a purely executive officer

Holding: No. The President has the exclusive power to remove executive officers whom he appointed with Senate consent

Rule: For purely executive officers, Congress may not make presidential removal depend on Senate approval. The President’s authority to supervise execution of the law includes the power to remove purely executive subordinates.

Reasoning: Giving Senate removal authority would blur legislative and executive power. The Necessary and Proper Clause cannot reallocate core executive power - Congress cannot use general legislative power to seize for itself a role in executive removal that the Constitution does not give

Humphrey’s Executor v. United States

Facts: Humphrey served as an FTC Commissioner for a fixed term. The FTC Act allowed for-cause removal

Issue: Whether the President may remove the FTC Commissioner at will despite a statutory for-cause limitation

Holding: No. Congress may limit removal of an FTC Commissioner to the statutory causes

Rule: Congress may impose for-cause protections for officers who are not purely executive, especially officers in independent agencies performing quasi-legislative and quasi-judicial functions

Reasoning

• The nature of the office matters: the Court distinguished Myers by emphasizing that a postmaster is a purely executive officer, while an FTC Commissioner is not

• FTC’s Functions: the FTC was described as performing: (1) quasi-legislative functions and (2) quasi-judicial functions. The agency was designed to carry out legislative policy with a degree of independence from direct presidential control

Morrison v. Olson

Facts: The Ethics in Government Act created an independent counsel. The AG conducted the initial screening. A special three-judge panel appointed the counsel and defined the counsel’s jurisdiction. The independent counsel could be removed by the AG only for good-cause

Issues:

• Was the independent counsel a principal officer of an inferior officer?

• could Judges appoint the independent counsel and define jurisdiction without violating article III?

• did the for-cause removal restriction and overall structure impermissibly interfere with the President’s Article II authority?

Holding: The court upheld the statute

• The independent counsel was an inferior officer

• Appointment by the Special Division was permissible

• The for-cause removal limit did not violate separation of powers

Rule: The Court used practical indicia: (1) removable by a higher executive official, (2) limited duties, (3) Limited jurisdiction, (4) limited tenure

Reasoning:

• the independent counsel was inferior because the AG could remove the counsel for good cause. The office had limited duties, limited jurisdiction, and limited tenure.

  • Removal limit was upheld because the restriction did not unduly trammel executive power. The executive still retained meaningful control: AG gatekeeping over whether the process began, AG role in shaping jurisdiction through the request, for-cause removal power, the officer’s temproary, task-specific nature.

Seila Law v. CFPB

Facts: Congress created the CFPB. the CFPB is led by a single director, appointed by the president with Senate confirmation, serving a five-year term. The director could be removed by the president only for cause. The CFPB exercises broad rulemaking, enforcement, and adjudicatory authority over consumer-finance, markets and is funded outside congressional appropriations processes

Issue: is an independent agency led by a single director, removable by the president for cause, in violation of the separation of powers under Article II?

Holding: The CFPB’s leadership by a single director protected from at-will presidential removal violates the separation of powers

Rules:

• Article II vests executive power in the president, which generally includes the power to remove executive officers

• Congress may limit removal only in narrow circumstances: Multimember expert agencies with quasi-legislative or quasi-judicial functions, or inferior officers with limited duties and no policymaking authority

Reasoning:

• the CFPB Director is a principal officer

• the CFPB does not resemble the FTC in Humphrey’s: it is single-headed, not bipartisan, and exercises substantial executive power, including enforcement and adjudication

• The director’s authority is concentrated, unchecked by colleagues, largely insulated from both presidential control and congressional appropriation

• There is no historical precedent for a power independent agency led by a single, for-cause protected directed

• the structure undermines political accountability

Inferior Officer Rule from Morrison

Independent Counsel deemed inferior based on (1) removability, (2) limited duties, (3) limited jurisdiction, (4) limited tenure

Inferior Officer Rule From Edmund

Inferior officers are officers whose work is directed and supervised at some level by others who were appointed by the President with Senate confirmation. Follow the chain of command.

Kennedy v. Braidwood

Facts: the U.S. Preventative Services Task Force issues recommendations on preventative health services. After the ACA, an “A” or “B” recommendation can trigger mandatory no-cost insurance coverage. the HHS secretary appointed the Task Force members. Challengers argued the members were unconstitutionally appointed because their recommendations have legal effect and they were allegedly not sufficiently supervised

Issue: are task force members principal officers, who must be appointed by the President with Senate confirmation, or inferior officers who may be appointed by the HHS Secretary

Rule:

• Officers exercising significant federal authority must be appointed consistently with the Appointments Clause. Inferior officers may be appointed by a department head, and are generally those who are meaningfully directed and supervised by a Senate-confirmed superior

Holding: Task Force members are inferior officers, so appointment by the HHS Secretary was constitutional

Reasoning: the Court focused on the HHS Secretary’s supervisory control under the Edmund framework. Members were presumed removable at will because no statute gave the for-cause protection. Their recommendations were not truly final on their own because the Secretary had time to review and block them before they became binding through the ACA coverage mandate. The Court also read the statutory scheme to place appointment authority in the Secretary, not merely the AHRQ Director

The Power to Direct Subordinates

Article II’s Take Care Clause makes the President responsible for faithful execution of the laws, but it does not automatically answer how much power the President has to personally direct or revise decisions made by subordinate officers.

• the President does not necessarily have a general power to revise every subordinate’s decision

• Presidential control is strongest over prosecution and enforcement discretion

• Congress may sometimes assign decision-making authority to specific officers without presidential review

• The Take Care clause permits broad but not unlimited discretion: the executive may prioritize, defer, and manage enforcement, but may not suspend the law altogether or contradict Congress’s commands

Wirt, Opinion on the Accounting Officers

Rule / Principles: When Congress assigns a duty to a specific officer, the President may not simply step in and perform or revise that duty unless the statute authorizes presidential review

Takeaway: some executive decisions can be final within the executive branch if Congress lawfully commits them to designated officers and does not provide for presidential review

Taney, Opinion on the Jewels Princess of Orange

Rule / Principle: the president may direct federal prosecutors to discontinue proceedings brough in the name of the United States. Prosecutorial discretion belongs to executive officers, and presidential discretion of prosecution helps ensure faithful execution of the laws

Takeaway: the President has stronger control over prosecutorial and enforcement discretion than over duties Congress assigns in a more specific, adjudicative, or ministerial way

DHS Enforcement Discretion (OLC 2014)

Enforcement Priorities:

• Rule: OLC articulates four principles: (1) factors should relate to agency expertise; (2) the agency should not rewrite the law, (3) the policy cannot abdicate statutory responsibilities; (4) and case-by-case decisions are best

Deferred action programs

• Deferred action is lawful when used as a structured form of enforcement discretion, but not when it effectively rewrites the law or eliminates individualized judgment

United States v. Cox

Facts: a federal grand jury wanted indictments returned, but the U.S. Attorney refused to prepare and sign them because he was acting under instructions from the acting AG. The District judge ordered the U.S. Attorney to draft and sign the indictments

Issue: can a federal court compel a U.S. Attorney to prepare or sign indictments and punish refusal?

Rules:

• Decisions whether to initiate and maintain federal criminal prosecutions are executive functions under the President’s duty to take care that the laws be faithfully executed

• Courts may not coerce prosecutorial discretion, and where the prosecutor’s signature is required for indictment validity, the decision to sign or withhold signature is part of the executive discretion

Holding: the court cannot compel indictments

Reasoning:

• The U.S. Attorney acts primarily as an executive officer when deciding whether to prosecute

• The grand jury determines probable cause, but the executive retains discretion whether a prosecution should actually be commenced or maintained

• Because the prosecutor’s signature was necessary to the validity of the indictment, the court could not force that signature

• Since the order was unlawful, contempt for refusing it could not stand

Adams v. Richardson

Facts: Plaintiffs sued HEW, alleging it failed to enforce Title VI against segregated public schools and colleges receiving federal funds

Issue: Was HEW’s failure to enforce Title VI judicially reviewable, or was it committed to unreviewable agency discretion?

Rule: under the APA, agency action is presumptively reviewable unless the statute leaves no law to apply. Title VI imposes an affirmative enforcement duty and provides specific enforcement mechanisms, so prolonged nonenforcement can be reviewed as an abdication of statutory duty

Reasoning:

• Title VI gave courts workable standards and specific enforcement tools, so this was not standard unreviewable prosecutorial discretion

• Plaintiffs challenged a general policy of nonenforcement, not isolated case-by-case choices

• HEW was continuing to fund segregated institutions, which made its inaction especially inconsistent with Congress’s command

• Voluntary compliance efforts cannot continue indefinitely when the statute contemplates stronger enforcement if those efforts fail

Takeaway: when Congress imposes a clear affirmative duty to enforce and provides standards and tools, an agency cannot hid behind discretion to justify a systemics policy of nonenforcement; courts may compel action

Curtiss-Wright / Broad Presidential Foreign Affairs Power

The President is the sole organ in international relations. Foreign affairs may justify broader executive discretion than domestic affairs. The President often has superior institutional advantage in diplomacy, negotiation, and fast-changing international conditions

Recognition of Foreign States (Zivotofsky)

The president has the exclusive power to recognize foreign states and governments and their territorial bounds

Forming International Agreements (Three Mecahnisms)

(1) Senate-ratified Treaties. Example: arms-control agreements; UN Charter

(2) congressional-Executive Agreements. Example: most modern trade agreements

(3) Sole Executive Agreements. Examples: international claims settlement; military basing and status of forces agreements

Terminating International Agreements (Three Theories)

(1) Senate must approve

(2) President may terminate

(3) President may terminate in accordance with treaty terms

Zivotofsky

Facts: Congress passed a statute requiring the State Department, on request, to list “Israel” as the birthplace for U.S. Citizens born in Jerusalem. The executive refused, maintaining its policy of recognizing no nation’s sovereignty over Jerusalem

Issue: does the President have the exclusive recognition power, and if so, can congress require the Executive to issue a passport statement contradicting that recognition

Rule:

• when the President acts contrary to a statute, his power must rest on exclusive constitutional authority

• The President has the exclusive power to recognize foreign states and governments, and Congress may not require the Executive to contradict that recognition determination in official documents

Holding: The statute was unconstitutional as applied to passports because it intruded on the President’s exclusive recognition power

Reasoning:

• The Court inferred a presidential recognition power from Article II

• Recognition requires the United States to speak with one voice

• Although Congress has broad power over passports generally, it cannot sue that power to force the Executive to make an official statement inconsistent with the President’s recognition position

Core Allocation of War Powers

The constitution splits war powers between Congress and the President. Congress has major Article I powers, including the power to declare war, raise support armies, provide and maintain a navy, make rules for the armed forces, and call forth and govern the militia. The President, by contrast, holds the executive power, is Commander-in-chief, and must take care that the laws be faithfully executed

Who may initiate war

Only congress, except when the President must respond to sudden attack or actual hostilities. Modern practices give the President more power to initiate war

• Default Understanding: A common baseline view is that Congress must authorize war, unless the President is responding to a sudden attack, invasion, or actual armed rebellion. This is the textual/originalist position

• Modern Executive Practice: the executive branch has increasingly concentrated power to go to war. The OLC Libya view is that Congressional authorization is constitutionally required only for military engagements of substantial nature, scope, and duration, especially those involving prolonged exposure of U.S. personnel to significant risk

  • The President may initiate some foreign military actions without prior congressional approval if the operation is limited enough in nature, scope, and duration

Domestic Insurrection - Prize Case

Facts/Context: President imposed blockade on Southern ports before Congress formally declared war or otherwise recognized a legal state of war

Holding: The Court upheld that blockade and the seizure of ships violating it. It held that the President could respond once a de facto war existed, without waiting for Congress to “baptize it with a name.”

Reasoning:

• War may exist without formal declaration when organized armed hostilities are underway

• the Civil War qualified because the Confederacy held territory, organized armies, declared independence, and conducted sustained hostilities

• as Commander-in-chief, the President was bound to respond to invasion or armed rebellion immediately

• Congress later ratified the president’s actions, which reinforced the validity of the blockade

Takeaway: the president may respond unilaterally to actual armed conflict, invasion, or rebellion, without waiting for Congress

War Powers Resolution of 1973

Purpose: Congress passed the War Powers Resolution Act to unsure the collective judgment of Congress and the President before introducing U.S. forces into hostilities or imminent hostilities

Core Provisions:

• the president may introduce forces only pursuant to: (1) a declaration of war, (2) specific statutory authorization, (3) a national emergency caused by attack on the U.S., its territories, or armed forces

• The President must report within 48 hours after introducing forces into hostilities or imminent hostilities

• Within 60 days, the President must terminate the military action unless congress declares war, specifically authorizes the action, or extends the period. A one-time 30-day extension is allowed for military necessity to ensure safe withdrawal

Hamdi v. Rumsfeld

Facts: After 9/11, Congress passed the AUMF. the government alleged hamdi, a U.S. citizen captured in Afghanistan, fought with the Taliban and detained him in the United States as an enemy combatant without criminal charges or a full hearing

Issue: did the AUMF authorize detention of a U.S. citizen as an enemy combatant, and if so, what process was constitutionally required?

Rule: The AUMF can authorize detention of enemy combatants as an incident of war for the duration of active hostilities. But citizens detained in the United States must receive due process rights

Holding: the AUMF authorized detention was constitutional. But due process should be given

Reasoning: War is not a blank check: prolonged detention of a citizen requires judicially enforceable processes

Article III

creates an independent judiciary, but only to decide certain constitutionally specified cases and controversies. Congress has substantial structural and jurisdictional control over the lower federal courts, but cannot authorize courts to exceed Article II limits

Justiciability Doctrine

(1) no advisory opinions, (2) standing, (3) ripeness, (4) mootness, and (5) not a political question

Standing

Standing requires:

(1) injury in fact: concrete, particularized, actual or imminent injury

(2) causation / traceability: injury fairly traceable to defendant

(3) redressability: likely that judicial relief will remedy the injury

Mootness

Asks whether a case remains live through the litigation. If the dispute disappears, the case becomes nonjusticiable

A case becomes moot when:

• the parties settle

• the law expires or is repealed

• the plaintiff’s injury ends

• or the court can no longer provide meaningful relief

Exceptions to mootness:

• Collateral consequences remain (for example, damages or backpay)

• Capable of repetition, yet evading review

• Voluntary cessation by the defendant, where the challenged conduct could resume

Ripeness

Asks whether a dispute is too early - whether the injury is still speculative or contingent. Two main ripeness factors:

• hardship from delaying review

  • Fitness of the issue for judicial decision, especially when the issue is primarily legal rather than fact-dependent

TransUnion v. Ramirez

facts: TransUnion’s OFAC screening system falsely flagged thousands of consumers as possible matches to a government list of terrorists and serious criminals. Ramirez was denied a car purchase after a dealership received a report with the false alert. In the class action, 1800 members had false alerts sent to third parties, and 6,000 had false alerts only in TransUnion’s internal files

Rule: Article II standing requires: (1) a concrete injury, (2) traceability, (3) redressability

Holding: the class of members whose alse OFAC alerts were disseminated to third parties had standing. The others did not

Reasoning: Publication of false information to third parties closely resembles defamation, so it is a concrete injury. The mere existence of inaccurate information in a company’s internal database, without disclosure, is not enough. A risk of future harm may sometimes support injunctive relief, but generally does not support retrospective damages unless the risk materialized or itself caused a separate concrete injury

Political Question Doctrine

Even when Article III jurisdiction exists, a federal court will not decide an issue that the constitution commits to the political branches or that lacks judicially manageable standards for resolution

Nixon v. United States

Facts: Federal judge Walter Nixon was convicted of perjury before a grand jury and later impeached by the House. The Senate used a committee under Senate Rule XI to hear evidence and report to the full Senate. The full Senate reviewed the record and convicted Nixon, removing him from office. Nixon argued that the Senate had not properly tried him because the full Senate did not hear the evidence itself

Rule: A case presents a nonjusticiable political question when the Constitution textually commits the issue to another branch, or there are no judicially manageable standards for resolving it. The constitution gives the Senate the “sole power to try all impeachments”

Holding: Challenges to the Senate’s procedures for conducting impeachment trials are nonjusticiable political questions. Federal Courts may not review whether the Senate properly conducted an impeachment trial

Reasoning: the Constitution textually commits impeachment trials to the Senate alone. The word “sold” strongly indicates exclusivity. The word “try” does not provide a clear judicially manageable standard. Judicial review would undermine separation of powers by allowing the judiciary to second=guess a process designed partly to check the judiciary itself

Rucho v. Common Cause (Gerrymandering Case)

Facts: Voters challenged north Carolina and Maryland congressional maps as unconstitutional partisan Gerrymanders. In both states, the maps were drawn to advantages one political party and entrench that party’s power

Rule: under the political question doctrine, federal courts cannot decide issues that are committed to the political branches or that lack judicially manageable standards

Holding: claims of partisan gerrymandering are nonjusticiable political questions in federal court

Reasoning: Partisanship inevitably plays some role in redistricting, and the Constitution gives courts no clear standard for deciding how much is too much. The constitution does not require proportional representation. Deciding what counts as “fair” districting involves political judgments, not neutral legal rules. Unlike one-person-one-vote or racial gerrymandering cases, partisan gerrymandering lacks objective standards. the Constitution leaves remedies largely to the political process, including Congress, state reforms, and independent commissions.

Judicial Supremacy

Marbury v. Madison stands for the principle that it is the duty of the judiciary to interpret the Constitution and refuse to enforce unconstitutional laws. The Supreme Court has the power of judicial review and may strike down laws that violate the Constitution

Stuart v. Laird significance

upheld congress’s power to organize the federal judiciary and create, abolish, and restructure lower federal courts under Article III.

Cooper v. Aaron significance

Establishes that state officials are bound by the Supreme Court’s interpretation of the Constitution of the Constitution and cannot refuse to follow federal court decisions

Marbury v. Madison

Facts: Marbury wanted the Supreme Court to order Secretary of State James Madison to deliver his judicial commission. Marbury relied on the Judiciary Act of 1798, which appeared to give the Supreme court power to issue that order

Issues:

• Did Marbury have a right to the commission?

• If so, did he have a judicial remedy?

• If he had a remedy, was mandamus the proper remedy?

• Was the Supreme Court the right court to do it?

Holdings:

• Yes, Marbury had a legal right to the commission

• Yes, a legal remedy existed

• Yes, mandamus was the proper remedy

  • No, the Supreme court could not issue the writ in this case because the statute giving the Court that power improperly expanded the Court’s original jurisdiction beyond what Article III allows

Cooper v. Aaron

facts: After Brown held racial segregation in public schools unconstitutional, Arkansas officials tried to delay desegregation at Little rock Central High School. They argued that public resistance and unrest justified postponement. The Supreme court rejected that argument

Holding and reasoning: The Constitution is the supreme law of the land. Under Marbury, the Supreme Court has authority to interpret the Constitution. Therefore, state officials, including governors and legislatures, must follow the Court’s constitutional rulings. States may not nullify or resist federal law or Supreme Court decisions

Constitutional Structure of Federalism

Federalism is built into the Constitution’s design:

• Congress receives only specifically enumerated powers

• Powers not delegated to the United States are reserved to the states or the people

• The Senate represents states as states

• Article IV governs many relationships between states and the national government, and among the states themselves

Core Federalism Principles

Enumerated Powers: Congress must identify a constitutional source of authority for federal legislation. Usually comes from the commerce clause or N&P clause

Supremacy: Valid federal law prevails over conflicting state laws

Reserved Powers: the Tenth Amendment confirms that the undelegated powers remain with the state or the people

McCulloch v. Maryland

Facts: Congress charted the Second bank of the United States. Maryland imposed a tax on banks not charted by the state, which effectively targeted the federal bank. McCulloch, an officer of the bank, refused to pay the tax

Rule: Congress has not only enumerated powers, but also implied powers under the Necessary and Proper clause. Congress may choose means that are appropriate, plainly adapted to legitimate constitutional ends, and consistent with the constitution. Under the Supremacy Clause, states may not retard, impede, burden, or control valid federal laws or instrumentalities

Holding: congress had constitutional power to create the national bank. Maryland could not constitutionally tax it

Reasoning: the Constitution comes from the people, not the states as separate sovereigns. The Necessary and Proper clause allows congress to use convenient and useful means, not just those that are absolutely indispensable. A national bank is a proper means of carrying out enumerated powers like taxing, borrowing, and spending. Maryland’s tax was invalid because the power to tax is the power to destroy, and states cannot undermine lawful federal instruments

Significance: Foundational case for implied national powers. Establishes a broad reading of Necessary and Proper. Affirms federal supremacy over conflicting state action

Commerce Clause

Congress may regulate commerce with foreign nations, among the several states, and with Indian Tribes. congress may also use the Necessary and Proper clause to carry its commerce power into execution.

• The commerce clause is one of the central sources of federal legislative power within the federalism structure

Dormant Commerce Clause

Even when Congress has not acted, the Commerce Clause has a negative or dormant aspect that limits state interference with interstate commerce

Two Main Limits on States:

(1) no discrimination against out-of-state commerce.

• Example: Philadelphia v. NJ: NJ could not restrict landfill use to in-state waste

(2) No undue burdens on interstate commerce:

• Under Pike balancing, a nondiscriminatory state law is invalid if the burden on interstate commerce is clearly excessive in relation to the law’s legitimate local benefits

• Example: Kassel v. Consolidated Freightways: Iowa could not ban certain large trucks traveling through the state while permitting similar in-state traffic

Pike Balancing

Courts weigh the legitimacy and weight of local benefits (e.g. health and safety) against the burden placed on interstate commerce

New Deal Shift interpreting the Commerce Clause

NLRB v. Jones & Laughlin Steel Corps

United States v. Darby

Wickard v. Filburn

Pre-New Deal Commerce Clause Case

Hammer v. Dagenhart - Narrow approach

Hammer v. Dagenahrt

Federal law barred interstate shipment of goods produced with child labor. This was unconstitutional because Congress could not use the Commerce Clause to regulate the local production conditions of goods simply because those goods entered interstate commerce

NRLB v. Jones & Laughlin Corp

Upheld the National Labor Relations Act. Held Congress may regulate intrastate labor relations when they burden or obstruct interstate commerce

United States v. Darby

Upheld the Fair Labor Standards Act, including wage-and-hour restrictions tied to interstate shipment of goods. Held Congress may regulate interstate commerce and also intrastate activities that sufficiently affect interstate commerce, when doing so is an appropriate means to a legitimate end.

• overruled Hammer v. Dagenhar

• Also deemphasized judicial scrutiny of Congress’s motives: the purpose behind commerce regulation is generally for legislative judgment, not judicial control

Wickard v. Filburn

Federal law limited wheat production; farmer exceeded quota for wheat consumed on his own farm. Held the law was constitutional because even local, noncommercial-looking activity may be regulated if, in the aggregate, it exerts a substantial economic effect on interstate commerce

Civils Rights and The Commerce Clause Cases

Heart of Atlanta Motel v. United States

Katzenbach v. McClung

Heart of Atlanta Motel v. United States

upheld application of the Civil Rights Act to a motel serving interstate travelers. held congress may prohibit racial discrimination in public accommodations when that discrimination burdens interstate commerce. The fact that the law also addressed a moral and social evil did not undermine commerce power

Katzenbach v. McClung

upheld application of the Civil Rights Act to a restaurant. Even without proof that interstate travelers frequented the restaurant, congress could regulate because discrimination in restaurants generally burdens interstate travel and the restaurant used goods that had moved in interstate commerce

United States v. Lopez (Modern Limits on Commerce Power)

Facts: Federal Gun-Free School Zones Act made possession of a gun in a school zone a federal crime

Holding: The Act was unconstitutional

Reasoning: The law exceeded Congress’s commerce power. The Court synthesized the modern categories of valid commerce regulation:

(1) Channels of interstate commerce

(2) Instrumentalities of interstate commerce, or persons/things in interstate commerce

(3) activities that substantially effect interstate commerce

Lopez emphasized limitations:

• The law regulated noneconomic criminal conduct

• it was not part of a broader regulation of economic activity

  • It lacked a jurisdictional element tying each prosecution to interstate commerce

United States v. Morrison (Applying Lopez)

Violence Against Women Act created a federal civil cause of action for gender-motivated violence. held unconstitutional under the Commerce Clause. The court held that noneconomic violent criminal conduct cannot be regulated bases solely on the aggregated effect of interstate commerce

National Pork Producers v. Ross

Facts: California’s proposition 12 barred the in-state sale of pork from breeding pigs confined below specific animal welfare standards. Because California imports most of its pork, out-of-state producers argued the law would force costly changes to their production practices

Rule: the dormant Commerce Clause mainly prohibits state discrimination against out-of-state economic interests. The Court rejected a broad rule that state laws are invalid merely because they have extraterritorial effects. Under Pike, nondiscriminatory laws may sometimes be challenged if their burdens on interstate commerce are clearly excessive relative to local benefits

Holding: Constitutional

Reasoning:

• the law did not discriminate against out-of-state producers; it applies to all pork sold in California

• The Court refused to adopt a sweeping extraterritoriality principle that would threaten many ordinary state health, safety and consumer protection laws

• California was regulating sales within California, not directly controlling other states

• The Court was unwilling to use Pike balancing as open-ended cost-benefit review, especially where the asserted local interests were moral and health based

• Any need for a single national rule should come from Congress