Untitled Flashcards Set

• General

  • The nature and significance of the tension between Article VI and the 10^th Am.

  • Federalist #10: factions, and extension of the sphere

  • The distinction between separation of powers and checks and balances, and examples of each.

    • Executive

    • Veto legislature

    • Pardon - legislative judicial 1

    • Appointments - judicial 2

  • Legislative 

    • Budget powers - executive and judicial

    • Impeachment - executive and judicial

    • Advice and consent to appointments

  • Judicial

    • Judicial review

• Judicial

  • Judicial Power – According to Art III, sec 2, par 1, to what sorts of cases does the federal judicial power extend?

    • Aerticle 3 - original jurisdiction

  • Sec 1 - judicial power (jurisdiction) vested in 1 supreme court

  • Sec 2 per 1 teh power extends to all cases in law and equity arising under teh constitution, federal law, between citzends of different states etc

  • Sec 2 par 2 

    • Sup ct has original husidiiuon in cases involving ambassifores of where a state is a party

    • "Appellate jurisdiction 'in all other cases'" refers to the power of the Supreme Court to review decisions from lower courts in any case that is not specifically excluded by the Constitution, essentially giving them the ability to hear appeals on most legal matters that fall under federal jurisdiction, with the exception of cases where original jurisdiction is explicitly granted to the Supreme Court by the Constitution itself.

  • Original and appellate jurisdiction

    • What’s the difference between original and appellate jurisdiction?

      • Appellate fourt jurisdiction - normally limited to mistakes of law

    • Incorrect admission or exclusion of evidence

    • Incorrect instruction to jury

    • Incorrect exercise of jurisdiction

    • etc.

    • Over which cases does the Supreme Court have original jurisdiction?

    • Over which cases does it have appellate jurisdiction?

    • Can you cite an article and section for each of your answers?

    • “With such exceptions and under such regulations.” 

      • Significance of this clause.

      • Article and section?

• Judicial review – what is it?  

  • What was the first case to assert the Sup Ct’s power of judicial review over congressional acts?

  • Executive acts? 

  • State legislation? 

  • State court decisions?  

  • The significance of the need to “say what the law is.”  Where is that phrase from?  What does it mean?

  • Marbury v. Madison (can you really know too much about this case?!)

    • Supreme Court claims power of judicial review – power to overturn unconstitutional federal legislation

    • But Supreme Court can’t issue judgment or order in the case,  because Congress had no authority to grant the Court original mandamus jurisdiction

    • Marshall thereby also asserts a power of judicial review of unconstitutional acts of the legislative branch

    • Marbury’s lessons:

      • • Constitutions are superior to legislation.

      • • Judges must be able to “say what the law is,” which includes saying whether a statute is unconstitutional, in order to decide cases and claims.

      • • Supreme Court is final arbiter of Constitution?

  • Martin v. Hunter’s Lessee

    • Federal Supreme Court has appellate jurisdiction over state civil cases

  • Constitutional Interpretation / theories of judicial review

    • Originalism / interpretivism

    • Non-interpretivism / the living Constitution

    • Rights enforcement / strict scrutiny

    • Compact theory of the Constitution

      • Kentucky and Virginia resolutions

        • Compact theory: “as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.”

      • Nullification and Interposition

        • “where powers are assumed which have not been delegated, a nullification of the act [by a State] is the rightful remedy

  • Ripeness

    • premature

  • Mootness:

    • the “capable of repetition, yet evading review” exception.  (Example of a case where the exception was used?)

    • Roe v. Wade

      • Norma McCorvey (Roe) had already given birth to the baby at issue.

      • – Mootness challenge rejected.

      • – “Capable of repetition, yet evading review” exception.

    • Postmature

  • Standing.  Advisory opinions?  

    • Adversity, redressability, imminent/individualized harm.  Relevance of the “counter-majoritarian” problem.

    • Los Angeles v. Lyons (discussed in class)

      • Lyons had standing to bring damages action, but not action for prohibitory injunction

    • Allen v. Wright (discussed in class)

      • causality and redressability are core constitutional requirements

    • United States v. S.C.R.A.P.

      • Recognized standing for aesthetic and environmental harms

    • Lujan v. Defenders of Wildlife

      • Plantif did not show direct injury, cauality, or remedy outcome so case was dismissed

    • Hollingsworth v. Perry

      • Voters passed state constitutional amendment prohibiting same sex marriage.

      • Federal district and circuit court declare the amendment to be unconstitutional. The amendment petitioners appeal to SCOTUS.

      • Court dismisses case on the grounds that appellants (ballot initiative sponsors) lack standing – no “personal stake or particularized interest.”

    • Elk Grove Unified School Dist. v. Newdow

      • challenges state law requiring teachers to

      • lead Pledge of Allegiance.

      • unanimous finding that ___ lacks “prudential” standing – “judicially self-imposed limits on the exercise of federal jurisdiction”

      • • Court customarily declines to intervene in the realm of domestic relations.

    • Taxpayer standing?

      • Flast v. Cohen

        • Federal taxpayer has standing where;

          • • 1) She is challenging an exercise of Congress’s taxing and spending power, and

          • • 2) she shows that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power and not simply that the enactment is beyond Congress’s enumerated powers.

      • Dybsiquences hae consistently narrowed the scope of

        • Flast holding

Political Questions:

• Criteria for identifying PQ’s (from Baker v. Carr)

  • Factors in PQ analysis

    • Clear textual commitment of the issue totextual commitment of the issue to another branch of governmentanother branch of government

    • “Lack of“Lack of judicially discoverable and manageablejudicially discoverable and manageable standardsstandards” by which courts can resolve the dispute” by which courts can resolve the dispute

    • Judicial decision would beJudicial decision would be politically imprudentpolitically imprudent

      • Need for non-judicial policy determinationnon-judicial policy determination

      • Imperative need for unified actionneed for unified action

      • Risk of international embarrassment

• Guarantee of republican form of government?

  • Luther v. Borden

    • Congress had authorized President to intervene to help State govt’s suppress insurrection. Presidenthelp State govt’s suppress insurrection. President Tyler had done so, recognizing one of the govts.Tyler had done so, recognizing one of the govts.

• Malapportionment?

  • Baker v. Carr / Reynolds v. Sims

  • Significant population differences between the districts

• Partisan Gerrymandering?

  • Rucho v. Common Cause

  • Districts used to benefit one party over another

• Other political questions

  • Walter Nixon v. United States 

    • (impeachment)

  • Goldwater v. Carter

    •  (treaty termination)

• Legislative

  • Qualifications: Art I, sec 2, par 2; Art I, sec 3, par 3

    • More Article I

    • • Sec 2 – The House

      • – Terms, qualifications, proportional representation,replacement, self-governance, power of impeachment

    • • Sec 3 – The Senate

      • – Terms, elections, qualifications, role of VP, self governance, impeachment trials (and consequences)

    • “Fixed and exclusive” nature of qualifications

    • Exclusion v. Expulsion (which is a political question?  Why?)

      • Expulsion is the process by which a house of Congress may remove one of its Members after the Member has been duly elected and seated. (Rough legislative equivalent of impeachment

      • The Supreme Court has considered expulsion to be distinct from exclusion, the process by which the House and Senate refuse to seat Members-elect..

      • Art. I, sec 5

        • Each house may [by 2/3 vote] expel a member.

    • Powell v. McCormack

      • House “excluded” Powell (he’d won election but hadn’t been seated yet) over corruption allegations. Vote was more than 2/3.

      • Legislative privilege barred suit against House Speaker, but not against Sgt at Arms.

      • Not a political question. Art. I, § 2, cl. 1-2 sets out judicially manageable standards.

      • • Congress does not have the power to develop qualifications to be seated other than those specified in Art. I, sec 2.

    • U.S. Term Limits v. Thornton

      • Arkansas passed state constitutional amendment setting term limits for Congressional representatives. Incumbent challenges

      • we viewed the Convention debates as manifesting the Framers’ intent that the qualifications in the Constitution be fixed and exclusive

  • Change in selection of Senators: Art I, sec 3, par 1; 17^th Am

  • Legislative privilege

    • Speech or debate clause: Art I, sec 6 (played small role in Powell)

  • Art I, sec 8 enumerated powers; 

    • Enumerated and implied (“necessary and

    • proper”) powers

    • Necessary and proper clause

    • McCulloch v. Maryland

      • Facts:

        • – Congress created U.S. Bank

        • – Maryland tried to tax it

        • – McCulloch (bank cashier) refuses to pay tax

      • the government of the Union, though limited in its powers, is supreme within its sphere of action

  • Treaty and appointment power (Advice and Consent)

    • Art. II, § 2, ¶ 2

      • Senate’s “advice and consent” for treaties and appointments.

    • Goldwater v. Carter

  • General functions of Art. I, §§ 8, 9, and 10.

  • Investigatory and Contempt Powers

    • Constitutional source?

      • Sec 9 – Limitations on federal power

      • Sec 10 – Limitations on state power

    • Quinn v. United States

      • Warren Court reversed convictions of individuals who refused (on Fifth Amendment grounds) to testify about their alleged membership in the Communist party.

      • Right against self incrimination

    • Gibson v. Florida Legislative Investigative Committee

      • In NAACP v. Alabama (1958), Court recognized NAACP’s First Amendment freedom of association right to maintain confidentiality of membership list.

  • Limits on Investigatory Power

    • • Right against self-incrimination

      • – Quinn v. United States

    • • Freedom of Association

      • – NAACP v. Alabama

      • – Gibson v. Florida

    • • Executive Privilege

      • – United States v. Nixon (1974)

Impeachment

The Roles of Each House of Congress

• House of Representatives: Holds the sole power of impeachment (charges an official)

  • Constitutional Basis: Article I, Section 2, Paragraph 5

• Senate: Holds the sole power to try all impeachments (conducts trial and issues verdict)

  • Constitutional Basis: Article I, Section 3, Paragraph 6

Grounds for Impeachment

• Treason, Bribery, or other High Crimes and Misdemeanors

  • Constitutional Basis: Article II, Section 4

Penalties for Impeachment

• Removal from office

• Disqualification from holding any future federal office

  • Constitutional Basis: Article I, Section 3, Paragraph 7

Walter Nixon v. United States (1993)

• Supreme Court ruled that challenges to the Senate’s impeachment trial procedures are nonjusticiable political questions

• Confirmed that the Senate has the sole power to try impeachments

Delegations of Legislative Power (Non-Delegation Doctrine)

Source of Non-Delegation Doctrine

• Constitutional Basis: Article I, Section 1 (All legislative powers vested in Congress)

"Intelligible Principle" Test

• Established in J.W. Hampton, Jr. & Co. v. United States (1928)

• Congress may delegate powers if it provides an intelligible principle to guide executive agencies

Key Cases

• Hampton v. United States (1928) – Established the intelligible principle standard

• Schechter Poultry Corp. v. United States (1935) – Struck down the National Industrial Recovery Act for lacking an intelligible principle (only case where SCOTUS fully invalidated a law on non-delegation grounds)

• AFL-CIO v. American Petroleum Institute (1980) (OSHA/Benzene Case) – Limited agency discretion under non-delegation doctrine, requiring clear Congressional guidance

• Gundy v. United States (2019) – Questioned whether the doctrine should be reinvigorated; SCOTUS upheld delegation but signaled potential future limits

Line Item Veto & Legislative Power Reservations

Presentment Clause

• Requires that every bill must be presented to the President before becoming law

  • Constitutional Basis: Article I, Section 7, Paragraph 2

Clinton v. City of New York (1998)

• Declared the Line Item Veto Act of 1996 unconstitutional

• Violated the Presentment Clause by allowing the president to unilaterally amend laws

Immigration and Naturalization Service v. Chadha (1983)

• Legislative veto (where Congress could overturn executive actions without full legislative process) was unconstitutional

• Violated the Presentment Clause and Bicameralism (both houses must pass laws)

• Executive

  • Sources of:

    • Article 2 Section 3

      • The power to execute the laws.

    • Article 2 section s

      • The Commander in Chief power, 

      • Treaty and appointment powers

      • Pardon power

    • Article 1 section 2 parts 2 and 3

      • Veto power

• 
  

  • Unitary Executive theory

    • Hamilton Federalist 70

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  • Commander in Chief and Foreign Affairs Power

    • Sole Organ theory

      • John Marshall (while in Congress)

        • “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.”

      • United States v. Curtiss-Wright Corp

        • Congressional resolution authorized Pres. to prohibit sales of arms to Bolivia if prohibition would contribute  regional peace.

        • the Supreme Court ruled that the president has broad power to conduct foreign affairs

      • Zivotovsky v. Kerry 

        • (“recognition power”; Art II, sec 3 reception clause)

        • In "Zivotofsky v. Kerry," the Supreme Court ruled that the President has the exclusive power to recognize foreign nations, meaning Congress cannot mandate that the State Department list "Israel" as the place of birth on a passport for a US citizen born in Jerusalem, as this would contradict the President's authority to decide on foreign recognition issues; essentially giving the President sole power to determine which foreign governments are legitimate.

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  • Treaty power

    • Art II, sec 2, par 2

      • The President . . . Shall have Power, by and with the Advice and Consent of the Senate, to make Treaties provided two thirds of the Senators present concur.

    • Art VI

      • “This Constitution, and the Laws of the United States which shall be made in pursuance thereof. . .

      • – And all Treaties made . . . under the Authority of th United States,

      • – shall be the supreme Law of the Land . . ..”

    • Missouri v. Holland (and its provocative reading of Art VI)

      • Migratory bird treaty act with canada

      • Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution . . .

      • • “while treaties are declared to be so when made under the authority of the United States.”

    • Goldwater v. Carter (1979)

      • Holding:

        • The Supreme Court dismissed the case as a nonjusticiable political question.

        • The Court declined to rule, stating that disputes over presidential foreign policy powers and treaty termination were political questions best left to the executive and legislative branches.

    • “Fast Track” Authority (Trade Promotion Authority – TPA)

      • Somewhere between treaties and executive agreements?

      • • Expedited process, allowing ratification by simple majorities of both houses.

      • • Used primarily on large trade agreements – NAFTA, Trans-Pacific Partnership, etc.

  • Executive Agreements

    • United States v. Belmont

      • U.S. wins in Supreme Court:

        • – Conduct of foreign relations committed to the political departments; not subject to judicial inquiry or decision.

        • – Recognition (by federal political branches) of another gov’t as sovereign “validates all actions and conduct of the government so recognized.”

        • – Principles of comity prevent courts of U.S. from condemning acts of another recognized sovereign government.

    • United States v. Pink

      • Also involves Livitnov agreement; U.S. seeks assets of NY branch of Russian bank.

      • • Reaffirms Belmont. Executive agreements do not require advice and consent

  • War Power

    • The Congressional role 

      • (Art I, sec 8, par’s 10-15)

      • Congress can declare war and summin a military and shit

    • Prize Cases

      • Civil War hostilities had commenced; Congress was in recess; had not declared war.

      • • Lincoln ordered blockade of Southern ports.

      • • Ships were confiscated prior to Congress retroactively affirming order.

      • • Ship owners sue on grounds that blockade order unconstitutional.

      • Pres has no power to declare war againstforeign nation or domestic state.

      • • But has statutory authority to use militaryand naval forces to suppress insurrection.

    • Korematsu v. United States

      • Korematsy was ent to japanese internment camp and court sudes with goverment becasue war time

      • Holdings:

        • – Compulsory exclusion, though constitutionally suspect, is justified during circumstances of "emergency and peril".

        • – Explicit racial classifications subject to strict scrutiny.

    • Enemy combatants, habeas corpus, and Boumediene v. Bush

      • The “suspension clause” 

        • – Art I, sec 9, par 2

      • Boumediene v. Bush

        • Guantanamo prisoners have a constitutional right to habeas corpus.

        • • Military Commissions Act is struck down.

• Domestic Power

Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (1952)

(Especially Jackson's Concurrence)

Facts:

• During the Korean War, a labor dispute arose in the steel industry.

• The union called for a nationwide strike.

• President Truman issued Executive Order 10340, which:

  • Authorized higher wages.

  • Seized control of steel plants.

  • Ordered negotiations between the union and plant owners.

• Truman argued that a work stoppage would jeopardize national defense and that seizing the plants was necessary to ensure continued steel production.

• He informed Congress the following day, but Congress took no action.

Issue:

• Did Truman's executive order exceed presidential power?

• Steel companies’ argument: The order was an act of legislation, not execution.

• Truman’s argument: The order fell within his constitutional powers as Chief Executive and Commander in Chief.

Opinion of the Court (Justice Black):

• No statutory authority granted for the seizure.

  • Congress had explicitly rejected an amendment to the Taft-Hartley Act that would have allowed government seizures in emergencies.

• Not a valid exercise of military power.

  • Taking private property to prevent labor disputes is a legislative function, not a military one.

• Key quote:

  • “The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the President.”

Concurring Opinions:

Justice Frankfurter:

• The President’s action was not temporary—it was a clear assertion of power.

• Congress had explicitly withheld authority.

  • The executive order did not occur in a “Congressional vacuum.”

Justice Jackson’s Concurrence (Most Cited and Influential)

Jackson outlined a three-tier framework for presidential power:

1. Presidential Power is Greatest

   • When the President acts with express or implied authorization from Congress, they exercise both their own power and Congress’s.

   • At this point, the President "personifies" federal sovereignty.

2. “Twilight Zone” of Presidential Power

   • When Congress has neither granted nor denied authority, the President must rely on their own independent powers.

3. Presidential Power is Weakest

   • When the President acts against the express or implied will of Congress, their power is at its lowest ebb.

More from Jackson:

• The Founders sought to avoid the unchecked executive power of King George III.

• “Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress.”

• Suggested that “due process of law” requires laws to be created by the legislature, not the executive.

• Skeptical of emergency powers:

  • “Necessity knows no law” is a dangerous justification.

  • Emergency powers “afford a ready pretext for usurpation.

• Youngstown dissents

  • • Support our troops.

  • • Survival of republic at stake.

  • • Executive is only branch capable of quick action.

  • • President is privy to confidential information and therefore entitled to deference.

DOmestic power continues: 

• Pardon Power

Ex parte Garland (1867) – Scope and Timing of Pardon Power

• pardon power “extends to every offense known to the [federal] law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment and cannot be fettered by legislative restrictions.”

  • – Used by Ford and Nixon.

  • – Does this apply after impeachment conviction?

  • – [See last part of Art I, sec 3.]

Article II, Section 2 – Limits on Pardon Power

• The President cannot issue pardons in cases of impeachment.

• This means the President cannot pardon themselves or others to avoid removal from office through impeachment proceedings.

• Accountability and Immunities

  • State secrets privilege and Executive privilege

    • Difference between the two privileges?

      • State Secrets Privilege

        • • Evidentiary rule used to exclude evidence from legal cases based on government affidavits that proceedings might disclose sensitive information which might endanger national security.

        • • Applied by SCOTUS in United States v. Reynolds (1953).

      • Executive Privilege

        • • The right of the President and other members of the executive branch to maintain confidential communications and to resist some subpoenas and other oversight by the legislative and judicial branches of government.

        • • United States v. Nixon recognized this limited right in the context of a judicial subpoena.

        • • The Supreme Court has never ruled on this defense in the context of Congressional proceedings.

    • United States v. Reynolds

      • ruled that the government can invoke a "state secrets privilege" to withhold classified information in civil cases, meaning they can refuse to disclose sensitive military secrets even if it hinders a plaintiff's case, as long as the need for secrecy is demonstrably justified by national security concerns; essentially establishing the government's right to protect classified information in court proceedings.

    • New York Times Co. v. United States

      • The one where the NYT leaked vietnam documents and nixion tried to stop it but the court said no

    • United States v. Nixon

      • the Court held that a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial cannot override the needs of the judicial process if that claim is based, not on the ground that military or diplomatic secrets are implicated.

    • Clinton v. Jones

      • Jones sues for private damages from sitting President based on alleged sexual harassment that happened before term of office.

      • • Clinton argues that such actions should be delayed until the end of Presidential terms.

      • • In unanimous opinion, Court refused to dismiss action.

  • Civil liability for official acts?  Nixon v. Fitzgerald

    • U.S. President could not be criminally prosecuted for some conduct committed as President which was regarded as official acts.

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