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Contents
CHAPTER 3 THE SCOPE OF CONGRESS POWERS: TAXING AND SPENDING, WAR POWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY ......................................................................................................... 1 A. Regulation Through Taxing, Spending, And The War Power ....................................................................................... 1 1. The Taxing Power p. 282-85 .................................................................................................................................... 1 2. The Spending Power ................................................................................................................................................... 2 B. Congresss Enforcement Power Under The Reconstruction Amendments - p. 300-12 ................................................. 2 Congressional Power to Regulate Private Action for Civil Rights Purposes .............................................................. 5 C. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power ................................................. 5 CHAPTER 4 THE DISTRIBUTION OF NATIONAL POWERS .................................................................................. 10 A. Introduction p. 355-358 Federalist Papers ................................................................................................................ 10 B. A Case Study: Presidential Seizure p. 359-371 YOUNGSTOWN, ............................................................................ 10 C. Foreign Affairs ............................................................................................................................................................. 12 1. Executive Authority .................................................................................................................................................. 12 2. Legislative Authority ................................................................................................................................................ 16 D. Domestic Affairs .......................................................................................................................................................... 18 1. Executive Authority p. 400-12 NIXON ................................................................................................................... 18 2. Legislative Authority p. 412-439 CHADHA, ........................................................................................................... 19 3. The Legislative Veto BOWSHER, MORRISON ..................................................................................................... 21

CHAPTER 3 THE SCOPE OF CONGRESS POWERS: TAXING AND SPENDING, WAR POWERS, INDIVIDUAL RIGHTS, AND STATE AUTONOMY A. Regulation Through Taxing, Spending, And The War Power 1. The Taxing Power p. 282-85 FRAMING THE ISSUE Can Congress use its taxation power for non-revenue raising ends? o Can Congress purchase what it may or may not be able to do by way of direct regulation o What if the taxation is designed to affect conduct in a non-revenue capacity what if youre trying to regulate conduct through taxation? In theory, you could regulate conduct by taxing their conduct o Case law vacillates on this Congress can v. Congress cannot Supplement Note health care statute (PPACA) includes individual mandate provision which says that with very narrow exceptions, unless a person is medically insured, he will have to pay a penalty o Can you basically coerce people to buy insure on penalty of a tax consequence when the purpose of the tax consequence is NOT primarily revenue raising but instead seems that primary motive is to affect conduct

2. The Spending Power WAS NOT ASSIGNED READING B. Congresss Enforcement Power Under The Reconstruction Amendments - p. 300-12
Note did not read p. 310-312 What is meant when 13th 15th Amends authorize Congress to enforce by appropriate legislation? o 13th Amend ends slavery prohibits involuntary servitude / private property relationship involving humans o 14th Amend overturns Dred Scott (which had ruled Afr-Amer is not citizen for purposes of diversity Jx) prohibit various forms of state action cannot limit privilege and immunities o 15th Amend Afr-Amer right to vote prohibit various forms of state action cannot prohibit voting based on race 13th Amendment is different than 14th and 15th Amends in critical respect o 14th and 15th involve Congress regulating state action o BUT 13th Amend enforcement authority deals with Congress ability to regulate conduct of private individuals Why is there pressure on the 13th Amendment? If you can squeeze something into involuntary servitude, Congress need not worry about whether what is being proscribed is State conduct 5 14th Amendment what does it mean to give Congress enforcement authority? o (1) Maybe Congress can expand who it gets to sue in order to find a violation under these provisions o (2) Maybe Congress has more subtle tools at its disposal to develop / provide remedies in doing so, Congress is not limited to case-by-case adjudication Can decide if individuals are entitled to bring a lawsuit before waiting for the individuals to bring a 14th Amend claim Maybe Congress can develop remedies that the courts would have difficulty developing on their own Complex remedies from Congress o Voting Rights Act 1965 (p. 301) Atty Gen can make factual determinations of whether literacy tests decrease voter turnout in a particular Jx Preclearance process State cannot make changes to voting w/p prior approval from fed authorities if prior tests were found discrim Remedy precedes the violation occurs before the violation occurs o 1980 City of Rome v. United States (Marshall) (p. 302) Congress act YES constl Upheld preclearance provisions of VRA Romes proposed changes had discrim effect but not necessarily discrim purpose 15th Amend doesnt necessarily only prohibit intentional discrim There is a risk that in Jxs with long-standing history of discrim, these kinds of state practice will be founded on past discrim purposes and should be struck down o Issue will USSC allow the regulation by Congress in advance advance even though no discriminatory purpose? Will the USSC say there is a 15th Amend violation? YES Rehnquist (dissent) Rehnquists problem with it is that Congress is able to give a remedy absent any discrim purpose or intent absent purpose, cannot provide remedy Preventative remedy is constl only if USSC agreed that risk of substantive violation was substantial

3 Case #1 What was Case #1 proposition Lassiter Rule literacy tests dont violate the 15th Amendment Smith peyote case Miranda right to remain silent New Law What did Congress do? Congress passes Voting Rights Act 4(e) bans literacy tests Congress passes RFRA Congress passed 18 USC 3501 Case #2 How does USSC respond to congressional action? Katzenbach 4(e) upheld Congress can ban literacy test Flores RFRA struck down Dickerson 3501 struck down

1966 Katzenbach v. Morgan (Brennan) (p. 302) Congress act YES constl regarding the power of Congress, pursuant to 5 of the 14th Amend to enact laws which enforce and interpret provisions of Const o Congress may enact laws stemming from its 14th Amend enforcement power that increase the rights of citizens beyond what the judiciary has recognized. Begins with 1959 Lassiter v. Northampton Election Board (p. 302) held that fairly administered Eng lang literacy reqmt for prospective voters violate 14th and 15th Amends In response Congress passed 1965 Voting Rights Act (inc. 4(e) was meant to enfranchise those who migrated from Puerto Rico to NY b/c they completed 6th grade education but it was in Puerto Rico and therefore in Spanish NOT allowed to have literacy test o Registered voters in NY brought suit challenging constlty under 10th Amend Outcome USSC upholds 4(e) Congress is permitted to ban the literacy test Problem is that 4(e) seems to cure a non-existent constl violation o USSC in Lassiter literacy tests dont violate Const YET THEN Congress passes a statute banning the tests pursuant to its 4 and 5 powers under 14th and 15th Amends where was the violation if administered constly? Is Congress enforcing the Reconstruction amendments or is it defining the meaning of the amendments in a way that differs from what the USSC decided to be the interpretation? USSC analysis Congress is viewed on rational basis test o we perceive a basis upon which Congress might predicate a judgment o NOTE USSC doesnt generally defer to other institutions based on reasonable readings NOTE: Chevron doctrine (1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) in context of agency interpretation of statutes, USSC will permit / defer / follow contrary agency interpretation if there is a reasonable basis for it and it falls within a permissible interpretation o 1. Has Congress clearly spoken? if so, defer to Congress o 2. If not, is agencys construction based on permissible interpretation? Chevron is the USSC clearest articulation of the doctrine of "admin deference," to the point that the USSC itself has used the phrase "Chevron deference" in more recent cases Why did USSC give deferential treatment to Congress interpretation? o b/c otherwise, Congress enforcement authority would not be meaningful o construction of 5 that would require a jud determination that the enforcement of the state law precluded by Congress violated the Amend, as a condition of sustaining the congress enactment, would depreciate both congress resourcefulness and congress responsibility for implementing the Amend... would confine the leg power...to the insignificant role of abrogating only those state laws that the jud branch was prepared to adjudge unconstl (p. 303) Brennan has often been credited with introducing the "ratchet theory" for congressional legislation enacted under Section 5. The "ratchet theory" held that Congress could ratchet up civil rights beyond what the Court had recognized, but that Congress could not ratchet down judicially recognized rights. BUT is there really no meaningful role for Congress if the case come out differently? o Congress can give prospective rules unless and until USSC overturns those rules is not subject to the timing limitations to which the USSC is subjected o NOT the case that Congress wouldnt have a rule but it is the case that the role would be limited 1997 City of Boerne v. Flores (Kennedy) (p. 307) Congress act NOT constl

4 Begins with 1990 Employment Div. Dept. of Human Resources of Ore. v. Smith (Scalia) (p. 307) - Native Americans denied unemployment benefits b/c of basis for their unemployment (used peyote for religious purposes) by state statute o USSC said it was ok non-discrim laws of general applicability o Free exercise challenge Native Amer population was involved in use of banned substance but did so for relig. purposes claim: ban interferes w/ religion o USSC RULE law is constl if it is a generally applicable law that has an incidental effect on religious practice but that doesnt target religious practice, that is a presumptively okay law deferential standard of scrutiny, not strict if we say that any generally applicable law that has an incidental effect on practice of religion is subject to strict scrutiny, it would have a very negative effect on the administrability power of States o Response Congress passed RFRA took what was rational basis and turned it into strict scrutiny RFRA was intended to protect the right of citizens to the free exercise of their religion above and beyond the degree to which the Court recognized it statutes "substantially burdening" a person's exercise of religion must further a compelling governmental interest, and use the least restrictive means of furthering that compelling governmental interest Boerne local authorities in TX denied building permit to church, church challenged denial under RFRA Outcome RFRA is struck down o Congress claimed to be giving more protection than the USSC had given (more protection for voting rights before and more protection for religious exercise now) o was ok for voting rights but NOT okay for religious exercise

Not so much that RFRA violates the 14th Amend as it exceeds Congress enforcement power o b/c there are MANY examples of neutral laws that could run up against some fairly uncommon religious practice Issue does RFRA exceed Congress authority to enforce 14th Amend, when USSC indicated in Smith that the standard for judging state action is a fairly deferential standard and Congress sought to exceed the rule with a less deferential standard o USSC we have already determined that when we have a law of neutral application that has an incidental effect on practice of religion and is called into question by 1st and 14th Amend we will not allow Congress to interpret the 14th Amend in a way that has a restrictive effect on State police powers
Gray area b/w congress acts that remedy / prevent unconstl actions and congress acts that make substantive change in law Congress should be given wide latitude BUT there is a distinction to be observed TEST congruence and proportionality must be congruence and proportionality b/w injury to be prevented or remedied and means adopted to that end o AND Congress does not have a substantive, non-remedial power under the 14th Amend RFRA is overkill Congress used a hammer when maybe a mallet would do

2000 Dickerson v. United States (Rehnquist) (not in casebook) Congress act NOT constl Begins with 1966 Miranda v. Arizona (Warren) USSC held that certain warnings must be given before a suspects statement made during custodial interrogation could be admitted in evidence. o Response Congress enacted 18 U.S.C. 3501 which laid down a rule that admissibility of such statements should turn only on voluntariness o 3501 replaced Miranda with totality-of-the-circumstances test Outcome USSC said 3501 was struck down Distinguish Dickerson from Katzenbach and/or Flores o Katezenbach AND Flores Congress tried to increase constl protection relative to what USSC had done gave more protection to what states could regulate wrt interference with religious practices o Dickerson Congress tried to revert back to narrower test

5 REVIEW emphatically province of the USSC to say what the law is, USSC will let Congress deal with issues of legislation BUT the exception is when the issue relates to criminal activity When the USSC announces criminal procedure rules, those rules are subject to being supplanted by alternative rules that Congress may produce o Up until Dickerson, people thought of Miranda as constl C/L that Congress could supplant o Miranda may not be a constl rule and Congress could supplant BUT there must be something that is better than what the USSC has done (although maybe not to the extent that RFRA did b/c that was arguably too much)

Congressional Power to Regulate Private Action for Civil Rights Purposes p. 326-29 Differential application of 13th and 14th Amendment as applied to private action C. The Tenth Amendment As A Federalism-Based Limitation On Congressional Power p. 329-54, Missouri v. Holland, NY v. US, Printz v. US Begins with the issue of treaty authority and 10th Amend as potential limit on authorization to enter treaties 10th Amend implicates other areas of the law other than commerce clause issues

1920 Missouri v. Holland (Holmes) (p. 329) Congress act YES constl FACTS Treaty b/w U.S. and Great Britain designed to protect species of birds, Congress passed statute that seeks to enact treaty o USSC statute does not exceed regulatory authority Issue does that statute unconstly interfere w/ rights reserved to States by 10th Amend and thus exceed congress regulatory power? 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 US

o Treaties under Articles of Confederation are still valid b/c all treaties enacted under the authority of the United States
We do not mean to imply that there are no qualifications to the treaty- making power; but they must be ascertained in a different way

o There may be actions of sharpest exigency for national wellbeing that act of Congress could not deal with but that treaty followed by such an act would One way to read the case treaties expand scope of delegated powers o Holmess formulation appears to imply that treaty power authorizes natl govt to bind nations to actions that it otherwise cant constlly take o If something that Congress enacts pursuant to a treaty would not have been constl in the absence of a treaty, does that mean that the treaty is therefore enhancing the constl regulatory powers? probably not Doesnt seem that the intent of treaty clause is to enhance the scope of Congress regulatory authority Another way to read treaties inform the court in a way that the absence of treaties doesnt o Treaties inform the court / provide information that may actually inform the intended scope of regulatory powers NOTE: compare to Dames & Moore v. Reagan may be the case that observed long-term relationships / longstanding practice provide some insight into the meaning of separation of powers o There is an analytical parallel between Dames & Moore and Missouri v. Holland

2008 Medellin v. Texas (Roberts) (p. 331)

FACTS Consular notification treaty, Medellin (Mex. natl) convicted of murder and sentenced to death USSC consular notification treaty is NOT a right created under Constitution o Treaty is not self-enforcing 1829 Foster v. Nelson (Marshall) (p. 331) treaty is S-E and thus equivalent to an act of the legislature when it operates of itself w/o the aid of any legislative provision o There are treaties that U.S. can enter into that are S-E in the sense that the treaty alone creates rights and responsibilities as if it is governing law o BUT there are also treaties that are structured to set up future action by pol branches of govt that do not of themselves create an individually enforceable right Stevens (concurring in judgment) admonish TX, TX has responsibility to comply with U.S. intl obligations created through treaties Breyer, Souter, Ginsburg (Dissent) rejects notion of self-enforcing treaty MAIN POINT HERE 10th Amend in a certain sense is NOW read IN as a source of limitation on the implementation of the treaty in self-executing form o Treaty is NOT a source of limitation on the internal procedural rules of states NOTE: Invisible radiations of 10th Amend will affect whether we look at this treaty as S-E whereas as in Missouri v. Holland, the radiations did not affect the S-E issue

1957 Reid v. Covert (Black) (p. 333) Missouri v. Holland as applied to individual rights USSC wife has constl right to have protections in the course of her conviction that a military tribunal would not have afforded her Const supersedes intl treaties ratified by the Senate Modern Revival of 10th Amend Based Restraints on Fed Regulation of State and Local Govts 1976 National League of Cities v. Usery (Rehnquist) (p. 334) Congress act NOT constl wrt state action 10th Amend, coupled with limits on CC limits scope of congress authority to regulate implementation of Fair Labor Standards Act to state govts IN AREAS OF TRADITIONAL GOVTL FUNCTIONS In areas of tradit gov functions, which include structuring labor relations, Cong is limited in CC Auth and 10th amend auth to impose generally applicable limitations/regulations on states in these relationships (govt functs)
Congress is limited in its CC authority to impose generally-applicable regulations on states wrt these govt functions

1985 Garcia v. San Antonio Metropolitan Transit Authority (Blackmun) (p. 334) Landmark case overrules Natl League v. Usery o The case probably warrants more attention than it actually received any rule that is bound in the notion of tradl state functions would dishonor the meaning or value of federalism o by focusing on tradtl areas of state governance as the limiting principle, you impose a realm into which Congress cant regulate o you are tying the States into something that they can and cannot do States must be equally free to engage in any activity that their citizens choose for the common weal Applying federal labor standards to San Antonio Metro. Authority, would conflict with what San Antonio would have implemented o You get to experiment by being entirely compliant with federal law this is the irony o we dont want to encourage the states to come up with new ideas / experiment, well let Congress do that and then Congress is going to prevent experimentation Justification

7 There are already safeguards in the procedural system safeguards through which states can protect the interest of their sovereignty within the federal congressional lawmaking system as opposed to judicially created limits on state power Constl grant of authority to Congress to regulate IC was not qualified by any implied limitation on the right to regulate the activities of the states when they engaged in IC; on the contrary, the CC invalidates state regulations that interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. OConnor (Dissent) does federalism have any content independent of law-making process? are there substantive provisions that limit what Congress can do wrt States? o Natl League v. Usery tradtl govt functions test tried to get at the substantive provisions o OVERTURNING NATL LEAGUE ONLY LEAVES THE POL PROCESS WITH CONGRESS AT THE HELM and Congress isnt great at slef-restraint COMMENTS o Is the original Constitution the same as todays wrt the structural devices that might help States protect their sovereign interests? 17th Amendment and direct election of senators If you believe the authority of State legislatures to decide who gets into Congress protects the States, then you might believe that taking that away might also take away the sovereign state interests Blackmun dont worry, States are good at protecting their interest in Congress o The fact that the Constitution has been amended to include direct election of senators seems to indicate that new Framers of the Constitution though State election of senators wasnt as important as Framers thought 1992 New York v. United States (OConnor) (p. 336) Congress act NOT constl Disposal of low level radioactive waste Congress passed Low-Level Radioactive Waste Policy Act of 1985 o Designed amendments to make states become self sufficient, so that there would no longer be waste disposal crisis o ONLY NY did not comply, instead it sued Issue constitutionality of amendments to congressional act that were designed to make states self-sufficient Congress created incentives for states to dispose of waste generated w/in their own borders o 1. Monetary states with disposal states can impose surcharge on states who bring radioactive waste into their borders, surcharge is collected by Sec. of Energy, states that meet deadlines get surcharge money back Not constly problematic Conditional exercise of Congress authority under the Spending Clause o 2. Access states w/ disposal sites can limit access by producers of waste in other states who do not meet the various compliance reqmts Not constly problematic ok exercise of Congress' power to authorize the States to burden IC - CC has long been understood to limit the States' ability to discriminate against IC but that limit may be lifted, as it has been here, by an expression of the "unambiguous intent" of Congress Whether or not the States would be permitted to burden the interstate transport of low level radioactive waste in the absence of Congress' approval, the States can clearly do so with Congress' approval, which is what the Act gives them. Absent statute, states could not say we dont want your waste violation of DCC YET Congress says we are allowing states to limit access why is that ok? DCC is default rule and Congress can change the rules o 3. Take title provision requiring states to "take title" and assume liability for waste generated within their borders if they failed to comply / be self sufficient This is constly problematic provision Congressional conditions on the receipt of federal funds will be constl under Spending Clause if: 1. expenditure must be for the general welfare 2. conditions imposed must be unambiguous (say what can and cannot be done) 3. conditions must be reasonably related to the purpose of the expenditure o

8 4. conditions imposed by the Act must not violate any independent constl prohibition Take Title Provision is problematic b/c: o Anti-commandeering Anti-commandeering o What does commandeering have to do with any of this? Congress is telling the states that they HAVE to do something critical option missing is the option to do nothing legislatures ought to have the ability not to act, is somewhat fundamental to what

legislatures ought to be able to do

Congress cannot use states as implements for fed regulation Congress cannot commandeer state legislatures to regulate o State legislative authorities MUST have the option to do nothing instead, Congress has expanded the federal regulatory regime by commandeering state legislatures Is OConnor right when she says Framers intended Constitution to prevent Congress from regulating through States? o Says Const was meant to regulate the people o look to Stevens dissent in Printz (p. 348) under Articles, Congress only had power to regulate the states and it wasnt a particularly effective structure i.e. if Congress wanted to tax, had to ask states to give it $$$ and the states decline question in this case whether Congress ONLY has the power to regulate states directly as opposed to indirectly (regulating states by regulating how they regulate) o CC lets Congress to regulate IC but does not authorize Congress to regulate state govts regulation of IC o none of OConnors quotes support argument that Constitution was intended to do anything other than enhance Congress power BUT history doesnt necessarily support this doctrine statute creates a lack of accountability that fails to appreciate what federalism is about o p. 344 fed official, in choosing b/w choosing location or forcing States to choose, would prefer States to choose b/c can shift responsibility for decision and vice-versa o federalism is about preserving the importance of accountability, both state and federal, for the benefit of the individuals o anti-commandeering scheme has the consequence of shifting responsibility and undermining accountability something to commend this argument in terms of policy although not as much in terms of history White (Dissenting on take title) o NY complied until the system went south NY is forcing its neighbors to take on this burden o "ultimate irony of the decision today is that in its formalistically rigid obeisance to 'federalism,' the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems." o

1997 Printz v. United States (Scalia) (p. 347) Congress act NOT constl obligations under fed handgun statute to state law enforcement officers are prohibited by application of anticommandeering doctrine o Congress is NOT allowed to enforce the statute that reqs state officials to perform background checks before individual citizens can purchase guns - should this be the case though? o History of Federalist Papers (Souter opinion about Fed 27) References that are contained in the Fed 27 typically contain jud officers State courts are req to comply w/ fed law o Are executive officers more like judicial officers or more like legislators? Statute is impermissible under anti-commandeering

Framers designed the Constitution to allow Federal regulation of international and interstate matters, not internal matters reserved to the State Legislatures. The majority arrives at the conclusion that allowing the Federal government to draft the police officers of the 50 states into its service would increase its powers far beyond what the Constitution intends

9 Stevens (Dissent) opposite of OConnor in New York, when Congress exercises delegated powers, it may do so to impose affirmative obligations on exec and jud officers of state and local govts as well as ordinary citizens Souter (Dissent) state regulatory bureaucracies were extremely underdeveloped at the time of Framers o What regulatory bureaucracies do today is that which jud officers did then o BUT think of how underdeveloped the federal bureaucracies were back then

Debate between Majority in Printz and Souters dissent o Souter responded to majoritys reading of Hamiltons analysis USSC reads Hamilton's description of state officers' role in carrying out fed law as nothing more than a way of describing the duty of state officials "not to obstruct the operation of fed law," with the consequence that any obstruction is invalid...But I doubt that Hamilton's English was quite as bad as all that. Souter is saying in Federalist 27, Hamilton makes plain that the federal govt can employ states in various capacities Federal govt with a rudimentary bureaucracy will be able to employ the bureaucracies that exist in more complex ways at the state level o Majority reads it to mean that states cannot obstruct federal law Souter asks why would the Majority need to say that, its already been established Hamilton was not such a bad writer to express in such a bizarre way that federal law was supreme P. 353 debate over comparative law analysis o Breyer (Dissent) what is going on in other parts of the world can inform our understanding 2000 Reno v. Condon (Rehnquist) (p. 349) Congress act YES constl Unanimous decision Fed Drivers Privacy Protection Act does not violate anti-commandeering principle o Obligations act to control disclosure of information State argument against cannot compel executive branch compartments to act (see Printz) USSC program involves the States collecting and distributing information, not in a regulatory capacity but in an entrepreneurial capacity Did not regulate states exclusively Introduces something akin to market participant doctrine as a limitation on the application of the anti-commandeering doctrine o BUT, does this make any sense? 2006 Gonzales v. Oregon (Kennedy) (p. 351) Congress act NOT constl 10th Amend and statutory interpretation FACTS challenge to Controlled Substances Act o Atty Gen made Interpretive Rule of CSA wrt assisted suicide we would not expect Congress to make this radical move unless it was clearly expressed that Atty General intended to give this power to Congress Not a question of whether, if Congress did this, it would lack the ability to do so, BUT rather, this is an area in which states presumptively have been engaging in regulation and will assume that Congress did not intend to upend that regulatory division of power o CSA not meant to displace state regulation of medicine Dissent (Roberts, Scalia, Thomas) as a matter of statutory interpretation, Atty Gen construction is reasonable 1995 U.S. Term Limits v. Thornton (Stevens) (p. 353) 10th Amend and state power states cannot impose limits on congressional terms

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State argument b/c this is not taken away from the states, this is a power that the states continue to hold model of federal govt is Stricken and granted o mistake that the states are making supposition that by looking at the Const, nothing expressly forbids states from imposing those limits and there is nothing in the Const says that states cannot add to the list of reqmts for serving in Congress USSC there are some powers that states never had to begin with and therefore cannot be stricken o look at this in connection to McCulloch v. Maryland case is better placed there Thomas (Dissent) this dissent argument doesnt seem to appreciate that argument from McCullochs second holding o Gives the exact argument that the McCulloch court rejects
CONCLUSIONS o (from online) - anti-commandeering doctrine, announced New York v. United States and Printz v. United States, prohibits the fed govt from commandeering state governments: more specifically, from imposing targeted, affirmative, coercive duties upon state legislators or executive officials. o If whats going on in Printz and Reno, doesnt seem to undermine accountability in the same

way as a situation in which there is an ability to run back and forth and not know who to blame Policy result seems like New York is better reasoned o DOMINANT BLOC ON THE USSC TODAY HAS MUCH SYMPATHY FOR USERY PROJECT AND LESS SYMPATHY FOR THE GARCIA DECISION THERE IS A REAL TENSION IN THIS AREA OF THE LAW CHAPTER 4 THE DISTRIBUTION OF NATIONAL POWERS A. Introduction p. 355-358 Federalist Papers Federalist 47 Madison o critiques anti-federalists proposition that powers of respective branches of govt must be sealed to adhere to notion of separation of powers o response virtually all Consts admit to some sort of overlapping functions to have the Const survive o clearly we dont want essential leg functions to reside in the person who will execute those laws BUT that doesnt mean that there cant be some overlapping functions to make the system meaningful or functional Federalist 48 Madison o Cant just demarcate boundaries between branches o Must create a jealousy between the branches to preserve the separation when each branch tries to reach too far TODAY o modern history seems to suggest that Madisons concern might be overexpressed in the modern context at least in terms of comparative power with exec branch o we have highly interactive functioning among the 3 branches of govt o However, the Framers did not anticipate the rise of the party system (noted in Youngstown), which has increased the profile of the president in the political realm, outside of pres powers also did not anticipate the growth and development of bureaucracies and the regulatory state o NOTE this is entirely consistent with Souters observation in the Printz dissent B. A Case Study: Presidential Seizure p. 359-371 YOUNGSTOWN, 1952 Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case) (Blackmun) (p. 358)

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FACTS concern that a strike at steel mill would have a security effect on U.S. national interests wrt Korean War o Multiple but failed efforts to resolve strike o Pres. Truman authorizes seizure of mills gave notice to Congress through executive order that Sec of Commerce could seize mills o Congress did not act and companies obeyed Congress orders under protest o Steel companies brought suit
limited the power of the Pres to seize private property in the absence of either specifically enumerated authority under Art II of Const or statutory authority conferred by Congress.

Dissent (Vinson, Reed, Minton) o We cant call this an instance of the Pres seizing power, b/c the pres could not have made more plain that Congress has the ultimate decision-making authority and would listen to what Congress wanted him to do BUT Congress did nothing o why does the Majority not join this decision? Its NY v. United States as applied to Congress instead of as applied to States????? PRESUMPTION IS THAT UNLESS CONGRESS HAS CHANGED THE EXISTING STATUS QUO,
THEN IT STILL EXISTS

BUT Truman seems to want to flip the status quo and say Were changing the state of the law unless you say no THIS CASE STANDS FOR FIRST AND FOREMOST EVEN THE PRES DOESNT GET TO SHIFT THE BURDEN OF CONGRESSIONAL INERTIA o Rejection of that principle, which is why Vinson is in dissent Majority o Two ways for President to have authority to act 1. Through Constitution Article II 2. Through Statute enacted in pursuance of Const o Apply the two ways to act to this case 1. Constitutional clauses dont go as far as to authorize the action as expressly conferred powers or as an issue of implied powers 2. Congress was silent so therefore it didnt intend to approve the President Frankfurter (concurring) o Much more deferential to the President o Focuses on how history matters History is important in interpreting the constitution can give meaning to text or supply meaning o systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned...may be treated as a gloss on Exec power history doesnt allow basis for violating the constitution, but a history of long unbroken practice gives us a gloss on the constitution and allows us to see how this may be permitted Much more full analysis than a strict textualism rigid textualism that Black embraces fails to observe that the Constitution is a structural document ANYTHING NOT PERMITTED IS PROHIBITED ANALYSIS BLACK AND TODAY, SCALIA Black came on the USSC with a liberal agenda to further New Deal policies, BUT upon the movement from policy-driven to rights-driven era, minimalism becomes a conservative issue o absolutist view, holding that the President had no power to act except in those cases expressly or implicitly authorized by the Constitution or an act of Congress.

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o Minimalism is liberal if your intuition is leave Congress alone o Minimalism is conservative if your intuition is let the USSC find rights????? Jackson (concurring) o three-tier test for evaluating claims of presidential power vis--vis Congress 1. Pres acts pursuant to implied or express authorization of Congress a. Pres authority at max b. Overwhelming presumption in favor of Pres power being permissible 2. Twilight zone a. Pres and Congress have concurrent authority, or the zone is not clearly defined b. No congressional denial or grant 3. Pres acts incompatible with express or implied will of Congress o Pres authority at lowest ebb o Pres can only act upon his const powers minus and const powers of Congress over the matter o Silence is tantamount to NO we are in the acting incompatible case / category #3 case relates very much to Frankfurter analysis but creates a framework for applying the Frankfurter analysis into a broader opinion But is it exactly????? just in this case? Douglas (concurring) legislative branch has the power of just compensation when it exercises the seizure power o The institution that has the power to seize should be the institution that has the power of compensation

C. Foreign Affairs 1. Executive Authority p. 371-395 US v Curtiss-wright, Dames & Moore, Hamdi, 1936 United States v. Curtiss-Wright Corp. (Sutherland) (p. 371) concluded not only that foreign affairs power was vested in the national government as a whole, but that the President of the United States had plenary powers in the foreign affairs field not dependent upon congressional delegation. KEY POINT the intuition that states reserve powers that relate to intl relations misunderstands the notion of natl sovereignty o When the U.S. became the U.S. and splits from Britain, the notion of the U.S. as a natl sovereign means that it takes its sovereignty from Britain subsidiary states NEVER had international sovereignty in that way As a result, there were no powers for the states to reserve to prohibit the executive from acting in the realm of foreign affairs The stricken and granted model doesnt apply here sweeping language of Curtiss-Wright is regularly cited to support executive branch claims of power to act without congressional authorization in foreign affairs, especially when there is no judicial intervention to interpret the meaning of that text.

1981 Dames & Moore v. Regan (Rehnquist) (p. 373) - DAMES & MOORE v. REGAN FACTS - 1979 Carter, pursuant to Intl Emergency and Eco Powers Act (IEEPA) blocks removal and transfer of all property of Iranian govt in U.S., o Jan. 1981 U.S. and Iran submit disputes to binding arbitration Reagan issued Exec Order nullify attachments against Iranian property entered by U.S. courts to secure any judgments against Iran, and to transfer such claims to IUSCT

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If claims pending in U.S. are discharged and the IUSCT awards recovery, thats fine Reagan does more than Carter tried to do o Does (1) nullify attachments and (2) authorize transfer of funds, BUT also (3) stays or suspends any cases in which Iran is involved ISSUE: Does Reagan have the authority not only to nullify and transfer, but also to suspend the existing claims? Connection to Youngstown o Relation to Jackson opinion On the facts of the case in which Jackson developed the test, he inferred from Congress silence the equivalent of Congressional NO o Relation to Frankfurter opinion If the Pres has been acting a certain way and Congress has not enacted a statute prohibiting it, then it seems that there has been consent Application of Youngstown o Must have some degree of flexibility and if Congress has consistently acquiesced, we can take that historical set of practices as a sort of gloss (Frankfurter) that may shade the boundaries of these three categories (Jackson) to say that long standing history of congressional acquiescence to mean that there must be some play in the joints the stakes are too high to use rigid textualism 2008 Medellin v. Texas (Roberts) (p. 375) Arises in the context of a habeus proceeding Can only file federal habeus when state court denies relief o Civil challenge regarding legality of methods used to bring about a conviction Particular piece of evidence on which Medellin relies Pres. GWB memo o GWB Memo says he would discharge U.S. intl obligations under ICJ decision and would have State courts give effect to ICJ decision State courts are obligated to enforce the Vienna Convention USSC Pres authority needs to come from Constitution or from Act of Congress o Prof Stearns you can throw me Youngstown, but I can throw you Dames & Moore how does Roberts resolve this tension? Given the assumption that the treaty is NOT S-E and there is tension in case law b/w instances in which Pres has been foreclosed from seemingly unilaterally expanding authority and has not been foreclosed how is it that this USSC gravitates toward Youngstown? o Roberts puts GWB memo into Jacksons 3rd Youngstown category How does this get to be category #3 as opposed to category #2? o criminal law issue is an area of core state function Why would the USSC be particularly sensitive to notion that Pres could unilaterally interfere with state criminal law processes (by signing convention requiring notification of consular rights)? concerned that if Pres has the authority to make treaty S-E, it means that Pres can redefine state criminal processes gets right to the heart of state sovereignty issues no examples of a case in which the Pres has unilaterally interfered with state criminal procedures based on the need to implement a treaty not a single instance of Congressional acquiescence here BUT, did the USSC have to go this far?????? Couldnt it have stopped at S-E and said that Congress must implement and Pres cannot????? Allocation of Warmaking Authority

14

Appears to be the case that the debates contemplated the authority of the Pres to REPEL an attack w/o getting prior Congressional approval BUT Congress is vested with power to declare war to INSTUTE military action HOWEVER, history has overtaken that general understanding o Division b/w repelling attack and initiating a war no longer stands the test of time U.S. role in the world was far beyond the comprehension of Framers Practices that occur do not match Constl language or more recently-created statutory language

War of Terror Joint Res of Congress Authorizing Use of Force (09/18/2001) authorizes Pres to use all necessary and appropriate force (1) What does it mean to say that the Pres has the authority to use all necessary does that include the authority to detain enemy combatants for indefinite period of time? (2) Authorization for Use of Military Force Against Iraq resolution 2004 Hamdi v. Rumsfeld (OConnor) (p. 381) NON-MAJORITY CASE THIS MATTERS Nominal breakdown o OConnor for plurality judgment of USSC, Rehnquist, Kennedy, Breyer o Souter, Ginsburg concurrence in judgment o Scalia, Stevens dissent o Thomas dissent FACTS Hamdi is U.S. citizen and is declared enemy combatant by U.S. o If enemy combatant, can be held indefinitely w/o formal charges o Enemy combatant = individual who govt alleges was part of or supporting forces hostile to the U.S. or coalition forces in Afghanistan and engaged in armed conflict there What is the claimed basis for the detention? Pres has authority pursuant to Act of Congress (AUMF) o BUT nothing of that nature is explicitly mentioned in AUMF Is there anything special about these circumstances that strengthen Hamdis claim? this is a new kind of war that may not have an end, a bit like the war on drugs o How does the USSC respond to this? kind of agrees with Hamdi on this respect Plurality opinion even though there in no express language in AUMF wrt detention, Congress has authorized Pres to make the detentions o there is a new set of rules, process is only due when will be held indefinitely and in these cases different things will apply Ordinarily we dont admit hearsay, but in this case we will general permit hearsay Burden of proof BRD is shifted Ultimately entitled to access to counsel o Hamdi is entitled to: 1. Notice 2. Confrontation right 3. Before a neutral decision maker (not before the Pres) o Where do these rules come from? THE RULES ARE MADE UP THEY ARE A CREATION OF HAMDI PLURALITY o Whatever it is that the govt is doing has to at least accord with military tribunals (and were doing less here) doesnt square entirely with courts of mil justice Maybe the Plurality is right and maybe its fair, BUT does that make it controlling? o This may not be the holding that controls in the case Souter (Concurring)

15

o statutory authority preventing application of the holding Non Detention Act o How broadly or narrowly to read Non Detention Act the tone of which is severe o Plurality response claims AUMF 4001(a) satisfies the Act BUT not clear it gives right to hold indefinitely Difference between Souter and Plurality? o Souter do these circumstances warrant an exception to the reqmt of express congressional authorization there is 1 exception (clear ticking time bomb) This is not the case here Hamdi was entitled to full extent of due process Opinions that afford Hamdi relief which is narrower b/w plurality and concurrence? o OConnor entitled to some due process but not all, modified DP rights Modified DP allows the Pres more latitude going forward whereas under Souters regime, you have to treat Hamdi as any other criminal D o Souter entitled to all due process except for 1 exception, unmodified DP rights NARROWEST GROUNDS o Which is narrower unmodified or modified DP rights? OConnor gives govt more latitude therefore it is the NARROWEST opinion b/c restraints on govt control are narrower o What makes it narrower is the operation of the rule as a matter of precedent o MARKS which has the least impact on the law? that is the basic idea Under the application of Marks to Memoirs which allows govt most latitude to prosecute individuals? the plurality opinion NARROWEST = WHEN LATITUDE IS HIGH BUT RESTRAINT IS LOW o Generally, if a plurality decision sustains a challenged statute, then the opinion consistent with the judgment that would sustain the fewest statutes is the narrowest ground. Conversely, if the decision strikes down a statute as unconstitutional, the opinion consistent with the judgment that would strike down the fewest statutes is the narrowest ground opinion. Thomas (Dissent) o In a time of war, Pres should not have to think about due process
If Thomas Dissent is starting point, then it makes sense that OConnor is the narrowest, but this is a case of first instance Scalia & Stevens (Dissent) o Congress has a choice to suspend habeus or not, which did not happen in this case, so the U.S. govt must let Hamdi go o Are they right to dissent? WRONG LABEL FOR THE OPINION Seems quite obvious that you cant be dissenting all the way on the left and all the way on the right There is no doubt that this was a concurrence in the judgment (although it was on the broadest possible grounds) o Scalia called this a dissent b/c he was angry at the Plurality opinion In terms of breadth of relief, could have concurred in the judgment in part that the opinion below should not be affirmed could have said I would go further HAMDI WON IN THIS CASE DIDNT GET EVERYTHING HE WANTED, BUT HE WON o

Thomas (Dissent) Jail him forever

OConnor (Plurality of 4) Modified DP

Souter (concur in judgment) Unmodified DP

Scalia (Dissent) Let Him Go

16 2006 Hamdan v. Rumsfeld (Stevens) (p. 390) 2001 executive order establishing military tribunals overturned by USSC UCMJ does allow mil tribunals but cannot violate general processes of mil commissions o Brings in terms of Geneva Conventions Plurality opinion from Stevens (Souer, Ginsburg, Breyer) o Conspiracy charge not punishable under laws of war Attempted fix to Hamdi that the USSC did not sign off on Not directly hitting the constl issues but suggests the possibility that those issues might be implicated footnote about presidential power (p. 391) Responses from Congress o Detainee Treatment Act (DTA) Provided limited review in U.S. Court of Appeals for the D.C. 2008 Boumediene v. Bush (Kennedy) (p. 391) Response to Detainee Treatment Act o DTA unconstly restricted writ of habeus corpus o Deficiencies in combatant status review tribunals (CSRTs) Rejects govt argument that case conforms to reqmts from Hamdi USSC B/C PLURALITY, HAMDI PLURALITY DOES NOT CONTROL o USSC NOT BOUND BY PRECEDENT IN NON-MAJORITY DECISIONS DONT NEED A MAJORITY TO REJECT PLURALITY B/C USSC IS NOT BOUND TO ADHERE TO PLURALITY OPINIONS FINAL CONCLUSIONS Were all of these rules meant to constitutionalize occasional exceptions to stringent constl requirements? o Notes seem to reflect an infinite regress problem Jackson p. 394 is getting at in Korematsu, there are moments that arise in the real world in which the exec branch will, for good reasons and motives, violate constl requirements due to exigent circumstances, and IF the USSC signs off on it, then it is creating constl permissibility to do the thing that violated the constitution in effect, this is constl b/c the USSC is ok-ing it DO WE ACKNOWLEDGE THAT SOME INDIVIDUALS SOME OF THE TIME MAY VIOLATE RULES AND INTERNALIZE THE COSTS? OR- DO WE WANT TO LIVE IN A WORLD IN WHICH WE RETROACTIVELY AUTHORIZE SOMETHING AFTER THE FACT? 2. Legislative Authority p. 395-400 1974 United States v. Nixon (CJ Burger) (p. 400) right to the production of all evidence at a crim trial similarly has constl dimension (p. 403 second full paragraph) FACTS 6 indicted and 1 unindicted (Nixon) co-conspirators o Subpoena duces tecum issued by Special Prosecutor to Pres. Nixon ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial Basis of Presidents Argument o Generalized interest in confidentiality respecting Nixon as President Risks and dangers associated with absence of recognizing privilege based on that interest o Embarrassment bad things will happen if I have to disclose the documents (i.e. Marshall, not having a Bank during War of 1812 country was not able to operate during time of crisis) affirms Marbury emphatically the province and duty of the jud department to say what the law is o Is Marbury doing any work in this instance? could say it is emphatically the province to say what the law is, BUT that doesnt tell us what the law actually is, so we need to figure out what the law is could be that the law is for Nixon to define the scope of executive privilege o is it possible and consistent with Marbury to reach the opposite holding in Nixon and allow Nixon to define the limits of executive power? YES o Renders Marbury window dressing in this instance has NOTHING to do with the case Rejects notion of absolute privilege there is a privilege but its not unqualified

17 argument against the unlimited executive privilege is the right to the production of all evidence and would impair functioning of judicial system o Whatever embarrassment concerns might be, the documents will be subject to in camera inspection by Article III judge under extraordinarily controlled security measures Is there anything ironic going on here? o Govt is seeking the right to produce evidence b/c it wants incriminating evidence against six coconspirators This isnt exculpatory evidence that Ds would have right to have produced o Who has a right? Burger is saying that its essentially the govts right to produce evidence o BUT the Constitution is essentially a guarantee of individual rights THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW SO, what is this case? o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS -ORo Has everything to do with the appearance that the President is not above the law POINTS OF THE CASE o This case was a political statement, but not a legal statement o Precedent of the case the President now has a limited executive privilege o FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGE CONSTITUTION DOESNT MENTION IT AT o
ALL

Executive privilege is implied, but there are limits on it

NOTES Executive Privilege and Presidential Immunity 1867 Mississippi v. Johnson (p.404) maybe doesnt survive under Nixon o Immunity from injunctive relief o prevented crim process against Johnson during Reconstruction o President has two kinds of task: ministerial and discretionary. Discretionary tasks are ones the president can choose to do or not do. Ministerial tasks are ones required by his job, in fact if he fails to do them he could be violating the Constitution. The court ruled that by enforcing reconstruction Johnson was acting in an "executive and political" capacitya discretionary rather than a ministerial oneand so he could not be sued. 1982 Nixon v. Fitzgerald (p. 404) o Damages for misconduct while in office o discharged govt Eee who claims violation of free speech rights does not get to sue Pres for discharge o pres occupies unique position w/in constl scheme singular importance of Pres duties juxtapose with Clinton v. Jones 1982 Harlow v. Fitzgerald (p. 405) presidential immunity does not extend to pres aides 1997 Clinton v. Jones (Stevens) (p. 405) o Damages for claims unrelated to service in office none of the events giving rise to the initial suit are the product of activities engaged in while Clinton was pres o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YES o USSC view seems almost nave said if district court is appropriately deferential to pres schedule it shouldnt take up too much time HOWEVER, the case did occupy a lot of Clintons time and ended up providing information for impeachment NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could have ordered Atty Gen to fire the Special Prosecutor in Nixon o Narrow class of potential Ps that would raise such a claim against the Pres although the Majority does seem to be wrong on the scheduling side 2004 Cheney v. U.S. District Court (p. 406) o Scope of executive privilege o Involves question of access to info When have committees meeting w/ non-gov Ees on them committee has only gov EE's on it but USSC treats non-gov attendees as de-facto members

18 o o o Civil litigation is diff from Crim litigation - so not same kind of information that can be revealed so committee meetings protected from disclosure civil litigation for disclosure no restraints in civil litigation for filtering out insubstantial legal claims as there are in crim justice system USSC concerns raised in Nixon criminal adjudication does not allow disclosure of evidence in this case Nixon was narrow subpoena order and Cheney was broad discovery request

NOTES on Impeachment (p. 407) What does high crimes and misdemeanors actually mean? Clinton defined sexual relationship to include his particular relationship Famous Gerald Ford quote impeachable offense is whatever Majority of House thinks it is at a given moment in history P. 411 Klarman certitude with which politicians and academics espoused wide variety of constl interpretations notwithstanding the thinness of constl law governing impeachment Prof Stearns, this quote is absolutely right o Everyone thought they were right, but no one had any constl basis for it D. Domestic Affairs 1. Executive Authority p. 400-12 NIXON 1974 United States v. Nixon (CJ Burger) (p. 400) right to the production of all evidence at a crim trial similarly has constl dimension (p. 403 second full paragraph) FACTS 6 indicted and 1 unindicted (Nixon) co-conspirators o Subpoena duces tecum issued by Special Prosecutor to Pres. Nixon ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial Basis of Presidents Argument o Generalized interest in confidentiality respecting Nixon as President Risks and dangers associated with absence of recognizing privilege based on that interest o Embarrassment bad things will happen if I have to disclose the documents (i.e. Marshall, not having a Bank during War of 1812 country was not able to operate during time of crisis) affirms Marbury emphatically the province and duty of the jud department to say what the law is o Is Marbury doing any work in this instance? could say it is emphatically the province to say what the law is, BUT that doesnt tell us what the law actually is, so we need to figure out what the law is could be that the law is for Nixon to define the scope of executive privilege o is it possible and consistent with Marbury to reach the opposite holding in Nixon and allow Nixon to define the limits of executive power? YES o Renders Marbury window dressing in this instance has NOTHING to do with the case Rejects notion of absolute privilege there is a privilege but its not unqualified o argument against the unlimited executive privilege is the right to the production of all evidence and would impair functioning of judicial system o Whatever embarrassment concerns might be, the documents will be subject to in camera inspection by Article III judge under extraordinarily controlled security measures Is there anything ironic going on here? o Govt is seeking the right to produce evidence b/c it wants incriminating evidence against six coconspirators This isnt exculpatory evidence that Ds would have right to have produced o Who has a right? Burger is saying that its essentially the govts right to produce evidence o BUT the Constitution is essentially a guarantee of individual rights THIS CASE REALLY HAS NOTHING TO DO WITH THE LAW SO, what is this case? o NOTHING TO DO WITH LAW BUT EVERYTHING TO DO WITH POLITICS -ORo Has everything to do with the appearance that the President is not above the law POINTS OF THE CASE o This case was a political statement, but not a legal statement

19 o o o Precedent of the case the President now has a limited executive privilege. President is not above the law. FIRST CASE TO RECOGNIZE ANY EXECUTIVE PRIVILEGE CONSTITUTION DOESNT MENTION IT AT
ALL

Executive privilege is implied, but there are limits on it

NOTES Executive Privilege and Presidential Immunity 1867 Mississippi v. Johnson (p.404) maybe doesnt survive under Nixon o Immunity from injunctive relief o President has two kinds of task: ministerial and discretionary. Discretionary tasks are ones the president can choose to do or not do. Ministerial tasks are ones required by his job, in fact if he fails to do them he could be violating the Constitution. The court ruled that by enforcing reconstruction Johnson was acting in an "executive and political" capacitya discretionary rather than a ministerial oneand so he could not be sued. 1982 Nixon v. Fitzgerald (p. 404) o Damages for misconduct while in office o discharged govt Eee who claims violation of free speech rights does not get to sue Pres for discharge o pres occupies unique position w/in constl scheme singular importance of Pres duties juxtapose with Clinton v. Jones 1982 Harlow v. Fitzgerald (p. 405) presidential immunity does not extend to pres aides 1997 Clinton v. Jones (Stevens) (p. 405) o Damages for claims unrelated to service in office none of the events giving rise to the initial suit are the product of activities engaged in while Clinton was pres o Does Paula Jones get to sue Pres for pre-presidential conduct while he occupies the presidency? YES o USSC view seems almost nave said if district court is appropriately deferential to pres schedule it shouldnt take up too much time HOWEVER, the case did occupy a lot of Clintons time and ended up providing information for impeachment NOTE: Clinton could not have fired Kenenth Starr Indep Prosecutor as Nixon could have ordered Atty Gen to fire the Special Prosecutor in Nixon o Narrow class of potential Ps that would raise such a claim against the Pres although the Majority does seem to be wrong on the scheduling side 2004 Cheney v. U.S. District Court (p. 406) o Scope of executive privilege o civil litigation for disclosure no restraints in civil litigation for filtering out insubstantial legal claims as there are in crim justice system o USSC concerns raised in Nixon criminal adjudication does not allow disclosure of evidence in this case Nixon was narrow subpoena order and Cheney was broad discovery request NOTES on Impeachment (p. 407) What does high crimes and misdemeanors actually mean? Clinton defined sexual relationship to include his particular relationship Famous Gerald Ford quote impeachable offense is whatever Majority of House thinks it is at a given moment in history P. 411 Klarman certitude with which politicians and academics espoused wide variety of constl interpretations notwithstanding the thinness of constl law governing impeachment Prof Stearns, this quote is absolutely right o Everyone thought they were right, but no one had any constl basis for it 2. Legislative Authority p. 412-439 CHADHA, LEGISLATIVE AUTHORITY Background / Introduction Question of Const delegation

20 Leading up to 1937 switch in time that saved nine there were series of doctrines that interfered with New Deal reform projects o Included in this was nondelegation doctrine Congress ability to convey lawmaking authority to external institutions is limited by intelligible principle Ultimately, USSC declares end to intelligible principle test - never used this to strike down delegation except in Schecter and other case HOWEVER, USSC has used nondelegation principles to interpret statutory delegations so as to avoid Const nondelegation argument o If ambiguous delegation and construe it narrowly, can avoid nondelegation challenge to the delegation federal courts have done this o Other contexts in which nondelegation concerns arise outside of formal nondelegation doctrine Issue w/ shifting responsibility concerns all over the place o concern is Cong delegates power to agency; takes responsibility if it goes well, if not go well blames agency o New York v. U.S. that concern about responsibility shifting b/w state and federal legislatures is similar to nondelegation o Even in Lujan - delegated to private litigants to litigate cases in cts, blame judiciary if it goes poorly and take responsibility if go well not formally nondelegation doctrine, but there seems to be a consistency of shifting accountability concerns 1998 Clinton v. City of New York (Stevens) (p. 416) o strikes down line-item veto act that allowed pres to veto tax provisions or expenditures lets pres decline to spend allocated sums benefitting narrow classes or expenditures Raines v. Byrd (1st case to address line-item veto but struck down on stranding) o ISSUE: does line item veto act violate Art. 1 Sect. 7 and reqmt of bicameralism and presentment? YES is NOT constl line-item veto as granted in the Line Item Veto Act of 1996 violated the Presentment Clause of Const because it impermissibly gave Pres the power to unilaterally amend or repeal parts of statutes that had been duly passed by Congress o analyzes under Art 1 Sec. 7, so doesnt address balance of powers This analysis was satisfactory BUT could also have rested on separation of powers argument Stevens could have done this but he opted not to do so o construed the silence of the Constitution on the subject of such unilateral Presidential action as equivalent to "an express prohibition", agreeing with historical material that supported the conclusion that statutes may only be enacted "in accord with a single, finely wrought and exhaustively considered, procedure" and that a bill must be approved or rejected by the President in its entirety. o Dissent (Scalia) if you have an appropriations statute that contains the authority of the Pres not to spend sums, that would be ok, the line item veto act accomplishes the same result Prof. Stearns says that Scalia is wrong b/c line item veto act is a default rule that applies across all legislation whereas the appropriations statutes are particular to individual statutes

1983 INS v. Chadha (Burger) (p. 417) RULE: 1 house veto is unconstl b/c violates separation of powers FACTS Chadha would suffer serious personal hardship if he was subjected to deportation o Immigration and Nationality Act one house of Congress can veto the suspension of deportation of those who have stayed in the U.S. past the expiration of their visas WHY struck down? o Violation of Art. 1, Section 7 bill must be presented to Pres for signature, and to create a law must have bicameralism (signed off by both houses of Congress) How do we know if something is a law? o 1. essentially legislative in purpose and effect Chadha affects people who are outside the chambers of Congress, congressional action altered Chadhas status

21 There are 4 examples of when there is no need for bicameralism, but this isnt one of them o 1. House power to nitiate impeachments o 2. Senate power to conduct trials following impeachment o 3. Senate power over presidential appts o 4. Senate power to ratify treaties Possible to reach opposite result and be consistent with Marbury? - YES o very statute that set up the one house veto satisfied the requirements of bicameralism and presentment so begs the question of whether the use of said veto must also satisfy those requirements. Debate b/w Powell and Burger o Powell (concurring) this is quasi-legislative authority, is not ordinary lawmaking, Congress seems to be acting in an adjudicative manner should be kept out of the Houses of Congress o Burger Powells decision is that 1 house veto is judicial act, we agree there is some judicial cast since it purports to review executive action, not really judicial b/c doesnt include all judicial protections Is this an argument in support of or against Powell? it in fact SUPPORTS Powells analysis The fact that something is an imperfect judicial process does not bolster the argument that something is unconstl Dissent (White) o Majority is failing to recognize that the rise of the bureaucratic state is ultimately the function of allocation from Congress to other agencies of regulatory capacity and we want Congress to at least be able to pull back when the agencies go too far to say were preventing separation of powers by limiting congressional review of regulatory agencies is a bizarre assertion o Majority has just prevented Congress from maintaining a check on the exercise of lawmaking power that originates with Congress o constl ruling strikes more provisions of fed law than any other single case in the history of the USSC These are all invalidated under Chadha b/c of the rigid wooden formalism of Majority opinion 3. The Legislative Veto BOWSHER, MORRISON NOTES Administrative Agencies and Separation of Powers (p. 424) 1926 Myers v. United States (p. 424) can Congress impose limitations on removal authority of Pres wrt a Cabinet Member? NO Pres has the exclusive power to remove exec branch officials, and does not need the approval of the Senate or any other legislative body. USSC CJ Taft limitation on Pres removal authority is unconstl, is executive function, take care clause vests authority to execute laws in the Pres Dissent Congress could eliminate an agency USSC greater does not necessarily include lesser it is not a greater v. lesser issue but a different issue 1935 Humphreys Executor v. United States (p. 425) removal for inefficiency, neglect of duty, malfeasance Vitally important case b/c the FTC engages in quasi-judicial / quasi-legislative functions, it performs functiosn independent of the executive branch is an independent agency and as such, Congress CAN impose limitations on Pres removal authority wrt FTC commissioners distinguished b/w exec officers and quasi-leg or quasi-jud officers. The latter may be removed only with procedures consistent with statutory conditions enacted by Congress; the former serve at the pleasure of the President and may be removed at his discretion. The Court ruled that the FTC was a quasi-legislative body because of other powers it had, and therefore the President could not fire an FTC member solely for political reasons; thus, Humphrey's firing was improper. WHAT THESE 2 CASES MEAN wrt core executive functions Pres cannot be limited wrt quasi-legislative function the independence of the agency permits Congress to interpose limits on the removal authority of the President

22 1958 Wiener v. United States (1958) (p. 425) where statute is silent on removal, the functioning of the war claims commission and the fact that the commission engages in adjudicative functioning implies a limitation on the Pres power to remove This case reasons backward relative to other two cases o other 2 cases look at removal provisions and ask if in light of functions, are the provisions permissible? o This case looks at the function and ask if, in light of removal authority, is pres allowed complete authority to remove w/ no answer, there are limits Implies limitations on pres removal auth Appointments clause ...Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. ISSUE: what does inferior office mean what is distinction b/w inferior and the alternative (principal)? USSC even in 2010 noted the lack of clarity on the distinction Morrison (1988) dissent b/w Scalia (Dissent) and Rehnquist Majority 1976 Buckley v. Valeo (p. 426) 8 member Federal Election Commission, unusual composition Pres is not doing the appointing of the commissioners whose functions would be regarded as executive USSC not going to say that commission is unconstl BUT certain of the designated functions cannot be performed by commission with such a composition, BUT it is OK to perform advisory functions 1986 Bowsher v. Synar (Burger) (p. 427) FACTS Ultimate authority over Comptroller Generals job security nominated by Pres and subject to removal by impeachment or joint resolution of Congress subject to Pres. veto o All meant to balance the federal budget o The Comptroller General...made a recommendation to the President, who was then required to issue an order effecting the reductions required by the Comptroller General unless Congress made the required cuts in other ways within a specified amount of time. The Comptroller ... is removable only by impeachment or a joint resolution of Congress (which requires majority votes in both houses and is subject to the veto). OUTCOME: struck down the Gramm-Rudman-Hollings Act as an unconstitutional usurpation of executive power by Congress because the law empowered Congress to terminate the United States Comptroller General for certain specified reasons, including "inefficiency, 'neglect of duty,' or 'malfeasance.'" ISSUE: is automatic sequestration provision constl? NO Congress cannot control the execution of its laws; since it doesnt possess this power, it cant delegate it to its agents. Does this scheme create incentives to bring federal budget into balance? o NO b/c Congress could pass responsibility buck o NO members of Congress want everyone else to observe constraint while they themselves do not exercise constraint If budget doesnt come into balance there would be automatic across the board cut SO the result would be to raise the budget as high as possible b/c you know that it will inevitably be cut Court Comp Gens duties are executive what is best argument for executive duty? Comp Gen would have to work to reconcile inconsistent views on the cuts exercising such a level of discretion would be tantamount to executive decision making process Stevens (Concurring) legislative power issue b/c Comp Gen is assigned functions that would require him to make policy decisions that affect the country o Comp Gen performs executive o Fallback provision legislative function o Assume its legislative argument in its best light, is still unconstl Congress cannot delegate to a subunit of itself a lawmaking provision that binds the nation as a whole comes from Chadha

23 White (Dissent) o Expediency point applying mechanical separation of powers rules to limit ability of Congress to come up with practical solutions to problems Congress has power to control administration through imposing duties or substantive restraints on executive officers o Fallback provision problem it does not work politically o Classic Justice White opinion o Removal of Comp Gen satisfies bicameralism and presentment laid down in Chadha Cant violate Chadha b/c removal requires both Houses of Congress and President to be involved Problem with this analysis if we assume that the Comp Gen is performing exec functions, then the question isnt whether Pres is involved in removal BUT rather whether anyone BUT the Pres is involved in removal 1. If executive officer performing executive function, THEN must call into question anything that limits removal power 2. If legislative function, then there is Chadha problem o That is why there was a fallback provision This holding was NOT a surprise o Majority struck down automatic sequestration provision and said do it through the fallback provision statute

1988 Morrison v. Olson (Rehnquist) (p. 430) Independent Counsel Act independent counsel can only be removed by impeachment or by personal action of Atty Gen What does our present considered view mean? its a way of saying we need to re-write history b/c history is not helping us in our decision o This case against that framework isnt going to work IF we are going to sustain the challenged provision o IF the USSC were to strike down the provision, then the framework would be super helpful Rehnquists analysis o Good cause removal provision does not impermissibly burden the Pres power o contend that the Clause does not contemplate congressional authorization of "interbranch appointments," in which an officer of one branch is appointed by officers of another branch. The relevant language of the Appointments Clause is worth repeating. It reads: . . . but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments. o On its face, the language of this "excepting clause" admits of no limitation on interbranch appointments. Indeed, the inclusion of "as they think proper" seems clearly to give Congress significant discretion to determine whether it is "proper" to vest the appointment of, for example, executive officials in the "courts of Law." Scalia (Dissent) accuses Rehnquist of using a balancing test when must look exclusively to Constitution o Not only are the answers to the 2 part test YES, but the majority doesnt agree that the answer is NOT yes 1. Is conduct of a crim prosecution the exercise of purely exec power? 2. Does statute deprive Pres of U.S. exclusive control over that power? o Inferior v. principal argument independent counsel is at least a principal officer and not an inferior officer Independent prosecutor has EXLCUSIVE investigatory authority, which removes the authority from DoJ so that implies it is principal function o Pres has the ENTIRE executive authority, which includes the removal of officers who perform core executive functions o Could be partisan issue wrt prosecutors function BUT also an issue that normally prosecutors are subject to political considerations BUT the independent prosecutor is not subject to such constraints May be a peripheral violation in the real world but be a core violation in the world of the independent counsel / prosecutor o NOTE Connection to Martin v. Hunters Lessee wherever you vest final decisional authority, its subject to abuse its true that final decisional authority is always subject to abuse HERE, Scalias

24 point is that argument in favor of counsel is do we trust the executive branch to investigate itself? executive branch may not investigate itself so therefore subject to abuse BUT creating an independent counsel isnt the best idea b/c could also be subject to abuse Does replacing a clear cut doctrinal rule with a balancing test make good sense or not? interesting question Congress let Independent Counsel provision lapse after Clinton impeachment

2010 Free Enterprise Fund et al. v. Public Company Accounting Oversight Board (supplement) Multilevel protection from removal in context of indep agency that is subject to limits on pres removal Limits of removal authority on members of SEC by the board Does this trigger separation of powers violation b/c triggers 2 levels of removal? o YES violates the law Dissent problems for civil service system and for any agencies in which agency can appoint people and give some job security (also military) o What about the need for expertise and independent judgment? o Good job of showing potential huge problems o Majority says that military analogy is attenuate Whereas CJ Roberts says youre panicking Nesting doll analogy pres shouldnt have to keep opening up the dolls Classic example of not knowing what a case means until its applied will it be limited or not? Case rests on - Pres should not have to go through numerous layers to remove o can be subject to one degree of removal and not two until USSC distinguishes it This is a new rule - double removal protection rule 1989 Mistretta v. United States (Blackmun) (p. 437) U.S. Sentencing Commission o Independent commission located w/in the judicial branch o Purpose look at particular offenses for which people were convicted under federal law and the background of people who committed offenses there was GREAT disparity that was considered unfair o Proposal for mandatory sentencing guidelines would be binding unless overturned by Congress LATER CASES USSC struck down guidelines as violating jury right BLAKELY Interesting argument leveled in favor of constlty of commission by Justice Blackmun o Is the commission exercising powers that are non-judicial and that are specifically legislative? placement of the Sentencing Commission in the Judicial Branch has not increased the Branch's authority. Prior to the passage of the Act, the Judicial Branch, as an aggregate, decided precisely the questions assigned to the Commission: what sentence is appropriate to what criminal conduct under what circumstances. It was the everyday business of judges Accordingly, in placing the Commission in the Judicial Branch, Congress cannot be said to have aggrandized the authority of that Branch or to have deprived the Executive Branch of a power it once possessed. Thus, although Congress has authorized the Commission to exercise a greater degree of political judgment than has been exercised in the past by any one entity within the Judicial Branch, in the unique context of sentencing, this authorization does nothing to upset the balance of power among the Branches. Argument prior to commission individual judges gave sentences, added up there were ranges of sentences the commission does the same thing but it in the aggregate the aggregation of individualized sentencing determinations is no different Is Blackmun right? o Maybe not because this is pretty removed from case or controversy keep in mind that state and federal legislatures provide sentencing ranges all the time o prospectivity may be the thing that draws the line b/w judicial and legislative function