Constitutional Law

 Federal Judicial Power

 Authority for Judicial Review: Art. III, §2, Cl. 2
 Original jurisdiction for cases affecting ambassadors, ministers, and public
counsels and where a state is a party
 Supreme Court looks at these first hand
 Appellate jurisdiction over everything else except when Congress says
otherwise (see below, Exceptions Clause)
 Supreme Court can look at these cases as a matter of review from lower
courts
 Unconstitutional for a Congressional § to give more power to the Supreme
Court then what the Constitution gives
 Marbury v. Madison: first time Supreme Court told the world that it has
the Constitutional authority to declare unconstitutional, the actions of the
President and the laws of Congress
 Struck down the 1789 Judiciary Act: gives the Supreme Court the right
to issue writs of mandamus (legal command by a federal judge toward
government official telling that official to do something)
 Act tried to give more power to the Supreme Court, but there was
no original jurisdiction for the writ
 No power of writ in constitution, so Act cannot permit it

 Congressional Limits on the Federal Judicial Power:

 Exceptions Clause: Art. III, §2, Cl. 2
 Appellate jurisdiction over everything else EXCEPT where Congress says
not
 Limitations:
 Congress can:
 Regarding appellate jurisdiction, Congress CAN pass law that
prevents Supreme Court from hearing it as long as prohibition will
not determine the outcome of the case
 Ex Parte McCardle: Congress passed § under exceptions clause
with regard to appellate courts and Congress can pass § to keep
appellate court from reviewing certain types of cases
 This took away power from the Supreme Court
 Held that Congress was permitted under Constitution to
take away jurisdiction from Fed. App. Court and prevent
the Fed. App. Court from reviewing it
 Here it was a jurisdictional issue, saying the court could
not hear the case
 This does not impede on president or court for making a
decision
 Congress CANNOT:
  Tell the Supreme Court how to decide/force outcome of a case
because it takes away powers from the court, thereby violating
separation of powers
 Must NOT tell a court how to rule on a case before it is
presented. This is not permissible because this is the court’s job
to determine the outcome of a case, not Congress
 Interfere with a President’s power under Art. II
 U.S. v. Klein: Congress passed § under exceptions clause: you
can get back property confiscated by northern troops with
proof that you did not help rebel army. However, if someone
convicted of a crime in the South and was pardoned by
Johnson, every fed. App. Ct. should accept that as evidence that
the person helped rebel forces
 This violates the separation of powers in 2 ways:
 1. President’s power: has the right under Art. II to pass
pardons (Congress cannot interfere with it)
 2. Court’s power: in court of law, must treat parties fairly
(cannot game the system before case comes up)

 Commerce Clause: Art. I, §8, Cl. 3

 Congress may regulate commerce with foreign nations, with the Indian tribes, and
among the several states
 Key to Commerce Clause: Congress is trying to regulate commerce
 Virtually nothing Congress cannot do under commerce clause
 For analysis: define “commerce” and “among the several states”

 Commerce Clause analysis:

 Only need to find one of these to satisfy commerce clause, do not have
to ask if it is commerce (kill 2 birds with one stone)
 1. Channel of interstate commerce: things or persons traveling
interstate, across state lines (stream of commerce theory)
 Ex: Congressional § requiring railroad companies to offer
comparable rates for comparable distances (it is regulating
something from 1 state to another)
 Congress can regulate commerce as long as it goes from one
state to another, stream must still be running though
 If stream ends, Congress CANNOT regulate the end of
commerce (ex: Congress cannot regulate sale of dead
chickens, only transport when they are alive)
 2. Instrumentality of interstate commerce: things that move
other things (i.e. planes, trains, ships, vehicles, roads) or capable of
moving things across state lines
 Ex: Congress giving exclusive boat license
 If neither of these, then can use the substantial effects test: 2 parts

 1. Commerce definition: is Congress regulating commerce?

 Exchange of money for goods and services
 OR
 A commodity (or service) for which there is a national marketplace
 Commerce IS NOT those listed below so Congress CANNOT
regulate these:
 Manufacturing
 Production
 Possession (ex: Congress cannot pass a § that makes it a
crime for someone to possess a gun in a school zone), must
involve selling or some sort
 WAVA (violence is not commerce, no commercial
exchange/no national marketplace for violence)
 Commerce IS when company buys/sells/exchanges/owns

 If no, not valid §

 If yes, go on to part 2, is Congress regulating commerce among the

several states?

 2. Among the several states definition: weapons of Congress to meet

definition (only need one). Congress has authority to regulate those
below
 Substantial effect on interstate commerce: use one of 4 tests below to
see if it is commerce and among the several states
 1. Giant, multi-state corporation approach (NLRB): if a corporation
employs or sells across state lines
 Must be a multi—million dollar corporation, so big that it
would be its own city (not a mom and pop shop)
 Ex §: if you take retaliation against unionizing workers, you
will be fined, then jailed for second offense. Upheld by
Supreme Court. Commerce: an exchange of money for
goods/services. Congress may regulate employment K’s.
Among the several states: giant corporation that has its own
railroad through several states and regulates employees across
several states
 2. Cumulative effects approach (Wickard): isolate some
activity/commerce in one part of the US by one person and
multiply activity across US
 Ex §: limited amount of wheat that farmers can grow for your
own consumption. Upheld by Supreme Court. Commerce:
commodity (wheat) for something that has a national
 marketplace. Among the several states: if all farmer’s grew and
kept above their wheat limit, then there would be a dramatic
effect (i.e. supermarkets, bakery, breweries would all feel the
adverse affect on the price of wheat). 1 man/company may be
okay, but if everyone did the same thing across the country,
there would be a significant impact among the several states
 Ex §: Consumer Credit Protection Act, to prevent loan
sharking. Upheld by the Supreme Court. Commerce: exchange
of money for goods/services (loans for interest/money) and
also there is a national marketplace for loans (even if it is the
black market it still affects the economy the same). Among the
several states: if everyone gave away loan, together all across
the US that would effect the economy
 3. Multi-state customer approach (Heart of Atlanta Motel): look for
the Federal government regulating a hotel/restaurant, etc. where
most customers are from other states
 Ex §: Civil Rights Act of 1964, motel must not refuse rooms to
blacks. Upheld by the Supreme Court. Commerce: exchange of
money for goods/services (rooms for money) and also there is a
national marketplace for hotel rooms. Among the several
states: if you are running a hotel/restaurant/amusement
park/attraction for customers, then most of your customers
come from outside the state, so Congress can regulate. This can
also be evidenced by advertisements in national magazines,
billboards on interstate highway, and/or percentage of
customers that are from out of state (this § would also pass
under the cumulative effects approach because adverse effect
on economy could discourage travelers to other hotels)
 4. Multi-state supply approach (Katzenpach v. McClung/Ollie’s
BBQ): look for a restaurant/business that is buying most of their
supplies from outside the state
 Ex §: Civil Rights Act of 1964, restaurant must not refuse
dining services/food to blacks. Upheld by the Supreme Court.
Commerce: exchange of money for goods/services (food for
money) and also there is a national marketplace for restaurants.
Among the several states: vast majority of food and other
supplies (i.e. meat, tables, condiments, tile, plates, napkins, etc)
all came form out of state
 State can use 10th Amendment as shield to commerce clause

 10th Amendment (police powers): powers not given to the Federal court by the
Constitution, nor prohibited to the states are given to the states or to the people
 Serves as a shield/block to what the Federal government can do under
commerce clause, just reminds the Federal government to obey the
Constitution
  If Congress passes a § under Commerce Clause, and that § is deemed
coercive to the states, then it violates the 10th Amendment
 Coercive:
 1. Federal § forces state to pay out of pocket expenses to do what
the Federal government wants them to do
 This does not include a loss of potential profits, ONLY out of
pocket money
 Ex: find safe radioactive waste site
 OR
 2. Federal government using state/local employees to do the
Federal government’s job without compensation
 Must make workers do something they have never done before
and not compensate
 This includes getting state officials to assist in enforcing
Federal § to regulate individuals or getting state legislatures to
pass laws or regulations
 Ex: USPS using local cops to deliver mail; Federal § requiring
a state to do a background check before purchasing gun (town
w/5 cops has to do checks for the FBI)
 Gives State government’s the power to pass laws with regard to health, safety,
welfare, and morals
 This does not give the states authority to regulate commerce among the
several states
 No such things as traditional state functions (i.e. city road/utility crews,
teachers, firefighters, & police)
 This is because the federal government gives the state/city lots of money.
Without that money, states would be dead
 State shield to commerce clause; tax & spend clause=10th Amendment

 Tax & Spend Clause: Art. I, §8, Cl.1

 Congress shall have power to lay and collect taxes, duties, impost, and excises
to pay the debts and provide for the common defense and general welfare of
the US
 Congress has the authority to raise taxes and revenues (Congress has the
authority to make money)
 Can raise taxes and spend the money, even though “spend” not in
Constitution, the power is there
 Federal government has as much taxing power as the state does
 3 guidelines Congress must follow when they use their tax and spend
powers:
 1. Must use the money for the general welfare
 § generally meets this
 2.Must clearly state conditions (if giving to state/local government or
private individual)
  Cannot coerce state: look to amount of funding needed and
conditions
 3. Conditions must beat some relationship to the money (can be broad)
 State’s shield to tax & spend clause=10th Amendment

 Necessary & Proper Clause: Art I, 8, Cl. 8

 Congress has the authority to pass any laws that are necessary and proper to
further any of its other constitutional powers
 Necessary = USEFUL, not necessary
 Ex: criminal laws about stealing mail is not necessary, but it is useful
 Ex: US bank set up in a state is not necessary, but it is useful (state
cannot tax the US bank since it was established under necessary &
proper clause)
 Not just necessary and proper for what Congress wants to do, but for other
branches of government

 Supremacy Clause: Art. 6

 US Constitution and any laws properly passed in its name are the supreme law
of the land
 Sources of preemption:
 1. Constitution
 OR
 2. Any federal law that is constitutionally passed (check validity under
commerce clause, tax & spend, OR §5)
 If defective, it cannot preempt
 Types of preemption: keep all animals in their cages
 1. Express preemption: Federal law explicitly states that “this Federal law
supercedes any and all state/local laws”
 If Federal law passed by Congress to preempt explicitly, “supercedes”
gives it away
 2. Implied preemption: when it is impossible for people to comply with
both, a valid Federal law and a valid state law, the valid Federal law will
preempt state law
 No preemption if you can comply with both valid laws at the same
time
 Must be IMPOSSIBLE to comply with both laws (you are breaking
one law to follow the other)
 3. Impeding Federal objective: if state/local law meddles in or is annoying
or difficult for the Federal government to do what it wants, then the state
law will be preempted
 Similar to implied preemption but lesser standard
 NOT ON FINAL
  4. Field preemption: state/local government regulating in a field that is
heavily regulated by the Federal government, then the state law is
preempted
 This includes immigration, national security, foreign relations
 Ex: postal service, currency
 Does not matter if you can comply with both laws at the same time
 A state law will be preempted (declared null and void) if it conflicts with a
valid federal statute that is properly passed and Congress has authority under
the commerce clause
 Ex: license giving man a monopoly to ferry a boat between NJ and NY
was passed under the commerce clause, state gave license to someone
else.
 If valid, it rules and the state law is preempted
 Validity: commerce: money for ferry; among the several states:
instrumentality of interstate commerce (moving from one state to
another)
 Since it is commerce among the several states, federal statute is
valid, and state law is preempted


 14th Amendment: 3 clauses (states will use 10th Amendment power to pass
legislation. Congress can respond by passing appropriate legislation under §5 when
the state/local § discriminates a suspect/quasi-suspect group)

 1. Equal Protection Clause: no state (local) government shall deny any person
(includes corporations) the equal protection of the laws
 Constitutional limitations on discrimination only applies to state and local
governments passing legislation with their 10th Amendment powers, not to a
private individual
 Ex: no men in sororities, no women if fraternities is okay
 Categories of humans & the judicial review of each § that discriminates:
 I. Suspect class: race, ethnicity, alienage, religion (sort of)
 Rationale for protection:
 1. History of discrimination
 2. Stigma
 3. Immutable characteristic
 4. Discrete and insular minority (numerical minority)
 Review: must offer extraordinary justifications for §
 Likely do not need a pattern
 II. Quasi-suspect class: gender & illegitimacy
 Review: very good justifications for §
 Look for pattern of other states that are discriminating against
group that events a type of prejudice (not logical; i.e. stereotypes)
  It does not matter if private sectors do it, look for pattern in
other states
 III. Everything else
 Review: none. State can discriminate for everything else and will be
fine, it does not have to even make sense (ex: age, disability)
 NOT protected UNLESS there is a pattern of other states practice
of discrimination against the group that is based on a prejudice (not
logical, i.e. stereotypes. Ex: men get less unpaid medical time than
women)
 Balance state’s actions v. how often it is done

 2. Due Process Clause: no state (local) government shall deprive any person
(includes corporations) of life, liberty, or property without due process of law
(This is a governmental procedure to make sure rights are not being taken away
unduly)
 “Liberty” includes most of the first 8 amendments
 This includes the 1st line of 1st Amendment: Right of Religious Free
Exercise: Congress shall not abridge the right of religious free exercise
(nor shall a state or local government)
 2 tests associated with the 1st Amendment Right of Religious Free
Exercise:
 1. Undue burden test (used before 1990, then replaced by #2)
 Look to see if § places an undue burden on an individual’s
religion beliefs and makes them choose between practicing
their religion or something else (ex: getting unemployment
benefits$$  food v. practicing religion)
 Test replaced by #2
 Restored in 1993 with RFRA that was passed under §5 of the
14th Amendment to give liberty rights to those deprived
 If a state/local government places undue burden on your
religious beliefs, you can sue for money damages
 RFRA declared unconstitutional because the Supreme Court is
the sole arbitrator of the Constitution
 Held that Congress cannot overturn the general
applicability test
 This was a violation of separation of powers and NOT
APPROPRIATE
 2. General applicability test (later ruled unconstitutional by RFRA)
 Look to see if religious people and non-religious people are
treated in the exact same way (ex: law says “no peyote” not
“no peyote for Indians”)
 Look for pattern/history; need strong evidence
 3. §5: Congress may pass any appropriate legislation to enforce the 14th
Amendment (focus on what is APPROPRIATE)
 So if a state/local government discriminates on the basis of a suspect or quasi-
suspect classification, then Congress may pass appropriate legislation to help
 Appropriate legislature under §5 includes:
 DPC: a pattern (more than 8 times in 100 years); need major
application to allow plaintiff to sue for money damages
 EPC: can’t add suspect classes or groups or quasi groups, cannot give
more protection than Constitution gives a group
 § that helps protect suspect and quasi-suspect classes is the only kind of
legislation that is an APPROPRIATE enforcement of the equal protection
clause
 Ex: § to protect against a state § that discriminated against Puerto
Ricans, a proxy for race
 § that empowers a private person to sue a state/local government for
money damages if state/local government discriminates against person in
suspect or quasi-suspect class
 Ex: § discriminating against gender, Congress passes § allowing those
women to sue state under EPC for cash damages
 Congress can only pass § under §5 that helps suspect or quasi-suspect
classes (either to protect, allow them to sue for money damages, or both)
 Congressional § may allow a private actor to sue state/local
government for cash damages if § is appropriate
 If this is appropriate, it will abrogate a state’s 11th Amendment
immunities
 § that aims to protect EPC & DPC will likely be deemed appropriate
 § that helps regain property that is taken IF there is a pattern of stealing
 § that protects people against a pattern or history of prejudice
 Look at burden’s on a state to comply to be “appropriate”
 Inappropriate legislation under §5:
 § that protect everything else group. Congress cannot protect them
UNLESS it is prejudicial and irrational means of doing so
 Need a pattern of discrimination that events a type of prejudice (not
logical; i.e. stereotypes)
 Ex: § cannot pass statute for discrimination against height
 § cannot give a group more protection than what the Constitution gives
because you feel bad for them
 § declares the Supreme Court unconstitutional
 Supreme Court is ultimate/sole decision maker on the Constitution
 § that is passed when a state has a logical explanation for discrimination
(ex: forest rangers must pass a physical test so more are men)
 If Congress passes legislation under §5, the only shield the state may raise
is the 11th Amendment and by saying the § is not appropriate
  This is done in Federal court

 11th Amendment: 1 more weapon of a state (in addition to 10th Amendment)

 No one person or organization may sue a state for money damages UNLESS 1 or
3 things:
 1. Plaintiff sues state official(s) personal finances
 Ex: police brutality: cannot sue police department, but victim can go after
cop’s personal finances
 2. State passes law under 10th Amendment and agrees to be sued
 Ex: § says: police department can be sued for a cop’s behavior
 OR
 3. If Congress passes appropriate legislation under §5 of the 14th Amendment
 This will abrogate a state’s 11th Amendment immunities
 Only way to abrogate/destroy/abolish a state’s 11th Amendment immunity is
through appropriate legislation under §5 (not commerce clause)
 If you want to sue a state, § must be passed under §5

Congressional Powers State’s Shields

Commerce Clause 10th Amendment against coercion
Tax & Spend Clause 10th Amendment against coercion
§5 of the 14th Amendment 11th Amendment immunity

 Dormant Commerce Clause: Art. I, §8, Cl. 3

 Deals with Congress; is Congress or state/local government trying to regulate
commerce
 Logic: if state/local government tries in state/local government way to
regulate commerce among the several states, the state/local law will be
deemed to violate the DCC
 If there is a state or local law where the Federal government seems to
regulate commerce among the several states, the state or local law is
unconstitutional and preempted because only Congress can regulate
commerce among the several states
 To know when a state regulates commerce among the several states, see
tests below
 Even if Congress does not pass any laws under the commerce clause, a
state/local government can still be deemed to violate the DCC if it tries to
regulate commerce among the several state
 Every law passed by state/local government under the 10th Amendment
falls into 1 of 2 categories to see if it regulates commerce:
 1. If a state/local law does not discriminate against out of state/local
commerce (either on its face OR on its impact)
  Undue burden test:
 Ask if the benefits to the state/local government (health/safety)
outweigh the burdens on interstate commerce
 If the benefits outweigh the burdens, there is no violation of
DCC
 Look out how much money it will cost a company to
comply with §
 Look at how many companies § will affect/impact
 Look at home many other states have a § that is similar
 If the benefits DO NOT outweigh the burdens, there is a
violation of DCC
 Helpful to show no one else has § and that state is alone
 Ex: state will argue that § is for health/safety; no 16
wheelers. Balance safety of state v. trucker’s burden to
comply
 If state’s affect on interstate commerce is clearly
excessive in relation to the benefits conferred to that
state, then violates of DCC
 2. If state/local law does discriminate against out of state commerce
(either on its face OR on its impact-where motivation for § is to
protect in-staters, ex: WA apples)
 Heightened review test:
 Ask if there is an important government interests for the law
and whether the means chosen are necessary
 Government must show:
 Important: usually must be health and safety (a state’s
interest). Almost never will be to economically enrich
the state
 Necessary: no other non-discriminatory way to
accomplish the important government interest (will
likely be unnecessary if own citizens are set to the same
standard as out of state citizens)
 If not important interests or not necessary means: § is in
violation of DCC and struck down
 Look for a state trying to protect one of its own industries
as a sign that its in violation of DCC (protectionism is not
permitted under DCC)
 Must make things even to everyone
 DO NOT APPLY DCC IF:
 1. When Congress under Commerce Clause powers has approved of the
state discrimination against out of staters:
 To see if this was done, look for a Congressional § with exception for
discrimination was authorized under the Commerce Clause
  Check to see if the § was constitutional by running the Commerce
Clause analysis:
 1. Regulates commerce. If yes
 2. Among the several states. If yes
 Federal § approving state § is constitutional, and state law is good
 Ex: CA imposed higher taxes on out of state insurers than in-
state. So § discriminated. AZ then passed retaliating § with
same concept. Federal §: permits one state to charge more in
insurance if that state charges you more. So you can retaliate.
Run Commerce Clause analysis: 1. Commerce: insurance for
money (exchange of money for goods/services); 2. Among the
several states: yes, involves 2 or more states. Federal § is
okay/upheld. Therefore, state § is okay.
 If unconstitutional under Commerce Clause, then default to DCC
analysis:
 Ex: Congressional §: states may remove stickers from out of
staters Commerce Clause analysis struck down/null & void
then default to the DCC analysis
 Ex: Congressional §: permits OK to discriminate against other
states with regard to purchasing minnows Commerce Clause
analysisstruck down/null & void default to DCC analysis
 Congress may not use any power other than Commerce Clause to
remove state discrimination from DCC analysis
 Do not apply DCC if Federal government approved of state doing it
 2. Market Participation Exception:
 If a state is deemed to be a market participant/actor, it removes the state
from any DCC analysis
 If a state acts like a private company, they cannot violate DCC because
private companies cannot violate DCC, only a state/local government
can
 States have 2 roles:
 1. Police officer makes rules and tells people what to do
 2. To make money
 The market participation exception applies when a state acts like
another actor in the marketplace (must be something for which
there is a national marketplace)
 Look for a state hiring people, making money, firing people,
buying things, selling things
 Watch for state government trying to make money and
discriminating against out of staters, which is permitted if they
are acting as a market participant
 Something conceivable that private companies can run it, a
state engaging in a business that a private
company/organization can also do
  Ex: university charges more in tuition for out of state
students. Although run by state, the government agency is
doing something for which there is a national marketplace
(marketplace for education)
 Ex: universities, museums, etc.
 NOT MPE: drivers license, gun license, and boat license.
Only the government can give you these, not a private
company
 Look for DOWNSTREAM REULATION:
 This is when there are 2 Ks (company cannot let buyer go yet,
company needs one more thing to take care of)
 Look for state acting like company, but giving person no options
 This means they are not acting like a company
 Look for state acting like a police officer and requiring payment or
compliance
 Then they fall out of the Market Participant Exception if they
engage in downstream regulation
 Key= 1 transaction
 Since market participation exception exempts a state from DCC
analysis, and the downstream regulation violations the market
participation, this means that the § is subject to DCC analysis

 Privileges AND Immunities Clause: Art. IV, §2 (4: AND)

 Similarities with DCC:
 1. Prohibits discrimination against out of staters
 2. And if law discriminates against out of staters, it is subject to heightened
review (must be an important government interest and no non-discriminatory
means available)
 Differences with DCC:
 1. P/I is for USC’s only (as USC, must be treated equally)
 Under DCC: aliens and corporations have standing
 2. P/I must show discrimination by law/law on its face discriminates against
out of staters (if it does not discriminate, leave it alone)
 Under DCC: can have standing even when a § does not discriminate, just
use the undue burden test (can challenge it either way, just use different
tests)
 3. P AND I: affects your right to work (or business license) and
fundamental rights (right to enjoy same rights/work from one state to
another; state cannot deprive you of this)
 4. P/I: No Market Participation Exception
 Only for DCC
 Proposition: no state/local government can discriminate against out of staters.
 Ask:
  1. USC?
 2. Discriminate against out of staters? If not, not under P & I
 3. Affect the right to work or fundamental right? If not, not under P & I
 If it does, heightened review:
 1. Government interest? Health/safety
 2. Non-discriminatory means? Usually a way to make it even
 Prohibits discrimination with regard to out of staters and the right to be able to
work
 Must discriminate against a right to work to violate
 Must be something your livelihood depends on

 Privileges OR Immunities Clause: 14th Amendment (14: OR)
 Similarities with DCC:
 1. Prohibits discrimination against out of staters
 2. And if law discriminates against out of staters, it is subject to heightened
review (must be an important government interest and no non-discriminatory
means available)
 Differences with DCC:
 1. P/I is for USC’s only (as USC, must be treated equally)
 Under DCC: aliens and corporations have standing
 2. P/I must show discrimination by law/law on its face discriminates against
out of staters (if it does not discriminate, leave it alone)
 Under DCC: can have standing even when a § does not discriminate, just
use the undue burden test (can challenge it either way, just use different
tests)
 3. P OR I: affects your right to travel (right to enjoy same rights/work from
one state to another). Cannot discourage people for fear of death
 4. P/I: No Market Participation Exception
 Only for DCC
 Proposition: no state/local government can discriminate against out of staters
 A state may not discriminate against out of staters with regard to travel across
state lines
 State violates this if the state discourages an out of stater from moving or make
them wonder if they will die if they move/travel to state
 Ex: California required people on welfare that moved to CA to only to be
allowed to receive the same amount of welfare they got in another state for the
first twelve months. Keep in mind, CA is most expensive state to live in

 Federal Executive Power: Art. II governs the Executive branch

 President has Constitutional right to execute the laws, Congress has the right to
make the laws
 Executive order: a unilateral order by the President to pass a law without
consulting anyone
 2 ways to get E.O. constitutionally:
  1. In cases of national security or military crisis (no time for Congress to
act)
 Do not need a Congressional § for these
 2. Need Congressional § under the Necessary and Proper Clause to
authorize the President to pass an executive order (not just necessary and
proper for what Congress wants to do, but for other branches of
government)
 President can only pass an executive order if Congress authorizes him
to do so
 Violation of separation of powers if the President issues an executive
order without a Congressional § that authorizes him to do so
 Less likely to be unconstitutional with Congressional §
 Executive privilege: President enjoys confidentiality not to share/turn over
confidential conversations since what the President does requires secrecy and do
not want to compromise security
 To claim privilege: MUST relate to work (ex: national security), official
conduct
 Officials:
 “Superior officials”: 2/3 approval from Senate
 Includes sec. of state, AG, ambassadors
 “Inferior officials”: Congress appoints them. President has no power to
appoint them unilaterally
 Includes in-house counsel for FBI
 To distinguish officials:
 1. Fired by someone in executive branch if he/she does not do job
properly?
 2. Person investigating 1 case? Narrow scope of responsibilities
 3. Once finished with job, gone? Office eliminated?
 Line item veto: given by Necessary and Proper Clause
 President can cross out sections of law he did not like on a bill and return to
Congress. Gave President power to create new law by picking and choosing
parts of a bill to enact
 ONLY Congress can make laws
 This violates separation of powers
 AG: works for USCs, does not have to abide by Presidents orders
 Accountable to Congress
 Non-delegation Doctrine: Art. I §1
 All legislative powers reside in U.S. Congress
 When one branch of government delegates some of its powers to another
branch, there is a presumption of violation of separation of powers
 Look for Congress taking more powers than permitted to do
 To pass law, Congress MUST present bill to Senate AND MUST
present bill to President
  Unilateral resolution if you do not, so violation of separation of
powers
 OR
 Congress delegating too much of its power to someone else (ex: to
bureaucratic agencies because Congress may not know the issues)
 If you permit the agencies to make their own laws, it could be a
violation of Art. I’s Non-delegation Doctrine
 Look for Congress wanting to regulate something and hand off to
another (either President or agency)
 This is a dead give away of violation of the non-delegation
doctrine
 When can Congress give administrative powers to bureaucratic agencies and
when can’t they?
 Congress can delegate powers when:
 The president has limits
 Perhaps if Congress passed laws after an agency wrote them (putting
limits on it)
 Look for Congress putting “strings attached” to get closer to passing as
constitutional under NDD
 Must put agencies on some sort of leash, agency with strongest
leash will least likely violate NDD
 Only need nominal string
 Ex: “we do not care how much money companies have to pay to
comply with new law”
 Congress CANNOT delegate powers when:
 The President has no limits (blank check to do what he wants)
 You allow an agency to write their own laws
 Ex pattern: Congressional § under CCPresidentBoard pass
own laws to regulate industry
 Constitutional problems of the administrative state:
 Removal power: Presidential removal powers”: Art. 2 §2
 Government appointments is the impeachment power
 Look for the most likely factor to support the president’s decision to remove
official without congressional interference
 2 types of federal government officials:
 1. Those the president can unilaterally remove
 Office where they do not need to make independent decisions.
Follows their orders from the President. These are usually higher
ranking people who we want to enforce their reliance/dependence
on the President
 Ex: postmaster, head of military
 2. Those that require Congressional approval prior to removal
(Congress can require the President to “show good cause”)
  Office we want to remain independent from the Presidency, make
decisions independent of President without fear of termination
 Ex: head of war claims commission, we want him or her to
exercise their independent decision without fear of being fired
 Ex: independent counsel completing DOJ investigation
 Congressional removal only: comptroller general
 Separation of powers and foreign policy:
 Separating power:
 President may not pass laws
 Congress may not enforce them
 Congressional § under necessary and proper clause authorizing president to
pass EO:
 This is okay since the Congress authorized it
 If President acts without Congressional approval, it will likely be struck
down
 Look for President acting unilaterally without Congressional approval
to issue an EO
 OK in war times/national security, but in many instances need
Congressional approval
 If president wants approval for his EO:
 1. Question of national security
 2. There is no time for Congress to act
 ex: bombing at pearl harbor
 If Congress has time to deliberate, then not valid
 Pattern:
 1. Authorization from Congress for executive order
 2. Foreign policy dispute
 Will be held constitutional if there was authorization and it was a
foreign dispute
 Enemy combatants:
 Not entitled to a judge/due process
 To know what you did wrong
 Can remain in detention
 Treaties v. EO:
 Treaties need 2/3 vote of Senate
 EO needs only unilateral agreement between President and foreign
country. Never been overturned as violation of separation of powers
 Misbehavior by President:
 Not subject to civil lawsuits if they are acting in the official capacity of
President (whether good or bad), if it is in the job description
 If president is out of line, he can be impeached with 2/3 vote of Senate
 Can raise shield if subject President to civil lawsuit in official capacity
 If not acting in official capacity, may be subject to suit
 President is accountable for behavior before he entered Presidency.
 President is accountable for behavior that is not done within
official capacity