Part One: History and Theory of Constitution 1. Why did we need a constitution? a.

The Articles of Confederation was ineffective in governing the nation in peacetime. i. US only had the powers expressly delegated and proved to be an inflexible, unmanageable standard. ii. States retained sovereignty 1. Fractured nation and states were adopting laws that discriminated against neighboring states iii. Since the power of the Federal govt came through the states, Fed was very limited in its ability to solve problems between states 1. As a result, States were not complying with the laws of Congress and the Fed was powerless to do anything iv. Fed could not tax or regulate commerce v. There was no Federal executive or judiciary 2. Constitutional Ratification a. Was Constitution unlawfully ratified? i. Art. 13 of Art. Of Confed. required unanimous consent to revise Art. ii. BUT: Constitution Art. VII required 9 states to ratify 1. Hamilton: The ends justify the means 2. Formalist: Constitution is illegal 3. Madison: Constitution is great mechanism to embody the will of the people whereas the Art was a crude approximation. 3. What did Constitution do? a. Created a federal govt whose power came directly from the people and not from the states. Therefore, the federal govt could override the states. b. Divides the federal govt into three branches. i. Art I- creates the legislative power and vests it in Congress ii. Art. II- places executive power in the president iii. Art. III- judicial power shall be in SCOTUS and inferior courts. c. It created a strong federal govt and weakened the individual powers of the states. i. Supremacy clause: state and local laws are deemed preempted if they conflict with federal law. 4. Anti-Federalist Arguments a. Constitution is inconsistent with republicanism b. It removes the people too much from the system of government i. Creates a large, powerful central govt 1. Exactly what the revolution fought against c. It will allow majority to trample the rights of the minority d. We are better off with smaller, localized govt where people are as similar as possible and as involved in the political process as possible. e. Participating in govt will foster civic virtue, educate people, and make them better people

f. Creating a strong central govt makes tyranny more likely 5. Federalist Arguments a. Constitution isnt illegal i. Popular sovereignty trumps legal formalism b. Men are not angels and should not be trusted with power i. Solution: Fracture power between state and fed govt c. Recognized danger of Faction i. The Constitution makes a few people responsible for a very large group. ii. The larger the group the harder it is for any one faction to control 1. Therefore it will be inevitable that to be elected, the factions will be diluted and will be unable to invade the rights of a minority. d. Ambition must be made to combat ambition i. Checks and balances at a national level 1. Parchment barriers alone wont be effective in preventing the branches from usurping power from the others. ii. Fracture power b/t federal and state govt 1. Double security to protect people iii. Bicameral legislature iv. Large republic makes tyranny less likely v. Prevents one factions domination over minorities 6. Checks and Balances a. By dividing power b/t the three branches, ambition is made to combat ambition within the fed govt i. Makes tyranny less likely b. Branches are not entirely separate but are somewhat dependent on the others i. However, each one has supreme power over the others in certain areas c. Madison believed the legislature was the most dangerous branch and therefore the constitution gives a lot of power to the other branches and limits Congress powers to herein granted Part Two: Structure of Constitution 1. The Structure of the Constitution: a. Article I a. The powers of Congress are limited by the words herein granted but not the word expressly. b. The powers of Congress are set out in section 8.

b.

c.

d. e. f.

c. It says a Congress of the United States as opposed to the articles where Congress was the United States. Article II a. The executive power, which shall be vested in the President of the United States. b. Notice that it doesnt have any limiting language on that power. i. This is the source of the argument for a strong executive not limited to the duties listed. Article III a. The Judicial power which shall be vested in one Supreme Court and such inferior courts that Congress creates. i. Section 2 of this article says that the judicial power shall extend to implying a limit to that extent. Article IV governs the relationships of the individual States with each other and their citizens. Article V tells how to amend the constitution. Article VI tells of the Supremacy and significance of the Constitution.

Part Two: The Relationship between the Nation and States

1. Federal Power of Congress and the States a. Context i. Art. I, 8: Enumeration of powers to Congress 1. Increases power to levy tax, regulate interstate commerce, etc. 2. Limits Fed power by restricting authority to powers express or implied in the Constitution ii. Art. I, 8, cl. 16: Necessary and Proper Clause 1. Congress has power to create all laws which is necessary and proper for carrying into execution the foregoing powers th iii. 10 Amendment 1. Powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. a. Left out expressly which was in the Articles of Confederation in order to somewhat narrow States powers. b. 3 overarching points on Congressional Power i. Enumerated Powers

1. Congress may act only if there is express or implied authority to act in Constitution. 2. Art. I, 8: way of limiting power, protecting individual liberty, and state sovereignty ii. Federalism 1. States retain authority in many areas and state laws only preempted when they conflict with Fed a. Supremacy clause iii. Structure of Fed Govt as a check c. Madisons Rules for Interpreting Leg. Authority i. Construction that destroys characteristic of govt cant be just 1. Govt of limited powers: if construction expands power it cannot be justified ii. If clear textual command and meaning its command must be followed 1. Regardless of pragmatic policy considerations iii. In unclear meaninglook to the meaning the framers intended if theres reliable evidence 1. Writings of 1798 control iv. If unclear meaninglook to the consequences 1. Framers intentcreate good govt a. If interpretation leads to bad consequencesprobably incorrect interpretation i. Brings in policy concerns v. Degree of Importance 1. If its a really important powerframers would have included it 2. If power is left outlikely a good reason framers did not include it a. Fundamental powers should have been included 2. McCulloch v. Maryland a. Rule of Law i. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. ii. The federal Constitution and the laws made pursuant to it are supreme and control the constitutions and the laws of the states. b. Significance i. Seminal case articulating a broad vision of Federal power and its relationship with the States. c. Background

i. To limit the operation of the Bank of the U.S., MD imposed a tax on any bank not charted by the state. ii. Bank refused to pay the tax. iii. James/MD sued to recover the money owed under the tax. d. Q: Does Congress have authority to create a Bank? i. Yes. Four Arguments 1. History a. Historical practice suggests Bank is constitutional i. Successive leg and judges have upheld the constitutionality. b. History should not be lightly disregarded and Court should strike down only if its clear the Bank is unconstitutional i. When in doubt, defer 2. Compact Federalism a. State Arg: States retain ultimate authority b. SCOTUS i. People, not states are sovereign ii. Uses popular sovereignty rhetoric to lead towards expansive view of Fed power 3. Characteristic of Constitution a. Const is a great outlinedoes not specify every power that Congress has been granted b. Structural argument c. Congress is not limited only to those acts specified in Constitution i. Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority 4. Necessary and Proper Clause a. Authority to create Bank b/c doing so is necessary and proper for the Fed Govt to lay and collect taxes and regulate commerce. b. Congress can exercise the means needed to reach the ends which are the powers granted to them in the Constitution. i. Necessary = useful 1. Not absolutely necessary e. Is Maryland tax constitutional? i. No 1. State power to tax = power to destroy a. The power to tax is held in check by people who grant the power to the politicians. i. Democracy-promoting/representationreinforcement argument: when states tax own constituents, there is a political check.

Same when federal govt taxes. But here, a state taxes the nation, undermining the check. b. Basis for rep-reinforcement view of ConLaw: the judiciary should respond wen democratic processes break down and certain groups are not able to adequately participate in democratic system. f. Modern Implications i. Federal govt is supreme over the States 1. States have no authority to negate Fed actions ii. Court expansively defines the scope of legislative power iii. Court limits the ability of states to interfere with federal activities

Part Three: The Judicial Power

1. General a. The power of the courts to review legislation to determine whether it is consistent with the Constitution. b. A fundamental question in constitutional law is why courts are authorized to exercise this power given the absence of this provision in the Constitution. 2. Marbury v. Madison: Authority for Judicial Review of Federal

Legislation:
a. Rule of Law: i. The SC has the power, implied from the Constitution, to review acts of Congress, and if they are found repugnant to the Constitution, to declare them void. b. Background i. Marbury was suing to get his commission to be a justice of the peace from Madison, the newly appointed Secretary of State. He wanted the Court to issue a writ of mandamus ordering Madison to deliver the commission. ii. Marbury claimed the Judiciary Act of 1789 authorizes SCOTUS to grant mandamus in a proceeding filed initially in SCOTUS. c. Issue/Holding i. Does Marbury have a right to the commission? 1. Dicta: Yes b/c all appropriate procedures were followed in appointment. a. Establishes judicial review over executive actions ii. Do the laws afford Marbury a remedy? 1. Yes. a. SC can afford remedy against executive when there is a legal duty to a specific person

b. SC cannot afford a remedy when it deals with a matter left to executive discretionpolitical questions iii. What is appropriate remedy? Can SCOTUS issue this remedy? 1. Appropriate remedy is mandamus and Judiciary Act authorizes SCOTUS to issue mandamus. iv. Can SCOTUS declare laws unconstitutional? 1. Yes. a. The power granted under Judiciary Act to issue writs of mandamus is unconstitutional because the constitution limits the areas where the Court has original jurisdiction. i. Issuing writs is not one of them. d. Marshalls Arg for Judicial Review i. Constitution imposes limits on govt powersthese limits are meaningless unless subject to judicial enforcement 1. Reads Art. IIIs enumeration of original jurisdiction to be a ceiling of federal jurisdiction a. Reads Art. 13 as expanding the enumerated jurisdiction under Art. III (which limits) i. If Congress can expand jurisdiction, Art. IIIs enumeration would be mere surplusage 2. Counter Arg a. Art. IIIs enumeration of the Courts original jurisdiction still has meaning even if Congress can increase it. i. Art. III viewed as the floor, the minimum grant of jurisdiction that cant be reduced by Congress. ii. The Supreme Court can declare laws unconstitutional because the constitution is the supreme law of the land (otherwise there would be no point in having a constitution) 1. Therefore if there is a contradiction between the constitution and a law, the law is void. iii. As it is the province of the judiciary to say what the law is (and they are bound by oath to uphold the constitution) they must then say when a act of Congress is not law b/c it repugnant to the Constitution. e. Expansive view: i. It is the role of the court to uphold and interpret the Constitution, other branches should defer to the Court re: constitutional questions because they are the best suited to answer those questions. Judges declare what the law is. f. Narrow View

i. Congress may have their own interpretation of the Constitution and they are just exercising that interpretation and their own oath to uphold it. 3. Judicial Review of State Legislation a. Lochner v. New York: Counter majoritarian Difficulty i. Facts 1. NY state leg passes law that bakers cant work more than 60 hours per week, or 10 hours in a day 2. SCOTUS declares the law unconstitutional b/c it violated 14th Am due process by interfering with freedom of contract and b/c the law did not serve a valid police power. 3. SCOTUS said it was their duty to carefully scrutinize state legislatures ii. Dissents 1. Harlan a. Need for judicial deference to democratically elected legislatures i. When court strikes down a law, it means the democratic function of the legislature cannot unfold b. Court is substituting their own views for the democratically elected legislature i. Courts should not inject themselves into this arena 2. Holmes a. Court should not use judicial review to limit legislative actions (majoritarian foundation) and protect a certain economic theory. i. If court has that power, what is the limit? b. Counter majoritarian difficulty i. Unelected court reviewing legislature thwarts the democratic process 1. Dont want 9 unlected judges deciding policy for people ii. Counter Arg 1. Hamilton (no. 78): judges should decide based on judgment not will; 2. also, when striking down statute as unconstitutional, they are upholding the Constitution, which is the ultimate voice of the People over a statute, passed merely by peoples reps. 4. Pro Judicial Review a. SCOTUS review of executive and legislative action re: constitutionality ensures that the written Constitution really means something, and keeps both L & E within boundaries of the Constitution. b. Judges must declare what the law is;

i. Constitution is the supreme law so judges must determine constitutional issues in laws/cases brought before them. (If L makes it, E executes it, need J to review it) separation of powers. Checks and balances. c. National Uniformity of Law d. Protection of Federal Rights e. Ensure protection of political minorities i. Ely: judicial review promotes democracy when courts protect the rights of minorities to participate fully in our democracy and courts generally should guard against breakdowns in democratic process 5. Con Judicial Review a. Tension b/t review and democracy b. Interpretative difficulty: a few unelected judges have large power to interpret laws as they see fit in cases wherein there is a lot of room for differing interpretations. c. If court strikes down law, public may ignore courtloss of credibility

Constitutional and Prudential Restrictions on Judicial Power

1. General a. Justiciability doctrines determine which matters federal courts can hear/decide and which must be dismissed. 2. Constitutional Limits a. Art. III, 2: defines the federal judicial power in terms of nine catergories of cases and controversies i. Requirements for Art. III Jurisdictions 1. Concrete and non-hypothetical (Advisory Opinion) 2. Actual, concrete injury (Standing) 3. Dispute must be ripe and not moot 4. Must be justiciable (political question) 3. Advisory Opinions a. Art. III requirement i. Must be an actual dispute b/t adverse litigants ii. Substantial likelihood that court decision in favor of claimant will have some effect b. Policy i. SOP maintained by keeping courts out of legislative process 1. Judicial role is limited to deciding actual disputes, not advising Congress ii. Judicial Resources are conserved iii. Restriction ensures that cases will be presented in terms of specific disputes, not hypothetical questions. 4. Standing a. Art. III Requirements

i. Party must allege that he or she suffered or imminently will suffer an injury ii. Party must allege that injury is fairly traceable to defendants conduct iii. Favorable court decision is likely to redress the injury. b. Prudential Standing Doctrines i. Third Party Standing 1. Generally, P must assert only his or her own rights and cannot raise the claims of third parties not before the court ii. Generalized Grievance 1. Cannot bring abstract questions with wide ranging public significance iii. Zone of Interest 1. Ps claims must fall within the zone of interest protected by statute in question. c. Policy i. Promotes SOP 1. Restricts the availability of judicial review and keeps the judiciary from reviewing every action by the other branches. ii. Judicial Efficiency 1. Prevents a flood of litigation by those who have only an ideological stake in the outcome iii. Improves judicial decision-making 1. Requiring a specific controversy with an actual advocate with sufficient personal concern will ensure that he effectively litigates the matter. iv. Fairness 1. Ensures that people will only raise their own rights and not others. 5. Mootness and Ripeness a. Mootness Doctrine i. Requirement that an actual controversy be in existence at all stages of review, not merely at times the complaint is filed. b. Exceptions i. Cases involving wrongs capable of repetition yet evading review. Roe v. Wade (1973) c. Policy i. Avoids unnecessary court decisions ii. Limits the role of the judiciary iii. Saves courts institutional capital for cases truly deserving decisions. d. Ripeness Doctrine i. Requirement that separates matters that are premature for review b/c the injury is speculative and may never occur

1. Compared to cases where the injury has occurred and appropriate for judicial review. ii. Policy 1. Not a true case or controversy until there is a real injury 2. Waste of resources to deal with speculative issues that may never amount to an actual injury. 6. Political Question a. General i. Refers to subject matters the Court deems inappropriate for judicial review because although there has been an alleged Constitutional violation, the resolution of that conflict should be left to the political branches. b. Marbury v. Madison definition i. Is this case essentially political (left to discretion of political branch) or legal (statutory, constitutional)? c. Categories of PQ: Baker v. Carr i. A textually demonstrable constitutional commitment of the issue to a political dept; or ii. A lack of judicially discoverable and manageable standards for resolving it iii. An impossibility of deciding without first making a policy determination for a nonjudicial branch iv. When deciding issue would express a lack of respect due to a coordinate branch v. Unusual need for unquestioning adherence to political decision already made vi. Potentially of embarrassment from different pronouncements made by various departments on one question. d. Policy i. Passive Virtues-Bickel 1. Accords courts the ability to avoid controversial constitutional questions and thus, preserve the judiciarys political legitimacy ii. Expertise 1. Allocates decisions to the branches of govt that have superior expertise in particular areas. iii. SOP 1. Minimizes judicial intrusion into the operations of the other branches e. Specific Areas i. Republican form of govt clause and judicial review of electoral process ii. Foreign policy iii. Congressional Self-Governance iv. Process for ratifying amendments v. Excessive interference with coordinate branches

vi. Impeachment f. Examples i. Congressional Self-Governance: Powell v. McCormack 1. Holding a. Constitution commits to the discretion of Congress only the power to determine if a member meets the qualifications stated in Art. I, 2requirements of age, citizenship, and residence. b. SCOTUS is the one that decides whether the Constitution has given something over to one of the political branches. c. Thus i. Art. I, 5 is at most a textuallydemonstrable commitment to Congress to judge ONLY the qualifications expressly set forth in the constitution. 2. No a PQ b/c it is Courts duty to decide what the Constitution has given other branches. a. Since Congress was claiming a right not found in Constitution (exclusion, not expulsion), it was the Courts duty to determine if Congress actually had that power. ii. Amendment: Coleman v. Miller 1. Congress has the sole and complete control over the amending processPQ and not appropriate for judicial review

PART FOUR: THE EXECUTIVE BRANCH IN CONFLICT

The Veto Power 1. The Legislative Veto: INS v. Chada a. Background i. Rise of Administrative Agenciesissue arises as to power agencies will be checked and controlled. 1. Congress could enact laws to overturn agencys rule but that would be inefficient and limit the checking power ii. Create Legislative Veto 1. Congress included in statutes provisions authorizing Congress or committee to overturn an agencys action by doing something less than adopting a new law. 2. INS v. Chada a. Rule of Law: Because it constitutes an exercise of legislative power and is thus subject to the bicameralism and presentment requirements of Art. I , the federal statute purporting to authorize a one-house veto of the Attorney

Generals decision to allow a particular deportable alien to remain in the U.S. is unconstitutional. Formalistic View: Congress may legislate ONLY if there is bicameralism, passage by both House and Senate, and presentment, giving the bill to the president to sign or veto. i. Presentment: Green light theory 1. Need all three branches to agree before status quo is changed a. Legpass bill, get approval in both houses b. Prezmust enact the bill and enforce the law c. Courtmust uphold the law as constitutional c. Bicameralism and presentment serve essential const. functions i. Prez participation in leg process is check against Congress ii. Bicameralism forces full study and debate in separate houses iii. Prez veto checked by 2/3 of Congress can overrule it 3. Dissent a. Pragmatic Argleg veto is indispensible to modern govt (agency) i. Leg veto is an essential check on the broad delegation of legislative powers to the agencies. 1. If no leg veto, Congress must either; a. Refrain from delegating the necessary authority to agencies and writing every law in Congress, OR b. Abdicate its lawmaking function to the executive branch and independent agencies 4. Analysis a. Dispute about the proper form of analysis in SOP cases i. FormalisticText and framers intent ii. Pragmaticconsider the functional justification for leg veto 5. Take Away a. If Congress wants to overturn an executive action, there must be bicameralism, passage by both houses of Congress, and presentment, giving the bill to the president for signature or veto. b.

Line-Item Veto: Clinton v. City of New York 1. Background a. Federal statute that created the authority for a presidential line-item veto i. Empowered the prez to veto (more precisely to cancel) particular parts of appropriation bills while allowing the rest to go into effect b. Congress could overturn such a veto by majority vote of both houses c. Purpose: Reaction to Chada i. Required presentment to prez ii. If prez vetoes and no disapproval bill in Congressbudget in tact

iii. Allows prez to cut out any political compromise (pork) that isnt in the nations best interest. 2. Issue: Can congress expand the presidential power? a. Congress had given the prez the power to veto (or cancel) particular parts of appropriation bills while allowing the rest to go into effect. i. Congress could overturn such a veto by a majority vote of both houses. 3. Rule of Law: Formalistic View a. This statutory increase in presidential power is unconstitutional i. Prez, by exercising veto, was changing a law adopted by congress without being a legislative act. 1. In both legal and practical effect, the prez has amended two acts of congress by repealing a. No constitutional authority for prez to enact. Amend, or repeal statutes. i. Legislative process of constitution must be strictly adhered to and cannot be altered by legislative action (line-item veto). b. The prez only constitutional power was to sign bill into law or veto the entire billno piecemeal veto. 4. Dissent a. Breyerstressed the practical need for line item veto 5. Profs View a. Line item veto is constitutional i. When Congress passes budget, they appropriate up to X amount 1. Prez has discretion to decide how much to spend a. Not rewriting law by not spending it, rather hes not spending what has been appropriated. ii. Congress designated the line item veto and has full knowledge of its use b. Non-delegation doctrine: Certain core powers of govt and of a particular branch cant be vested in another branch or individual i. Kennedy: Congress crafts budget and therefore, prez has some discretion in spending in order to keep deficit manageable 1. However prez has SO much discretion with line-item that the prez is legislating and violating non-delegation ii. Kennedy is always rejected on his non-delegation views PROSECUTION POWER 1. Executive has power to exercise discretion as to whether or not there shall be a prosecutionCox a. SOP concerncourts are not to interfere with the free exercise of the discretionary power of the executive branch. i. Courts may not compel or mandamus a prosection, nor can a grand jury.

b. HoweverPresidents power to affirmatively prosecute can rather easily be thwarted by grand juries and courts i. They may simply refuse to agree to an indictment EXECUTIVE PRIVILEGE 1. Background: Executive privilege is not in the text of the Constitution, but can be derived from the structure of the document a. Defability of prez to keep secret conversations with or memoranda to or from advisors. b. Policy i. Privilege is necessary in order for prez to receive candid advice ii. Privilege is necessary to protect national security 2. U.S. v. Nixon a. Facts i. Special Prosecutor appointed to investigate burglaries in which top justice dept officials were suspected of involvement ii. SP subpoenaed tapes from Nixon: 3 Args b. Nixons 3 Args i. The prosecutor ultimately works for me and therefore I can say to him dont prosecute here. 1. Ctlook to controversy, not names. Clearly SP and prez are adversaries ii. The Subpoena violates the Presidents absolute executive privilege, and the judiciary doesnt have the power to review the President. iii. Even if there is not absolute privilege here it should be privileged because it is confidential discussions between the President and his advisors and that tops a subpoena. c. Holding i. MarburyCourt should not defer to Nixons claim of absolute privilege b/c it is the role of the Court to say what the law is. ii. Recognize existence of Exec Priv. 1. Inherent presidential power a. In constrast to Youngstown (Black) that in absence of statutory authorization, a prez action must be based on some provision of the constitution. iii. Priv. isnt Absolute 1. Exec priv must yield when there are important countervailing interests. a. Absolute priv would interfere with the ability of judiciary to perform its constitutional function iv. Courts must be properly respectful to the Prez and prevent vexatious subpoenas. APPOINTMENT POWER Art. II, 2: The president shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officer of the United States, whose Appointments are not

herein otherwise provided for, and which shall be established by Law: but Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, to the Courts of Law, or in the Heads of Departments. 1. Main Issues a. Who is an inferior officer within meaning of Art. II? b. May Congress assign the appointment power in other ways besides those enumerated in Art II? i. Specifically, when, if at all, may Congress give the appointment power to itself or its officers? 1. Morrison v. Olson a. Significance: Established a new standard Do the removal restrictions impede the presidents ability to perform his constitutional duty? In this case, no, because AG is part of the executive. i. Held it was permissible for Congress to vest appointment in the federal courts b/c the independent counsel is an inferior rather than a principal officer. b. Court upheld Ethics in Government Act, i. Which vested power in the Special Division (3 judge special court) to appoint independent counsels at the request of the AG. ii. Vesting this power in the Special Division is consistent w/ Appointments Clause and doesnt violate separation of powers. iii. More over, it didnt impair the constitutional functions of another branch, nor was there an incongruity between normal judicial functions and this appointment responsibility. c. Dissent: Scalia i. Power to prosecute is a quintessentially executive authority and that it usurps presidential power for Congress to vest this authority in the independent counsel. 1. Prosecution is purely executive function 2. BUTCongress has given that power to a person who is not within the control/supervision of the prez ii. Constitution presumes that all executive powers are within the control of the president and this it is unconstitutional for Congress to vest the prosecutorial power in the indie counsel d. SOP: Functional vs. Formalist i. Functional (Majority): Obvious benefit to having investigations of executive officials conducted outside the executive branch

1. Indie is desirable b/c an independent individual, appointed by Art. III judges, is conducting the investigation and prosecution rather than by Justice Dept, who are ultimately answerable to AG and prez. ii. Formalist (Scalia): Exec power is vested solely in the prez 1. Any grant of prosecutorial authority to an independent counsel is unconstitutional e. Differences: i. This test goes across the government regardless of the branch affected. ii. Distinguished Chadha by holding that the Ethics Act did not directly give Congress more power. iii. Distinguished from Bowsher because Congress had no role in removing IC. iv. Distinguished from Humphreys Executor and Weiner because the central question is not the function of the office, but whether the removal restrictions are such a nature that they impede the presidents ability to perform his constitutional duty f. Inferior Officer qualifications: limited jurisdiction/power, limited tenure, and removal by a higher executive officer. i. the AG was in charge of requesting the indie counsel and the AG had removal power (for cause). 2. Legislative Creation and Control of Executive Functions: a. A purely executive officer whose must be removable only by the executive not the legislature even if they only have a consent power. (Myers) b. A quasi-legislative body can be set up with different standards because it is not within the executive branch alone. (Humphreys executor) c. Superior officers must be appointed by the President with consent of the Senate but inferior officers can be appointed in fashions created by Congress as they think proper in the President alone, the courts of law, or the Heads of departments. d. Even though Congress can delegate their power to executive officers they cant delegate it to lower offices in the legislative branch. (Bowsher, Stevens Concurrence). e. If a Commission is not appointed pursuant to the appointment clause (for either inferior or superior officers) then it cant perform executive functions. f. Even a purely executive officer need not be removable by the President at will as long as it is an executive officer that can remove him. Removal Powers

1. EXAM APPROACH/ANALYSIS a. FirstIs the office one in which independence from the president is desirable? i. If soCongress may limit the removal power, and Weiner indicates that the judiciary may limit removal even in the absence of a statutory restriction. ii. Issue: is there a test for when independence is desirable? 1. Humphreys: distinguishes b/t purely executive tasks and those that are quasi-leg or quasi-judicial a. Difficult to apply in practice 2. Morrison Test: Are the removal restrictions of such a nature that they impede the Presidents ability to perform his constitutional duty? iii. Take Away: Analysis must be functional and contextual 1. Are there good reasons why the officer should be independent of the president? b. SecondAre Congress limits on removal constitutional? i. Congress cannot completely prohibit presidential removal but it can limit removal to where there is good cause. ii. Congress cannot give itself sole power to remove an executive official or structure removal so that there is a double layer of insulation from presidential removal. 1. Myers v. United States (1926) Stands for the broad proposition that any congressional limits on the removal power are unconstitutional. a. Issue: Can the President remove the Postmaster General at will, without cause? b. Holding: Yes. The president has the exclusive power of removing executive officers of the US whom he has appointed by and with the advice and consent of the Senate. c. Reason i. Ability of the prez to control the personnel in administrative positions is central to the executive power. ii. But the President alone can remove him. 1. Under take care President alone, not subordinate officers, must take care that laws are faithfully executed, as such he should be able to fire The statute saying otherwise, the Tenure of Office Act, is struck down (same statute in Johnsons impeachment). iii. Senate approval undermines the idea of an efficient, unitary executive d. Policy: separation of powers, purpose, take care 2. Humphreys Executer (1935) Much Different Position: Congress could, for some officers and under some circumstances, limit the removal power.

a. Issue: Can the President remove the head of an administrative agency at will, despite a statute limiting removal to only for reason (e.g. neglect of duty)? b. Holding: No. i. The Court unanimously upheld the statute. ii. The FTC is not an executive agency. 1. Its a quasi-legislative, quasi adjudicative independent agency created by Congress; a. If responsive to the President, that gives President those quasi legislative/adjudicative powers. iii. Presidential at-will removal would undermine checks and balances, purpose of FTC (indie agency that needs to make long-term, unpopular decisions, requires insulation from political pressures) c. Compared to Myers i. Myers only applied to purely executive officers ii. Humphreys applies to officers in quasi-leg/quasi-judicial positions iii. Practical Effect 1. Draws distinction between cabinet officials and those who are in independent regulatory agencies. 3. Bowsher v. Synar (1986) a. Facts: Comptroller General, head of GAO, is appointed by President and can be removed by Congress by joint resolution but only for reason. i. If spending exceeded deficit ceiling, CG, who is the head of a congressional agency, was instructed to impose budget cuts 1. w/ Gramm-Rudman Act, CG is given power to report to President a binding list of budget cuts. b. Holding: The Court struck down the Gramm-Rudman Act, for giving the CG executive powers. Congress can remove an executive officer only by Impeachment. (If congress can control CG, gives it undue power over execution.) c. Stevens, concurring: The CG is really acting legislatively under the Act. Congress cant delegate its legislative power though; it can only legislate as a whole. No shortcuts. d. Majority+Stevens: Congress cannot delegate executive or legislative power to its own agents. Chadha says no delegation of legislation to a sub-set or own agents. Bowsher: no delegation of executive power. 4. Morrison v. Olson (1988) Indie Counsel a. General i. Distinguished Bowsher and upheld the constitutionality of limits on the presidents ability to remove the indie counsel. b. The Court upheld Ethics in Government Act, which provides for indie counsels appointed by a special court if the AG determines reasonable grounds for further investigation regarding high-level executive branch officials. i. The AG had removal power, but only for cause

c. Issue: i. Whether Congress can impose a for cause restriction on the Presidents removal power does not depend on whether or not the official is considered purely executive. ii. Previous cases turned not on defining rigid categories but on ensuring that Congress does not interfere w/ the President exercise of executive power and his constitutionally appointed duty to take care. d. The restrictions on the removal power dont interfere w/ the exercise of executive power or the take care duties. e. Nor did the act violate the principles of separation of powers by disrupting the proper balance. f. The Special prosecutors power was limited strictly to the case at hand. g. Shes an inferior officer appointed by the AG; not a principal officer. 5. Scalia, dissenting: a. The indie counsel exercises purely executive power. The President, in whom the Constitution invests the executive Power must be able to remove the indie counsel at will. Scalia calls her a principal officer; shes not truly subordinate to anyone. Note: problem of who polices the police. Eventually, Congress let this statute expire. DOJ regs for special prosecutors remain 1. EMERGING PRINCIPLE a. In general, the president has the power to remove executive officials, but Congress may limit the removal power if it is an officer where independence from the president would be desirable (Humphreys). b. Congress cannot, however, completely prohibit all removal, and it cannot give the removal power to itself i. Other than by exercising its impeachment power c. Nor can congress prescribe a double layer of protections from presidential removal whereby inferior officers may be removed only for just cause by officers who may be removed by the Prez only for just cause. 2.

WAR POWERS 1. General a. Court rarely speaks i. Little case law on as to which circumstances warrant the prez using troops or what Congress may do to suspend US involvement in war ii. Political Questions

1. SCOTUS rarely resolves questions as to the conduct of foreign policy 1. Congress: Art I 8 a. Declare War; Issue Letters of Marque and Reprisal (armed conflicts not amounting to war); make rules for handling war prisoners [11] Provide for Army [12] and Navy [13] Make Rules for regulating armed forces [14] 2. President: Art II a. Commander in Chief. i. Want a unitary executive in war. No war by committee. One man accountable, and a civilian. b. Executive can repel sudden attacksbut not declare war This is critical question today. c. Elys approach: President should go to Congress first. If he feels that he cannot wait, then he should go to Congress simultaneous w/ action. d. Note-Almost always there is enough time. And Congress can give great deference to its intelligence and military committees w/ better info. i. Prior to Vietnam, wars every 20 years or so. Since, every 5 years or so, not counting 2 over last 7 years

Youngstown Sheet & Tube v. Sawyer: 1952 (C 358) 1. Background a. Truman issues Executive Order 10340 i. Directs Secretary of Commerce to take possession of the steel mills and to keep them running 1. Truman believed the steel strike would endanger the national defense and the war effort in Korea. b. Truman reported this action to Congress i. Congress took no action in response to the seizure 2. Issue a. What is the scope of inherent presidential power? i. The ability of the president to act without express constitutional or statutory authority 3. Blacks Majority a. No inherent presidential power i. The prez may act only pursuant to express or clearly implied statutory or constitutional authority. 1. The presidents power, if any, to issue the order must stem either from an act of congress or from the constitution itself. ii. Take Care Clause 1. Seizure is job for Congress, not the prez a. Prez takes care that laws enacted are followed but he cannot enact laws on his own.

i. Seizure is essentially lawmaking and therefore unconstitutional for the prez 2. Prez can only recommend laws, not enact them and can veto passed laws b. Application i. Trumans order was unconstitutional because there was no statute that expressly authorizes him to take possession of property like he did here and there is no express constitutional language granting this power. c. Policy i. Belief that inherent authority is inconsistent with a written constitution establishing a govt of limited powers. 1. No undefined residuum of power which he can exercise because it seems to him to be in the public interest. d. Problems with Black i. Historical: Emancipation Proclamation 1. No textual power to take property 2. Justified under commander in chief power 4. Frankfurter a. SOP is a doctrine of necessity (men arent angels) but also flexible i. If there is grey area in legislation, courts should be deferential and not strike it down, especially in wartime b. BUT: Congress explicitly rejected giving prez the authority to seize industry and clearly and emphatically withheld the power from prez c. THUSSeizure is unconstitutional 5. Douglas a. The prez can act without express statutory or constitutional authority so long as the prez is not usurping the powers of another branch of govt or keeping another from performing its duties. b. Seizure is Unconstitutional i. Prez is forcing the expenditure of federal funds to compensate the steel owners for the taking of their property 1. Thus, prez power is impermissibly usurping Congress spending power. ii. The prez might seize and the Congress by subsequent action might ratify the seizure. But until and unless Congress acted, no condemnation would be lawful. The branch of govt that has the power to pay compensation for a seizure is the only one able to authorize a seizure or make lawful one that the prez has effected. That seems to me to be the necessary result of the condemnation provision of the 5th amendment. 6. Jackson

a. Prez act unconstitutional because Congress had denied the prez the authority to seize industries. b. Three Zones of Prez Power i. First: Prez acts pursuant to an express or implied authorization of Congress 1. Authority is at its maximum 2. All prez acts presumptively valid ii. Second: When the prez acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers. 1. Zone of silence in which he and congress may have concurrent authority or in which its distribution is uncertain. a. In judging constitutionality of certain actions, it depends on the specific facts and circumstances at hand iii. Third: When the prez takes measures imcompatible with the expressed or implied will of Congress, his power is at its lowest ebb. 1. Prez is disobeying a federal law, thus his actions will be allowed only if the law enacted by Congress is unconstitutional. c. Application i. Zone Three 1. Congress expressly passed statute that forbids the prez from seizing industry. Jackson says that usage of Presidential power could be grouped in three categories. In this case the presidents action is in the group where he acts against Congress and therefore must back himself up with direct Constitutional power. The power as used in this case is simply not there.

1. Domestic Affairs: a. There are three basic views of the Presidents power: i. Because there is no limiting language of herein granted or shall extend by the President he has absolute executive power over anything not expressly given to another branch or taken from him in the Constitution. (Held by many Presidents especially TR) ii. The Presidents power is limited to what is specified in the Constitution Article II section 2 & 3. iii. Somewhere in between as most eloquently set forth in Justice Jacksons concurrence in Youngstown. a. In the Steel seizure case Justice Jackson says that there are three categories in which the President exercises power.

b. 1. Maximum Authority: When the President acts pursuant to authorization by Congress, because then he has all his power plus everything Congress can delegate. In such cases his actions are given the strongest of presumptions of being valid, with the burden of persuasion resting on the other side. c. 2. Twilight Authority: When Congress hasnt indicated one way or another and the issue is one of which it is unclear whether Congress or the President has authority (or they both do). In this area it is likely to depend on the imperatives of events rather than any abstract theories of law. d. 3. Lowest Ebb Authority: When the President acts against the expressed or implied will of Congress his power is limited to those things that the Constitution gives the President sole power over.

e. Here, it first the third. President argues Commander in Chief, and Jackson rebuts no doctrinewould seem to me more sinister and alarming than that a President, whose conduct of foreign affairs is so largely uncontrolled and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nations armed forces to some foreign venture. Congress declares war, primary responsibility for supply armed forces too. [The President] has no monopoly of war powers. Purpose of President C-in-C power was no war by committee and civilian accountability. a. Rebutting argument that President should have emergency powers based on gloss, [The Founders] suspected that emergency powers would tend to kindle emergencies. i. -Fed No. 48 tyranny may be apprehended upon some favorable emergency b. Rebutting President is using Take Care power: Take Care is matched by the 5th Amendment (Due Process). And would still require an independent constitutional provision or law that the President was taking care of. i. Jackson then recognizes that the Presidents power has grown. Executive agencies are larger, his status as party-leader supplements extra-constitutionally his executive powers. Chastises Congress to stand up for itself, We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers. a. Dissent: With or w/o explicit statutory authorization, Presidents have dealt w/ national emergencies by acting promptly and resolutely to enforce legislative programs, at least to save those programs until

Congress could act. w/o seizure, military procurement/war ends, he acted under take care. b. c. Note: ripeness question: majority takes ex ante look (congress has spoken). Dissent takes ex post (hasnt reacted)

Executive detention and trial of enemy combatants

Note: Habeas corpus suspension provision is in Art I, which suggests that suspension requires legislative approval. Ex Parte Milligan (1866): Ct ruled that emergency provision could not constitutionally authorize the trial and conviction of a citizen detained during the war by a military tribunal rather than by a civilian ct. Ct had problems with the fact that a citizen was tried by a court not ordained and established by Congress and was denied to a trial by a jury. Additional considerations: o Ct emphasized that: Milligan not of a defiant state; o States courts were open; o Congressional authorization needed to suspend hc. Martial rule properly applied when courts are closed and it is impossible to administer criminal justice according to the law; limit in duration to only when needed.

Ex Parte Quirin (1942) Rule of law: The detention and trial of foreign espionage and sabotage agents within the United State during time of war, by a military commission appointed by the President, is constitutional. Background: Military tribunal of 8 Nazi saboteurs 1 of them claims to be U.S. citizen FDR issued EO for trial in military tribunal Note: It made no difference that the unlawful combatants in this case were apprehended before they had the opportunity to actually commit and espionage and sabotage. Rationale: Through Articles of War, Congress has explicitly provided, so far as it may constitutionally, that military tribunals shall have jurisdiction to try offenders or offenses against the law of war in appropriate cases

Lawful combatants = prisoners of war trial by jury Unlawful combatants = offenders against the law of war no trial by jury o E.g., enemy combatants, spies Ex Parte Milligan not applicable because defendant was of different background (see below)

Difference between Milligan and Quirin: Not a resident of any of the states in rebellion Not an enemy belligerent/combatant Never in military service Note: If there had not been legislative approval, could President use military tribunals in this situation? According to Jackson tripartite, it would be in #2 gray area.

EXECUTIVE DETENTION AND TRIAL OF ENEMY COMBATANTS AFTER 9/11

Johnson v. Eisentrager (1950): Detainees (German civilians captured in the Pacific theater) cannot be extended privilege of litigation in the U.S. courts because at no relevant time were they within any territory over which the U.S. is sovereign, and the scenes of their offense, their capture, their trial and their punishment is beyond territorial jurisdiction of any court of U.S. Relied upon in Al Odah v. U.S. (D.C Cir. 2003) in finding that federal courts had no jurisdiction over Guantanamo detainees because enemy aliens held outside the U.S. Reversed (below) Rasul v. Bush (2004): Reversed Johnson and Al Odah. Held that district courts had authority within their respective jurisdictions to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the U.S. Habeas statute confers a right to judicial review of the legality of executive detention of aliens in a territory over which the U.S. exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. These defendants are different from defendants in Eisentrager. o Not nationals of countries at war with U.S. o Deny they have engaged in or plotted acts of aggression against the U.S. o Never been afforded the access to any tribunal o Never charged or convicted of wrongdoing o Imprisoned for over 2 yrs in territory over which the U.S. exercises exclusive jurisdiction and control Note: About the reach of habeas corpus, rather than the use of military tribunals as a substitutes. Hamdi v. Rumsfeld (2004)

Rule of law: Due process requires that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker. Background: Louisiana-born Saudi-American Detained in Afghanistan No majority opinion Rationale: Federal govt has authority to hold an American citizen apprehended in a foreign country as an enemy combatant under AUMF. o AUMF meets requirement of Non-Detention Act that a detention be pursuant to an Act of Congress o U.S. may detain for duration of hostilities Due process must be accorded to detainee. o Matthews v. Eldridge balancing test (between national security and individual rights): (1) important of the interest of the individual, (2) the ability of additional procedures to reduce the risk of an erroneous deprivation, and (3) the governments interests. o Hamdi must be given meaningful factual hearings. At a minimum, this includes: Notice of charges Right to respond Right to be represented by counsel Hearsay may be admissible and burden of proof could be placed on Hamdi Concurrence (Souter & Ginsburg): Congress had not expressly authorized detention under AUMF and therefore detention violates Non-Detention Act to hold American citizen as an enemy combatant. Dissent (Scalia & Stevens) o No authority to hold an American citizen in the US, where civilian courts are open, as an enemy combatant without charges UNLESS Congress expressly suspends the writ of habeas corpus. If Congress could effectively circumscribe the Suspension Clause with AUMF, Suspension clause would be a total sham and could be evaded by mere congressional acts o Unconstitutional Power Grab by SCOTUS By finding authorization for detention where none exists and discarding the requirements of the Suspension Clause, Court injects itself by prescribing what procedural protections are appropriate Not the Courts role to make illegal detentions legal by supplying a process that the Govt could have provided but chose not toMr. Fix It Mentality o Institutional Competence

Far beyond Courts competence to determine what is necessary for national securitythats the leg and executive If situation truly demands suspension of writ, the leg can do so through an open and democratic method rather than the silent erosion that the majority does to the Suspension Clause. Dissent (Thomas) o President has inherent authority, pursuant to Art. II, to hold Hamdi as an enemy combatant Commander in ChiefSCOTUS should defer to his judgments

Rumsfeld v. Padilla (2004): Ct ruled that P had not properly filed his habeas petition; should have filed in SC not SDNY Start over. Rasul v. Bush 2. Background a. Aliens held at Gitmo filed habeas petitions b. Govt moved to dismiss claiming that Fed Courts lacked authority to hear habeas by aliens in Gitmo c. Court of Appeals: US courts lack jurisdiction and ruled that no court in country could hear the petitions brought by Gitmo Detainees i. Reasoning 1. Johnson v. Eisentrager a. 21 German nationals sought habeas in China b. Convicted by Army in US Military Commission for violating laws of war c. Convicted and repatriated to Germany at prison who custodian was an American army officer d. Sought habeas in federal court and SCOTUS found that there was no jurisdiction to hear petitions. 2. Rasul a. Gitmo prisoners are like those in Johnson and dismissed petitions d. SCOTUS i. Reversed and held that a federal court may hear the habeas petition of aliens at Gitmo ii. Reasoning 1. Distinguished Johnson a. In Johnson, those detained were accorded a trial in a military tribunal, but Gitmo prisoners never had any formal trial or due process b. Unlike Johnson, Gitmo is functionally under the control and sovereignty of US Boumediene v. Bush 1. Background

a. In response to Rasul, Congress adopted Detainee Treatment Act (DTA) i. DTA: Fed courts could not hear writs of habeas corpus by enemy combatants 1. DTA does not apply retroactively to those held prior to its enactment (Hamdan) b. In response to Hamdan, Congress adopted the Military Commission Act i. MCA: Noncitizens held as enemy combatants shall not have access to federal courts via a writ of habeas corpus or otherwise, except that if there is a military proceeding, the detainee may seek review of its decision in the US Court of Appeals for the District of Columbia. 2. Holding a. MCAs preclusion of habeas corpus jurisdiction was unconstitutional i. Court had to power under Art. 1, 9 to suspend habeas corpus in times of rebellion or invasion but the govt did not suspend writ. b. Suspension Clause has full effect at Gitmo i. If privilege is to be denied to Gitmo detainees, then Congress must act in accordance with requirements of the Suspension Clause c. Remedy of review in DC Court was not a substitute for habeas i. Detainees may invoke the fundamental procedural protections of habeas corpus 1. Laws of constitution are designed to survive and remain in force during extraordinary times. a. Framers intended habeas to be essential part of the framework of the nations laws. 3. Dissent (Roberts, Scalia, Thomas, Alito) a. Court should have deferred to the choices made by Congress and the president i. Today, the court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has exhausted the procedures under the law. And to what effect? The majority merely replaces a review system designed by the peoples representatives with a set of shapeless procedures to be defined by federal courts at some future date. b. Procedures provided in the MCA were sufficient to avoid being a suspension of the writ. 4. Dissent (Scalia, joined by others) a. Judiciary has no business being involved in the matter at all. i. What competence does the court have in second-guessing the judgment of Congress and the President on such a point? None

whatever. But the Court blunders in nonetheless. Henceforth, as todays opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails. 5. Majority vs. Dissent a. Express vastly different views about the role of the federal courts during the war on terrorism. b. Majoritythe Constitution and access to the federal courts to enforce it are essential even in times of crisis. i. This decision is a profound reaffirmation of the rule of law. c. DissentDecision was a dangerous judicial meddling in a realm properly left to the president and congress. MILITARY COMMISSIONS Hamdan v. Rumsfeld (2006) Rule of law: A military commission does not have jurisdiction to hear a case if the commissions structures and procedures violate the Uniform Code of Military Justice and the Geneva Conventions. Background: 1. Ex Parte Quirin a. Upheld the use of military tribunals of 8 Nazis who landed on American soil during WWII carrying explosives and wearing uniforms b. Roosevelt issues exec order providing for their trial in a military tribunal i. Detainees filed habeas in federal court c. SCOTUS: Upheld use of military tribunals and started that the prez had constitutional authority to try individuals before a military commission. i. Distinguished between lawful and unlawful combatants 1. Lawfultreated as POW 2. Unlawfuloffenders against law of war and subject to trial and punishment by military commission d. Disagreement over Holding i. BushQuirin is on point for current commissions and specifically authorizes the use of tribunals in this situations ii. CriticsQuirin is a discredited decision that should not be followed 1. Quirin occurred during a declared war and there was a statute authorizing military tribunals 2. Background to Hamdan a. 2001: i. AUMF: Congress authorizes the prez to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the 9/11 attacks.

ii. Executive Order 1. Bush issues executive order providing for military tribunals to try non-American citizens accused of participating in or assisting terrorism. b. 2005: Congress enacts Detainee Treatment Act i. Provides that no court shall have jurisdiction to hear or consider an application for habeas corpus filed by alien detained at Gitmo. ii. D.C. circuit court has exclusive jurisdiction for a limited review by USCA DC Cir of whether enemy combatant status determination complied with DTA and Constitution. c. Hamdan i. Yemeni national ii. Bin Ladens driver iii. Captured in Afghanistan iv. Held in Guantanamo 3. Issue: Are the military commissions created pursuant to Bushs executive order constitutional? 4. Holding: No. a. The military commissions were not expressly authorized by Congressional statute b. The procedures violated the Uniform Code of Military Justice, c. The commissions didnt satisfy the Geneva Conventions. Rationale: AUMF and DTA does not expand executive power to create military commissions. o Such commissions permitted in three circumstances: 1. To substitute for civilian law after martial law declared; 2. Substitute for civil law during times of temporary military government; 3. A situation usually occurring in the battlefieldto decide whether the defendant has violated the law of war. o Only #3 can possibly apply, but conspiracy is not seen internationally as violating the law of war. The commissions procedures violated the Uniform Code of Military Justice and the Geneva Conventions. How the executive violated the separation of powers in Hamdan: Tried to perform legislative functions by creating a previously unknown crime subject to hearing by military commission; Tried to perform executive functions by prosecuting the alleged violation of the new crime; Tried to perform judicial functions by adjudicating the prosecution of the alleged violation of the new crime in a forum over which the executive branch held great control.

Boumediene v. Bush (2008) Rule of law: Foreign terrorism suspects held at the Guantanamo Bay Naval Base in Cuba have constitutional rights to challenge their detention in United States courts. Background: Military Commissions Act modified DTA: o Allows President to try such alien unlawful enemy combatants by military commissions for any offense made punishable by the law of war. o Allows removal of habeas corpus to all overseas enemy combatant detainees, regardless of where they are being held. o No court, justice, or judge shall have jurisdiction to bear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the U.S. who has been determined by the U.S. to have been properly detained as an enemy combatant or is awaiting such determination Whereas DTA provided exclusive jurisdiction to USCA DC Cir. Petitioners are aliens designated as enemy combatants detained at Guantanamo Court:

Petitioners do have habeas corpus privilege. MCA is an unconstitutional suspension of writ. U.S. maintains de facto sovereignty over Guantanamo 3 factors are relevant in determining the reach of the Suspension Clause Congress has not acted in accordance with Suspension Clause 1. Citizenship and status of the detainee and the adequacy of the process through which that status determination was made a. Unlike petitioners in Eisentrager, present petitioners deny they are enemy combatants 2. Nature of the sites where apprehension and then detention took place a. Unlike petitioners in Eisentrager where U.S.s control over the prison in Germany was neither absolute nor indefinite, Guantanamo is under constant jurisdiction of U.S. 3. Practical obstacles inherent in resolving the prisoners entitlement to the writ a. Not dispositive in this case. MCA is not an adequate substitute for the procedures for habeas corpus because these courts have very limited remedial powers

10th AMENDMENT LIMITS ON FEDERAL GOVT OVER STATES 1. General a. 10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 2. Key Issue a. Is 10th Amendment a judicially enforceable limit on Congress power i. Can federal laws be declared unconstitutional as violating this amendment? b. One Approach: i. 10th is not a separate constraint on Congress but rather is simply a reminder that Congress may only legislate if it has authority under the Constitution. 1. Under this approach, a federal law would never be found unconstitutional as violating the 10th, but it could be invalidated as exceeding the scope of Congress powers under Art. I or for violating another constitutional provision. c. Alt. Approach: i. 10th protects state sovereignty from federal intrusion. 1. 10th is a key protection of states rights and federalism a. Reserves a zone of activity to the states for their exclusive control and federal laws intruding into this zone should be declared unconstitutional by courts (National League of Cities) th 3. Issues Concerning the 10 a. How important is the protections of state sov and federalism? i. 3 benefits of protecting state govts from federal intrusion 1. Vertical division of power lessens the chance of federal tyranny a. Double security to protect citizens against govt oppression 2. States are more responsive to the publics needs and concerns a. Local representatives are more accountable to public and will be more responsive to their needs 3. States as Laboratories for Experimentation a. States may, directed by their citizens, try novel social and economic experiments without risk to the rest of the country b. Is it the role of the judiciary or political process to enforce the 10th amendment and protect state sovereignty? i. One view: Judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state govt interests.

1. Interests of the state are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty, thus making it unnecessary for the courts to enforce federalism as a limit on Congress. 2. Counter Arg: Popular election of senators doesnt guarantee that states interests as states are adequately protected in Congress. 4. Pre-1937: Hammer v. Dagenhart a. General: Court held that 10th Am reserved a special zone of activities to the States for their exclusive control. i. Federal laws intruding into this zone were declared unconstitutional b. Child Labor Law: Prohibited shipment of goods produced in factories employing children under 14. i. Limited to regulating goods in interstate commerce c. Unconstitutional i. Congress power to regulate interstate commerce was the power to regulate commerce, not to control States in their exercise of the police power over local trade. ii. If Congress can regulate matters entrusted to local authority by prohibiting the movements of goods, all freedom of commerce will be at an end and local authorities will be powerless. 5. 1937-1990s a. Court rejected the view that the 10th Am is an independent limit on the legislative power and instead viewed it simply as a reminder that Congress may legislate only if there is authority in the Constitution. b. U.S. v. Darby i. A congressional law is constitutional so long as it is within the scope of Congress power ii. 10th would not be used as a basis for invalidating federal laws. 6. National League of Cities v. Usery a. Only case between 1937 and 1990s to find that a law violated the 10th Am b. Holding i. There are limits upon the power of Congress to override state sov, even when exercising its otherwise plenary power to tax or to regulate commerce ii. Requiring states to pay their employees the minimum wage violated the 10th b/c the law operates to directly displace the States freedom to structure integral operations in areas of traditional governmental functions. 1. Forcing a state and local govt to pay their employees the minimum wage would require that they either raise taxes or cut other services to pay these costs a. This would displace decisions traditionally left to states and may substantially restructure

traditional ways in which the local govts have arranged their affairs. iii. Majority did not attempt to define what is such a traditional function; only holding that forcing payment of the minimum wage was unconstitutional. c. Dissent i. Nothing in the Constitution mentions a restraint based on state sovereignty over congressional exercise of powers enumerated in the Const. ii. Majority restructures federal system and unconstitutionally enlarges the role of the judiciary to enforce the 10th am against the fed 7. Garcia v. San Antonio Metropolitan Transit Authority a. Overrules Usery i. 2 reasons 1. Usery approach proved unworkable a. Unsound in principle and unworkable in practicerule of state immunity from federal regulation that turns on judicial appraisal of whether a particular govt function is traditional or integral i. Judicial restraintany rule of state immunity that looks to the traditional nature of govt functions inevitably invites an un-elected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. 2. Political Process is best method of protecting state prerogatives a. The principal and basic limit on commerce power is that inherent in all congressional action i. The built-in restraints that our system provides through state participation in federal govt action. b. Political process ensures that the laws that unduly burden the states will not be promulgated b. Dissent i. Powell: Defining traditional 1. Court could define the parameters of the 10th amendment just as the court has defined numerous other ambiguous constitutional provisions. ii. OConnor: Challenged the view that the political process would adequately protect the interests of state govts. iii. Rehnquist: predicts that, in time, the conservatives position on the iv. 10th Am will prevail

COMMANDEERING 1. New York v. United States a. Rule of Law: The Federal govt may not compel the States to enact or administer a federal regulatory program. b. Background: Federal law: Low-Level Radioactive Waste Policy Amds. i. Created statutory duty for states to provide for safe disposal of radioactive wastes generated within their borders ii. Provided monetary incentives for states to comply with law 1. Also allowed states to impose a surcharge on radioactive wastes received from other states. iii. Take Title 1. To ensure effective state govt actions, the law provided that states would take title to any wastes within their borders that were not properly disposed of by January 1, 1996 and then be held liable for all damages directly or indirectly incurred. c. Holding: Take title provision unconstitutional because it gave States the choice between either accepting ownership of waste or regulating according to the instructions of Congress. d. Reasoning: Forcing States to accept ownership of wastes would impermissibly commandeer state govts i. Requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation. e. Policy i. Allowing Congress to commandeer State govts would undermine governmental accountability because Congress could make decision, but the states would take the political heat and be held responsible for a decision that wasnt theirs. f. Garcia? i. Rejects Garcias conclusion that the federal judiciary would not use the 10th Am to invalidate federal laws. ii. New Rule: If federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for the federal action. g. Compelling Interest? i. Expressly rejects the argument that a compelling interest is sufficient to permit a law that otherwise would violate the 10th Am. h. Alternatives to Commandeering i. Spending Power: Conditioning payment of relevant federal funds ii. Commerce Power: Enacting federal legislation to directly regulate, or imposing a federal tax iii. Conditional Preemption: Threaten to pass federal legislation under the Commerce Clause unless states choose to regulate according to federal standards. 2. Printz v. United States

a. Rule of Law: Congress cannot require state executives to regulate according to federal regulations b. Background i. Brady Handgun Violence Protection Act 1. Required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. c. Holding: By forcing state executives to run background checks, the Brady Act commandeered state officials to do federal work. d. Reasoning i. Historical: Congress has never exercised such a power that involves Congress commandeering state executive officers to implement federal mandates. ii. Violates Separation of Powers 1. Const. vests all executive power in the prez and that Congress has impermissibly given executive authority to implement the Brady Act to state and local officials. a. Brady transfers prez constitutional responsibility to 1000s of state law enforcement officers to implement the program i. Prez loses his ability to control 2. Unitary prez would be shattered if the prez power were subject to reduction a. If Congress could act as effectively without the Prez by requiring state officers to execute its laws. 3. Counter Arg: If compelling state sheriffs to enforce Brady violates some right of the prez to control all law enforcement, isnt the prez power equally violated when sheriffs voluntarily choose to enforce Brady? 3. Dissent a. StevensWhen Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local govts as well as ordinary citizens. i. Supported by Text, history, precedent, and structure of Fed govt b. Stresses Importance of Brady i.