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Con Law Outline

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I.

II. OVERARCHING THEMES .......................................................1
IMPLIED + INHERENT CONGRESSIONAL POWERS .......3 a. Textual References to Implied and Inherent Powers in the
Constitution .................................................................................................3 b. The First Bank ............................................................................................3 c. The Second Bank ........................................................................................3 d. McCulloch ....................................................................................................3 e. Immigration.................................................................................................4

III. JUDICIAL POWER, INTERPRETIVE AUTHORITY, AND
THE ROLE OF THE SUPREME COURT................................5 a. Overview ......................................................................................................5 b. Judicial Power; Judicial Review ................................................................6 c. Justiciability ................................................................................................7 i. Basics ........................................................................................................................ 7 ii. Standing ................................................................................................................... 8 iii. Political Question .................................................................................................... 9

d. Interpreters of the Constitution (Is Supreme Court the Supreme
Expositor?) ................................................................................................10

IV. CONGRESS'S ART. I POWERS AND "FEDEARLISM" ....... 12 a.
b.
c.
d.
e.

V. Commerce Clause .....................................................................................12
Necessary and Proper Clause ..................................................................18
Taxing Power ............................................................................................19
Spending Power ........................................................................................21
State-Sovereignty-Based Limitations on Congressional Authorities
(e.g. Anti-Commandeering) .....................................................................22

SEPARATION OF POWERS - DOMESTIC SETTING .......24 a. Legislative Power: Specificity and Delegation .......................................24 b. Bicameralism; Congressional Efforts to Regulate or Limit the
Executive (including impeachment) ........................................................25 c. Appointment Power ..................................................................................30 d. Removal Power .........................................................................................32

VI. SEPARATION OF POWERS IN WAR AND FOREIGN
AFFAIRS .....................................................................................35 a. General Framework; Youngstown Category I .......................................35 b. Declaring War and Other Military Engagements; Youngstown
Category II ................................................................................................36 c. War Powers; Youngstown Category III ..................................................38

1 I.

OVERARCHING THEMES
a. Six broad themes of the Constitution (according to Madison)
i. Written text

1. Constitutional supremacy ii. Republicanism and popular sovereignty

1. The people, not the states or national government, are sovereign iii. Separation of powers iv. Federalism v. Individual rights

1. Promotes liberty vi. Imperfect congruence of the Constitution with justice

1. Offers a framework in which different political choices can be made b. Five types of constitutional arguments/methods of interpretation (Philip Bobet):
i. Textual arguments ii. Historical context iii. Arguments based on the structure of the document iv. Precedent and practice v. Policy c. Canons of Constitutional interpretation i. Avoidance: if the statute in question is ambiguous, interpret in a way that avoids a constitutional question, if possible ii. Justice and liberty: when language is ambiguous, we should construe in favor of justice and liberty iii. Voter interpretation: we must look to how the text was interpreted by those voting on it, regardless of what the framers' intent was d. Lederman's Tools of Constitutional Interpretation i. Tools used in McCulloch ii. Originalism

1. Invoking Philadelphia Convention and what happen there is a common mode of Constitutional interpretation a. Unclear whether we should do this i. Notes taken there may have been biased, even if only subconsciously

2. Original public meaning originalism a. Form of textualism

3. Original expectations originalism

4. Original intent originalism iii. Judicial precedent iv. A version of what the Constitution is facilitating v. Practice (e.g. Stuart v. Laird (practice it is within Congress's power to force the
Supreme Court Justices to ride circuit because all three branches have in some way acquiesced to this))

1. Practice of early Congresses may have special authority

2. Liquidation - there were certain ideas that the Constitution deliberately left open (Madisonian argument)

2 a. Practice over time might give us some idea of how the Constitution should be interpreted

II. IMPLIED AND INHERENT CONGRESSIONAL POWERS
a. Textual References to Implied and Inherent Powers in the
Constitution i. N+P Clause provides powers in addition to implied powers (note these do overlap in certain respects)

1. "The foregoing powers"
a. Those listed in Art. I §8 b. Main use of N+P Clause (including in McCulloch)

2. "All other powers vested by this Constitution in the Government of the
United States"
a. Maybe a reference to inherent powers OR implied powers to further the preamble

3. "All other powers vested by this Constitution… in any Department or Officer thereof"
a. E.g. FRCP

b. The First Bank i. Question of scope of congressional power under the Constitution ii. Most important arguments of Madison, Hamilton, and Randolph:

1. No text gives Congress the power of interpretation

2. "Any interpretation that destroys the fundamental characteristic of the federal government," which is that it's not a general government (can't enact whatever laws it wants) (Art. I §9)
a. Legislature of limited and enumerated power iii. Example of President deferring to Congress's interpretation (if constitutionality is a close call and Court hasn't ruled on it, President can defer to Congress)

c. The Second Bank i. Constitutional arguments:

1. Art. I §1: "All legislative powers herein granted…"
a. May imply a limiting phrase

2. Congressional limitations (Art. I §9)

3. State limitations (Art. I §4 and §10)

d. McCulloch (1819)
i. Facts: In response to the creation of the Second Bank of the United States, the state of Maryland attempted to impose a tax on all out-of-state banks operating in the state of Maryland, which at the time was only the Second Bank.
ii. Rule: N+P Clause grants Congress the implied power to establish the means of accomplishing the enumerated ends specified in the Constitution (e.g. taxes,
regulate commerce, raising army and navy)

1. If the end is legitimate, and Congress is trying to further that end, it's likely constitutional a. "We must never forget this is a Constitution we are expounding"
i. We wouldn't expect every single potential consideration to be specifically addressed in the Constitution

3 2.

3. 4.

5. 6.

ii. [Don't want to make rules from the onset that will limit the government in protecting future problems faced by the nation]
b. Court is the judge of how proper a means is to achieve an end i. Court is deferential to empirical judgments made by Congress,
unless they're absolutely absurd
Federal laws are supreme and states may not make laws that interfere with the federal government's exercise of its constitutional powers a. Marshall nonetheless concedes government is one of limited and enumerated powers b. Preemption: when federal and state statutes conflict, federal law prevails (Supremacy Clause)
c. States cannot deliberately attempt to undermine federal instrumentality
(as in this case)
Congress' power to create also implies a power to preserve, and a power to destroy (e.g. the tax) is incompatible with this
Marshall relies partly on practice (people have already expressed opinions on the question of the Second Bank)
a. Court should consider the opinions of and arguments made by other branches of government b. Reliance interests
The Constitution was created by the people, not the states a. Important because we want to interpret the Constitution with deference towards/preference for its creators
Great and impactful rights cannot be implied a. [This was untouched since McCulloch but Chief Justice Roberts revives it in Sebelius]

e. Immigration i. The Alien and Sedition Acts (1798):

1. Alien Enemies Act: authorized president to deport aliens in the event of war with their native country a. Still good law today

2. Alien Friends Act: gave president wider authority - to deport any aliens he judged "dangerous to the peace and safety of the United States" [later deemed unconstitutional]
a. Void because aliens are under the jurisdiction and protection of the laws of the state in which they reside (Jefferson, Kentucky Resolution)
i. States have the right to resist when government is overstepping

3. Sedition Act: authorized criminal penalties against "any person" who wrote,
printed uttered, or published seditious writings against the government or organized any type of unlawful assembly against the government [later deemed unconstitutional]
a. Void because those rights are reserved solely and exclusively to each state within its own territory (Jefferson, Kentucky Resolutions)
i. When Jefferson took office, he pardoned those who were facing charges and were convicted under the Sedition Act because he deemed it unconstitutional

4 4. Art. I. §8: "The Congress shall have Power… To establish an uniform Rule of Naturalization… To make all Laws which shall be necessary and proper for carrying into Execution…"
a. No clause specifically gives Congress the right to exclude aliens ii. Chae Chan Ping (Chinese Exclusion Act) (1889)

1. Facts: Chinese plaintiff left the US then was not allowed back.

2. Rule: Congress has the power to exclude aliens from entering the country a. This is a power inherent to a sovereign nation (Knox)
b. Competition between Chinese immigrants and Americans was disproportional (skewed in their favor)
iii. Fong Yue Ting (1893)

1. Facts: Chinese nationals had to prove that they were lawfully present in the
US at the time the statute was enacted, otherwise they would be deported. If no paperwork, statute required at least one white witness to attest that they have been living in the US. Yue Ting was arrested for lack of a certificate of residence and was ordered to be deported.

2. Rule: While aliens in the United States are protected by the Constitution in certain respects, Congress has the right to deport them as it sees fit.
a. Note: all justices agree that the federal government has the power to exclude (not expel) aliens from coming to the US
b. Justice Gray claims there's an inherent authority to remove non-citizens
(cites Alien Friends Act)
i. Field (dissent) disagrees, noting that the Alien Friends Act was later deemed unconstitutional c. Justifies racial requirement for white witness by showing there's precedent for requiring witnesses to be American citizens i. [Today, court is very speculative of race-based segregation
(regardless of Congress' empirical judgments)]
d. [Last in time rule: if two pieces of legislation (or treaties) conflict, the most recently created one applies]
i. [Treaties are supreme law of the land under Supremacy Clause]
iv. Immigration and Nationality Act of 1952

1. Remains the principal federal law governing immigration today

2. Abolished racial restrictions for immigration but established a quota system
(focusing on desirable ethnic groups and labor qualifications)

3. President has broad discretion to suspend or restrict the entry of aliens
(Section 1182(f) of Title 8 of the U.S.C.)

III. JUDICIAL POWER, INTERPRETIVE AUTHORITY, AND
THE ROLE OF THE SUPREME COURT
a. Overview i. Court does not issue advisory opinions

1. Parties must have standing

2. Dispute must be ripe

3. Dispute must remain a live one at all stages of the proceeding

4. Parties' legal interests must be genuinely in conflict ii. Article III does not extend to political questions 5 iii. Federal judges serve "during good Behaviour," meaning for life unless impeached or otherwise found guilty of misbehavior

1. Salaries are never reduced

2. Policy: essential to independent federal judges iv. Art. III §2 lists the cases and controversies within federal jurisdiction

1. When state supreme courts decide cases falling within Article III's list of cases, these decisions can still be reviewed by the U.S. Supreme Court
(Martin v. Hunter's Lessee)
a. Policy: ensure uniformity in the interpretation of federal law v. Criminal defendants can seek Supreme Court review when they claimed that their conviction violated the Constitution (Cohens v. Virginia)

1. Policy: state courts often cannot be trusted to adequately protect federal rights because in many states, the judges are dependent on the will of the legislature for office and salary

b. Judicial Power; Judicial Review i. Marbury (1803)

1. Facts: Marbury was appointed Justice of the Peace of DC by President
Adams, but Marbury did not receive commission. When Jefferson took office, he told Madison not to deliver commission to Marbury. Marbury brought suit seeking a writ of mandamus (court compels an executive branch member to perform his lawful duties) to compel Madison to finalize
Marbury's political appointment. Marbury relied on Section 13 of the
Judiciary Act of 1789, which granted the Supreme Court original jurisdiction over writ of mandamus.

2. Rule: The Supreme Court has the authority to review laws and legislative acts to determine whether they are constitutional (power of judicial review)
a. "It is emphatically the province and the duty of the judicial department to say what the law is."
i. We all owe deference to the Court's judgment with respect to constitutionality, even if it conflicts with that of Congress and the
President b. Court held no jurisdiction but addressed the merits anyway [as with
Dred Scott]
i. Marshall is manipulating the law and facts to reach the issues and holdings he wants to address, and in doing so creates a conflict between the Constitution and the Judiciary Act (1789) §13 c. If you're given a legal right by the legislature, there's an implied right to be able to go to court to enforce this right i. [Although that's not always the case]
d. Real question of judicial review: to what extent should the Court defer to the judgment of the other branches with respect to constitutionality?
i. [Policy arguments for Court's judgment carrying special weight:

1. Not completely removed from politics because they're appointed by elected officials

2. Expertise

6 a. Counter (to both): Justices are in an ivory tower (further removed from daily life)
i. Counter-counter: we want some people who are more further looking and focused on expounding the
Constitution]

c. Justiciability i. Basics

1. Standing: a party's entitlement to sue over a dispute, based on the impact the dispute has on the party's legally protected interest a. Court does not issue legal rulings without a case or controversy under
Article III (Court does not issue advisory opinions)
i. Policy: no guarantee an advisory opinion would be followed
(because it's not a judgment and thus does not have force of law behind it)
b. Federal and state taxpayers have no standing under Article III to challenge tax or spending decisions merely because they are taxpayers i. Can sue under taxpayer status, under limited circumstances, if there's a "logical nexus between the taxpayer status asserted and the claim sought to be adjudicated" (Flast v. Cohen (court held tax on parochial school created standing for Establishment Clause claim))
ii. Would have standing if tax were specific to them (e.g. only a tax on food processors, only a tax on women, etc.)
c. Standing is jurisdictional, so federal courts can raise it on its own and it may be challenged at any point in the federal court proceedings d. Standing requires that a plaintiff allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness."
(Baker v. Carr)
e. Party invoking federal court jurisdiction (typically plaintiff) has burden of proof f. Members of Congress virtually never have standing to bring suit against
President for allegedly acting against the law i. Nor when one house of Congress sues (Congress as a whole has never sued)

2. Mootness: when the requisite personal injury that gave rise to the case or controversy ceases to exist (e.g. party dies, act is repealed, etc.)
a. Exceptions: collateral consequences to an injury remain (as in Powell),
legal injury is capable of repetition as to that party but likely to evade final judicial review, defendant has voluntarily ceased the conduct but is free to resume is later i. No exception to mootness simply because the case is especially interesting or important

3. Ripeness: a case is "unripe" where the claimed injury has not occurred and its occurrence is thought too speculative or contingent to constitute a real,
present, dispute

4. Political Question: an issue that is not proper for adjudication by a court because it should be resolved by the political branches of government

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