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Constitutional Law Midterm

Terms in this set (43)

Marbury v Madison legal principle
Judicial review
Marbury v Madison 1st Question
Does Marbury have a right to his commission? Yes
Based on Article 2, appointment requires nomination, appointment, and commission. This process was followed and so Marbury must serve for 5 years
Marbury v Madison 2nd Question
If yes, does the law afford him a remedy for the violation of his right? Yes
"The very essence of civil liberty" is the right of people "to claim the protection of the laws" when they are injured
Marbury v Madison 3rd Question
If yes, is that remedy a mandamus from SCOTUS?
A mandamus is the proper remedy, BUT
Constitution grants SC appellate jurisdiction (Article 3 Section 2); the act allowing the SC to issue writs of mandamus is "not to be warranted by the constitution"
An act "repugnant to the constitution" cannot become the law of the land - Constitution controls any conflicting legislation (Constitution is either a "superior paramount law," or "absurd attempts" to limit an unlimitable power)
"It is emphatically the province and duty of the judicial department to say what the law is." If a law conflicts with the Constitution, the court must determine which rule governs the case; if the Constitution is superior, it trumps the conflicting law
Judicial review is inherent (judging is different from politics and suited to review) and inevitable (when laws conflict with Constitution, the courts must decide what to follow)
Eakin v Raub legal principle
Challenges to Judicial Review
Eakin v Raub
Judiciary has political and civil powers. The power of one organ of the government to control/influence another organ is a political power
The judicial dept is not the realm to check the legislature, just as legislature cannot invalidate judicial rulings. Judiciary should apply all new laws, regardless of Constitutional violations (except in the case where Constitutional procedures weren't followed)
Government branches are equal, and have superiority only in their own realms. Judicial branch has superiority over judicial matters, not legislative ones
Oath to support the constitution is taken by all government officers and is not unique to the judiciary
"There is no effectual guard against legislative usurpation but public opinion." Therefore, "it rests with the people... to correct abuses in legislation, by instructing their representatives to repeal the obnoxious act"
Judiciary is not infallible, and a judicial error has no remedy
However, judicial review of lower state decisions is fine, as states are subordinate to the federal government
Lujan v Defenders of Wildlife legal principle
Standing
Lujan v Defenders of Wildlife 3 principles for standing
"Injury in fact" - "an invasion of a legally protected interest which is (a) concrete and particularized... and (b) actual or imminent, not 'conjectural' or 'hypothetical'"
"Causal connection between the injury and the conduct complained of"
A likelihood of redressability
Lujan v Defenders of Wildlife opinion
Burden of proving standing is on the plaintiff
When the suit is challenging the legality of government action, standing depends considerably on whether the plaintiff is the object of the action. If yes, it is easier to prove standing
When the suit is challenging the legality of government regulation of a third party, injury and redressability are much harder to prove
Here, plaintiffs have produced no injury in fact (visiting an area once is not sufficient). Redressability is the biggest issue - ordering the Secretary to revise his regulations to require consultation could have no effect on the agencies that supply only a fraction of the project's funding
Lujan v Defenders of Wildlife dissent
Petitioners don't need to prove they are actually or imminently harmed, only that there is a "genuine issue of material fact" as to standing. This is a much lighter burden
"The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury" (quoting from Marbury v Madison)
Flast v Cohen legal principle
Standing (exp. taxpayer)
Flast v Cohen opinion
Frothingham decision ruled that a federal taxpayer lacks standing to challenge the constitutionality of a federal statute.
No justiciability: political questions, when people seek advisory opinion, when question mooted by subsequent developments, or when there is no standing
Government asserts absolute bar to taxpayer suits, as a taxpayer that disagrees with gov spending should not find resolution in judiciary but in fed government
Standing "focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated."
Need "personal stake in the outcome of the controversy" (quoting Baker v Carr). Taxpayers may/may not have personal stake, so there's "no absolute bar in Article 3 to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs"
Therefore, for taxpayers to bring suits they must demonstrate necessary stake in outcome of litigation - requires logical link between status as a taxpayer & type of legislative enactment attacked (can only challenge a tax law) & show that challenged enactment exceeds specific constitutional limitations against abuse of legislative power, not that it exceeds general legislative power
Flast has standing
Hein v Freedom from Religion Foundation legal principle
Standing (esp. taxpayer)
Hein v Freedom from Religion Foundation opinion
Payment of taxes "generally not enough" to establish standing to challenge federal gov actions - fed budget is so big that an unconstitutional federal expenditure doesn't cause a taxpayer measurable economic harm. Also, if every taxpayer sued, the judiciary would come to a standstill
In Flast v Cohen, court ruled a narrow exception to the general rule against taxpayer standing, where a plaintiff can sue for violation of the Establishment Clause. In this case, the funding came generally from executive branch and was not specifically authorized by Congress, although the the money was appropriated by Congress. This is too broad a reading of Flast
Must be sustaining a direct and distinct injury
Plaintiffs are asserting that, having paid taxes at one point, they have a "continuing, legally cognizable interest" in ensuring their funds are used in a Constitutional manner. This interest is "too generalized and attenuated"
In Flast, funds were specific congressional appropriations that could be challenged. Here, this is not the case
Baker v Carr legal principle
Political Questions
Baker v Carr opinion
This case has no political question and so is justiciable
"The mere fact that the suit seeks protection of a political right does not mean it presents a political question"
Determining whether it is a political question requires case-by-case analysis
Need ability to attribute finality to the action of the political departments
Primarily stems from separate powers
Cases involving a political question have a "textually demonstrable constitutional commitment of the issue to a coordinate political department," or an inability to develop standards based on neutral principles, or the need for a legislative policy decision to decide the case, or the impossibility of independent resolution, "or an unusual need for unquestioning adherence to a political decision already made", or the potentiality of international embarrassment
Without the above instances, there should be no dismissal for nonjusticiability on the grounds of a political question
Federalist 70
Importance of energy in the executive, made up of unity, duration, provisions for support, and competent powers
Energy essential to protection against foreign attacks, steady administration of laws, protection of property against rebellion, and security of liberty against ambition/faction/anarchy
Safety constituted by dependance on people and responsibility
Need single energetic executive and numerous legislature
US v Curtiss-Wright Corporation legal principle
Classical Approaches to Presidential Power / Power of President Abroad
US v Curtiss-Wright Corporation Opinion
Different analysis for foreign affairs and internal affairs ("fundamental differences" in fed gov powers)
Even if the resolution would be invalid if it applied to internal affairs, can it "be sustained on the grounds that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?"
That "the fed gov can exercise no powers except those specifically enumerated in the Const, and such implied powers as are necessary and proper," is only true for internal affairs. Internal affairs deal w/ powers that states once had that were given to the fed gov
External sovereignty does not depend on affirmative grants of the Constitution
"The president alone has the power to speak or listen as a representative of the nation" (the "sole organ")
President has confidential information that legislature does not have
Youngstown Sheet & Tube Company v Sawyer legal principle
Contemporary Approaches to Presidential Power
Youngstown Sheet & Tube Company v Sawyer opinion
Justice Black: President's actions were not constitutional since the power to seize must be found w/in Constitution or authorized by Congress.
There is also no act from which such a power can be implied
"The president's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker"
Justice Jackson: The decision should be based on "enduring consequences" that decision will have on the balance of powers. Three types of presidential actions: Congress approves, Congress is indifferent, or Congress disapproves. Congress disapproved. Did not have practical implications and only Congress can declare war so not "war powers".
Comprehensive and undefined presidential powers are practically advantageous and also hold a grave danger
Justice Clark: "where Congress has laid down specific procedures to deal with the type of crisis confronting the president, he must follow those procedures in meeting the crisis", without these specific procedures the president can act with independent power
New York Times v US legal principle
Contemporary Approaches to Presidential Power
New York Times v US opinion
Per curiam: gov carries "heavy burden" of justification for imposing restraint
Violation of 1st Am. "Press must be left free to publish news, whatever the source, without censorship, injunctions or prior restraints".
The 1st Am also serves as a check on executive branch. "The only effective restraint upon executive policy and power in areas of national defense and international affairs may lie in an enlightened citizenry-informed and critical public". Without an informed, free press there cannot be an "enlightened" American public.
Justice Black: this is a "flagrant, indefensible, & continuing violation of the First Amendment". Security is too broad and vague to undue its protections.
Justice Brennan: the "First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases"
Justice Stewart: the only effective restraint on executive policy and power is an enlightened citizenry, which requires a free press
New York Times v US dissent
First Amendment is not an absolute - there is no right to shout fire in a crowd
1a. Can a sitting president be indicted? Yes
Clinton v Jones
President does not have temporary immunity from civil suits arising from events that occurred before he took office
In immunity from official misconduct, the rationale is that the immunity enables public officials to perform their duties without "fear that a particular decision may give rise to personal liability." This rationale doesn't apply to unofficial conduct ("forestall an atmosphere of intimidation")
President has no "immunity that extends beyond the scope of any action taken in an official capacity"
Immunities are "grounded in the nature of the function performed, not the identity of the actor who performed it"
Deluge of litigation will not engulf presidency
Delaying trial will increase danger of prejudice and harm plaintiff
1a. Can a sitting president be indicted? No
Article 2
Separation of powers, character of office requires postponement until after presidency
Section 4: President shall be removed from office on impeachment and conviction, not indictment
Clinton v Jones
Unacceptable burden on president's time and energy, impairing performance (not held)
1b. Can a president pardon himself? Yes
Article 2 Section 2
President has power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment
Can pardon for indictment, not for impeachment
Ex parte Garland
"The power of pardon conferred by the Constitution upon the President is unlimited except in cases of impeachment... The power is not subject to legislative control"
Pardon absolves guilt and punishment
1b. Can a president pardon himself? No
Ex parte Garland
"Except in cases of impeachment"
2a. Was the president within his power to fire the Justice Dept officials? Yes (Myers v US)
Myers
Essential that pres can select admin officials to take care that laws are faithfully executed
Pres must be able to fire people to fully take care the laws are faithfully executed
President has insight into whether person deserves to be fired
Power of removal goes along with power of appt, not the power of advising & consenting to the appt
2a. Was the president within his power to fire the Justice Dept officials? Yes (Humphrey's Executor v US)
Distinction between executive agencies & independent agencies - pres has removal power for executive agencies but not ind. agencies
Some organizations' duties are "neither political nor executive, but predominantly quasi judicial and quasi legislative"
Justice Dept reports to president, has no quasi-legislative powers
2a. Was the president within his power to fire the Justice Dept officials? Yes (Nixon v Fitzgerald)
"This court consistently has recognized that government officials are entitled to some form of immunity from suits for civil damages"
President should not be worried that his official conduct and decisions will be challenged in civil court
Pres has "absolute immunity from damages liability predicated on his official acts." This immunity is functionally mandated because of pres's unique office
Pres is distinguished from other executive officials because he is "entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity". President's actions are visible and affect "countless people"
President's responsibilities and status imply judicial restraint
"In view of the special nature of the President's constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the "outer perimeter" of his official responsibility."
2a. Was the president within his power to fire the Justice Dept officials? No
Humphrey's Executor
"One who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will"
2b. Can the president use the recess appt power to appoint their successors? Yes
Article 2 Section 2
President has power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session
NLRB v Canning (2014)
"The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess-- intra-session or inter-session--of sufficient length"
Recess power applies to new and existing vacancies, inter-recess appointments and intra-recess appointments
Congress self-determines when they're in session. Pro-forma sessions during recess count, must have a 10 day recess to allow president to use recess appointment power
2b. Can the president use the recess appt power to appoint their successors? No
Article 2
President must (usually) obtain advice and consent of Senate before making appointments
"The recess" (not held)
3a. Must the president consult Congress before authorizing a nuclear strike? Yes
Article 1
Congress has power to declare war
Separation of powers principle - Congress is the one who should be declaring war
Prize Cases
Can't have interpretation of Prize Cases that renders the Constitution irrelevant, they imply direct attack by foreign nation
Here, there is no actual attack, but an inflamed international situation
3a. Must the president consult Congress before authorizing a nuclear strike? No
Prize cases
"He is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations"
Not only authorized but "bound to resist force, by force"
Another nation threatening/using force bounds the president to use force in return
Distinction between initiating conflict and defending the United States - ultimately the president's call to determine whether a state of war exists
3b. Can members of Congress challenge the president's actions in court? Yes
Kucinich v Obama - Plaintiffs claim "deprivation of constitutionally prescribed role in voting to initiate war, and... the effective nullification of their votes against authorizing a continuation of hostilities in Libya"
3b. Can members of Congress challenge the President's actions in court? No
Lujan v Defenders of Wildlife
Standing requires 3 elements
"Injury in fact" - that is "concrete and particularized" and "actual or imminent"
"Causal connection between the injury and the conduct complained of"
A likelihood of redressability
Kucinich v Obama
Cannot have just an institutional injury - Plaintiffs claim "deprivation of constitutionally prescribed role in voting to initiate war, and... the effective nullification of their votes against authorizing a continuation of hostilities in Libya"
Issue of redressability and political questions
Congress usually acquiesces to president
Losing a political debate is a legislative injury
Taxpayer standing: looked to Flast v. Cohen, Hein v Freedom from Religion
Not challenging any action expressly authorized by the legislative branch, nor challenging a tax law
4a. Can the Trump admin indefinitely detain an American citizen held in Iraq on suspicion of supporting the Islamic State? Yes
Habeas corpus suspended to prevent courts from individually reviewing detentions and releasing people
Rasul v Bush
US does not have jurisdiction over Iraq
Boumediene v Bush
Habeas corpus requires that the proceeding has a means to correct errors and has some level of authority
Korematsu v US
"Hardships are part of war, and war is an aggregation of hardships"
Evacuation is a great deprivation, but has a definite and close relationship to the prevention of espionage and sabotage
4a. Can the Trump admin indefinitely detain an American citizen held in Iraq on suspicion of supporting the Islamic State? No (Const. & Ex parte Milligan)
Article 1 Section 9
Habeas corpus cannot be suspended except in cases of rebellion/invasion where public safety may require it
Ex parte Milligan
Lincoln could not suspend habeas corpus for confederate living in and arrested in Indiana, nor try him by military commission
Courts in Indiana were open and available for trial. No legal jurisdiction for a military court
"Martial rule can never exist when the courts are open"
4a. Can the Trump admin indefinitely detain an American citizen held in Iraq on suspicion of supporting the Islamic State? No (Bush cases)
Rasul v Bush
Supreme court willing to get involved and rule against president
"Writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him"
Boumediene v Bush
Habeas corpus is an "essential mechanism in the separation-of-powers scheme"
Status as an alien is not a categorical bar to habeas corpus
Constitution applies extraterritorially, and so does not stop when sovereignty ends
When a person is detained by executive order and not after trial and conviction in court, "the need for collateral review is most pressing"
4b. Should the SC treat the matter as a nonjusticiable political question? Yes
Baker v Carr test
4b. Should the SC treat the matter as a nonjusticiable political question? No
Baker v Carr test
Rasul v Bush
Federal courts have jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing
In both Bush cases, court was willing to get involved
Political Qs
Does the constitution specifically assign responsibility of the issue to another branch or institution?
Is the court capable of developing standards based on objective criteria? (neutral principles)
Would it be unwise for the court to get involved? (political thicket)
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