Constitutional Law Outline
Constitutional Interpretation
1. Originalism- Judges protect values and rights in Constitution or intent of framers
a. Original Intent: Intent of the drafters
b. Original Public Meaning: The text’s dictionary definition understood at the time
2. Living Constitutionalist: a dynamic meaning that evolves and adapts to new
circumstances
3. Historical- Interpret based on historical context surrounding the drafting.
Sources Used in Interpreting the Constitution:
(a) Text: Usage, grammar, legal norms of how words are
used by lawyers, dictionaries.
(b) Context: Structure, where it is in the Constitution.
(c) Drafting History of the Constitution.
(d) Purpose of the Provision being considered (Intent).
Judicial Review (Not enumerated)
Federal courts have exclusive power to interpret constitution
Marbury v. Madison
Background: Before Adams term was up, he appointed new circuit judges. Senate
affirmed appointments and letters of confirmation were sent. Not all letters were sent and
when Jefferson took office, he ordered Madison to not give Marbury his letter. Marbury
sued.
Issues:
1. Did Marbury have a right to his commission?
2. If Marbury had a right to his commission, was there a legal remedy for him to obtain
it?
3. If there was such a remedy, could the Supreme Court legally issue it
a. Court does not have writ of mandamus only original jurisdiction given by
constitution
Takeaway(s): Power created
The power of the Supreme Court to decide and interpret the Constitutionality of federal,
state, and local laws as well as Executive actions.
a. Limits on Judicial Power:
(1) Case or Controversy requirement: requirements justiciable case needs to have to be heard
by federal court.
(i) Standings (Constitutional and Prudential); (ii) Ripeness; (iii) Mootness; (iv) No Advisory
Opinion
(2) Political Question Doctrine: federal courts will not decide any matter that the constitution
has committed to the executive or legislative branch or that
lacks judicially manageable standards for decision
Case or Controversy requirement
Rule: Requirement in Article III that federal courts only hear actual cases and controversies. This
requires the litigant demonstrate injury in fact, causation, and redressability
(i) Constitutional Standing:
To have constitutional standing a plaintiff must prove (1) an injury-in-fact that was (2)
caused by the defendant and that is (3) redressable by the courts.
Prudential Standing Third-Party Prohibition:
P cannot raise the claims of third parties not before the court; (prudential)
Exception(s):
(1) If the relationship between the third party and the π is substantially close;
(2) 3rd party can sue for P who face obstacles in bringing suit;
(3) associations. Generalized Grievances Prohibition: π may not sue as a citizen or
taxpayer who shares a grievance in common with all other citizens or taxpayers for
generalized grievances. Unless. Establishment clause violation
Cases:
Massachusetts v. Environmental Protection agency (2007)
Facts: Rise in Carbon dioxide has increased temperatures. EPA has abandoned its duty to
regulate Co2 emissions from cars.
Issue: Does State (P) have legal standing to challenge the EPA's refusal to exercise its regulatory
authority.
Holding: Yes,
Congress has given mass procedural right to protect his concrete interests w/o meeting the
normal standards (redressability standard). Only if there is some possibility that the requested
relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the
litigant
Here, (1) Injury in concrete and imminent. Damage to coastline will only increase in severity
over time. (2) Causation: Man-made Co2 emissions cause damages and EPA’s failure to regulate
causes damage to coastline.
(3) Making EPA regulate will slow down damage of coastline. Court don’t have to fix whole
problem in one case.
Rule: Injury: P must prove they suffered concrete injury that is actual or imminent
Caused: Injury is traceable to D. But-For argument sometimes adequate, sometimes not.
Redressable: a favorable decision will compensate that injury. Rule explanation: Inability
to alleviate the injury tantamount to rendering an advisory opinion
California v. Texas, 2021
Facts: Texas Sues US because it says ACA unconstitutionally changed fine for no health care to
zero USD.
Issue: Does Texas have Standing?
Holding: No. No existing injury that is traceable or redressable
Takeaway Rule: Explanation: Must prove actual injury, cannot be a claim
(ii) Ripeness: a plaintiff claim must be ripe for adjudication. Present an actual controversy and
involve either a past injury or a threat of a real and imminent injury. Case can be heard in current
times.
Preenforcement review: Challenge action of agency before formally it is enforced.
Requirements: (1) Hardships. What hardships would P suffer if no pre-enforce
review
(2) Sharpness- Are the issues for judicial review adequately
focused on case. If can’t wait to hear case and lots of facts, or
purely legal
(iii) Mootness: I court will dismiss if a favorable decision will no longer have an effect on P. If
further legal proceedings with regard to case can have no effect, or events have placed it beyond
the reach of the law. Examples: death of party, change of law, Change in personal circumstance
Exceptions: Capable of repetition (ii) Collateral Injury: unintended consequences once convicted
collateral injury like cannot vote iii D amends complaint
Cases
New York State Rifle & Pistol Association, Inc. v. City of New York, 2020
Facts: in May 2019, D changed the gun control regulation, allowing residents with valid gun
licenses to be able to transport the weapons to the shooting ranges in the city limits but not
outside the city. By the end of June 2019, D had revised its gun control ordinances to allow
licensed gun holders to transport their weapons in a safe manner to homes or shooting ranges
outside of the city.
Issue: Can court hear case to determine if this limit is a violation of the second amendment?
Holding: No
Takeaway: Case cannot be heard because it is moot. Ruling the already amended NY regulation
constitutional/unconstitutional would have no effect. Damages to be determined in lower court.
(iv) No Advisory Opinion:
(2) Political Question Doctrine: Constitutional violations can’t be judicial reviewed because
they are “political questions” left to the other branches of government to interpret and enforce.
Cases
Baker v. Carr,1962
Facts: TN constitution required legislative districts to be redrawn every 10 yeards. Since lines
have not be redrawn since 1901 P sues because he was denied equal protection rights since rurual
votes were values higher than urban votes. Thus, making rural people more powerful in voting
than urban.
Issue: Does equal protection law challenge of malapportionment of state legislature qualify as a
non-justiciable political question
Holding: No
Analysis: Just because D seeks protection of political rights does not equal a political question.
14th equal protection is a constitutional question.
Creates Rules: Takeaways: Category of non-justiciability (first two are considered the most
important):
(a) Separation of Powers: A textually demonstrable constitutional commitment of the issue to
a coordinate political department;
(b) No Standards: A lack of judicially discoverable and manageable standards for resolving
it (courts can’t find a rule/standard to resolve it);
(c) The impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion;
(d) The impossibility of a court’s undertaking independent resolution without expressing lack of
the respect due coordinate branches of the government;
(e) An unusual need for unquestioning adherence to a political decision already made;
(f) Foreign Relations is an explicit area of Executive power that is always political in nature
Cases
Rucho v. Common Cause, 2019
Facts: N.C. and Maryland Legislators redrew districting lines to give political advantage to their
party.
Issue: Does Court have power to review
Holding: No
Explanation of second criteria: Political Gerrymandering is a question of fairness, which is
inherently a political question.
Dissent: There is math and technology and judicial review which provides a standard for
unconstitutional redistricting
Powell v. McCormack, 1969- SC shouldn’t judge other branch’s members
Facts: Member of congress who gave his wife money from congress and paid for travel. House
of Rep prevented reelection. Powell says can’t prevent if not for con enumerated qualifiers of
age, citizenship and residence.
Issue: Can court review case of Congressional election
Holding: Yes,
Explanation of second criteria: Power must be expressly enumerated.
Note: Rucho and Powell- The fundamental belief of democracy is failing in these case
Legislative power.
Ask two questions: 1) Does Congress have the authority under the constitution
enumerated to legislate. 2) If allowed, does law violate another Constitutional provision
(Separation of Power).
Tax and Spending
Rule: Congress may attach strings on fed grants, as long as the conditions are expressly stated
and have some relationship to the purpose of the spending program.
McCulloch v. Maryland, 1819- The ruling established the principle of implied powers through a
broad interpretation of the U.S. Constitution, giving Congress an expanded role in governing the
nation.
Facts: Maryland required a US established bank to pay a state tax placed specifically on that
bank.
Issue: Does Congress have power to create a U.S. Bank enumerated by the Tax and Spend
clause/ Can Maryland tax bank?
Analysis: U.S. Can create a bank.
- Historically given by Framers. Art. I. If a power is delegated to Congress in the
Constitution, the Tenth Amendment expressly disclaims any reservation of that power to
the states;
- Necessary and Proper- Necessary means anything appropriate to obtain an end.
- Taxing & Spending Clause:
o (1) “The Congress shall have Power To lay and collect Taxes, Duties, Imposts
and Excises, to pay the Debts and provide for the common Defense and general
Welfare of the United States; but all Duties, Imposts and Excises shall be uniform
throughout the United States”
o (2) Principle: To enable the Federal Government the ability to tax & spend; to
also correct what nearly destroyed the Confederation - no mechanism to raise
money to provide for the national government.
Maryland cannot Tax US bank.
- Art. 6, Cl. 2: Supremacy Clause: Constitution, and the Laws of the United States which
shall be made in pursuance thereof; and all treaties made, or which shall be made, under
the authority to the contrary notwithstanding.
- But why Fed Supreme. Because Constitution is Supreme Source: States are, and State
Law is inferior to the Federal Government. it’s not possible to let a minority of
individuals (a state) to direct or order the Federal Government to do something because it
is the majority and operates on behalf of all citizens
- Individual States deserve the most careful protection of their power; but, the national
government’s power needs to be protected to enable it to deal with national problems
- People are sovereign, not states. Fed gov just a vessel for people of US
Takeaway: The ruling established the principle of implied powers through a broad interpretation
of the U.S. Constitution, giving Congress an expanded role in governing the nation. 14th allows
Congress power without preserving areas for state control
United States v. Butler, 1936
Facts: AAA let secretary of agriculture tax cotton production and pay people who didn’t grow
cotton money.
Issue: Can Congress tax state Agriculture based on Tax and Spend.
Analysis: Since Congress has no power to regulate state agriculture it follows that Congress may
not indirectly accomplish that end through Tax and Spend power.
Takeaway: Explanation to rule. Can’t usurp traditionally state controlled power. 10th is a limit on
Fed Power. Act held as unconstitutional because it is attempting to regulate and control argr
production which is an area reserved for state power d. Butler Court went with a Hamiltonian
reading of article 1 spending clause.
Sabri v. United States, 2004
Facts: Sabri proposed to build hotel in violation of zoning laws. As a result, he offered 3 separate
bribes to a federal councilman. Congress enacted law to provide criminal penalties to individuals
who bribe Fed entities that receive 10k in federal funds. Entity lets US sue if they receive 10K +
in fed fund. P argues argued that the statute was unconstitutional because it did not require proof
of a connection between the federal funds and the alleged bribe in establishing criminal liability.(
Statute has to be related to Fed Funds)
Issue: May Congress regulate bribing of federal officials under its spending powers without
requiring proof of a link between federal funds and the alleged bribe.
Holding: No JX hook needed. Statute enacted to ensure taxpayers’ dollars are spent
meaningfully.
Takeaway: Explanation: Do not need Jurisdictional hook to utilize spending clause and necessary
and proper clause.
South Dakota v. Dole, 1987
Facts: Congress passed law which allowed secretary of transportation to withhold fed finds from
states who allow under 21 drinking. P says unconstitutional.
Issue: Can Congress condition fed funds to promote safer travel by withholding them from states
with sub 21 drinking.
Holding: Yes
Rule: Congress may attach strings on fed grants, as long as the conditions are expressly stated
and have some relationship to the purpose of the spending program.
Takeaway: i. Spending Power condition must be in pursuit of Gen. Wel. (Is the condition related
to the expenditure) ?
ii. the condition is expressed in an unambiguous manner, clearly allowing state a choice.
(inducement so great as to be coercive or compulsory?)
iii. the financial conditions on federal grants might be illegitimate if they are unrelated to the
federal interest in the particular national projects or programs
iv. Are other constitutional concerns raised (violates 10th).
Dissent: Min Drinking age not connected to highway safety.
NFIB v. Sebelius, 2017
Facts: Congress passed act with two provisions. 1) act required all citizens to get health
insurance 2) If States do not expand health insurance coverage to new individuals under the act,
then Congress will withhold funds under Tax and Spend.
Issue: Do the provisions violate Tax and Spending clause.
Holding: First provision does not, second does.
Analysis: 1st Provision: Tax placed on individuals who do not get health insurance is okay.
Passes Bailey tax test. (Does not meet any factors) i. the heavy burden of tax for even slight
infractions, ii. the requirement of scienter in levying the tax, and payments made to enforcement
agency
2nd Provision: Not a constitutional use of spending power:
Fed condition at issue was the removal of an independent preexisting
grant, rather that future denial of potential fund
Medicaid provisions completely changed bill not an addition.
Threat of removal of whole fed fund grant
Takeaway: Factors making to compulsive
Fed condition at issue was the removal of an independent preexisting grant, rather that future
denial of potential fund
Medicaid provisions completely changed bill not an addition.
Threat of removal of whole fed fund grant
Interstate commerce- Article 1 Sec 8.
Constitutional power given to congress to regulate commerce among the several states
Lopez- 3 categories of commerce congress can regulate:
(1) The channels of interstate commerce; Ex) navigable waterways, airspace, highways,
railroad tracks, telephone lines and the internet. Power to regulate is plenary. (Darby)
(2) The instrumentalities of interstate commerce; Ex) instrumentalities or means of interstate
transportation and persons or things in interstate commerce. Even though the threat may come
only from intrastate activities
(3) An activity that has a substantial effect on interstate commerce. 3rd Category a
combination of Commerce and Nec/Prop Cl which grants of power to Congress to employ all
means that are plainly adapted to an enumerated end and not based on the Commerce Clause
alone. Factors to determine skepticism of legislature. If the activity is economic and the
aggregate effect of the activity impacts interstate commerce, then the court will likely rule the
regulation as constitutional (Lopez)
a. economic/noneconomic activity. Noneconomic - can be regulated, court usually more
suspect of congress.
b. jurisdictional hook that individual intra activity has on interstate commerce. Here, no
guns moved interstate no hook
c .Congressional findings- attenuated connection between the regulated activity and
interstate commerce. Court does not accepted as limit, so power can be limitless
d. Relationship not too attenuated
1st era
Gibbons v. Ogden, 1824
Facts: New York legislature granted a monopoly to Fulton and Livingston. The two hired
Ogden to drive his boat for them. Gibbons began operating a competing ferry service.
Gibbons argues he has a right to operate ferry service under fed law. Ogden says state
law>fed law, so he sues Gibbons to prevent find him from running business
Issue: Whether the New York legislature to create a monopoly regulating Interstate
commerce superior to fed law?
Holding: No, state law unconstitutional.
Takeaway: (1) Commerce means intercourse (navigation included in commerce). (2)
Among in CC: means intermingling between states. (3) Power to regulate means
absolute. Only restraint is constitution.
2nd era 1890-1937- Limiting Congress’s Power
US. V. Knight, 1895
Takeaway: Congress could not regulate monopoly b/c sugar manufacturing is not commerce
(makes little sense)
Hammer v. Dagenhart, 1918
Takeaway: Production (child labor) is not commerce. Can’t regulate
3rd era 1937-1990- Expanding Federal Power Under Commerce
NLRB v. Jones & Laughlin, 1937
Facts: defendant is a largest steel manufacturing producer which engage in unfair labor practices
by discriminating against employees who were forming a union. National Labor Relations act of
1935 prohibits unfair labor practices affecting commerce (i.e. Legislature unconstitutional). D
argues cant regulate b/c employee relations is not commerce.
Issue: Can Act (congress) regulate production (purely intra state)
Holding: Yes,
Takeaway: Commerce Clause, (Congress) has absolute power. Able to regulate activity that has
effect on commerce. Doesn’t matter the source that caused the injury. Here, threatening union
members and potential stroke would be catastrophic on commerce.
Unite States v. Darby, 1941
Facts: Fair Standards Act prohibits the shipment of products that were manufactured in violation
of minimum pay and maximum work hours w/o increased compensation. D claims production is
only in Georgia and shipping is not commerce.
Issue: (1) whether Congress has the power to prohibit employment of workmen not in
accordance of act. (2) whether Congress has the power to prohibit the shipment in Interstate
commerce of lumber made by employees who are in violation of act
Holding: Yes,
Takeaways: Creation of 1st commerce category: Regulation of the Use of the Channels of
Interstate Commerce: Ex) (1) Congress can create rules for shipment.
(2) Congress can regulate intrastate activities that affect interstate
commerce (Employment standards)
* Congressional intent not an issue of constitutionality
Wickard v. Filburn, 1942 (Commercial local activity) that has substantial effect on interstate
commerce.
Facts: Congress passed act that controlled the production and consumption of wheat Filburn
word penalized for planting wheat in excess he had yet to harvest. He had not yet sold any wheat
crop.
Issue: may Congress regulate under the Commerce Clause the production of wheat designed
wholly for individual consumption.
Holding: yes, not going to let indirect dictate congressional authority, can employ all means that
are plainly adapted to an enumerated end.
Takeaways: Congress can regulate purely intrastate activities if the aggregate effect impacts
interstate commerce. In addition, what means are to be employed must be reasonably adapted to
the end permitted by the Constitution.
Katzenbach v. McClung, 1964
Facts: BBQ place did not allow AA to dine in restaurant.
Issue: Can civil rights act prevent discrimination by private.
Holding: Yes. Local practices effect commerce since they prevent commerce and businesses
from being practiced there.
Takeaways: Congress can regulate the behavior of people who are participating in commerce. IF
congress has rational basis for saying affects commerce, then method to fixing it is appropriate.
Garcia v. San Antonio Metropolitan Transit Authority, 1985
Takeaways: Congress can set Federal minimum wage. Standard of traditional state government
function
3rd Era- Again limiting to Protect States’ Right.
Why protect: (1) Prevent authoritative government.
(2) State government more efficient to implement legislature.
(3) Advantage in states acting as laboratories, if works fed adopts, if legislature
fails only state gets punished.
(4) acceptability on state officials.
United States v. Lopez, 1995 – Overturned Wickard. Why protect? Must allow States to
experiment
Facts: Lopez arrives at school with a concealed .38 caliber gun. Arrested at school because
violated congressional act banning guns within 1000 feet of school.
Issue: Can congress pass law that prohibits possession of guns near schools.
Holding: No. Guns near school do not have substantial effect on interstate commerce.
Not Category 2. Guns near schools are not an instrumentality of interstate commerce.
Takeaways:
Category 3 Regulation of Local Activities that have a Substantial Economic Effect on Interstate
Commerce. Economic= activity involved in the production of a good for sale or the sale of a
good or service. Really unclear standard.
Lopez Factors Element Rule Structure::
(1) economic/noneconomic activity. Noneconomic - can be regulated, court usually more suspect
of congress.
(2) jurisdictional hook- that individual intra activity has on interstate commerce. Here, no guns
moved interstate no hook
(3) Congressional findings- attenuated connection between the regulated activity and interstate
commerce. Court does not accepted as limit, so power can be limitless
(4) More of an attenuated connection (a short link). The effect needs to be more direct and not
based on a long series of links in a chain that eventually connects the regulated activity to
interstate commerce
New York v. United States, 1995
Facts: US passes act that provides 3 types of incentives to encourage state to comply with
statutory obligation to provide for the disposal of waste. One of them restricted access to other
state’s waste sites. US passes act that tells other states to pass laws too.
Issue: Whether waste policy constricting waste site access of other states is unconstitutional
under commerce clause?
Holding: Yes, act unconstitutional
Analysis: This violates 10th amendment. Congress does not have the power to force states to
implement regulations. Cannot tell states how to govern. Congress can regulate individuals under
CC but violates 10th amendment b/c it commands states on how to govern under the illusion of
this choice to adopt act
Takeaways: Commandeering Doctrine prohibits the federal government from forcing states to
pass or not pass certain legislation, or to enforce federal law.
Proposed regulation “commandeers” the legislative process of the states and therefore the policy
implication is that it removes electoral accountability for regulation within the state
Gonzales v. Printz , 1997
Facts: Gun Law that ordered state officials to take additional steps before sale. Fed law which
added on to state law.
Issue: Can congress pass a Fed law ordering state officers to execute.
Holding: No, Unconstitutional.
Takeaways: Adds History and Tradition as factors to CC. History: Has congress passed law in
the past regulating area. Tradition: Have the states traditionally passed laws in this area.
Horizontal and Vertical Federalism.
Reclassifying Commerce Power
Gonzales v. Raich , 2005
Facts: DEA seized Cali citizens medical marijuana. P claims act is unconstitutional only when
applied to this instance. (not for sale)
Analysis: when Congress regulates an economic activity under a comprehensive regulatory
scheme. (CSA)
It may also regulate noneconomic aspects of that activity The noneconomic aspect of the activity
may be regulated in order to make the entire regulatory scheme effective. This is true where the
characteristics of the product are the same (fungible), and where the failure to regulate the
quantity intended for noneconomic use would leave a significant gap in the regulatory scheme.
Takeaways: Congress may regulate a class of activities if the class as a whole affects interstate
commerce even if not all members of the class affect interstate commerce. The “class of
activities” rationale. Can say statute applies to this instance cause of class, not unconstitutionality
of whole.
United States v. Morrison , 2000
Facts:
Takeaways In the case of non-economic, violent crime, the Court will not allow Congress to
regulate “based solely on that conduct’s aggregate effect on interstate commerce.”
Reno v. Condon , 2000
Takeaway Exception to Commandeering: Generally applicable laws (can apply to every state
and both private and state entities) are usually not seen as commandeering.
Preemption
Two Categories:
Expressed: Fed law clearly states it alone governs facts of the situation
Implied: Congress implied fed law to supersedes
Field Where the scheme of Fed Law so pervasive as to make a reasonable inference
that congress left no room for states to supplement law
Factors:
Is it an area where the federal government has traditionally played a unique role?
II. Has congress expressed an intent in text or legislative history to have federal law be exclusive
in the area/ field?
III. Would allowing state and local law in the field interfere with comprehensive federal
regulatory efforts?
IV. Is there an important state or local interest served by the law?
Conflict Direct conflict between state and fed law
Obstacle: indirect, state law hinders fed goal
Exceptions:
States may enact similar legislation to a fed one if:
a. Congress did not intent to occupy the field completely; and
b. State law is not otherwise preempted
2. States can legislate more stringent standards than those mandated by federal law a. If congress
created a min standard (health & safety reqs for food/drugs, or roads/highways)
Cases
Privileges and Immunities Clause
Creates strong presumption against state and local laws that discriminate against out of Staters
with regard to fundamental rights or important economic activities
The Citizens of each state shall be entitled to all Privileges & Immunities of Citizens in the
several States”
Executive Branch
Executive power invests in the President.
Art III Sec. 3
The President must “take care that the laws be faithfully executed”
Implied Power.
When can the executive act without express constitutional or statutory authorization?
Rule: The President’s power, if any, to issue an order must stem from an act of Congress or the
United States Constitution
HB Cases
Cases
Youngstown Sheet and Tube co. v. Sawyer
Facts: Dec 1951 labor disputes arose in the steel industry. By 1952 works had gone on strike. As
a result, Pres issued executive order to take possession of steel mill. Told Congress he would do
so and regulate in accordance with their wishes.
Issue: Does Pres have the authority under Constitution to do so?
Holding: No
Takeaway: The President’s power, if any, to issue an order must stem from an act of Congress or
the United States Constitution
Jackson Factor’s
a. If the President acts pursuant to an express or implied authorization of Congress, the
court will give the most deference to the President.
b. If the President acts in absence of congressional act or grant of authority (Zone of
Twilight), the court’s scrutiny is unknown. Case by case.
c. If the President acts against the express or implied will of Congress, the court will give
severe scrutiny to the president’s assertion; the ONLY way the Presidential action can be
sustained in such cases is by finding that Congress is somehow prohibited or disabled
from acting.
Act up till Pres usurps another branches power.
Pres can act till congress limits it
Hamdi v. Rumsfield, 2004
Facts:
Issue: Can Pres hold citizens deemed as Enemy Combatant indefinitely? If no, what
constitutional process is he afforded?
Holding: No and Due process including Habeus Corpus
Analysis: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.” an individual accused of
criminal activity cannot be detained indefinitely, with no trial, no counsel, and no ability to
petition for freedom if he is wrongfully imprisoned. If not actively combating opposition.
Takeaway: Pres cannot act without limit when enumerated power. Pres cannot define what Due
process is for enemy combatants.
Determination of Due Process: Balance between Exec need to detain and detainee’s need to
avoid risk of erroneous detention. (1) Risk of an erroneous deprivation of private interest if due
process limited (2) Probable value if any of additional or substitute safeguard
Takeaway: does not need full due process but at minimum Pres must give process that gives (1)
notice of the factual basis for his classification and (2) a fair opportunity to rebut the
government’s factual assertions before (3) a neutral decision-maker.
Pres can act till Congress intervenes
Boumediene v. Bush, 2008 HB applies to both civil and criminal courts and military tribunes for
soldiers or foreigners
Analysis: Suspension Clause Framework (1) the citizenship and status of the detainee and
adequacy of conviction process; (2) Nature of site where detention was; and (3) The practical
obstacles inherent in resolving prisoner’s entitlement to writ
violation of the separation of powers by giving the judicial function to the executive in violation
of the Constitution.
Immigration Power
Rule: Is proclamation on its face plausibly related to President’s objective of National Security
Cases
Trump v. Hawaii, 2021 Overturned Korematsu
Facts: Trump passed EO that restricted entry into US. Called it the Muslim Ban many times
before executing EO.
Issue: Whether Pres violated establishment clause when he restricted entry to US for a majority
if Muslim countries.
Holding: No
Analysis: Establishment Clause, the Court applies a novel and toothless standard of review that
prevents the courts from striking down discrimination on racial, religious, or other invidious
grounds, in the selection of immigrants to the United States, as long as the government can also
present a facially plausible reason for its actions (National Security concern).
Entry Restriction Rule: President may limit alien entry when he finds that such entry would be
detrimental to the interests of the United States. And the proclamation on its face plausibly
related to President’s objective of National Security
Establishment Clause Exception Rule: The Establishment Clause to the US Constitution which
prohibits the government from making any law "respecting an establishment of religion, or
prohibiting the free exercise thereof. If religion is targeted intentionally then strict scrutiny
review applies which requires the government to show that the act was necessary to meet a
compelling governmental interest.
Non-Delegation Doctrine. Not valid anymore.
Article 1 of the Constitution says that all legislative power is vested in Congress. This means that
Congress cannot give entities like administrative agencies (which are not part of the legislative
branch) the power to legislate. -not really followed.
Rule: Replaced by “Intelligible Principle Doc”: When Congress conveys decision-making
authority upon executive agencies, it must lay down an “intelligible principle” to which the
person or body authorized to act is directed to conform (to guide the exercise of the regulatory
authority)
Cases
A.L.A. Schechter Poultry Corp. v. United States
Facts: Congress gave Pres authority to regulate business fair competition
Issue: Can Congress give Pres authority to make laws and w/o outlining a strict standard on how
laws were to be executed.
Holding: no, violates separation of power
Panama Refining Co, 1935
separation of
Facts: a provision of the industry recovery act authorized the president to prohibit transportation
in Interstate and foreign commerce of petroleum produced in excess of the amount permitted by
state.
Issue: Can congress give power to Pres outlined in this provision?
Holding: No
Analysis: Provision Usurps congress’ power. Congress delegated without policy standards just
gave power to Pres. When one branch has all the power, tyranny of minority can happen.
Conclusion: Congress must specify some limits which agencies can use discretion to avoid
tyranny and protect people
Gundy v. U.S., 2019
Facts: Congress gave Attorney General power to describe the applicability of Sex Offender Act
when saying “ AG shall have authority to specify the applicability of SORNA’s registration
requirements and prescribe rules for registration”
Issue: Does SORNA violate nondelegation doctrine.
Holding: No,
Analysis: Does not violate Intelligible Principle standard. AG acted within limits by applying
SORNA to preact offenders. SORNA’s declaration of purpose says Create comprehensive
registry of sex offenders. AG did not act out of scope of SORNA.
Rule: Statute must law down intelligible principle” to guide the exercise of the regulatory
authority
Legislative Veto
Allowed congress to overturn an agency’s decision by one house vote of congress. Not valid
anymore
The legislative veto was an unconstitutional violation of the United States Constitution's
separation of powers.
Immigration and Naturalization Service v. Chadha, 1983
Facts: INS (Exec) gave Attorney General Power to suspend deportation of aliens if would result
in Extreme Hardship. House of Rep vetoed AG’s suspension
Issue: Is House of Rep vetoing AG unconstitutional?
Holding: Yes
Analysis: House of Rep Veto Power violates separation of powers. Art 3 gave veto power to
pres.
Constitution set up procedures that must be observed.
Appointment Power
Art 2 empowers the President of the United States to “nominate and, with the advice and consent
(confirmation) of the United States Senate, appoint ambassadors, other public ministers, and
consults; judges of the S.C.; and all other officers of the US. But congress may by law vest
appointment of such inferior officers as they think proper, in the Pres alone, to the courts of law,
or in the heads of department.
What constitutes an inferior officer?
Alexia Morrison, independent counsel v. Theodore B. Olson, 1988
Facts: Special Court can appoint independent council with investigation and prosecution
functions. Removal of Counsel can only be done by AG and for good cause. Can also terminate
by AG or special court if independent counsel finishes job.
Issue: Is Independent counsel principal or inferior officer?
Takeaway:
Inferior Officers identifying factors:
(1) Those officers who can removed from office by a higher official in their respective executive
department.
(2) Perform limited duties (can’t formulate policy)
(3) Is restriction of such nature that it impeded Pres’ ability to perform constitutional duty.
Recess Appointment:
Allows Pres to fill up vacancies that may happen during the recess of the senate without senate
approval.
NLRB v. Noel Canning, 2014
January 2012, the Senate was taking a three-day break between pro forma sessions. During the
three-day break, the president used the Recess Appointments Clause Art. II, § 2, cl. 3, to appoint
all three individuals to the NLRB without the advice and consent of the Senate.
Issue: Does Clause include intra and inter session
Can Pres appoint vacancies before recess or during recess that carry to next session
What is the length of a recess?
Analysis:
Pres can appoint during both intra and inter sessions. (functionality concerns)
Pres can appoint vacancies that arise before recess and continue into the session and vacancies
that occur during a recess.
3 days is too short to constitute a recess. No recess appointment has happened in less than 10
days into a recess. The Senate was still in session during its pro forma sessions and retained the
capacity to conduct business.
Holding: Appointments unconstitutional since Pro forma session was not a recess.
Removal Power
There is no provision in the Constitution regarding the power of the President to remove
executive branch officials
Legal tradition is that the President can remove any official. Congress may limit removal only in
the cases where the office requires independence from the President or only limits removal by
requiring a “good cause” to be shown, but does not “prohibit” the President’ function.
Free Enterprise v. Public Company Accounting Oversight Board, 2010
Facts: Public Accounting oversight board created by congress can only be removed by SEC for
cause. Board would be replaced every 5 years. (no retainment of experience)
Issue: May Pres be restricted in his ability to remove a principal officer who is in turn restricted
from his ability to remove an inferior officer, even though inferior officer determines policy and
enforces law
Analysis: Multilevel protection Violates Article II power faithfully executed because board
members are not accountable to Ores because SEC cannot remove a member at will.
Rule: No double “for cause” protection
Seila Law LLC v. Consumer Financial Protection Bureau, 2020
determined that the structure of the with a single director who could only be removed from
office "for cause", violated the separation of powers.
Facts: Congress create CFPB. Agency could make policy and adjudicate. The agency was led by
a single director only removable by Pres “For Cause”
Analysis: Here agency had policy making decisions and was headed by one director who could
not be removed at will
Unconstitutional
Rule: Exceptions to Limit Removal Power by “For Cause”
1) Agency is a multimember expert agency that does not wield substantial executive power
2) Inferior officers with limited duties and no policy making or admirative authority