Shared Flashcard Set


Structures of Constitution
1st yr Con Law BYU

Additional Law Flashcards




Article 1
  • § 7 cl 2-3 Presentment Clause
  • § 8 cl 1 Taxation power for common defense and general welfare
  • §9 Suspension of Habeas Corpus 
Article 2

"The executive authority"

§ 2 cl. 2 Appointment clause

§ 3 Take Care Clause

Commander in Chief Clause 

Article 3
Article 4


New States


§ 2 cl. 3 Fugitive Slave Clause (self executing)

Article 5
Article 6
Supremacy clause
Article 7
10th Amendment

Tautological view: states rights begin where enumerated rights end.

Declaratory view: States rights overlap and prevent enumerated. 

11th Amendment

Overruled Chism v. Georgia

Declaratory view established in Seminole Tribe 

13th Amendment

Abolished Slavery

§ 2: self executing regarding badges and incidents of slavery

14th Amendment

Citizenship if born in U.S.

Privileges and Immunities (gutted by Slaughterhouse)

Due Process

Equal Protections

Right to vote

§ 5 Enforcement clause: secondary authority

Substantive Due Process

Protections of natural rights

Starts w/ Lochner and ends w/ Carolene Products unless an insular minority 

Procedural Due Process

Positivist view

Law is anything that has gone through appropriate procedures 

15th Amendment

Anti-discrimination regarding voting rights

§ 2 enforcement clause isn't self-executing

Anti-majoritarian tenets of Constitution


Electoral College

Amendment Process


Modes of Interpretation
  • Historical: framer's intent
  • Textual: contemporary "plain meaning"
  • Originalsim: "plain meaining" at ratification
  • Prudential: pragmatice, practical
  • Structural: separation of powers/federalism
  • Doctrinal: focus on precedent
  • Ethical: ethos of American institutions/people 
Unenumerated Rights
  • Fletcher v. Peck: Legislature granting a property right vests and can't be rescinded
  • Dartmouth: Vested rights doctrine: Articles of incorporation become vested rights.
  • Calder v. Bull: Chase: Constitution secures fundamental rights   
    • Iredell: Natural justice is a matter of opinion and shouldn't be enforced by courts.
  • Declaratory theory of Bill of Rights 
Natural Rights
Exist in state of nature (life, liberty, property)
Fundamental Rights
Don't exist in state of nature (jury, voting, education)
Enumerated Rights

Expressly found in Constitution


Moderate view of enumerated rights
Invite certain unenumerated rights (e.g. 9th amendment, 5th and 14th due process)
Implied Powers and Judicial Review
  • McCulloch v. Maryland
    • Sovereignty from people, not states
    • N&P = implied powers
    • Taxation power = power to destroy
  • Stuart v. Laird
    • Congress can require Justices to ride circuit
  • Marbury v. Madison
    • Judicial review established
Dormant Commerce Power
  • Gibbons v. Ogden: States can't regulate something w/ interstate affects that is aimed at commerce.
    • Johnson C: Congress can't interfere w/  interstate commerce in any way
  • Blackbird Creek: "too much"/repugnancy test
  • Elkison: SC can't enslave black sailors in harbor
    • (Similar laws allowed under Taney)
  • Miln: State police power is complete = states can regulate anything in their borders.
    • Thompson C: No dormant commerce clause - Congress must act
    • Story D: State's can't interfere w/ interstate commerce in any way
  • Cooley (accomodation): Local or national in nature?
    • Local: local issue & legit. police power
    • Commerce construed narrowly = can't govern laborers
  • Modern: from Steward Machine & Hughesi

    • Balance: local benefit vs. effect on interstate commerce
    • Alternative means available?
    • If state is actor it can discriminate against out of state businesses
    • If state law is facially discriminatory to interstate commerce it is struck down per se
Commerce Under Marshall

Overall fear of federal police power

  • Gibbons v. Ogden:
    • Congress has plenary commerce power 
    • Commerce: commercial intercourse: two way relations between businesses; includes navigation.
    • "Among the states": any commercial act that affects multiple states.
  • Blackbird Creek:
    •  Balancing test w/ state police power (commerce isn't all power - states can act if it isn't repugnant/too much interference w/ commerce)
Commerce under Taney

State's Rights

  • Miln: States can govern anything w/i their borders
  • Cooley: Is nature of act local or national
    • Abandons too much/repugnancy test
    • Courts had to classify it as either local or national
  • Groves: Slaves are not commerce
    • Baldwin D: Congress can regulate slave trade, but not to the point of abolishing it.
Commerce under Reconstruction Era Courts

Holding back federal police power and promoting laissez faire economics by limiting commerce power through substantive due process


  • (DeWitt: Congress can't regulate highly combustible oils)
  • (Munn: laissez faire conservativism re. monopolies)
  •  Sugar Trust Case (1895): Allows sugar monopoly because it's manufacturing not commerce.
    • Interstate commerce vs. local activity still used
  • Lottery Case (1903): Beginning of federal police power
    • Commerce power = plenary power regarding regulation of anything shipped across state lines
    • Fuller D: If purpose of law isn't regulation of commerce shouldn't be allowed
  • 3 Factor test used at this point
    • Interstate or local activity
    • Purpose: regulate commerce (shipping across state lines) or police power
    • Is action barred by 10th Amendment
  • Lochner v. NY (1905): Reign of substantive due process
    • (Baker's hours case - not dangerous trade)
    • Law infringes on right to contract, protected by substantive due process of 14th Amendment
    • Harlan D: Deference to legislatures on policy
    • Holmes D: Constitutionality isn't based on social isses/political questions
  • Miller v. Oregon (1908):
    • uphold women's labor law
    • 3 exceptions to substantive due process:
      • Sui jurists (women, children, incompetents)
      • Unreasonably dangerous situations
      • Clothed w/ public interest
        • RR & Innkeepers
  • Child Labor Case (1918): Resist fed. po. power
    • Can regulate shipping if shipping is harmful
      • categorical analysis: commerce OR police power
    • Dissent: shouldn't consider intention of law
    • Prudential thought: This decision creates prisoner's dilemma
Transition from reconstruction to New Deal

From laissez faire to legislative power (public good)


  • Nebbia v. NY (1934): Weakening of substantive due process
    • uphold milk price fixing
    •  Due Process = not unreasonable
    • Law (regulation) must be related to purpose
    • Deference to legisalture
  • Minnesota Mortgage Moratorium Case (1934):
    • Weakening of laissez faire
    • Police Power includes economic welfare
    • Compromise between individual contract rights and public welfare (prudential)
    • Cardozo C: Laissez faire may not work w/ modern economy
  • West Coast Hotel (1937) Harlan's Lochner dissent
    • Deference to legislature on policy issues
    • Legislature doesn't need to compile evidence
      • (Think Lopez)
  • Steward Machine (1937): Spending power & 10th Amendment
    • Tax incentive to pay into state unemployment
    • Deference to legislature
    • Doesn't violate 10th Amendment
  • NLRB v. Jones & Laughlin Steel (1937):
    • Check class notes
    • Beginning of rational basis test:
      • Commerce is anything that moves in stream of commerce 
    • Close & substantial relation: anything that is closely related to interstate commerce can be governed. 
    • Congress can govern labor organizations/collective bargaining
Rational Basis Test
  • Jones & Laughlin Steel (1937):
    • Stream of commerce
      • Close and substantial relation to interstate commerce is sufficient to be governed by commerce power
  • Darby (1941):
    • Element of substantiality (beginning of effects test)
    • Chanels of commerce
      • Regulate wages/hours by governing shipping
    • 10th Amendment is a truism
  • Wickard (1942):
    • Substantiality
    • Rational basis
    • Aggregate effects test
Substantive Due Process
  • Lochner v. New York (1905): Right to contract can't be infringed unless it is a dangerous occupation
    • Dissents
      • Harlan: deference to legislature on policy
      • Cardozo: Laissez faire perhaps not fit for modern economy
  • Miller v. Oregon (1908): 3 exceptions
    • Sui jurists
    • Unreasonably dangerous situations
    • Clothed in public interest (inns, RR)
  • Nebia v. NY (1934):
    • Due process = law is not unreasonable, arbitrary
      • Law must be related to its purpose
    • Deference to legislature
  • MN Mortgage Moratorium Case (1934):
    • State police power includes economic welfare
    • Must be a rational compromise between individual (contract) rights and public welfare
    • Prudential argument: states must have power to protect economic welfare
  • West Coast Hotel (1937)
      • Deference to legislature on policy issues
        • Harlan's Lochner dissent
  • Carolene Products (1938): Death of substantive due process
    • Might test:
      • If there is any rational purpose/basis for law it is constitutional
    • Only unconstitutional if:
      • violates text of Constitution
      • violates principles of democracy
      • discriminates against a discrete and insular minority
        • race, religion, national origin
      • (Modern: violates right to privacy)
  • Williamsen v. Lee Optical (1955)
    • Minimum rationality test for due process continued in Warren/Burger Courts
Commerce under the New Deal Court

Modern economic due process: deference to legislature


  • Carolene Products (1938): Death of substantive due process
    • Might test:
      • If there is any rational purpose/basis for law it is constitutional
    • Only unconstitutional if:
      • violates text of Constitution
      • violates principles of democracy
      • discriminates against a discrete and insular minority
        • race, religion, national origin
      • (Modern: violates right to privacy)
  • Darby (1941): Substantiality element
    • If involved in channels of commerce it is commerce
    • Commerce power may overlap state police power
    • Beginning of effects test
      • Congress can prohibit shipping goods made in poor labor conditions
    • 10th Amendment is a truism
  • Olsen v. Nebraska (1941)
    • Court can ignore notions of policy from previous courts
  • Wickard v. Filburn (1942) Substantial effects test:
    • Aggregation of action = slippery slope
  • Railway Express (1949): Equal protections
    • Minimum rationality test for equal protections


Commerce under Warren/Burger

Unlimited Commerce Power

Federal Police Power (stream of commerce + substantial effects + Deference)


  • Rule: Regualte anything w/i
    • Channels (interstate highways, seaways, telephone lines, air corridors, internet lines)
    • Instrumentalities (phone, computer)
    • Aggregation test
  • Williamsen v. Lee Optical (1955):
    • Minimum rationality test for due process
      • Might be an instance that benefits cosumer
  • Civil Rights Act (1964): Prohibits discrimination if it affects commerce
  • Heart of Atlanta Motel (1964):
    • Can prohibit hotel's discrimination
  • Ollie's Barbeque (1964):
    • Can prohibit restaurant by interstate's discrimination
    • Stream of commerce and substantial effects test (sell less, obstruct travel)
    • Douglas C: should use 14th Amendment
  • Lake Nixon Club (1969):
    • Most extreme
    • Black D: should be 14th Amendment
  • Perez v. U.S. (1971)
    • Loanshark in NY
    • Loans are commerce
  • Philadelphia v. N.J. (1978):
    • Garbage is commerce
Commerce under Rehnquist

Still shows deference and uses chanels and instrumentalities.

Big question: What is status of aggregation test?


  • Hahn:
    • minimum rationality
    • upheld proposition tax law
  • U.S. v. Lopez (1995): Gun-Free School Zones Act
    • Replaces aggregation w/ Subtantial relation to interstate commerce
      • Must be economic activity
      • Must have jurisdictional element (cross state lines)
      • Congress must present findings supporting  above prongs
    • Dissent: ignores precedent, moves backwards
  • U.S. v. Morrison (2000): Violence Against Women's Act
    • Add's 4th Prong to Lopez test:
      • Economic activity
      • Jurisdictional element
      • Findings necessary
      • Proximate Causation on between activity regulated and effect on commerce
        • Ask Kyle and Ricky about this
  • Raich v. Gonzalez (2005): Medical Marijuana
    • No jurisdictional element
    • No proximate causation
    • No findings (of diversio - Thomas D)
    • Only spilloverr effects on interstate marijuana trade
    • O'Connor D: guts Lopez
    • Gedicks: all that is left of Lopez is effects test of spillover into interstate commerce.
      • Economic activity that has the potential of affecting commerce in other states
    • Scalia: Majority: only need findings when economic activity is visible to naked eye
Taxing and Spending vs. 10th Amendment
Does 10th Amendment check it? Does it need to, or is it limited by enumerated powers?
Historical views of taxing/spending
  • Madisonian
    • Strict
    • spending must be tied to enumerated
  • Hamiltonian
    • Broad
    • spending power encomases anything regarding "promotion of the general welfare"
Taxing/Spending under Progressive era Courts
  • Decades of controversy over whether spending power applied to disaster relief.
  • California RR Case (1888):
    • Spending on RR is authorized under commerce clause
  • Child Labor Tax Case (1924):
    • Categorical mode of analysis
      • Police Power OR Taxing/Spending Power
    • Resisting Federal Police Power
    • Tax to influence behavior = police power
  • U.S. v. Butler (1936):
    • Transitional Case
    • Adopts Hamiltonin view
      • Still Good Law Today
    • General welfare spending is limited by 10th Amendment
    • Spending power can't be used to establish coercive legislation
Taxing/spending under New Deal Court
  • Steward Machine (1937):
    • Refunding of payroll tax as incentive is okay
    • Deference to legislature on taxing/spending
    • Doesn't violate 10th Amendment
Taxing/Spending under Rehnquist Court
  • S.D. v. Dole (1987)
    • Dole Factors
      • Must be in pursuit of general welfare
        • (Hamiltonian view)
      • Clear Choice Offered to the States
      • Nexis test - related to federal interest sought
      • Law doesn't violate other part of the Constitution
    • O'Connor D: drinking age is too remotely related to highway funds
Civil rights/Slavery under Marshall Court
  • Alien and Sedition Acts:
    • Levy (article): Freedom of Press and Speech didn't include libeling government, just not seeking permission to publish
    • BUT many thought it did at the time
      • Rights were expanding
Civil Rights/Slavery under Taney
  • Baron v. Balitmore:
    • BoR doesn't apply to the states
  • Prigg:
    • Fugitive slave clause is self-executing by slave-holders and Congress
      • Right of immediate ownership as long as it doesn't disturb the peace.
    • States don't have to aid slaveholders
    • Taney C: States do have to aid slaveholders
  • Dred Scott (1856):
    • AAs cannot become citizens
      • Textual: 3/5, fugitive slave clauses
      • Historical/original: Declaration of Independence didn't include AAs
    • Congress can't ban slavery in territories
      • MO compromise voided
    • Due Process of Law:
      • Procedural due process framework laid
Civil Rights under Laissez Faire Courts
  • Strauder (1880)
    • 14th prohibits discrimination based on race
      • Can't outlaw black jurors
    • Right to race free process (jury by peers) is a civil right
      • Focus on results that show disparate impact on racial minority
    • Field D: 14th doesn't protect political or social rights
  • Civil Rights Cases (1883)
    • State Action Doctrine: 14th only authorizes corrective actions against state legislation
      • Doesn't include executive or judicial acts
    • 13th gives primary authority regarding badges/incedents of slavery
      • b/i construed narrowly - leading back to slavery
    • Harlan D: Jim Crow laws are b/i of slavery
  • Plessy v. Ferguson (1896):
    • Police power: reasonable regulation of private interaction (still good law)
    • 13th: legal distinction in statute isn't b/i of slavery
    • 14t: Segregation ok w/ priv./immun., procedural due process, equal protections
      • Seperate but equal
    • Harlan D: Color-blind Constitution
  • Giles v. Harris:
    • Holms: court is powerless to help black voters
    • External view: concern w/ Court's legitimacy
  • Slaughterhouse (14th Amendment)
    • Citizenship to everyone born in U.S.
      • Overrules Dred Scott
      • State: live w/ intent to remain indefinately
    • Privileges and Immunities:
      • State protect natural/fundamental rights
      • National power limited to:
        • access to ports, seats of gov.
        • rights on high seas including access
        • habeas corpus
        • Peaceably assemble
          • Incorporates 1st Am?
    • Field D: Natural/fundamental rights guranteed to all
  • Quincy RR (1897):
    • Apply BoR eminent domain to states
  • Lochner (1905)
    • Right to K applied to states
  • Gitlow (1925):
    • Incorporates 1st Amendment rights to states
Civil Rights under New Deal Court
NOTHING: Congress did it all w/ commerce blank check
Incorpation of the Bill of Rights
  • Black (1947 dissent)
    • Total incorporation
  • Frankfurter (1947 majority)
    • Fundamental fairness guaranteed w/ 14th Amendment may overlap BoR, but any overlap is incidental
  • Brennan (1962 - what happened)
    • Selective Incorporation
      • Everything incorporated but 2nd, 3rd, parts of 5th, 7th
Civil Rights under Warren/Burger Courts
  • VRA (1965) outlawed literacy tests even though the Court had held them constitutional. 
  • SC v. Katzenbach (1965)
    • 15th Amendment "remedies" include prophylactic (preventive/deterrent) authority
    • Deference to legislature - minimum rationality test
      • Literacy tests in areas of past discrimination might have a dipsparate impact on a minority
  • Katzenbach v. Morgan (1966)
    • NY literacy tests?
    • Alternative Holdings
      • Remedial Powers under minimum rationality test
      • Substantive Constitutional Interpretation Power:
        • One way ratchet rule: Congress can expand Court's definition of rights, but not retract it.
    • Harlan D: only Courts can define rights
      • structural
    • Sager (academic):
      • Congress can overprotect rights to ensure protection in grey areas.
  • Jones v. Alfred Meyer Co. (1968): 13th Amen.
    • Congress can define badges and incidents of slavery
      • broad interpretational power expressly given by Court
What constitutional interpretation powers do Congress and the President have?
  • President:
    • Adam's orders based on interpretation didn't protect captains
      • Little v. Barreme
    • Jefferson: President can violate Constitution if it's really in the public interest
    • Jackson: Disagrees w/ Marbury, all branches have interpretive powers
    • Lincoln: President can review constitutionality via appointing Justices that will overturn decisions he does't like.
    • Delinger: President can independently interpret w/o bounds of Court decisions.
  • Congress and constitutional interpretation
    • Substantive interpretation: Congress has substantive power to define
      • Katzenbach 1 way rachet
      • X violates the 14th Amendment
    • Remedial: Congress can prevent/deter OR correct violations of the Reconstruction Amendments. But not define the violations: Courts define substance:
      • City of Boerne limiting 1 way rachet
      • If it satisfies congruent and proportionality it is ok w/i remedial powers
      • Congress used to have only remedial powers, but now "remedial" means preventive and remedial powers.
Executive Powers
  • War Powers
  • Appointment Power
  • Veto Power
  • Non-prosecution power (inherent)
  • Pardon
  • Executive Privilege
Civil Rights under Rehnquist

Restricting of reconstruction powers

  • City of Boerne (1997)
    • Strikes down RFRA
    • Congress does not have substantive power of constitutional interpretation
    • Test
      • Proportionality (cannot overenforce too much)
      • Congruence (law must address problem)
        • Morrison fails this
  • NV Dpt. of Health v. Hibbs (2003):
    • Family Medical Leave Act passes Proportionality and Congruence test
      • is "responsive to, or designed to prevent unconstitutional behavior"
    • Pryphylactic legislation
Article on slave trade discussing why we don't celebrate it here like in England, and giving scary hypo re. if it hadn't been stopped.
Agency Theory

National power originates from States

  • Jefferson and Madison re. Sedition Acts
  • States are last word as to whether national government is acting constitutionally and can void government actions
  • When someone exceeds their agency authority other have no dutyto obey.
  • Since states gave power to national gov., don't have to recognize laws if government exceeds scope. 

National power from the people
  • Jefferson Davis:
    • Dec. of people the right to resume sovereignty.
    • Secession is legal
  • Buchanan:
    • Secession is not legal
      • Must have a full-on revolution
  • Lincoln:
    • Union is perpetual
    • No government ever allowed for its termination.
10th Amendment
  • Declaratory theory: Declares rights, doesn't create them.  They exist independent.
    • Checks governmental powers - limits commerce/spending powers that would exist otherwise.
  • Tautology: State's rights begin where constitutional powers end. 
Federalism under Marshall Court
  • McCulloch v. Maryland:
    • Limits on commerce power are politically enforceable - not judicially.
Federalism under Taney Court
Used expansive view of police power to enforce state's rights.
Federalism under Reconstruction/Progressive Courts
Used categorical view of commerce/police power to protect state's rights (but limited them also under substantive due process)
Federalism under New Deal Court
  • Steward Machine v. Davis (1937)
    • Tax refund to encourage state unemployment doesn't violate 10th Amendment
    • Tautological view of 10th Amendment (truism)
  • Darby (1941)
    • 10th Amendment is a truism
    • Commerce power may overlap police power
      • Can fix minimum wage
Federalism under Burger Court
  • National League of Cities v. Usery (1976)
    • Can't regulate states as states or impair a state's integrity or abilty to function in federal system.
    • Violation of 10th Amendment
    • Brennan & Stevens D: Should be enforced politically
  • Garcia (1985):
    • Overrules National League of Cities
    • Balancing test of value of government action was unworkable.
Federalism under Rehnquist
  • SC v. Baker (1988):
    • Upholds weak limit on state bonding
    • 10th Amendment protections only political (from Garcia)
    • Rehnquist C: Garcia doesn't say 10th Amendment only politically protected
  • New York v. U.S. (1992):
    • Anti-commandeering of state legislatures
    • Must give states a choice to act or be acted upon: can't force action.
  • Printz v. U.S. (1997)
    • Anti-commandeering of state executives
    • Unfunded mandates = unconstitutional
    • BUT state judges are comandeered all the time
    • Political accountability arguement
  • Seminole Tribe (1996):
    • Declaratory Theory of 11th Amendment
    • Congress can't allow suits against states in federal courts.
Sources of Executive Powers
  • Constitution
    • "The" Executive (inherent)
      • Hamilton, "vesting clauses limit legislature, but not the executive.
      • Limit is consistency of power sought w/ overall Constitution
    • Commander in Chief
    • Take Care Clause
  • Congressional act
War Powers at Civil War
  • Lincoln:
    • President can act to maintain status quo, but then must seek congressional ratification.
  • Prize Cases (1863):
    • President has power to blockade even if formal war has not been declared.
      • Textual: CinC, Take Care
      • Inherent: English monarch precedent
      • Pragmatic: Single Executive best fit to make war-time decisions
      • Stautory: authorization of force
    • Minority: need an official declaration of war for war powers to kick in.
  • Ex Parte Merryman (1861): Habeas Corpus
    • Only Congress can suspend habeas corpus
    • Lincoln: President obliged to violate one law if it saves the nation.
      • Not clearly a legislative power
  • Emancipation:
    • Used war powers
    • Only affected "fields of battle" (arguably)
    • Lincoln: war powers only checked politically
    • Curtis disagreement: National government can never interfere w/ state property law.
      • President can't make/repeal law - only enforce it.
  • Ex Parte Milligan:
    • Martial law can be declared when:
      • courts are closed on a field of battle (inherent authority)
      • Congress authorizes it.
    • Dissent: only when Congress authorizes it.
War Powers under New Deal/Warren/Burger
  • Youngstown Sheet & Tube v. Sawyer (1952 - end of New Deal Courts)
    • Black Majority:
      • No inherent executive power to national steel mills
      • Too far removed from CinC powers
      • U.S. not a theatre of war = a domestice issue for Congress
        • Needed to go to Congress
    • Jackson C:  Good Law Deference to President based on classification
      • Category 1: President has some authorization from Congress (Zenith)
      • Twilight Zone: Congress is silent/indefferent
      • Category 3: Congress has denied authority (Nadir)
    • Frankfurter C: Congress denied power
      • Just because Pres. can't respond in an emergency doesn't mean government can't.
    •  Douglas C: Unilaterally raise taxes argument.
    • Burton C: Like Frankfurter
    • Clark C: Pres must follow Congress if procedure is prescribed.
    • Dissent:
      • Extraordinary times w/ communism
      • President went before Congress as soon as he issued the order
      • Congress hasn't forbidden authority.
  • War Powers Resolution (1973)
    • President must submit report to Congress w/i 48 hours of deployment and draw down if doesn't recieve authority in 60 days.
Suspension of Habeas Corpus/Executive Detention

Martial Law = suspension of habeas corpus

  • Ex Parte Merryman: Only Congress can suspend habeas corpus
  • Ex Parte Milligan: Martial law (military tribunals for civilians) only on active battlefields or w/ congressional authority.
  • Korematsu v. U.S. (1944):
    • Strict Scrutiny Test:
      • Suspect classifications based soley on race are subject to strict scrutiny.
        • Weight of government interest
        • Least restrictive means available
          • Easier for D to win.
    • Uphold detentions: deference to military leaders.
    • Jackson C: Based on War Powers, not strict scrutiny test
  • Miller Article: Government has abused racial classfications and shouldn't be allowed to use them at all.
  • Hamdi v. Rumsfield (2004 plurality):
    • O'Connor Pl:
      • Congress authorized detention by force authorization.
      • Due Process owed: notice of charge, opportunity to contest, neutral decisionmaker.
    • Souter C:
      • Congress didn't authorized detention
        • Need a clear statement
    • Scalia D:
      • Congress must suspend habeas corpus or full criminal procedural righs given.
    • Thomas D:
      • President has inherent power to detain.
      • Good faith acts w/ some reasonableness should not be reviewed judicially.
  • Rumsfield v. Padilla (2004)
    • Sidestepped issue by claiming there wasn't standing based on where he filed.
Non-Prosecution Power
  • Text: Take Care Clause: express delegation to enforce laws
    • Inherent "The" Executive
  • U.S. v. Cox (2nd Cir. 1965 en banc): Indictment
    • Jones Maj:
      • Indictment is a shield
      • Prosecutor has complete discretion in preparation and execution of indictment
    • Rives D:
      • Indictment is a shield, but may be ordered by a grand jury.
      • Prosecutor must prepare indictment if grand jury requests.
      • Prosecutor can file motion to dismiss
    • Brown C:
      • Prosecutor must create indictment, but doesn't have to sign it.
        • Middle ground
        • Prosecutor has full discretion as to execution.
    • Widsom C: Same result as majority
      • Executive best suited to make policy decisions.
Executive Privilege
  • Extreme/substantial deference
    • executive/national interests
      • military or diplomocay
  • Balancing test
    • Undifferentiated/broad claims
    • executive confidentiality vs. need for evidence
    • Used more and more after Watergate & Vietnam
  • U.S. v. Nixon (1974):
    • Rule of law and need for evidence outweighs executive privilege.
  • Majority feel President can't be charged w/ anything other than impeachment while in office.
    • Still debated.
Delgation of Power Rule
  • President has power to fire inferiors, but not power over immediate supervision over day-to-day decisions.
    • Especially after he has formally delegated power (Exec. order)


Appointment/Removal Power
  • Art. 2 sec. 2 cl. 2
  • 3 circle diagram - general employees, appointed officers, inferior officers
  • General rule:
    • President nominates
    • Senate confirms
    • President appoints
  • Inferior officer exception:
    • Congress authorizes President, Court, or head of department to appoint an inferior officer.
    • Designated person makes appointment
  • Morrison v. Olsen (1988):
    • Independen Counsel is inferior even though AG can only remove him w/ cause
      • AG appoints him
      • Has limited duties/jurisdiciton
    • Scalia D: Must have removal power, and removal w/ cause is not it.
  • Edmond: Inferior Officer Test
    • Subject to supervion and direction by principal officer
    • Subject to removal by principal officer (w/o cause)
    • Policy: transparent political accountability
    • Souter D: wants to maintain Morrison
Veto Power

Presentment clause (Art. 1 sec. 7, cl. 203)

  • INS v. Chadha (1983):
    • Burger Maj: One house veto unconstitional
      • Presentment Clause
        • Textual: guaranteed opportunty to veto legislative acts
        • Structural: bicameral: check on legislative powers, ensures deliberation
    • Powell C: Private law was a judiciary act.
      • Textual: Bill of attainder
      • BUT what about private bills?
    • White D: Both legislative and executive have participation in decision = constitutional
    • Rehnquist D: Severability: Congress wouldn't can created law w/o oversight powers - regardless of what boilerplate severability clause says.
President has power to pardon anyone for a federal crime.
Treaty Power
  • MO v. Holland (1920): State's must adhere to bird migration treaty.
    • Textual: Supremacy Clause, N&P Clause
    • Inherent power
    • Pragmatic: states can't regulate migratory birds.
Policies to consider in an essay

Supremacy: conflict w/ state law 

Political Question



Federalism/10th Amendment

Violate other parts of Constitution

 Separation of Powers

Statutory Interpretation
If examples are enumerated, usually others are not inferred.
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