JUDICIAL POWER Judicial Review 1. Federalist Papers a. Hamilton indicates the judiciary has neither force nor will, but merely judgement 2. Marbury v. Madison a. John Marshall articulates that it is emphatically the province and duty of the judicial department to say what the law is. b. Where the law is repugnant to the Constitution it is void 3. Martin v. Hunter’s Lessee a. The Supreme Court is the “Final Arbiter” and the ultimate interpretation of federal law and the Constitution is placed in the U.S. Supreme Court, subject to congressional exception b. The Constitution and Treaties made pursuant to it are the supreme law of the land and judges everywhere shall be bound by it 4. Cooper v. Aaron a. It is not the Supreme Court’s interpretation that is Supreme, it is the Constitution. The Court’s interpretation creates a minimum bar by which the states may depart upward, but not down. LEGISLATIVE POWER The Interplay Between Legislative Enactment and Executive Implementation 1. Article I Section 7 – process for making laws a. Bicameral Passage b. Presentment to the President 2. INS v. Chadha a. Using the Formal test, the court held that anytime Congress alters the rights, duties and responsibilities of individuals, bicameral passage and presentment are required b. White’s dissent advocated use of the Functional Test 3. Separation of Powers Test Functional v. Formal Test a. Functional Test i. Does the Constitution assign responsibility to the executive or blend the powers between branches? ii. Does the action of Congress impermissible impair that power? b. Formal Test i. Text of the Constitution Controls 4. Line-Item Veto a. Clinton v. N.Y. – unconstitutional because act of Congress cannot authorize the President to create a law whose exact text was not voted on by either house 5. Legislative Veto a. Repugnant to the Constitution because Congress could pass a resolution which affected the rights and responsibilities of citizens, but neither bicameral passage, nor presentment were required. 6. Severability a. Unconstitutional portions of legislation can be severed, unless it is apparent Congress wouldn’t have enacted the legislation without that portion
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Bill may contain a severability clause
EXECUTIVE POWER
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Federalist Papers A. Call for an energetic president and dispatch Scope of Power A. TR v. Taft B. Emergency Examples: 1. Lincoln and FDR Domestic Authority A. President’s Power – Youngstown Sheet & Tube 1. Jackson’s Concurrence emerges as the citeable authority. President’s power fluctuates depending on which of three categories his action falls into: a) Max Power –> Pres acting w/ Congress’ implied or express auth. b) Twighlight Zone –> Pres. acting alone and Cngrs silent (1) President must rely on his conferred powers c) Lowest Ebb –> Pres acting along and Cngrs. has denied authority (1) President must rely on Vesting, Take Care or CNC clause B. Power of Appointment 1. Article II Section 2 Clause 2 – Appointments Clause a) President nominates –> senates advises and consent –> President appoints 2. Types of Officers a) Principal Officers – enumerate in Article II (1) Ambassadors (2) Consuls, public ministers (3) Justice of Supreme Court (4) All other officers not contained therein, but b) Inferior Officers – Congress may vest appointment of officer in Pres., Courts, or heads of Agency Departments C. Power of Removal 1. Constitution is silent on removing officers 2. Principal Officers – President has exclusive power to remove purely executive principal officers w/out cause (Myers v. U.S.) 3. Independent Agency Principal Officers – President has removal power but Congress may fetter the President’s power and require he show cause for termination (Humphrey’s Executor). Court shifted away from looking purely at removal as a meas to control agency in Morrison. Court may examine under Functional Test whether the actions of the officer are carrying out the President’s instructions (faithfully executed) a) Independent agencies are quasi-legislative/judicial bodies that operate through their expertise and impartiality and should not be subject to political pressure. 4. Inferior Officers – Myers was silent as to Inferior officers, but Perkins held that Congress may vest appointment of inferior officers in Pres.
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Nondelegation Doctrine – Courts will tolerate a substantial amount of delegation of authority so long as Congress has provided an intelligible principle to
alone, in courts or head of departments and place limitation on their removal. 5. President – sole power to impeach is lodged in the senate Executive Privilege 1. Rule – Executive privilege implicitly exists, but there is no absolute and unqualified executive privilege. Further an intra branch dispute and nothing more will not defeat justiciability (U.S. v. Nixon) 2. Test – weigh the interest protecting the subject matter of the communications with the interest of the party seeking communications a) High (near absolute) – military, foreign diplomacy, national security b) Middle – law enforcement need, criminal prosecutions, open lit files c) Low – general deliberative process assertion regarding confidential communications on day-to-day domestic matters 3. U.S. v. Nixon – due process rights of defendants trumped Nixon’s assertion to deliberative process 4. Cheney v. U.S. – executive privilege over day-to-day domestic confidential communications trumped interests in discovering whether the task force was in compliance with an act 5. Hilary Clinton – gov’t attorney’s clients are the people –> no attorney client privilege 6. Bill Clinton – duty of white house counsel is to defend president, no absolute privilege. Federal employees have a duty to report illegal activity to superiors, thus secret service could be subpoenaed for grand jury proceedings Immunities 1. Civil Suits a) Nixon v. Fitgerald – president has absolute immunity from civil suits for decision made in the scope of office b) Clinton v. Jones – President is not immune from civil suits for actions outside the scope of his office 2. Criminal Prosecutions a) no immunity b) Impeachment – we don’t know whether impeachment is required before conviction 3. Presidential Aids a) qualified immunity in civil suits for official actions as long as they aren’t in violation of clearly established statutory or constitutional rights that should have been reasonably known. Delegation of Power to Executive Agencies by the Legislative Branch 1. Administrative Rulemaking is quasi-legislative – part oft he president’s power to ensure the laws are faithfully executed. 2. Administrative activity cannot reach beyond the limits of the statute that created it