Con Law Outline Gamen

8/3/2019 Con Law Outline Gamen

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Constitutional Law I Fall 2009I. The Supreme Court’s Authority and RoleA. The Power of Judicial Review

• Marbury v. Madison (Justice Marshall)

Judicial Review:1.) S. Ct. can review and declare acts of the legislative and executive branch

unconstitutional only when those acts are not purely political

A law that is inconsistent with the Constitution is VOID because all

branches of government are bound by the Constitution

2.) S. Ct. is the ultimate Constitutional interpretive authority

Article III § 2: S. Ct. Jurisdiction

o Original Jurisdiction- “in all cases affecting”:

a.) Ambassadors

b.) Public ministers and consuls, and

c.) State is a party

o Appellate Jurisdiction- “in all the other cases before mentioned, both as to lawand fact, with such exceptions, and under such regulations as the Congress shall

make.”

a.) Applies to federal questions or federal diversity

b.) Congress can alter the scope of Ct.’s appellate jurisdiction

B. Supreme Court Authority to Review State Court Judgments

• S. Ct. has authority to review state Supreme Court decisions where the case involves a

federal question and S. Ct. has appellate jurisdiction

• S. Ct.’s review of State S.Ct. decisions is not impeding upon state independence because:

1.) States do not have absolute sovereignty because they are bound by Constitution

2.) It is necessary for Supreme Court to review state decisions to maintain uniformity

in the lawC. Judicial Exclusivity in Constitutional Interpretation

• Article VI Supremacy Clause: “The Constitution and the Laws of the United Stateswhich shall be made in Pursuance thereof, and all Treaties made…under the Authority of

the U.S., shall be the supreme Law of the Land”

o Binds States and Federal Government

o Since S. Ct. interprets and applies the Constitution, the S.Ct.’s interpretations and

applications also bind the states

o All branches of the government interpret the Constitution:

1.) Congress- passing legislation2.) Executive- enforcing the laws

3.) Judicial- judicial review

• State officials can oppose S. Ct. decisions, but they cannot nullify the decisions and

actively bar its enforcement because under Art. VI para. 3 federal and state legislative,

executive, and judicial officers are bound by oath to support the Constitution

• Why Do We Interpret the Constitution?

1.) Create and Organize the Government2.) Create limits on government power



• Ways the Executive and Legislative Branches Can Voice Disapproval of S. Ct.

decisions:

1.) Judicial Selection: Nomination and Confirmation Process- Executive branch

2.) Impeachment

3.) Court-packing- increasing the size of the court

4.) Court-stripping- limit court’s appellate jurisdiction5.) Constitutional Amendment- been done 4 times- legislative

• Authoritativeness of Supreme Court Decisions

Congress CANNOT overturn S. Ct.’s interpretation of the Constitution

Congress CAN overturn S.Ct.’s interpretation of statutes and common law

D. Constitutional and Prudential Limits on Judicial Review

• The S. Ct. and lower federal courts will only hear justiciable cases (cases that areappropriate for federal adjudication)

• Justiciability requirements are derived from:

1.) Constitutional Limits- Interpretations of Art. III § 2 or

2.) Prudential Limits- From S. Ct. policies developed apart from Constitution

• A case is Justicicable and appropriate for S. Ct. when:1.) Plaintiff has Standing

a.) Constitutional Standing Requirements under Article III:

Plaintiff must show that the P has an:

1.) Injury in Fact

A.) Particularized and ConcreteB.) Distinct and Palpable

C.) Actual and Imminent

2.) Which was Caused by the D’s conduct and

Harm must be fairly traceable to government actions

3.) A favorable judicial ruling would redress that harm

b.) Prudential Standing Requirements Created by S. Ct.:1.) 3d Parties do not have Standing unless:

A.) Close Relationship with the rightholder

B.) Close identity of the interest with the rightholder C.) The rightholder’s interest would be unavoidably hindered by the restriction of

the 3d party restriction

2.) People who have generalized grievances

If everybody has standing, then no one does;

Ex: Taxpayers

Exception: Establishment Clause challenges

3.) Suits outside a law’s zone of interest (outside interest created by statute)

4.) Associational Standing ( Hunt v. Washington State Apple)

An organization has standing when:

1.) Its members would otherwise have standing to sue in their ownright

2.) The interest it seeks to protect is germane to the organization’s

purpose



3.) Neither the claim asserted nor the relief requested requires the

participation of individual members in the lawsuit

5.) States have automatic standing because they have an interest as a sovereign entity

2.) Case or Controversy

S. Ct. and federal courts require a “case and controversy” because the S.Ct. cannot issue “advisory opinions”

Declaratory judgments are not advisory opinions

State S. Ct.’s can issue advisory opinions

To establish a “case and controversy”, the claimant must establish that the

matter in controversy:

a.) Is definite and concrete

b.) Touches the legal relations of parties having adverse legal

interests; and

c.) Involves a real and substantial controversy capable of

specific relief through a decree of conclusive character

3.) Timeliness: Cannot be Moot or not Ripea.) Mootness- a case is moot when changing circumstances developing after the initiation

of the lawsuit have ended the controversy, so that the court no longer confronts a livedispute

• Exception: Cases that are capable of repetition yet evading review

1.) Where the action is likely to happen repeatedly, but will alwaysavoid review due to the time required to litigate

2.) Roe v. Wade- pregnancy litigation would seldom make it

through the judicial process if all were considered moot just because thewoman is no longer pregnant

3.) Cessation of past wrongful conduct might moot a claim for an

injunction, but not a claim for damagesb.) Ripeness Doctrine- the case is brought before a concrete confrontation emerges

(Look for this when under standing, there is no immediate injury)

4.) Legal Issue: Cannot be a Political Question

Determining whether something is a political question is a question for the court

Baker v. Carr Factors: A suit involves a nonjusticiable political question if:

1.) Constitution textually commits the issue to another branch of federal government

a. The legislative or executive branch must have the power and the finaldecision-making (discretion) power under the Constitution

b. Only applies to Separation of Powers; not Federalism

2.) There is a lack of judicial standards for resolving it

3.) It would be impossible to decide the issue without a policy determination that isoutside the judicial branch’s discretion

4.) Deciding the issue would show a lack of the respect to one of the other branches5.) There is an unusual need to defer to a prior political decision

6.) There is a need for the nation to speak with one voice

• S. Ct. shows prudence and restraint by:

a.) Exercising power of judicial review only as last resort b.) Constitutional Avoidance- deciding Con. Law questions last



c.) Construing statutes as to render them constitutional

d.) Deciding cases on narrowest grounds

• The Constitution can be interpreted in one of three ways:

1.) Textualism (Justice Scalia)- definitions

2.) Originalism- Framers’ intent, historical context

3.) Living Constitutionalism (Justice Kennedy)- considers:a.) Changing technology

b.) Public attitudes and evolving standards of decency

c.) Practices in other countriesd.) Scientific, economic, social, philosophical, religious, and personal values

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II. Federalism- Relationship between States and Federal GovernmentA. Federal Power

1.) Limited to enumerated powers in the Constitution

2.) All government power not delegated to the federal government remains with the statesB. Preemption

• Supremacy Clause Art. 6 § 2 federal law preempts state law

Broad federal power gives congress more opportunity to displace state law

Narrow federal power means less federal displacement of state law

• Analysis for Preemption:

1.) Is the federal law constitutional?

2.) Is the state law constitutional?

C. Source of Federal Power

Art. 1 § 1

All legislative power herein granted shall be vested in a Congress of the United States

Art 1 § 8 is the List of Enumerated Powers:a.) Lay and collect uniform taxes, duties, imposts and excises,(Tax Clause)

b.) Pay the debts and provide for the common defense and

general welfare of the United States (Spending Clause)c.) Borrow money on the credit of the United States

d.) Regulate commerce with foreign nations, and among the

several states, and with the Indian tribes (Commerce Clause)e.) Establish a uniform rule of naturalization, and uniform laws

on the subject of bankruptcies throughout the United States

f.) Coin money, regulate the value thereof, and of foreign coin,

and fix the standard of weights and measuresg.) Provide for the punishment of counterfeiting the securities

and current coin of the United States

h.) Establish post offices and post roadsi.) Copyright Laws

j.) Constitute tribunals inferior to the Supreme Court

k.) Define and punish piracies and felonies committed on thehigh seas, and offenses against the law of nations



l.) Declare war, grant letters of marque and reprisal, and make

rules concerning captures on land and water

m.) Raise and support armies, but no appropriation of money tothat use shall be for a longer term than two years

n.) Provide and maintain a navy

o.) Make rules for the government and regulation of the landand naval forces

p.) Provide for calling forth the militia to execute the laws of

the union, suppress insurrections and repel invasionsq.) Provide for organizing, arming, and disciplining, the

militia, and for governing such part of them as may be employed in the service of the United

States, reserving to the states respectively, the appointment of the officers, and the authority

of training the militia according to the discipline prescribed by Congressr.) Exercise exclusive jurisdiction over D.C. and other

government land

s.) Make all laws which shall be necessary and proper for

carrying into execution the foregoing powers, and all other powers vested by thisConstitution in the government of the United States, or in any department or officer thereof.

(Necessary and Proper Clause)

Art 1 § 10: States Cannot:

1.) Enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin

money; emit bills of credit; make anything but gold and silver coin a tender in payment of

debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility

2.) Lay any imposts or duties on imports or exports without Congress’s consent, except what

may be absolutely necessary for executing it's inspection laws: and the net produce of allduties and imposts, laid by any state on imports or exports, shall be for the use of the

treasury of the United States; and all such laws shall be subject to the revision and control

of the Congress3.) Lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any

agreement or compact with another state, or with a foreign power, or engage in war,

unless actually invaded, or in such imminent danger as will not admit of delay withoutthe consent of Congress

10th Amendment: “The powers not delegated to the United States by the Constitution, nor

prohibited by it to the states, are reserved to the states respectively, or to the people.”

If a state did not have the power before 1789, then the 10th Amendment does not reserve

that right to the states (U.S. Term Limits, Stevens)

If not on the fed’s list and not prohibited to the states, Thomas says it is reserved the

States regardless of whether the States had that power prior to 10

th

Amendment (U.S.Term Limits, Thomas Dissenting)

• Doctrine of Enumerated Powers (Statutory Construction):

1.) Fed. Gov. can only exercise the powers granted to it2.) If you can find the power in the Constitution, then the gov. has all the power to carry out

that power

3.) Read non-delegated powers narrowly and delegated powers broadly

• McCulloch v. Maryland (Justice Marshall):



o Doctrine of Implied Powers: in addition to powers expressly granted, fed. Gov.

may exercise “incidental power”

1.) Theoretical Basis for Implied Powers

a.) Fed. Gov. is supreme within its sphere of power

b.) No exclusion of implied powers because the10th Amendment does not require that the powers be “express”c.) Enumerated powers need ample means for

execution

d.) Constitution is the source of the power “It isthe Constitution we are expounding”

2.) Textual Support for the Doctrine

a.) Necessary and Proper Clause not a power but a means in executing the

enumerated power

• If “necessary” was intended to mean “absolutely necessary and

nothing else”, “proper” would not have been added

3.) Marshall’s Test for Implied Powers: (Rational Basis Test)a.) Ends must be enumerated

b.) Means must be “plainly adapted” (reasonable)

4.) Separation of Powers and Necessary and Proper Clause: The degree of the law’snecessity is to be discussed by Congress as long as Ct. determines that Congress has the

power

E. Themes in Federalism

1.) History

a.) States and Union

b.) Articles of Confederation and Constitution

2.) Political Theory

a.) Decentralized government better protects liberty (Subsidiarity) b.) Encourages Experimentation in States

3.) Constitutional Law

G. Subsidiarity

• Central authority should have a subsidiary function, performing

only those tasks which cannot be performed effectively at a more immediate or locallevel

• European Union law: incorporates Subsidiary; like U.S. 10th

Amendment that says the powers that are not given to Congress are reserved for theStates.

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_ III. Commerce Power and Its Federalism-Based Limits

• Art. 1 § 8 cl. 3 (Commerce Clause): “The Congress

shall have the Power . . . to regulate Commerce with foreign Nations, and among the Several

States, and with the Indian Tribes.”

• Commerce Clause Congress’s principal domestic

power

We Must Define:



1.) Commerce

Just about everything is interstate commerce todaya.) Navigation

b.) Shipment

c.) Trade

d.) Manufacturing alone is not Commerce2.) Among

a.) Intermingled with the states

b.) Is not limited to external boundary of each statec.) Cannot regulate completely internal commerce

of a state

3.) Regulate

a.) Prescribe the rule by which commerce is to be governed

b.) This power may be exercised to its utmost extent

c.) Limited only by Constitution

A. Three Judicial Limits on the Commerce Power

1.) Direct v. Indirect Test Intrastate activity must directly effect interstate commerce for Congress to have power to

regulate the intrastate activity

2.) The Substantial Economic Effects Test

Intrastate activity must have a substantial economic relation with the interstate traffic

3.) The Stream of Commerce Test

Congress can regulate local activities that are:

a.) “in” commerce or

b.) an integral part of the “current of commerce.”

Ex: cattle that are sent from one state to another to sell.

B. National Police Regulation Using the Commerce Clause

• Constitution does not grant Congress “police power”- the ability to regulatemorals, health, or safety

• However, Congress can regulate public policy through the Commerce Clause

a.) Articles of commerce that are harmful can be regulated by Congress through CommerceClause

b.) Production of harmful articles cannot be regulated; only the goods themselves

c.) Analysis: Direct Effect + Great Effect

C. The Commerce Power and the New Deal

• During the New Deal era, FDR urged Congress to pass legislation to boost the

economy. The S. Ct. kept striking the legislation down as invalid under the Commerce

Clause. FDR threatened to increase the number of justices on the S. Ct. (Called court-

packing). S. Ct. suddenly switched and started upholding New Deal legislation (The switchin time that saved the nine).

• Everything was considered commerce until 1995 under Rehnquist in U.S. v.Lopez.

D. Judicial Deference Toward Exercise of the Commerce Power After New Deal

1.) Commerce Power Only Requires that the Intrastate Activity “Substantially Affects”

interstate commerce.

a.) Manufacturing is interstate commerce; therefore, production can be regulated



b.) Extends to intrastate activities that have a :

i. Substantial effect on commerce, or

ii. The exercise of Congressional power over interstate commerce

2.) “Substantially Affects” is Determined by the Aggregate

Wickard v. Filburn Congress can regulate an activity through the Commerce Clause:

a.) Even if local (intrastate) and not regarded as commerce if b.) That activity has a substantial economic effect on interstate commerce

c.) Does not matter if the effect is direct or indirect

d.) Aggregate Effects Test- must look at the aggregate to determine “substantial effect”

3.) Commerce Power can Regulate Civil Rights and other Social Matters

o Social matters are generally state concerns; however, 1964 Civil Rights Act was

enacted under Commerce Clause power because:

1.) Businesses that discriminate based on race, sex, national origin, religion, or color affectcommerce by:

a.) Discouraging travel across state lines

b.) Discouraging other businesses from coming to the state

4.) Determinative Test for when Congress can Exercise Power under Commerce ClauseCongress can exercise its power under the Commerce Clause when:

a.) Activity equals Commerce

b.) Concerns more States than one and has a real and substantialrelation to the national interest.

c.) Even if the activity is:

i. Morally or Socially wrong or

ii. The activity is local

5.) Commerce Power can Regulate Crime

E. The Rehnquist Court’s Revival of Internal Limits (Imposed by Commerce Clause itself)

of the Commerce Power

• After nearly 60 years of deferring to Congress, Rehnquist court determines a trilogy of cases limiting Congress’s power under Commerce Clause to protect States’ power under

Federalism

• Modern Commerce Clause Power:

Congress May Use Its Commerce Power to Regulate:

1.) Use of Channels of Interstate Commerce even though an activity may occur

wholly intrastate

a.) Internet

b.) Roadsc.) Railways

d.) Waterways

2.) Instrumentalities of Interstate Commerce used in Interstate Commercea.) Trucks

b.) Trains

c.) Planes

d.) Persons or goods traveling in IC

3.) Wholly Intrastate Activities that Substantially Affect Interstate Commerce

Intrastate Activity Must be:

a.) Economic in Nature



b.) Considered in the Aggregate ( Reich)

c.) Viewed in light of Congressional findings of its substantial affect on

interstate commerce- Morrison- Congressional findings are not dispositive

F. External Limits on the Commerce Power: Federalism and the 10th and 11th Amendments

•Congress Cannot Use Its Commerce Power to:1.) Commandeer the State Legislature or Executive Officers

2.) Or to Abrogate a State’s Sovereign Immunity

New York v. U.S. “If a power is delegated to Congress in the Constitution, the 10 th

Amendment expressly disclaims any reservation of that power to the States. If a power is an

attribute of state sovereignty reserved by the 10th Amendment, it is necessarily a power the

Constitution has not conferred on Congress.”

• Congress cannot commandeer the state legislatures by requiring it to enact specific

legislation; however Congress can:

a.) Give a state a choice between legislating as Congress wants or acceptingfederal preemption in an area within the federal power

b.) May provide states incentives to legislate according to a federal plan by use of conditional grants under the Spending Power

• Congress cannot commander state executive officers to administer a federal program

• Congress can commandeer state judiciary (State cts must enforce federal law and apply

substantive federal standards)

G. State Sovereign Immunity and the 11th Amendment

• Analysis should always start with 11th Amendment when someone sues a state

• 11th Amendment:

“The judicial power of U.S. shall not be construed to extend to any suit in law or equity,commenced or prosecuted against one of the U.S. by citizens of another State or by

citizens or subjects of any foreign state”

1.) The origins and meaning of the 11th Amendment Originally, Sovereign Immunity meant the King, as the Sovereign, could not besued

11th Amendment was enacted in response to Chishlom v. GA (1973) allowed a citizenfrom S.C. to sue the state of GA and interpreted Art. III § 2 to allow federal courts to

have jurisdiction

11th Amendment applies only to:

a.) Federal court suits b.) Brought by private parties

c.) Seeking damages against a state

11th Amendment instructs courts on how to interpret Art. III and:

1.) Diversity Cases 11th Amendment divests jurisdiction from federal courts over

states as defendants by amending Art. III that allowed suits between a state and non-

citizens

2.) Federal Question Cases 11th Amendment also takes away federal question cases,

so a person from AL cannot sue the state of AL

2.) Exceptions to 11th Amendment Immunity



a) Suits for injunctive/declarative relief sought against state officials for federal law

violations (Stripping Doctrine)

b) Suits by anyone against subdivisions of states (cities and counties)

c) Suits looking for prospective relief instead of damages for past conduct

d) Suits in which a claim is that a state official violated federal law, not state law

e) Suit brought against a state in state court on state lawf) Damages sought against state officials personally

g) Suits under federal statutes enacted under § 5 of the 14th Amendment (gives

Congress the power to enforce the 14th Amendment)

h) Suits by federal government or other states

i) When the State waives its right which can be done:

i. By state statute Congress dangles this infront of states in exchange for money

ii. By invoking federal jurisdiction (state as P)

iii. By removing state case to federal court

when state waives sovereign immunity in state court

j) Congressional Abrogationi. Abrogation of State Sovereign Immunity through 14 th Amendment § 5

14th Amendment- Equal Protection

Under 14th Amendment § 5 (Enforcement Clause),

Congress can abrogate a state’s immunity because:

1.) Rule of Construction: 14th Amendment comes after 11th 2.) Therefore, the 14th Amendment supercedes what the 11th

Amendment says

3.) However, the § 5 legislation abrogating a state’s sovereign immunitymust be Congruent and Proportional:

a.) Determine what the constitutional violation is

4.) Ex: Race Discriminationb.) Is the Remedy provided by Congress congruent to the

constitutional wrong?

5.) Ex: Are damages or abrogation of sovereign immunity

congruent to the race discrimination?

c.) Is the Remedy proportional to the harm done?

6.) Ex: Are damages or abrogation of sovereign immunity

proportional to the harm caused by race discrimination

b.) Abrogation of State Sovereign Immunity through Art. 1 § 8

Cannot use Commerce Power in Art. 1 § 8 to abrogate state

sovereign immunity because 11th Amendment came after Art. I § 8, so 11th

Amendment granting states sovereign immunity supercedes Art. I § 8 Can use Bankruptcy Power in Art. I § 8

3.) Federal Agencies suing States

Citizens cannot suit states in a federal administrative agency because:

a.) Federal administrative proceedings bear a

remarkably strong resemblance to civil litigation in federal courts

b.) The role of the Administrative Law Judge issimilar to an Article III judge.



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IV. Other National Powers: Taxing, Spending, War, Treaties, and Foreign

Affairs• If Congress cannot regulate an activity through the Commerce Clause, it can use

another Art. 1 § 8 Power:1.) Taxing

2.) Spending

3.) War

4.) Treaties

5.) Foreign Affairs

B. Taxing Power as a Regulatory Device

• Taxing Clause Art. 1 § 8: “Congress shall have power to lay and collect taxes, duties,

imposts and excises, to pay the debts and provide for the common Defence and general

Welfare of the U.S., but all duties, imposts, and excises shall be uniform throughout the

U.S.”

• Amendment 16: “The Congress shall have power to lay and collect taxes, from whatever source derived, without apportionment among the several States, and without regard toany census or enumeration.”

1.) States cannot impose their own tariffs, so tariffs must be uniform

2.) 2 easy always wrong answers on an exam:

a.) “provide for the common defense” is not a separate source of power b.) “general welfare” is not a separate source of power

• Congress may use its Taxing Power to regulate an activity when:

1.) The tax’s revenue feature outweighs the tax’s penalty feature

2.) The tax is applied uniformly throughout the states

3.) The tax does not have to be uniform with respect to individuals

• Usually, there is a presumption of validity under the Tax Clause

• Tax is okay even if Congressional motive was to deter intra-state gambling

C. Spending Power as a Regulatory Device

• Spending Clause Art. I § 8: “provide for the common defence and general

welfare”

• Statute exceeds Spending Power when:

1.) The statutory plan regulates and controls an activity traditionally

reserved for the states

2.) The statutory plan does not make the states’ cooperation voluntary

• Power to tax for general welfare is an independent power in

Congress• All tax has some regulatory effect

• Regulation v. Revenue

7.) Regulation- must be a part of Congress’s enumerated powers toregulate

8.) Revenue- need not be a part of Congress’s enumerated powers

D. Spending Power After New Deal



• Power of Congress to tax is as broad as the power of states to tax (Steward Machine),

so feds can tax EVERYTHING

E. Scope of Spending Power

• Inducement v. Coercion

• Limitations on Spending Power:

1.) Must be in pursuit of “the general welfare”: in determining what “thegeneral welfare” is, courts must defer to Congress’s judgment

2.) The conditions on federal grants must be unambiguous so states know

exactly what they are sacrificing in accepting the federal grant

3.) The conditions on the federal grants must be related to the federal

interest in particular national projects or programs (Rational Basis Test)

4.) Conditional federal grants cannot violate any independent constitutionalrequirement

F. War, Foreign Affairs, and Federalism

• Structural Themes:

1.) Judicial Review

Congress’s use of its War, Treaty, and Foreign Affairs powers raise issues of Justiciability:

a.) Political Questions

b.) Standing

Act of State Doctrine- our courts cannot question the validity of acts of other

countries

Legality of War- court has never gotten into whether the war is legal

Ct. will stay out of foreign affairs and defer to other political branches

2.) Federalism

States do not have power over foreign affairs

o 10th Amendment The doctrine of enumerated powers applies only

to powers which the states had. States never had power over foreign affairs

o Art. 1 § 10, Para. 1: States cannot enter into treaties

o Art. 1 § 10, Para. 3: States cannot enter into war, unless actually

invaded, or in such imminent danger as will not admit of delay

Even if the power to declare war was not in Constitution, U.S. would have

that power as a sovereign country

Art. 1 § 8: The Congress shall have power to:

a. Pay debts and provide for commondefense

b. Declare war…

c. Raise and Support Armies…provide andmaintain a navy

d. Make rules for the gov. and regulation of

thte land and naval forces

e. Provide for calling forth the milita toexecute the laws of the union, suppress insurrections, and repel invasions

f. Provide for organizing, arming, and

disciplining the militia



3.) Separation of Powers

Congress and President bothhave power over foreign affairs, and these powers conflict

Presidential Power comes

from:

1.) Article II § 2a.) Commander in Chief of the army and navy, and militia of several

States

b.) Make treaties with approval of 2/3 of Senatec.) Appoints ambassadors, public ministers, and consuls

2.) Article II § 3:

a.) Receives ambassadors and other public ministers

b.) Shall take care that the laws be faithfully executed

3.) Inherent (Exta-Constitutional)

Ex of Congress and President Conflicting: Boland

Amendment passed by Congress barred US intelligence agencies from

spending funds to support military or paramilitary operations in Nicaragua.Iran-Contra Agreement So US starts selling weapons to Iran to support the

Contras in Nicaragua.

Congress can end wars by:

a.) Refusing to fund deployment of troops after a certain date

b.) Impeaching the President

Last Declaration of War December 8, 1941, which

means Congress has allowed President to have power to declare war

Congress is Law and Policy Maker, and President is LawApplier even with War Power

In response to Vietnam, Congress passed the War

Powers Act :a.) President can send armed forces only if:

i. Congress authorizes it

ii. National emergency

b.) President must consult with Congress before deployingtroops

c.) If Congress does not agree, it can terminate the troops in

60/90 calendar days or concurrent resolution (Just between House andSenate) requiring withdrawal of forces

- Every President says this is unconstitutional

G. Congress’s War Power as a Regulatory Device:

1.) Continues for the duration of the emergency and2.) Regulates any activity negatively affected by the war

- War Power is dangerous because you could potentially regulate anything

with the War Power

H. Treaty Power as a Regulatory Device

• Treaties that violate Constitution are not valid1.) A treaty made by the President with the required concurrence of 2/3 of the Senate is

the supreme Law of the Land and preempts state laws under Art 6



2.) There should be judicially enforced limitations on treaty power because:

a.) Founders believed that treaties should be difficult to make

b.) Founders contemplated that treaties would govern truly inter-national relationsc.) Founders placed substantial emphasis on the role of the Senate in protecting

states’ rights

d.) Supporters of the Constitution repeatedly expressed the view that theConstitution delegated only limited powers to the national government

3.) Implied power for Congress to regulate foreign affairs

• International Court of Justice judgment is not self-executing, and states do not have to follow it

• President’s memo is not binding on the courts

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V. Federal Limits on State Regulation of Interstate Commerce• Ways Federal Gov. can Limits on State Action:

1.) Preemption

2.) DCC3.) P&IC4.) Congress Consents to State’s Activities

• Reason for Federal Limits on State Regulation of Interstate Commerce:

1.) We do not want barriers between states dealing with economy

Power to regulate commerce was granted to Congress to prevent state rivalries2.) Uniformity

• Dormant Commerce Clause deals with concurrent powers shared between States and

Congress, such as the power to tax (Is regulating commerce shared?)

A. Dormant Commerce Clause (Negative Commerce Clause)

• First issue for Dormant Commerce Clause: Justiciability

• Commerce Clause: “The Congress shall have the Power . . . to regulate Commerce withforeign Nations, and among the Several States, and with the Indian Tribes.”

• Dormant Commerce Clause: Determines whether a state may enact legislation that

affects interstate commerce when faced with federal inaction.

o If state cannot enact the legislation, the state law is “preempted by silence”

• Congress’s Commerce Power is:

1.) Exclusive as to the Direct Regulation of Interstate Commerce

- Economic aspects of trade

- Not health and safety2.) Concurrent as to the Regulation of Health and Safety that Affect Interstate

Commerce

- If a state uses its “police power”- power to regulate health and safety- itis presumptively valid

- If found invalid, DCC preempts the state law

• Dormant Commerce Clause cannot be found in the text of theConstitution; only supported by Originalism and Living Constitutionalism

• Court’s modern Categories of Dormant Commerce Clause:

1.) Facially discriminate against out-of-state commerce



- Per Se Invalid

- Must meet Strict Scrutiny Test:

b.) State must show that it has a compelling interestin facially discriminating against out-of-state commerce

- Types of Regulations Subject to Strict Scrutiny:

1.) Protection of Natural Resources2.) Protectionist : Barring importation of goods into its borders to protect

its in-state industries from out-of-state competition

b.) Regulation will be upheld as involving a compelling state interest when:1.) The regulation serves a legitimate environmental purpose

- If the out-of-state waste would create the same environmental harm as

the waste already in your state, then the state does not have a compelling

state interest2.) The regulation is for quarantine purposes

3.) There is no alternative in protecting the state’s interest besides the

discriminatory regulation

2.) Facially Neutral Laws that have a Protectionist Purpose or Effect3.) Facially Neutral Laws that have a Disproportionate Adverse Affect on Interstate

Commerce

• Use Pike Balancing Test:

A. State’s Interest

Must meet Rational Basis Test:

1.) State must show that the regulation pursues a legitimate end and

Legitimate when the regulation seeks to protect public welfare,

health or safetya.) Transportation

b.) Economic protection is NEVER a legitimate interest

2.) The regulation must be rationally related to that legitimate endB. Burden on Interstate Commerce

Even if the state’s interest meets the Rational Basis Test, the state’s

interest must still outweigh the burden on Interstate Commerce

Burden on Interstate Commerce Factors:

1.) Is there a reasonable alternative to the burdensome regulation

that would protect the state’s interest the same?

2.) Is the activity a type that should be regulated uniformlythroughout the country?

3.) Is the state isolating itself economically?

• Dormant Commerce Clause Does Not

Apply:1.) Market Participant Doctrine

a.) If a state is a market participant

i. State is a Buyer or Seller

- State does not “sell” fishing licenses; it regulates fishing licenses

ii. Can only regulate that particular market and not a downstream market

b.) It may choose to favor its own citizens

c.) Even if that favoritism burdens interstate commerce



Exceptions to MPD:

1.) When a state has monopoly power in the market in which it

participates because this is the same as “regulating”

- Public Utilities (AL power)

2.) Sale of Natural Resources

- This would come under P&I C3.) Foreign Commerce

- Foreign DCC since Congress has authority to regulate foreign

commerce; therefore, there is an implied restriction on States to regulateforeign commerce

- Ex: AL cannot refuse Japanese cars

B. Privileges and Immunities Clause

• Art. IV § 2 Privileges and Immunities Clause: “The citizens of each state shall be

entitled to all privileges and immunities of citizens in the several states”

o P&I C is placed between Full Faith and Credit Clause and Extradition Clause

o Art. 4 deals with sister state relations

• P&IC differs from DCC:1.) Corporations are not protected under P&IC2.) Congress may not authorize states to act inconsistently with P&IC

3.) P&IC only extends to the exercise of “fundamental rights”

4.) Market Participant Exception does not apply to P&IC

• For the P&I C to restrain state regulation:

1.) A state or city is discriminating based on

2.) The person’s citizenship in another state

- Only state-identity discrimination is covere- Only natural persons (citizens) are protected

- This person is only “visiting” the state

3.) The activity seeking protection must be fundamental- Right to trade and employment

- Right to practice law

- Right to commerce- Right to travel, access to civil institutions, courts

- Recreation is not a fundamental right

- Right to vote is not a fundamental right under P&I C

4.) The state or city cannot meet Intermediate Scrutiny:

a.) Cannot show that it has a “substantial reason” for

treating out-of-state differently

b.) Statute or ordinance is narrowly tailored to

achieve the substantial interestc.) Are non-citizens a peculiar source of the evil at

which the statute or ordinance is aimed

C. Preemption

• Art. VI Supremacy Clause

c.) Not Self-Executingd.) A branch of government must pass law that

conflicts



e.) Applies to:

i. State Constitution

ii. State Statutesiii. State Judicial Opinions

• Preemption Analysis:

1.) Is the federal law valid?2.) Does the state law conflict with the federal law?

• Cts. should assume that a federal act does not supercede State’s

historical authority unless:

1.) Express Preemption

2.) Implied Preemption:

a.) Field Preemption- must be a clear showing that

Congress meant to occupy a field and to displace the states from regulation on thesubject matter”

i. Scheme of federal regulation

so pervasive that it is reasonable to infer Congress left no room for State

ii. Federal interest may be sodominant

iii. Analysis:

a.) Look to language

b.) Look to purpose

b.) Conflict Preemption- situation where compliance with both federal and state regulations is a physical impossibility

• A presumption of preemption occurs when Congress typically enjoys the power:

a.) Commerce b.) Immigration

c.) Determine Congress’s ultimate purpose

• Anytime a state tries to interact with foreign powers, it is preempted because state has NO foreign power

D. Other Aspects of Federal-State Relationships

1.) State Taxation of Interstate Business

• State tax may be sustained against Commerce Clause challenge

when the Tax is :

a.) Applied to an activity with a substantial nexus with the taxing State

b.) Fairly Apportionedc.) Does not discriminate against interstate commerce

d.) Fairly related to the services provided by the State

2.) Intergovernmental Tax Immunities

• Only applies when the levy falls on the U.S. itself, or on an agencyor instrumentality so closely connected to the U.S. gov. that the two cannot be viewed

separately

3.) Intergovernmental Regulation Immunities

• Ability of the State to “regulate” activities” of U.S.

• Same as Tax Immunity: U.S. and its “closely related” agencies are

immune from being regulated by the State.

4.) Mutual Obligations Among the States



a.) Art. IV § 2:

i. Privileges and Immunities Clause

ii. Extradition Clause

a.) Art. 1 § 10 Interstate Compact Clause States cannot enter into

interstate compacts without the consent of Congress

b.) Art. 4 § 1 Full Faith and Credit _____________________________________________________________________________

_

VI. Separation of Powers• Federalism vertical

• Separation of Powers horizontal

• Justice Brandeis: “Purpose [of separation of powers] was not to avoid friction, but, bymeans of the inevitable friction incident to the distribution of the governmental powers

among three departments, to save the people from autocracy.”

• Themes in Separation of Powers:

1.) Incomplete Separation

- Power is shared between the branches2.) Encroachment

- A power constitutionally assigned to one branch alone may not be

exercised by another

3.) Interference

- One branch may not obstruct another in the performance of itsconstitutional pwoers

4.) Formalism

- Form must be observed; especially, by Congress

Congress President Federal Court

Legislative Strict Formalism-limited toConstitutional

authority

Flexible andFunctional(Ex: Executive

Agencies)

Strict in Theory; loosein practice

a.) Federal

Rules of Criminal

Procedure, Civil

Procedure,Evidence

Executive Forbidden Anything Goes Rare

Judicial Forbidden (except

impeachment)

Generous

b.) Administrative Agencies

haveadministrative law judges

c.) Court

Marshall

Normally Strict (Art.

III)

A. Executive Violation of the

Separation of Powers



• Article II:

a.) § 1, para. 1: vests executive power in the President withoutqualification, which is different than Article I’s delegation of legislative powers

“herein granted.”

b.) § 2, para. 1: The President shall be Commander in Chief…

to grant Reprieves and Pardonsc.) § 2, para. 2: Make Treaties and Appointments

d.) § 2, para. 3: Power to fill up Vacancies

e.) § 2, para. 4: Recommend laws to Congress; “receiveambassadors,” and “shall take Care that the Laws be faithfully executed.”

• Sources of Executive Power:

1.) Article II

2.) Congress3.) Inherent Power

- Protecting U.S. from imminent invasion or insurrection

- Because Art. II does not say “herein granted”

• Youngstown Steel :1.) Justice Black Majority: Strict Approach

- President must have the power to issue an executive order in theConstitution

- “The Founders of this Nation entrusted the lawmaking power to the

Congress alone in both good and bad times.”- Domestic Actions, such as taking over private property, are not within

the Commander-in-Chief powers

2.) Justice Douglas Concurring: Cautionary Approacha.) Emergency does not create power

b.) Seizure by President ties Congress’s hands

3.) Justice Frankfurter Concurring: Flexible Approacha.) Congress can let its own power slip through its fingers to the President

4.) Justice Jackson Concurring: Structured Approach

- President’s powers are not fixed but fluctuate, depending upon their

disjunction or conjunction with those of Congress- 3 Zones of Conduct

a.) Approval

- Congress expressly approves of the President’s action- President has broadest power here

- Invalid only if federal government AS A WHOLE lacks the power

- Ex: Infringes on state’s right

b.) Silence- Involves a concurrent power between legislative and executive branch

c.) Disapproval

- Congress forbids President’s conduct that is not in Art. II or an approvedinherent power

- President’s power at lowest ebb here

B. Executive Agreements



• Executive Agreements: Usually constitutional because they

involve foreign affairs which require the nation to speak with one voice. Since Presidentis the Head of State, it his is duty to speak for the nation as a whole

- Is a treaty but is never ratified by Senate

- These are binding between the two executives of the countries but not on

citizens of the U.S. unless Congress passes a law implementing the executiveagreement

- NAFTA is not a treaty but an executive agreement

- Not all executive agreements require enabling legislation

• Unitary Executive Theory: all executive power must be in

President’s hands, without exception

1.) Dick Cheney

2.) Professor John Yoo—Office of Legal Counsel—

Drafted Memo that redefined “torture” as failure of bodily organs

3.) David Attington

4.) Signing Statements Bush would write and attach

his opinion on the constitutionality of a law• Dames and Moore: President has power in the absence of

Congress’s disapproval to settle claims with foreign government and entities when:

1.) Necessary to resolution of main foreign policy dispute

- When President must speak for the nation

2.) Congress acquiesced in President’s action

- Since 1952, the President has entered into at least 10 binding

settlements with foreign nations; therefore, Congress has implicitly approved the

practice of claim settlement by executive agreement

- “A systematic, unbroken, executive practice, long pursued to theknowledge of Congress and never before questioned may be treated as a gloss on

Executive Power vested in the President by Art. II § 1.C. Emergency Constitutionalism

• Constitution does not grant President emergency powers

• Emergency Constitutionalism:

1.) Art. I § 9, cl. 2 Suspension Clause: Congress may suspend Habeas Corpus in

times of Rebellion or Invasion to protect public safety

2.) Art. I § 8, cl. 15 Congress can call the militia to suppress insurrections and

invasions

3.) Art. I § 10, cl. 3 gives States power to engage in war if attacked

4.) Art. IV § 4 U.S. guarantees States protection from foreign and domestic invasions

• Chief Justice Rehnquist “The laws will not be silent in time of war, but

they will speak with a different voice.”

D. Executive Discretion in Times of War or Terrorism

• War Powers Resolution of 1973

a.) Joint Resolution by Congress

b.) Allows President to send U.S. armed forces only by:

i. Congress’s authorization or



ii. If U.S. is already under attack

or serious threat

c.) President must notify Congress within 48 hours of committing armed forces to military action

d.) Armed forces cannot remain more than 60 days in military

action unless Congress authorizes it or declares war • Types of Military Tribunals

1.) Courts martial

2.) War crimes tribunals

3.) Military commissions

- Historically used for “unlawful combatants”

• Military Orders are supported by:

a.) Delegation by Congress

b.) Article II powers

c.) Inherent powers

- Military orders are not reviewable by federal courts

- Military orders only bind military• Military Commission:

1.) Tried by Article II Courts made of 3-7 military2.) Admission of probative evidence in a manner consistent with the protection of

classified information Some standard criminal procedures adopted

3.) Must appeal to Secretary of Defense or President4.) Sentence to life imprisonment or death

5.) No recourse in Article III courts

Prisoners of War Lawful Enemy Combatants Unlawful Enemy Combatants

1.)

Subject to GenevaConvention

2.)Let go after war

3.)

Purpose: prevent themfrom fighting against

us; not to punish them

for wrongdoing

1.)A member of the hostile

State’s military2.)Subject to Geneva

Convention3.)If captured, treated as a

Prisoner of War

1.) Not subject to Geneva

Convention2.) Not a part of the hostile state’s

military3.) Sentenced and punished after

War

4.) Purpose for Detention: punishfor wrongdoing

5.) U.S. citizenship does not

prevent being labeled anunlawful enemy combatant ( Ex

parte Quirin)

1.) Executive Detention and Trial of Enemy Combatants

• Ex Parte Milligan (1866)

a.) American citizens have the right to trial by jury and do not waive that righteven in a time of war

b.) Constitution does grant federal government right to suspend habeas corpus

but not the right to suspend trial by jury



c.) Martial Law is only Appropriate when foreign invasion or civil war has

closed the courts down so that the only court available is the military tribunal

2.) Executive Detention and Trial of Enemy Combatants After 9/11

• Joint Resolution for the Authorization for Use of Military Force (AUMF) (2001):

- Congress gave President authority to:a.) Use all necessary and appropriate force against

b.) Nations, Organizations, or Persons

- Only foreign citizens are subject to this order and sent to Guantanamoc.) He determines

d.) Planned, Authorizes, Committed, or Aided Terrorist Attacks on September 11,

2001

• Background to Rasul, Hamdi, Hamdan, and Boumediene: Eisentrager (1950) The privilege of litigation in U.S. Courts does not extend to aliens in military custody who

have no presence in any territory over which the U.S. is sovereign. (This involved

Germans where U.S. detained them in Germany prison)

• Rasul (2004) Federal courts do have jurisdiction over Guantanamo Bay detainees because the detainees have not been afforded a tribunal to dispute their charges and U.S.

exercises exclusive jurisdiction and control over Guantanamo Bay

• Hamdi (2004) Hamdi (resident of Louisiana) is detained at Guantanamo, but he argues

that the Non-Detention Act prevents him from being detained.

e.) Non-Detention Act“No citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress.”

f.) AUMF Congressional act gives President power to

detain a citizen

Rule: A citizen-detainee seeking to challenge his classification as an enemy

combatant must receive:

1.) Notice of the factual basis for his classification, and2.) A fair opportunity to rebut the government’s factual assertions before a

neutral decision maker

3.) Combat Status Review Tribunal Order

Issued by Secretary of Defense

Established that detainees would be able to contest the basis for their

designation as “enemy combatants” before military tribunals (CSRTs) comprised of 3

commissioned officers, including one judge advocate, unaffiliated with the particular detainee’s detention

4.) Detainee Treatment Act (DTA)

Enacted by Congress

Provided for limited review by the Court of Appeals for the D.C. Circuit of whether the

enemy combatant status determination complied with statute and the Constitution

Purports to overrule Rasul and Hamdi

• Hamdan (2006): caught in Afghanistan and transported to Guantanamo

Issue: Whether Hamdan can be tried by military commission.

Commissions have been used in 3 situations:

1.) Where martial law has been declared



2.) As part of a temporary military government over occupied enemy

territory

3.) Incident to conduct of war, when there is a need to seize and subject todisciplinary measures those enemies who violate the law of war

- Ex: Nuremburg Trials

- Ct. says Hamdan’s situation could only fit as a violation of the law of war

- Here, Hamdan is charged with Conspiracy, which is not a violation of

the law of war

Holding: Military commission does not have jurisdiction to try Hamdan

5.) Military Commissions Act of 2006 All enemy combatant detainees being held abroad

must be tried by a CSRT or another competent tribunal instead of by U.S. federal courts

- “Enemy Combatant”

a.) Person who has engaged in hostilities

b.) Or who has purposefully and materially supported the

hostilities against the U.S. or its co-belligerents who is not a lawful enemy combatant

c.) This includes a member of the Taliban, Al Qaeda, or associated forces

d.) Person who, before, on, or after the date of the enactmentof the MCA has been determined to be an unlawful enemy combatant by a CSRT or

another competent tribunal established under the authority of the President of the

Secretary of Defense

• Boumediene v. Bush (2008): Enemy aliens that are being detained in

Guantanamo Bay have privilege of habeas corpus because:

1.) Guantanmo Bay is in absolute and indefinite control of the U.S.2.) Military Commissions Act of 2006 is not a formal suspension of

writ of habeas corpus

3.) Detainee Treatment Act of 2005 is not a substitute to the writ of habeas corpus

3 Factors are Relevant in Determining the Reach of the

Suspension Clause:

a.) The citizenship and status of the detainee and the adequacy of the process throughwhich the status determination was made

b.) The nature of the sites where apprehension and then detention took place

c.) The practical obstacles inherent in resolving the prisoner’s entitlement to the writ

6.) 2009: Obama orders Guantanamo cases halted for 120 days until all cases can be reviewed by

judges

E. Congressional Violation of the Separation of Powers• If legislative power is exercised by executive or judicial branch, it must be

incidental to primary functions

• When legislative power is exercise by Congress, it must be according to form prescribed by Constitution.

• Analysis:

1.) Which branch is acting?2.) If it is Congress, does Congress have the power under Article I?



- Does it meet the non-delegation principle?

- Does it meet Bicameralism and Presentment?

- Does it encroach on or interfere with judicial branch’s power to review or President’s powers?

3.) If it is Executive, does the Executive have the power under Article II, by a delegation

from Congress, or from inherent power to protect nation?- Does it meet the non-delegation principle?

- Does it meet Bicameralism and Presentment?

- Does it encroach on or interfere with judicial branch’s power to review or Congress’s power to legislate?

4.) If it is Judicial, does the Judicial branch have the power under Article III or from a

delegation by Congress?

- Does it meet non-delegation principle?- Does it encroach on or interfere with Congress’s power to legislate or President’s power

to execute the laws?

1.) Congressional Control over the Actions of the Executive Branch

•

Principle of Nondelegation- the theory that Congress may not constitutionally delegateits legislative power to another branch of government

a.) Weak in Domestic Affairs b.) Even weaker in Foreign Affairs

• INS v. Chadha (1983): All legislative

power must comply with:

a.) Presentment Clause:

Text:

- Art.I § 7 para 2-3: President must approve or veto; if vetoed, then Houseand Senate can override with 2/3

Theory:

- Fear of legislativeb.) Bicameralism

Text

- Art. I § 7 para. 2: Every Bill which shall have passed the House of Rep.

and the Senate shall be presented to the President to be signed or vetoed andreturned. Congress can override the veto with 2/3 approval from both houses

- Art. I § 7 para. 3: Every Order, Resolution, or Vote to which the

concurrence of the Senate and the House of Rep. may be necessary must also be presented to the President

a.) Concurrent Resolution does not have to be presented to

President because no force of law (Ex: We think December 1 should be John

Garman day) b.) Joint Resolution must be presented to President because

functionally equivalent to a bill- 4 Provisions in Constitution by which one House may act alone with the

unreviewable force of law, not subject to President’s veto:

1.) House can initiate impeachment

2.) Senate can conduct trials on impeachment3.) Senate has power of President’s appointments



4.) Senate can ratify treaties

Theory

1.) Framers feared the legislative branch the most

2.) Division within the branch helps prevent tyranny

• Congress cannot strip other branches’ powers or give away too much

of its legislative power • Clinton v. New York : Line Item Veto is unconstitutional under

Presentment Clause

Line Item Veto Act granted President power to cancel inwhole:

1.) Any dollar amount of discretionary budget authority

2.) Any item of new direct spending, or 3.) Any limited tax benefit

Cancellation becomes “null and void” of overridden by Disapproval Bill

LIV violates Presentment Clause because:

1.) President is amending or repealing existing law; not returning the unapproved bill

to Congress2.) Cancels only part of the bill; not the entire bill

2.) Congressional Control Over Executive Officers

• ANALYSIS:

1.) Is appointment constitutional?

Appointment Clause (Art. II § 2)

a. Principal Officers: The President must appoint these

with advise and consent of Senate

i. Ambassadors

ii. Judges of the Supreme Court

iii. All other Officers of the U.S whose function is purely executiveb. Inferior Officers: Congress may by law vest

appointment of these in:

i. The President alone

ii. Court of Law, or iii. Heads of Departments

iv. Inferior Officers are:

a.) Quasi-legislative b.) Quasi-judicial

c.) Administrative Agencies created by Congress

a.) Federal Reserve Board- 14 year terms for members of the

Board of Governors b.) Federal Communications Commission- 5 year terms for

commissioners

c.) National Labor Relations Board- 5 year terms for boardmembers; 4 year term for General Counsel

d.) Equal Employment Opportunity Commission- 5 year

terms for commissionersd.) Not purely executive



e.) Duties are temporary and limited in nature

2.) Is removal constitutional?

Generally, whoever is granted appointment has power to remove

Congress cannot remove executive officers by itself because this would be

encroaching on and interfering with executive branch’s power to execute the

laws; can only remove by impeachment Congress can limit removal based on “good cause”

F. Executive Privileges and Immunities

• 2 - Fold Separation of Powers problem when there is a demand for executive

information:

1.) Judicial or legislative inquiry into executive actions could interfere with performance of

constitutional duties2.) Executive refusal to provide evidence could interfere with judicial or legislative functions

1.) Qualified Immunity from disclosing confidential communication for criminal

proceedings against others

• United States v. Nixon Absent a claim of need to protect military, diplomatic, or

sensitive national security secrets, an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances does not exist, especially for a“generalized” need for confidentiality.

2.) Absolute Immunity from civil liability of official actions

• Nixon v. Fitzgerald Absolute presidential immunity from civil liability of official

actions because:a.) Protection prevents the President from being unduly cautious in the discharge of his

official duties

b.) Other remedies for Presidential misconduct:i. Impeachment

ii. Formal and informal checks on the President

iii. Constant scrutiny by the pressiv. Vigilant oversight by Congressv. Desire to earn re-election

vi. Need to maintain prestige as an element of Presidential influence

vii. President’s concern for historical stature

3.) No Immunity from civil liability of unofficial actions

• Clinton v. Jones Presidential immunity does not apply to civil damages litigation

arising out of unofficial events occurring prior to the assumption of office

G. Impeachment

• Art. II § 4: President shall be removed from office on Impeachment for, and

conviction of, Treason, Bribery, or other high crimes and misdemeanors

a.) House initiates the impeachment proceedings b.) Senate must vote 2/3 to remove

c.) Only Andrew Johnson, Nixon, and Clinton have been impeached;

none have been removedd.) Applies to President, V.P., or any civil officers of the U.S.

e.) What is a high crime and misdemeanor?

Documents

Con Law Outline Gamen