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Unformatted text preview: Chapter 4 The Executive Article II Basic Considerations. Structure selection, removal, tenure, and succession The Electoral College gave general electorate some influence on the selection of President w/o resorting to direct popular electing. Each state to select presidential electors equal in nm et te te dl a so h Sntad u bro h s ts e gt t te ea n a' e e e House Constitution empowered the state legislatures to decide the method of choosing electors. Three qualifications citizenship, age and residency. Only natural-born citizens natural 35 years old Resident of U.S. for past 14 years 12th Amendment No person can serve as VP who is not eligible to be President Electoral College each elector had two votes, only one which could be for someone from his own state 2nd place became vp If no candidate received the required majority, the House was to decide among the top five finishers in the Electoral College with each state delegation getting one vote Bush v. Gore (2000) Relevant Case Facts: The presidential election of 2000 came down to 250 votes between George W. Bush and Vice President Al Gore after an automatic machine recount was triggered. Charges of voting irregularities led to lawsuits and protests. The major issue of debate was over undercounted ballots, whereby voting machines had failed to register a presidential preference. Gore supporters asked for a hand recount of these ballots. Bush v. Gore (2000) However, three deadlines were on the horizon: November 18 (when the secretary of state would certify the election results); December 12 (the safe harbor deadline); and December 18 (when electors would cast their votes). The recount was not going to be done by November 18, and the Florida Supreme Court extended the certification date until November 26. The U.S. Supreme Court set aside this decision and asked the Florida court to explain its decision. Bush v. Gore (2000) Meanwhile, the secretary of state certified the election results on November 26 (with Bush winning by 537 votes). Again, the state supreme court spoke, and ruled in favor of a statewide manual recount. Bush appealed this decision to the U.S. Supreme Court. Bush v. Gore (2000) Legal Question: Did the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment when it ordered a recount to take place without setting a single uniform standard for determining voter intent? Yes. By a vote of 5 the Court 5 4 determined that the Florida court violated federal law and the Equal Protection Clause. Holding: Bush v. Gore (2000) Reasoning: The right to vote is protected, as is the manner in which the exercise is carried out, by the Equal Protection Clause of the Fourteenth Amendment. A state may not, by later arbitrary treatment, value one pr n vtoeaohr e o' oe vrnte s s . Bush v. Gore (2000) Based on the controversy surrounding under votes, the Florida Supreme Court ordered that the intent of voters be discerned from ballots that had been perforated but not enough for the voting machines to count them. The recount mechanisms used for this determination did not satisfy the nonarbitrary treatment of voters necessary to secure this fundamental right. The problem is that there are no standards to determine voter intent. Bush v. Gore (2000) The lack of standards and rules leads to unequal evaluation of ballots. Additionally, the standards vary from locale to locale. recount of overvotes raises another equal protection issue, and this demonstrates the problem wt te l i cut dci . i h F r a ors eio h od ' sn The Bush v. Gore (2000) A third equal protection problem ensued from the fact that only a partial total of the votes from MiamiMiamiDade were certified. The press of time did not diminish constitutional concern--equal protection concern--equal must still be followed. overall recount process is inconsistent with the minimum procedures necessary to protect the fundamental rights of each voter. The Bush v. Gore (2000) Gvn ht eieo " f hr r i p n s i tat t fr s e a o"s o u, e h m a- b u with no viable recount procedure in place, we order that the recount remain stopped. We are cognizant of limits on judicial power, but we were asked by the parties to decide this dispute, so we must do so. Bush v. Gore (2000) Dissents/Concurrences: (Rehnquist, with Scalia and Thomas, concurring): While comity and respect for federalism usually mean the Court defers to state court decisions over matters of state law, the significant departure from the legislative scheme for appointing electors in this case raises a federal issue. This does not imply disrespect for state courts, but rather a respect for the constitutionally mandated duty of state legislatures. Bush v. Gore (2000) (Stevens, with Ginsburg and Breyer, dissenting): It is the settled practice of this Court to defer to the decisions of the state high court. While some issues do merit federal intervention this is not one of those cases. Federal judges cannot substitute their view for those of the state court on matters of state law. Any problems with different standards for counting ballots are alleviated by the fact that a single, independent, magistrate adjudicates all objections about the recount. Bush v. Gore (2000) Once a state legislature determines to select electors through popular vote, then everyone has the right to have their votes counted. T eoeit s a i h nt n cn dne h l rn h cs s e ao' of ec s i e t i s i in judges as impartial guardians of the law. Bush v. Gore (2000) (Souter, with Breyer, Stevens, and Ginsburg, dissenting on all but issue three): The safe harbor issue is not mandated by law, and even if a determination has to be made about the validity of ballots, it must be made in Congress, not by the Court. The decisions and interpretation of the state supreme court raise no substantial question under Article II. Bush v. Gore (2000) The third issue has merit. There may be equal protection problems with having disparate standards for interpreting the meaning of ballots. However, the time should be taken to create a uniform standard. There is no reason to assume that the state could not conduct the recount on time. Bush v. Gore (2000) (Ginsburg, with Stevens, Souter, and Breyer, dissenting on all but the equal protection portion): Disagreement with the state court decision does not warrant the conclusion the majority draws. This Court has rarely ever rejected outright interpretation of a state high court on matters of state law. But those cases are not comparable to the conditions we have today. Bush v. Gore (2000) Federal courts should defer to state courts on matters of state law. harbor does not mean that electoral votes cannot be delivered. And, they have to count the votes unless both houses find the votes had not been regularly given. THAT GINSBURG DOES NOT " E P C F L YD SE . R S E T U L IS NT" Safe NOTE Bush v. Gore (2000) (Breyer, with Stevens and Ginsburg, dissenting, except to paragraphs 3 and 4): The federal legal question is insubstantial except for the issue of fairness in counting the ballots. The appropriate action is to remand the case with instructions to count all undervotes on the ballots with a single uniform standard. Removal Impeachment The Two stage process house investigates the charges of treason, bribery, or other high crimes and misdemeanors, if convinced of sufficient evidence of misconduct, the House passes the articles of impeachment specifying the crimes charged and authorizing trial The second stage, the trial takes place in the Senate with the chief justice of the U.S. presiding, conviction requires two-thirds vote of senators twono penalties other than removal from office by congress Tenure and Succession 4 year terms 22nd amendment limited terms to two in response to FR running for a third and fourth term Article II framers provided that VP assumes powers and responsibilities of the office in the event of death, resignation, or disability Tenure and Succession In response to LBJ accession to presidency after Kennedy assassination, was updated by the 25th amendment. Line of Succession Constitutional Powers Make treaties (with 2/3 senators concurring) Nominate and appoint ambassadors, judges The executive power shall be vested in a President What does the term executive power mean? A mere designation of office or a general grant of power? Mere designation theory only those powers enumerated General grant of power or Stewardship theory all powers needed to run the nation. In re Neagle (1890) T eahueeuo o tea s h ftflxct n fh l ...... i i w Relevant Cases Facts: David Neagle, a U.S. marshal, was assigned to protect Justice Stephen Field while Field was tending to circuit duties in California. This assignment was made by the U.S. president, based on prior trouble Justice Field encountered in the state, as well as by subsequent threats on his life. During the trip David Terry accosted Justice Field, and in the ensuing conflict Neagle shot and killed Terry in an effort to protect the justice. Neagle was charged with murder under California law. A federal court granted a writ of habeas corpus ordering the state court to release Neagle. In re Neagle (1890) Legal Question: Does the president, without congressional action, have the authority to issue an executive order, through the attorney general, to authorize the protection of Supreme Court justice? Yes. By a vote of 6 the Court ruled 6 2 in favor of Neagle. Holding: In re Neagle (1890) Reasoning: 1. Judges often perform duties wherever it is cnei to o oT u F lsuiadts ovn n t d s. hs id j c lue e e' di i in California were just as important as those he performed in Washington. Therefore, there is no doubt that when he was attacked by Terry, Field was conducting his business as circuit justice of the ninth circuit, and was entitled to all of the protection under those circumstances that the law would give him. In re Neagle (1890) 2. While no act of Congress exists that authorizes marshals to protect Supreme Court justices, to say a law must exist is unreasonably r tcv. h m r as o eidr e f m e rteT e a hl pw rs evd r sii s ' i o the general scope of his duties under the laws of te n e S t ads " w wtite h U id te n ia l " i n h t as a h meaning of the phrase in reference to the habeas corpus petition. In re Neagle (1890) Sco 3Atl2 ele tate r i n "hl et n , rc dc r hth ped tsa i ie as se l t e a tatea s eahuy xct ,ad es a cr hth l b ftfl eeu d n h i k e w i l e" provided with the means to do so--to commission the so--to officers of the United States, and to appoint the most important of them with the advice and consent of the Senate. When a judge is discharging his duties and is threatened, the power of the president to protect the j g'l iudn b . u e i s nei l d sf e ae Habeas corpus should be granted because the prisoner was acting under the authority of law. Congressional Limits on Executive Power Youngstown Sheet case presidential powers may not be fixed, but the president cannot act against the will of Congress obligation to enforce the law: faithful execution of the laws requires the executive branch to enforce and administer the policies enacted by the legislature even if the president opposes them The Domestic Powers of the President Clinton v. City of New York (1998) Relevant Case Facts: The Line Item Veto Act allowed the president to cancel discretionary spending, new spending, or limited tax benefits. Congress could cancel these cuts, but the congressional cancellation would be subject to presidential veto. Additionally, any member of Congress--or individual--could Congress--or individual--could bring a federal suit if the Line Item Veto Act harmed them. President Clinton vetoed eighty items in conjunction with the Balanced Budget Act of 1997, including monies earmarked for New York hospitals; the city and hospitals sued. Clinton v. City of New York (1998) Legal Question: Does the Line Item Veto violate Article I, Section 7, Clause 2 (the Presentment Clause) of the Constitution? Yes. By a vote of 6 the Court ruled 6 3 in favor of New York. Holding: Clinton v. City of New York (1998) Reasoning: The president has amended two acts of Congress by repealing parts of each. This violates our precedent set out in Chadha. Chadha. president has responsibilities that directly relate to the legislative process: the State of the Union, where he can suggest laws, and the decision to sign laws upon presentment. The Clinton v. City of New York (1998) A veto is different from the cancellation authority in this law. The Constitution (and President Washington) understood that presidents return the whole bill, rather than part of it. The intent of the Framers makes it clear that there is only one procedure for enacting laws. If the Line Item Veto were valid, it would allow the president to create a different law that was not voted on by either house of Congress. The only way to prescribe the Line Item Veto is through constitutional amendment. Clinton v. City of New York (1998) Dissents/Concurrences:(Kennedy, Dissents/Concurrences:(Kennedy, concurring): Clearly it is important to curb excessive spending and persistent spending. The Constitution has mechanisms to do so-so-federalism and the separation of powers. Just because these mechanisms are not sufficient does not mean the present law is constitutional. Clinton v. City of New York ( aawt OC no ad r e cnur g n d s t gn S l, i 'onrn (1998) crn ad ie i i ci h Be r o y, i s nn part): The Line Item Veto is not the first law to allow the president to curb spending. But we ruled that law unconstitutional because it gave the executive legislative power. The Line Item Veto is the same as Congress giving the president control over spending more generally. Had this law simply allowed the president to decline to spend money (which is the discretion of the executive branch), the law would have the same effect. The point is that this is not r l a i I mV t ( ea hs f e otte ur e e l L et e t l a" kd u h Spe ay n e oh w a " m Court). Clinton v. City of New York (1998) (r e wt OC no ad c i d s t g Be r i 'onrn Saa ie i ) y, h l, s n n : The Constitution allows Congress and the president to try novel methods to carry out policies like balancing the budget. The Line Item Veto does not violate any textual command in the Constitution and does not violate any explicit aspect of the Separation of Powers. Presidential Signing Statements Point to provisions of the law the president has concerns with: Poi t p s et i e r ao o t l ga o rv eh r i nsn r e tn fh a ug f d e ed ' t p ti en e the law Announce constitutional limits on the implementation of some of its provisions, or Indicate directions to executive branch officials as to how to administer the new law in an acceptable manner Morrison v. Olson (1988) The Power of Appointment and Removal the appointments clause Article II, Sec. 2 Relevant Case Facts: Because of the Watergate scandal, Congress included a position for special prosecutor in the Ethics in Government Act of 1978. Three federal judges appointed by the chief justice every two years would choose this position. Once appointed, the special prosecutor could exercise all of the powers of the Justice Department. The special prosecutor could be removed by the attorney general, but only for cause or for disabilities affecting his or her ability to carry out the job. The tenure of a special prosecutor ends when the tasks he or she sets out to accomplish are completed. Morrison v. Olson (1988) After an investigation of the Environmental Protection Agency and Land and Natural Resources Division of the Department of Justices, the House Judiciary Committee investigated Justice Department officials and found that Theodore B. Olson, an assistant attorney general, provided false statements before the committee. The committee asked the attorney general to appoint a special prosecutor to deal with the matter. Olson refused to cooperate with the prosecutor and refused to produce documents on the ground that the special prosecutor provision of the Ethics in Government Act violated the Appointment Clause of the Constitution. He claimed that the special prosecutor was not an inferior officer, and therefore had to be appointed by the president and not a group of judges. Morrison v. Olson (1988) Legal Question: May a group of judges appoint a special prosecutor under the Ethics and Government Act of 1978? Yes. By a vote of 7 the Court ruled 7 1 in favor of the special prosecutor law. Holding: Morrison v. Olson (1988) Reasoning: 1. The special prosecutor is an inferior office in the federal government. a. Special prosecutors are subject to removal by higher executive officials (e.g., the attorney general). b. Special prosecutors are empowered to perform only certain limited duties of investigation and prosecution, ee tog te hv " l o ead u oi. vn huh hy ae f l w rn at ry up h t" c. The office has limited jurisdiction to specific cases. (Question: Is this true?) true?) d. Special prosecutors have limited tenure. Morrison v. Olson (1988) While appellees argue that the Appointment Clause does not allow interbranch appointments, the language of the clause provides no such limitations. There is also no evidence that the Framers wanted to disallow interbranch appointments. 3. Because conflicts of interest may arise in the executive branch, Congress moved the appointment of special prosecutors to the judiciary. Because Congress has such power, there is no Article III violation. Morrison v. Olson (1988) Only the executive branch can remove special prosecutors (for good cause). This means that the executive branch still has control over this office. Unlike in Bowsher and Myers, this case Myers, does not involve a congressional attempt to retain the power of r oaecp iC nr s nr apw ro ipah et e vlxet og ss om lo e fm ecm n m n e' s and conviction. This act puts the removal power with the executive. The special prosecutor does not violate Separation of Powers because the three branches of government are not absolutely independent. Another branch of government can, therefore, appoint inferior officers (in this case, the judiciary). Morrison v. Olson (1988) Dissents/Concurrences:(Scalia, Dissents/Concurrences:(Scalia, dissenting): Certainly the independent counsel is part of the executive branch. This is what her function is-is-to enforce laws. But the president does not, contrary to the majority, have power over the special poeu rT eda fe oi fr go rs t . h i o r v go "od co e m n cue de nt en h pedn hs ot l as os o m a te r i t acnr . " se o Morrison v. Olson (1988) The Constitution mandates that all executive functions fall under the control of the president. We cannot depart from the text of the Constitution as the majority has done. this statute deprives the president of control over the independent counsel, which violates Article II. Overall, Dismissing Executive Officials Myers v. United States (1926) Relevant Facts: In July 1917 President Wilson appointed Frank Myers to be first-class postmaster in firstPortland, Oregon, for a four-year term. In January 1920 fourWio a e fr e 'r i ao,n w e Myr l n s d o Myrseg t nad hn e s k s sn i s refused to resign Wilson asked the postmaster general to fire him. Myers claimed that, under a law passed in 1876, postmasters of 1 class were appointed and 1 3 could only be removed with the advice and consent of the Senate. Myers sued for his unpaid salary, and after he died his executor continued the legal action. Myers v. United States (1926) Legal Question: Does the president have the sole power to remove a person he has appointed with the advice and consent of the Senate? Yes. By a vote of 6 the Court ruled 6 4 in favor of the United States. Holding: Myers v. United States (1926) Reasoning: 1. The power to remove an appointee is different from the authority to consent or reject an appointment. In short, it is incidental to the actual appointment. 2. The president and his staff are much better informed about how appointees are doing, and are therefore better able to decide if one should be removed from a position. Myers v. United States (1926) 3. The legislative power with respect to appointments and removals is excluded except where the Constitution specifies--and neither specifies--and Article I nor Article II specify that the legislature has any power in the decision to remove an executive officer. Thus, because the Constitution p cs oii o te r i n'aiyo l e n l t n h ped t bi t a ms se s l t remove an officer, he has absolute power in this arena. Myers v. United States (1926) 4. C b eofis ut eh "lrgs ai t fc lm sb te aeeo" n ia t where the president has to exercise his authority. Thus when he loses confidence in these people, he must be able to remove them immediately. To hold otherwise would make it impossible for the president to take care that the laws are being faithfully executed. Myers v. United States (1926) 5. The Exceptions Clause does not give Congress the right to deal with removals from appointed positions. Article II excludes legislative power from appointments and removals except for inferior offices. 6. Myers v. United States (1926) Dissents/Concurrences: (McReynolds, writing separately): The president cannot remove officers he did not appoint. They can only be removed if Congress permits it. Myers v. United States (1926) (Brandeis, dissenting): Congress has control over removal, as is evidenced by the many laws passed, and signed by past presidents, that given Congress such power. This power is simply part of the legislative practice, and is used to make sure presidents do not have uncontrollable power to remove inferior officers. Hu he'E euo vU i d mp ry xctr . nt s e States (1935) Relevant Case Facts: The Federal Trade Commission (FTC) was created in 1914 as an independent regulatory agency to enforce antitrust laws and prevent unfair competition. Members of the FTC were chosen by the president and approved by the Senate. Not more than three members could be from the same political party, and they served staggered seven-year terms. The sevenpresident could remove commissioners, but only for inefficiency, neglect of duty, or malfeasance. President Hoover appointed William E. Humphrey FTC commissioner in 1931. After the 1932 election President Roosevelt tried to staff the executive branch with supporters of his New Deal. As such, he asked Humphrey to resign, but Humphrey refused. Roosevelt then sent Humphrey a letter removing him from office because of H m he'ply oi n o t N wD a u pr s oc psi s n h e el y i t o e . Hu he'E euo vU i d mp ry xctr . nt s e States (1935) Legal Question: Did the FTC statute restrict te r i n'r oapw ro h g ud h ped t e vlo et te r ns se s m o cited in the law? Yes. By a vote of 9 the Court ruled 9 0 fr u pr 'eeu r o H m he s xct . y o Holding: Hu he'E euo vU i d mp ry xctr . nt s e States (1935) Reasoning: 1. The FTC is a nonpartisan body, and should act with impartiality. Its duties are not executive in nature--at most they are partially legislative nature--at and partially judicial in nature. Hu he'E euo vU i d mp ry xctr . nt s e States (1935) 2. The legislative intent demonstrates that Congress did not want the FTC to be subject to any governmental official. That is, the FTC must be free of political domination, including from the president. The only executive involvement in the FTC is through the selection process. As such, executive involvement is limited to removal of commissioners for the enumerated causes. Hu he'E euo vU i d mp ry xctr . nt s e States (1935) 3. Myers does not apply in this case. That case was a narrow ruling that focused on the pedn'pw ro e oe ps a e T e r i t o et r v a ot s r h se s m m t. office of postmaster is so different from the office involved here that Myers cannot be said to be controlling. Myers, unlike, Humphrey, was an executive officer subject to inherent executive power. That case, therefore, goes no further, especially to agents who are not part of the executive branch. Hu he'E euo vU i d mp ry xctr . nt s e States (1935) 4. The president does not have inherent powers of removal for these types of officers. Whether the president has the power to remove an officer will depend on the character of the office. The separation of powers makes it clear that the president does not have control over the FTC. 5. Executive Privlege: Protecting Presidential Confidentiality Executive Privilege frequency of use? And Immunity United States v. Nixon (1974) Relevant Case Facts: The Watergate scandal took place on June 17, 1972. All the men involved had ties to the White House. James McCord claimed he was pressured to plead guilty and that others were involved in the breakbreak-in. The Senate investigated Watergate, and John Dean (special counsel to the president) testified under the protection of immunity. Alexander Butterfield claimed that President Nixon had a taping device that recorded all United States v. Nixon (1974) conversations in the Oval Office. Special prosecutor Archibald Cox asked Nixon to turn over the tapes, but the president refused. After Cox was fired the new prosecutor, Leon Jaworski, asked for the tapes. This time Nixon agreed to produce the tapes, but they were heavily edited. At this point, Nixon was named a coconspirator in the Watergate scandal. The House Judiciary Committee began impeachment proceedings and summoned more tapes; Nixon United States v. Nixon (1974) refused to comply with the request. A federal district court ordered the tapes to be turned over (it issued a subpoena duces tecum), and the case tecum), was brought to the U.S. Supreme Court on an expedited basis. Note that the two highest officials in the Justice Department resigned rather than fire Cox; Robert Bork (the solicitor general) became the acting attorney general and fired Cox. This was ko n sh "a ra Ngt s c . nw ate St dy i Ma ar" u h s e United States v. Nixon (1974) Legal Question: D e te r i n'rh t osh ped t i to se s g absolute immunity give him the right not to turn over tapes that have been subpoenaed by a court of law? Holding: No. By a vote of 8 the Court ruled 8 0 in favor of the United States. United States v. Nixon (1974) Reasoning: Pertaining to the separation of powers issue: issue: This Court has held exercises of legislative and executive power unconstitutional in the past (Powell and (Powell Youngstown). Youngstown). We reaffirm to Marbury, which states that it Marbury, ite rv c ad u o te ort "a w ate sh poi e n dt fh C uto s hth n y y l i" di nl, rc I ,et n s sht a s A di ayAtl I Sco Ia ta w . t l ie I i o y judicial power is vested in the federal courts. Therefore, the Court has the right to say what the law is with respect to the privilege of executive immunity. United States v. Nixon (1974) Pertaining to the question of presidential power vs. judicial needs: 1. The importance of confidentiality for high government officials is without question. The enumerated powers of the president provide this protection. However, absent a claim of national security (or similar issue), neither the separation of powers, nor the privilege (without more) can sustain unqualified immunity. Indeed, an absolute unqualified immunity would impede the judicial function set out in Article III. In short, the needs of the judicial process outweigh presidential privilege. United States v. Nixon (1974) 2. While the presidential privilege is fundamental to the separation of powers, the rule of law and the need to find out all relevant facts outweighs this privilege. For the legitimacy of the courts to be upheld, and for justice to function properly, compulsory production of evidence is legitimate. United States v. Nixon (1974) 3. The president does not place the claim of privilege based on military or diplomatic reasons, and there is no case law to support the notion that the president enjoys immunity in general cases. United States v. Nixon (1974) 4. The right to have all evidence at trial has constitutional foundations. The Sixth Amendment guarantees confrontation of witnesses, and the Fifth Amendment guarantees due process. It is the duty of courts to carry out these rights, and to make sure that all admissible evidence is produced. Here, that evidence includes the tapes involved in this case. Additionally, allowing the privilege to adhere in this case would cut deeply into the due process of law. Immunity: Protecting the President from Lawsuit Mississippi v. Johnson (1867) Relevant Case Facts: After the Civil War Congress passed the Reconstruction Acts, which imposed military rule over the South until republican governments could be established. President Andrew Johnson vetoed this legislation, but Congress overrode his veto. The state of Mississippi subsequently sued Johnson, asking the Supreme Court to issue a writ prohibiting him from enforcing the laws. Mississippi v. Johnson (1867) Legal Question: May the president be restrained by injunction from carrying out laws that a state thinks are unconstitutional? No. By a vote of 9 the Court ruled 9 0 in favor of President Johnson. Holding: Mississippi v. Johnson (1867) Reasoning: 1. This case turns on the differences between executive duties and ministerial duties. Ministerial duties are those in which no discretion is left to the president and to the one carrying them out (Marbury and Kendall). (Marbury Kendall). Mississippi v. Johnson (1867) 2. Very different from ministerial duties is the exercise of power to see that laws are faithfully executed. Here, the duty of the president is not ministerial but purely executive and political (in which the president has discretion over his duties). For the judiciary to enforce the performance of such duties of the president would be excessive. Mississippi v. Johnson (1867) 3. The present case falls into the second category, and therefore the Court cannot interfere with it. In short, the judiciary is forbidden from interfering with the exercise of executive discretion. Mississippi v. Johnson (1867) Is the conclusion reasonable? D e t C u ' ii t n e e ee te osh ors sn i bt e xc i e t d t co w n uv and ministerial acts make sense? To what degree do you think the Court was responding to the political conditions of the time? Nixon v. Fitzgerald (1982) Facts: A. Ernest Fitzgerald was a civilian management analyst for the air force and blew the whistle (while testifying before Congress) on cost overruns as high as $2 billion. He was removed from his job thirteen months later when staff were cut as part of a reorganization effort. Fitzgerald believed he was removed because of the whistle-blowing incident. whistlePresident Nixon said he would look into the matter, but when Fitzgerald did not get another job he sued. Nixon v. Fitzgerald (1982) Legal Question: Is the president shielded by absolute immunity from civil damages liability? Yes. By a vote of 5 the Court ruled 5 4 in favor of President Nixon. Holding: Nixon v. Fitzgerald (1982) Reasoning: 1. Article II, Section 1 vests executive power in the hands of the president of the United States. The president is also charged with faithfully executing the laws of the nation. This unique status is distinguished from other executive officials, especially, because private lawsuits against the president would impede the effective management of the government. Nixon v. Fitzgerald (1982) 2. Presidential privilege is rooted in the separation of powers. In some cases, the balance of the public interest outweighs executive privilege (Nixon) but for private suits this is not (Nixon) the case. The public interest simply does not outweigh privilege in these cases. Nixon v. Fitzgerald (1982) 3. T e chriwtite r i n'ofi h at e s i n h ped t fc l e h s e s ia responsibility, and he cannot be questioned for carrying out this duty. Doing so would simply be too intrusive. Here, the president has the power to mandate how the air force is run. Because this is in the scope of his power, we cannot question it. 4. Absolute immunity does not leave the president above the law. There are protections-protections-including impeachment--that will check the impeachment--that pedn'pw r ri t o e se s . Nixon v. Fitzgerald (1982) Dissents/Concurrences: (White, with Brennan, Marshall, and Blackmun, dissenting): The scope of immunity is determined by function, not by office. There is no firm ground to argue that presidents should enjoy absolute immunity in all cases. The majority is simply too vague in determining how much immunity a president should enjoy. Nixon v. Fitzgerald (1982) Additionally, while the majority says that the privilege is rooted in the separation of powers, it suggests that there is a special jurisprudence of the presidency. This is not so. In U.S. v. Nixon we denied the concept of absolute immunity, but resurrect it here. This ultimately discards the C ut pw ro s rtaee ci ns ors o et a uehtvr i e i ' s yt z protected by the laws of the nation. Clinton v. Jones (1997) Relevant Case Facts: In 1994 Paula Jones, an Arkansas state employee, filed suit against President Clinton and an Arkansas state trooper over an incident alleged to have taken place in 1991. The suit claimed that then-governor thenCi o hd ae ahr n" euldacs ltn a m d "bor ts aavne n e x o JnsSe a see c d ltn n oe h sd h ret Ci o' . i je n s advances, and Clinton stopped. Clinton v. Jones (1997) The suit claimed that she was subsequently treated badly by her superiors at work and that she was transferred to another position with no room for advancement. Clinton filed motions asking a district court to dismiss the claims based on presidential immunity and to stop Jones from refiling the suit until after his tenure as president of the United States. Clinton v. Jones (1997) Legal Question: Is a sitting president immune from private lawsuits while in office? No. By a vote of 9 the Court ruled 9 0 in favor of Jones. Holding: Clinton v. Jones (1997) Reasoning: Only three presidents have been subject to private suits while in office (Theodore Roosevelt, Truman, and Kennedy). The principal rationale for immunity is to ensure that officials are not sued for carrying out their official duties. This reasoning provides no support for immunity for unofficial conduct. That is, immunity is based on the function performed, not the identity of the actor who performed the function. Clinton v. Jones (1997) Separation of powers principles would not be violated by allowing this action to proceed. The respondent is only asking the judiciary to perform its Article III function of deciding cases and controversies. Settled law (Marbury and U.S. v. Nixon) (Marbury Nixon) demonstrate that courts have the power to determine whether the president acted within the law, and that presidents are subject to the judicial process under the appropriate circumstances. Clinton v. Jones (1997) Presidents (Ford and, recently, Clinton) have appeared to provide testimony--sometimes testimony--sometimes voluntarily. district court abused its discretion to allow a delay in the trial, and the decision to delay was premature. The Clinton v. Jones (1997) There is no need to worry about a deluge of litigation--most litigation--most of the frivolous suits will be stopped at the pleading stage, or will be decided by summary judgment. Congress deems it appropriate, it can pass a law to provide presidents with more protection. If Does the ruling prove damaging to the presidency? The Power to Pardon Ex Parte Grossman (1925) Relevant Case Facts: The United States took action against Philip Grossman for selling alcohol in violation of the National Prohibition Act. The federal district court for northern Illinois issued an injunction prohibiting Grossman from further violating the law. Grossman was then charged with violating the injunction. He was found guilty of criminal contempt for violating the injunction, sentenced to one year in jail, and given a $1,000 fine. In 1923 President Coolidge issued a pardon in w i h r ue G os a's t c t te h h ee cd rs n e e eo h c d m s nn fine alone. The district judge would not recognize the pardon on the ground that the president did not have the authority to commute a sentence for contempt of court. He ordered Grossman to serve the remainder of his sentence. Ex Parte Grossman (1925) Legal Question: D e te r i n'pw ro osh ped t o et se s pardon extend to cases of criminal contempt? Yes. By a vote of 8 the Court ruled 8 0 in favor of Grossman. Holding: Ex Parte Grossman (1925) Reasoning: 1. The argument before us is that presidential pardons for contempt violate the separation of powers. We must interpret the Constitution with reference to the common law and to British institutions as they existed when the instrument was framed and adopted. 2. Ex Parte Grossman (1925) The king of England has always had the power to pardon those guilty of contempt, and presidents have had the same power without question. In fact, this is what the Framers intended (Ex parte William Wells). (Ex Wells). T e h s "f ne a i t e n e S t " h pr e of csg n t U id te a e as h t as does not exclude pardoning someone for criminal contempt. In fact, contempts have been pardoned for eighty-five years. And the power eightyof the president to do so has been used twentytwentyseven times during this time period. Ex Parte Grossman (1925) While courts must remain independent of the executive, presidents will not use pardons to excess. It has been used for seventy-five years seventyand there has been no abuse of this power. Ultimately, there must always be a chance for a pardon--even pardon--even in criminal contempt cases. Murphy v. Ford (1975) (U.S. District Court for Western District of Michigan) Relevant Case Facts: Gregory Murphy, an attorney from Michigan, filed suit against President Ford, asking the court to declare F r'pro o Pedn Nxn o . rh od a n f r i t i vi Mupy s d se o d argued that a pardon cannot be constitutionally granted to a person who has not been indicted, convicted, or charged with a crime against the United States. Murphy v. Ford (1975) Legal Question: Is a pardon constitutional without the existence of an indictment, a conviction, or even a charge that a crime has been committed? Yes. The district court ruled in favor of President Ford. Holding: Murphy v. Ford (1975) Reasoning: 1. Federalist Paper No. 74 explains why the president has the sole power to pardon: in times of insurrection a well-timed pardon may restore wellorder. Watergate led to a season of insurrection or rebellion in the United States. Given this fact, President Ford concluded that a pardon would help bring the matter to an end. Murphy v. Ford (1975) The fact that Nixon was not indicted or convicted of an offense against the United States does not affect the validity of the pardon (Ex (Ex parte Garland). While the Court held in Garland Garland). that the presidential pardoning power is unlimited except in cases of impeachment, the "o em y e xrs aayie f rt P w r a b ee id tn t aei ce m t s commission, either before legal proceedings are taken, or during their pendency, or after cnii adug et . ov t n n j m n. . co d ." Bush 1 Clinton Pardons at the end of their presidencies Libby? The President and Foreign Policy Constitution gives President power to conduct relations with other nations Commander in chief Make treaties Appoint ambassadors and ministers Accept ambassadors and ministries United States v. Curtiss-Wright CurtissExport Corp. (1936) Relevant Case Facts: Many companies formed to build aircraft in the 1920s and 1930s. CurtissCurtissWright started off well but fell prey to the Great Depression. To help itself, the company began selling aircraft on the foreign market directly to foreign governments involved in military conflicts. One of its biggest clients was the Bolivian government, which was engaged in the Chaco War with Ecuador. However, by the early 1930s the public began to resist the idea of U.S. companies selling planes for military purposes. United States v. Curtiss-Wright CurtissExport Corp. (1936) President Roosevelt asked for a resolution allowing him to prohibit the sale of planes to warring countries. When Congress passed the resolution he issued an order embargoing weapons sales to Bolivia and Paraguay. CurtissCurtissWright refused to comply, and it was ultimately charged with violating the order. United States v. Curtiss-Wright CurtissExport Corp. (1936) Legal Question: May Congress issue a resolution that concerns external affairs, that gives the president the power to control U.S. involvement in foreign affairs? Yes. By a vote of 7 the Court 7 1 upheld the congressional delegation of power. Holding: United States v. Curtiss-Wright CurtissExport Corp. (1936) Reasoning: 1. The president alone has the power to speak or listen as a representative of the nation. 2. As Chief Justice John Marshall said in 1800: " h Pedn ite o ogn fh nt nn T e r i t h sl r o te ao i se s e a i its external relations, and its sole representative wt frg nt n.As, 11 te ea i oe n aos l i 86h Snt h i i " on e said the president is the sole representative with regard to foreign nations. United States v. Curtiss-Wright CurtissExport Corp. (1936) 3. The president does not get this power from an act of Congress but from the Constitution. The president has the power to act quickly and to be aware of conditions in other countries. Foreign negotiations often rely on secrecy, which is best achieved if negotiating power is vested in one individual. 4. United States v. Curtiss-Wright CurtissExport Corp. (1936) Foreign and domestic affairs are very different animals in terms of the information required to be presented from the executive branch. It is wise that the legislature not lay down specific guidelines under which the president is to act. In short, the president needs leeway in dealing with foreign affairs. Chapter 5 The Separation of Powers in Action When Congress gives other branches power Delegation of Powers When Congress takes executive power for itself War and national emergencies Domestic Powers Mistretta v. United States (1989) Relevant Case Facts: In reaction to wide discrepancies in sentencing by federal court judges, Congress created the U.S. Sentencing Commission as part of the Sentencing Reform Act of 1984. The cm ii w s r t a"nneedn o mso ac a d s a i pnet sn ee d cm ii iteuiabac o gvrm n,ad o mso n h j c lr h foe et n sn di n n " was empowered to create sentencing guidelines for all federal crimes, to which lower courts would generally be bound. Seven commissioners would be nominated by the president and confirmed by the Senate. Three of the commissioners were to be federal judges and no more than four could be from the same political party. Mistretta v. United States (1989) The commission promulgated the sentencing guidelines, but lower courts disagreed on the constitutionality of the guidelines. In this case John Mistretta was found guilty of selling cocaine but appealed his conviction because the lower judge upheld the guideline set by the commission. Specifically, Mistretta argued that the law violated the delegation of powers pi ie b g i te o mso "xe i r c l y in h cm ii ecsv nps v g sn se l iav atoi. e ste u ry g li h t" Mistretta v. United States (1989) Legal Question: May Congress create a commission in the judiciary to set federal sentencing guidelines? Holding: Yes. By a vote of 8 the Court ruled 1 in favor of the United States. Mistretta v. United States (1989) Reasoning: 1. The separation of powers doctrine and the nondelegation doctrine do not prevent Congress from obtaining assistance of other branches of government. 2. T e et tn ca c r fhtss ne u h "x n ad hr t o taa iac m s e ae st t be fixed according to common sense and the inherent ncsts fh gvrm n cod ao"J.W. ee i o te oe etori t n ( si e n ni Hampton, Jr. & Co. v. U.S., 1928). So long as Congress sets intelligible principles to which the body or person is directed to conform then the delegation is constitutional. We note that Congress cannot do its job without such delegation. Mistretta v. United States (1989) 3. Here, the delegation to the U.S. Sentencing Commission is sufficiently specific and detailed to meet constitutional requirements. Indeed, Congress specified three goals and four purposes that the commission should pursue in carrying out its mandate. It also specified the specific tool for the commission to use in regulating sentencing by setting ranges of sentences for specific categories of offenses. This included eleven categories for considering the categories of defendants, and seven factors for determining categories of offenses. Mistretta v. United States (1989) 4. Certainly the commission enjoys significant discretion, but Congress was very specific regarding the powers of the commission. Mistretta v. United States (1989) Dissents/Concurrences: (Scalia, dissenting): 1. There is no place in our system for Congress to create an agency to make laws because, strictly speaking, there is no acceptable delegation of legislative power. 2. Here, the lawmaking function of the commission is divorced from any responsibility for the execution of the law. In short, the delegation here is illegitimate. 3. This precedent is undemocratic because the delegation does not involve one of the three branches of government. The only power the commission has is to make law, and only Congress possesses that power. Congress and the Usurpation of Executive and Judicial Powers Vetoes Legislative Immigration and Naturalization Service v. Chadha (1983) Relevant Case Facts: Jagdish Rai Chadha entered the United States on a six-year visa. More than a year after the visa expired Chadha was ordered to attend a hearing to show cause for why he should not be deported. After two hearings, a judge ordered a sses n f hda dpr t n eas h w s fgo upni o C ah' eoti bcue e ao "od o s ao m r ca c r A t g nea rv i o t I mg tn oa hr t . cn udr poio fh m iao l a e" i sn e ri and Nationality Act, the U.S. attorney general recommended to Congress that Chadha be allowed to remain in the United States. This decision was valid under the Immigration and Nationality Act, which states that the attorney general may suspend deportation. Congress, however, had the authority to veto such decisions with a resolution passed by one house. While it seemed that Chadha would be able to stay in the country, at the last minute Congress exercised its veto power. The House of Representatives passed a motion denying Chadha, and five other aliens, permanent residence. Chadha filed suit, arguing that the legislative veto was unconstitutional. Immigration and Naturalization Service v. Chadha (1983) Legal Question: May one house of Congress pass a resolution that vetoes the actions of another branch of government after Congress delegated that power to the other branch? Holding: No. By a vote of 7 the Court ruled 2 in favor of the INS. Immigration and Naturalization Service v. Chadha (1983) Reasoning: 1. While Congress argues that the legislative veto is efficient and convenient for facilitating governmental functions, this does not mean the action is not contrary to the Constitution. 2. The Presentment Clause, Article I, Section 7, clauses 2 and 3, and the bicameral requirement of Article I, Section 1 and Section 7, clause 2, guide the resolution of the case. The Presentment Clause is so important that the Framers of the Constitution took great pains to see that it would not be circumvented. The Bicameral requirement ensures that the legislature is fully and carefully considered by our elected officials. Immigration and Naturalization Service v. Chadha (1983) 3. Presidential participation in the process (through the veto) protects the executive branch and all U.S. citizens from improvident laws. 4. The above arguments suggest that the legislative power of the federal government must follow a single, finely wrought, and exhaustively considered procedure. Immigration and Naturalization Service v. Chadha (1983) 5. Here the action by one house of Congress was legislative in its purpose and effect. A veto by one house of Congress cannot be justified as an attempt to amend the standards set out in the act, or as a repeal of the act in regards to Chadha. In short, once Congress has delegated power, it must abide by this delegation until it revokes such power. 6. There is no support in the Constitution to avoid the Presentment Clause and requirement of bicameralism. Immigration and Naturalization Service v. Chadha (1983) Dissents/Concurrences: (White, dissenting): The Court would be advised to decide this case on narrower grounds, and we should leave the legislative veto--on other bills--for future cases. Without the legislative veto Congress is left with the choice of writing laws that are so specific that they are unwieldy, or to abdicate its lawmaking function to the executive branch. The legislative veto is far from instant legislative tyranny over the executive. Bowsher v. Synar (1986) Relevant Case Facts: The Balanced Budget and Emergency Deficit Control Act, also know as Gramm-Rudman-Hollings, was signed into law in 1985. This bill required that automatic budget cuts become effective if Congress were unable to exercise fiscal self-restraint. The law also established maximum budget deficit levels, and if in any year the budget exceeded the level, the law would trigger across-the-board cuts. These cuts involved the directors of the Office of Management and Budget and the Congressional Budget Office, who would both estimate the projected deficit. They would then report these estimates to the comptroller general of the United States, who would review the reports and issue a recommendation. Finally, the comptroller general would send the report to the president, who would issue an order mandating that the cuts be made. Bowsher v. Synar (1986) Legal Question: Does the assignment of powers to the comptroller general under the Balanced Budget and Emergency Deficit Control Act violate the separation of powers? Holding: Yes. Bowsher v. Synar (1986) Reasoning: 1. The critical factor has to do with the removability of the comptroller general. While he or she is appointed by the president from a list of names given by Congress, only Congress may remove the comptroller general. This is done through the impeachment process based on one of five bases. 2. Congress has consistently viewed the comptroller general as part of the legislative branch, and comptrollers general view themselves similarly. Bowsher v. Synar (1986) 3. For the above reasons, it is clear that the comptroller general is part of the legislative branch and he or she may not have executive powers. 4. Congress purports that, because the comptroller gnr'dtsrmn t i ad ehn a te ee l ue a is rln m cai lh as i e iea c, office does not actually execute laws. This is not the case. The law makes clear that the comptroller general executes the law. Ultimately, Section 252(a)(3) indicates that the comptroller general has the authority to determine cuts and to force the president to invoke those cuts. This means that the legislative branch effectively controls the executive on this issue. Bowsher v. Synar (1986) Dissents/Concurrences: (White, dissenting): T e or dci r to aot y h C ut eio e s n sl r ' sn s s i a provision of another law passed over sixty years ago, and on a feature of the legislative scheme that is of little practical significance and is not a serious threat to the separation of powers. Presidential Power During War and National Emergencies Constitutional War Powers Declaration of War War Powers Act of 1973 Civil War Disputes The Prize cases The Prize Cases (1863) Relevant Case Facts: Before his inauguration of March 4, 1861, president-elect Lincoln imposed a naval blockade of southern ports. He did so unilaterally, without seeking congressional approval. Congress did not enact a formal declaration of hostilities until July 13 and did not ratify the blockade until August 6. Prior to July 13, Union vessels seized four ships trading with the Confederacy. The owners of the ships sued, claiming that Lincoln had no authority to institute a blockade without a congressional declaration of war. The Prize Cases (1863) Legal Question: Does the president have the right to institute a blockade of ports under control of persons in armed rebellion against the government before Congress has acted? Holding: Yes. In a 5 decision the Court ruled 4 that the blockade was constitutional. The Prize Cases (1863) Reasoning: 1. Neutral parties may challenge the blockade and the blockade existed. It has not been disputed that the president, as commander in chief, is the proper person to invoke the blockade. 2. The first question is whether a state of war existed. War exists if one belligerent claims sovereign rights over the other. Civil war begins with an insurrection against the government. When a group is hostile, declares independence, or has armies, there is a state of war. The true test of whether civil war exists is when courts of justice cannot be kept open. The Prize Cases (1863) 3. The second question is whether or not the president can institute a blockade. The president is the commander and chief of the militia when it is called into service. While the president cannot declare a foreign war, by two acts of Congress (in 1795 and 1807) he may call out the militia to suppress an insurrection against the government. The Prize Cases (1863) 4. Under his powers, the president must decide on the proper force. Because the blockade existed, by executive order, we were in a state of war. No other evidence is necessary. Being in such a state of insurrection, the president has the power to institute this blockade in the face of rebellion. 5. The decision here is a political one. Courts, including this one, must be bound by the political decisions made by the department of government to which such power is entrusted. The Prize Cases (1863) Dissents/Concurrences: (Nelson, dissenting): No state of civil war existed until July 13. Therefore the president did have the power to issue the blockade. Ex Parte Milligan (1866) Relevant Case Facts: Lambdin P. Milligan was an attorney li isu e Id n w o aat n s t 'i t in n ot r ni a h w s sog te rhs vg hn a r as g advocate and a Southern sympathizer. He was involved in efforts to persuade men not to join the Union Army and he organized groups and gave speeches in support of the South. At one point Milligan was suspected of raiding a prisoner of war camp to free Confederate soldiers. Federal agents arrested Milligan in October of 1864 and he was put on trial before a military tribunal sixteen days later. At this trial Milligan was found guilty and sentenced to hang. Less than a month later the war ended and Milligan filed a habeas corpus petition alleging he was illegally arrested and illegally tried in a military tribunal. Ex Parte Milligan (1866) Legal Question: May a military tribunal try a citizen during a time of war for allegedly treasonous activities in a state that is not rebelling against the government? Holding: No. In a 9 decision the Court ruled 0 in favor of Milligan. Ex Parte Milligan (1866) Reasoning: 1. Milligan insists that because he was a citizen of the United States and of the state of Indiana, and because he had not been a citizen of one of the states under martial law, the military tribunal had no jurisdiction over him. In short, he was guaranteed a trial by jury. 2. Now that the war was over the issue in this case could be decided safely without endangering public safety. 3. The Constitution declares that the trial of all crimes, except in cases of impeachment, shall be by jury. Ex Parte Milligan (1866) 4. Where did the military tribunal get its power? Not from the Supreme Court, Congress, or the president. But it is said that j i ii icm le net " w ad s e o w r F r u s co so p tudrh l sn ua s f a" o rd t n e ea g . the Court, it does not matter where this phrase originated from, for it cannot be binding on citizens of a state that has upheld the authority of the government and in which the courts are open and fair. Indeed, one of the clearest constitutional provisions was prohibited when Milligan was tried by a court not established by Congress and not composed of judges appointed during good behavior. This happened when, in fact, the circuit court was open and conducting business. Ex Parte Milligan (1866) 5. Another constitutional guarantee was violated when Milligan was denied a trial by jury. All citizens, when the courts are open, possess this right. Only those within the military are subject to the jurisdiction of the military court. 6. The government claims that martial law covers this type of issue--that the commander of the military has the right to use his discretion, in this case to suspend civil rights and their remedies. If this the case, however, te i f c ayedrte ml ri eedn o hnt f t l r e h " ia n pnet f ee u l n s iy d t ad ueo t te ilo e" n hr ao i n spr ro h c i w r I sot lwn i vp . ,l g military tribunals to try citizens marks the failure of a republican form of government. Ex Parte Milligan (1866) 7. Not one of the safeguards within the Constitution can be disturbed in times of war, or any other time, by any branch of government, with the exception of the right to a writ of habeas corpus. Indeed, it is essential to safety of every government that, in times of crisis, the government has the power to suspend the writs of habeas corpus. Even if this right is denied, Milligan is still guaranteed a fair trial by a civilian court. 8. Ultimately, in areas where martial law has been declared, the military courts do have the power to try citizens. However, Indiana was not under martial law. Troops in that state were only there to be sent to other areas under martial law! Ex Parte Milligan (1866) Dissents/Concurrences: (Chase, dissenting, with Wayne, Swayne, and Miller): When the writ of habeas corpus is suspended, the president has the power to arrest and to detain. Additionally, there are cases when trial and punishment by a military commission is legitimate. Certainly, Congress cannot apply the laws of war where war has not been established. But in such times of public danger, Congress can organize military commissions to conduct trials. Ex parte Quirin (1942) Relevant Case Facts: During World War II Adolf Hitler commanded his military to devise a sabotage plan to destroy American infrastructure. A group of Germans, including Richard Quirin, entered the United States in June 1941 intending to carry out such sabotage. Upon arriving in New York, one of the saboteurs informed the FBI of the plot and the group was arrested. President Franklin Roosevelt then had to determine what to do with the eight men who were captured. He decided to create a military commission to try the group for committing offenses against the United States. Simultaneously, the president issued a proclamation that any enemy combatant who is charged with sabotage (or the like) would be subject to the laws of war and to the jurisdiction of military tribunals--and denied access to the courts. Ex parte Quirin (1942) Legal Question: Does the president have the power to create military tribunals that have the jurisdiction to detain and try persons who are accused of sabotage, espionage, or warlike acts? Holding: Yes. By a 9 vote the Court ruled 0 aa sQ i 'c i. gi t u islm n r n a Ex parte Quirin (1942) Reason: 1. We o c ehtvri e et nr a e t cne taees c pti esr s h d n i o ' rt e courts have been free and open. 2. By the Articles of War Congress has provided rules for the government of the army. These rules recognize the military commissions appointed by the command as the appropriate tribunal for the trial and punishment of offenses against the law of war that are not covered by courts martial. As commander in chief, the president has invoked this law. Ex parte Quirin (1942) 3. Unlawful combatants are not subject to capture and prisoner of war status. Rather, when captured for conducting secret operations (by discarding their uniforms) they are subject to trial and punishment by military tribunals. These principles are covered by the 15th Article of War, Section 1, which gives jurisdiction to the military commission in this case. 4. It is without significance that the saboteurs did not use conventional weapons. It is also without significance that one of the belligerents was a U.S. citizen. Citizenship does not relieve this combatant of facing the tribunal, for he is charged with the same crime as the noncitizens. Ex parte Quirin (1942) 5. It also does not matter that the crimes were not carried out. The simple act of entering the United States with the intention of doing so gives the tribunal jurisdiction. 6. The Fifth and Sixth Amendments do not apply as they do not extend to offenses that are committed against the laws of war. 7. Finally, Milligan does not apply to this case. That case was decided narrowly on the facts before the Court. The court reached two different conclusions in Q i ad l a...Wh? u i n Mign r n l i y Korematsu v. States (1944) Relevant Case Facts: Fred T. Korematsu was arrested for being on streets in violation of government evacuation orders, which called for Japanese Americans to report to detention camps. After his arrest the American Civil Liberties Union offered to represent him and to challenge the validity of the evacuation orders. Korematsu v. States (1944) Legal Question: May the president order the internment of all persons suspected of being of Japanese ancestry? Holding: Yes. By a vote of 6 the Court ruled 3 in favor of the United States. Korematsu v. States (1944) Reason: 1. All legal restrictions that restrict the civil rights of a particular group are immediately suspect. Courts must therefore subject these laws to rigid scrutiny. 2. In light of our decision in Hirabayashi, however, we cannot conclude that the exclusion orders were beyond the powers of Congress and the executive branch. Korematsu v. States (1944) 3. The removal of people from a particular area was vital to prevent espionage and sabotage. The military command argued that the curfew policy was not enough to curb these possibilities. Indeed, there was no way to discern the loyal from the disloyal in such a short time span, and approximately five thousand American citizens of Japanese ancestry refused to swear allegiance to the United States. As such, this Court will not question the wisdom of military authorities. Korematsu v. States (1944) 4. We are mindful of the hardships of war. However, when foreign powers threaten our shores, the power to protect must be commensurate with the threatened danger. 5. We are dealing with nothing more here than an exclusion order to protect the country. If it were someone being imprisoned in a detention camp solely because of racial prejudice it would be clear that such an action would violate the Constitution. However, there is evidence that some citizens of Japanese ancestry were disloyal, and therefore action was necessary. Korematsu v. States (1944) Dissents/Concurrences: (Murphy, dissenting): The exclusion of all people of Japanese ancestry falls into the ugly abyss of racism. We must accord great respect to military authorities, but there must also be limits on their power. Indeed, where martial law has not been declared individuals continue to possess their constitutional rights. To detain the people as was done here, there must be immediate, imminent, and impending danger. It is not reasonable to assume that all Americans of Japanese ancestry were aiding the enemy. As such, I dissent from the legalization of racism. Korematsu v. States (1944) (Jackson, dissenting): There is no claim made that Korematsu is disloyal to the country. Indeed, he was convicted of an act that is not commonly a crime--being present in a state where he is a citizen. His presence in the locality was only made a crime, however, bcue fh l ao o h pr t b t.f e a be o easo t o tn f i a ns ihIh hd en f e ci s e 'r German or Italian ancestry, however, he would not have been singled out by this policy. If any assumption underlies our system it is that guilt is personal and not inheritable. The law he violated was not created by an act of Congress. Rather it was created by a military order, and as such, the Court is not bound to adhere to them. Indeed, while the military may make such decisions, if the judiciary legitimates such actions it will legitimate racial discrimination for all time. Korematsu v. States (1944) Youngstown Sheet and Tube Co. v. Sawyer (1952) Relevant Case Facts: In 1951 a labor dispute began in the steel industry and the union called for a strike. Because the nation was involved in the Korean War, President Truman issued an executive order commanding the secretary of commerce to seize the nt n s eml ad o ep hmioe t n ao' t l i n t ke te n pr i . i se l s ao Truman cited no statutory authority for taking such an action. The Taft-Hartley Act of 1946 forbade this type of action by the president. Truman argued that the inherent powers of the office justified such an action despite a law to the contrary. The owners of the steel mills complied with the order under protest and filed suit. Youngstown Sheet and Tube Co. v. Sawyer (1952) Issue: May a president take over an industry in order to prevent a union from striking? Holding: No. By a vote of 6 the Court ruled 3 in favor of Youngstown Sheet and Tube. Youngstown Sheet and Tube Co. v. Sawyer (1952) Reasoning: 1. To issue such an order, the power to do so must stem from an act of Congress, or from the Constitution itself. However, there is no statute that authorizes the president to take property as he did in this case. 2. The order cannot properly be sustained as an ee i o te r i n'i e n ml rpw rs xrs fh ped t n r t ia o ea ce se s h e iy t cm adrn h f n te ao'l m krcn o m neici. l h nt n a ae a eO y i sw s take private property. Nor can the order be sustained because of the several provisions of the Constitution that grant executive power to the president. Youngstown Sheet and Tube Co. v. Sawyer (1952) 3. T e r i n'odr os o d etht h ped t rede nt ictaa se s r congressional policy be executed in a manner consistent with the intention of Congress, but in a anrost t i te r i n'wse m necnie wt h ped t i s sn h se s h . The lawmaking power in the United States is wtiC nr s dm i C nr s os o i n og ss o a . og sde nt h e' n e give this power to president or to the judicial branch Youngstown Sheet and Tube Co. v. Sawyer (1952) Dissents/Concurrences: (Jackson, concurring): There are three classes of presidential power. First, when the president acts pursuant to express or implied authorization of Congress his authority is at its maximum. Second, when the president acts in the absence of congressional grant or denial of authority there is a zone of twilight where both branches have concurrent power. Third, when the president acts contrary to the implied will of Congress his power is at its lowest ebb. The presidential power here can only be found in the third class of powers. Beyond the suspension of habeas corpus, there is no provision for the president to have extraordinary powers in times of crisis. Youngstown Sheet and Tube Co. v. Sawyer (1952) (Vinson, dissenting, with Reed and Minton): The president was acting according to the Take Care Clause, to faithfully execute all laws. To determine if he has this power we have to look at the context--in this case the country was in a time of crisis. Thus, although distasteful, the power used here is constitutional. J k n cnu ec i e at m s a s ' ocr nes e sh ot cos r sn e important statement coming out of the case and provides precedent according to many legal analysts Dames & Moore v. Regan (1981) Relevant Case Facts: In response to the Iran hostage situation, President Carter invoked the International Economic Emergency Powers Act (IEEPA); froze all assets in the United States; and protected them against judgments, decrees, or attachments by U.S. courts. Dames & Moore filed a suit in district court against the country of Iran to recover money it was owed for services it had provided to Iran. As a condition of the end of the hostage crisis, the United States terminated all lawsuits involving the frozen Iranian funds. A special tribunal was set up to adjudicate these disputes, and its decisions were binding. The tribunal denied Dames & Moore its attachment to the Iranian assets. The company filed suit, arguing that the president exceeded his constitutional and statutory power by removing assets from possible attachments. Dames & Moore v. Regan (1981) Legal Question: May the president make an agreement that nullifies all lawsuits against Iran? Holding: Yes. By a 9 margin the Court ruled 0 in favor of Regan. Dames & Moore v. Regan (1981) Reasoning: 1. Youngstown tells us that presidential power must stem from Congress or the Constitution. When acting in absence of congressional authorization, the president enters a murky area in which he and Congress may have concurrent authority, or in which the distribution of power is uncertain. When, however, the president acts in contravening the will of Congress, his power is at its lowest ebb. Dames & Moore v. Regan (1981) 2. We recognize that Congress has placed the power to freeze assets within the sole power of the president to negotiate the end to a declared national emergency (Propper v. Clark). Because he was acting pursuant to specific congressional authorization, the president is "upr d yh sogspe m t n ad h spot b te t ne r u pi sn te e r t s o widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who would aakt Pti ehs o m th bre o pof tc i et nr ant eti udn f ro. t . i " o s Dames & Moore v. Regan (1981) 3. Failure of Congress to delegate authority, especially in the area of foreign affairs, does not constitute d apoa T e rc ll eto oa'dci i iprvl h c i e m n t tdy eio s s . ua e s sn that Congress has implicitly approved the practice of claim settlement by executive agreement. This is best demonstrated by congressional passage of International Claims Settlement Act of 1949. As such, the president has some measure of power to enter into executive agreements without obtaining the advice and consent of the Senate. The president is within his powers to suspend pending claims. Congress has not disapproved of the action taken here. Dames & Moore v. Regan (1981) Note the narrowness of the decision--the Court is not giving the president the power to settle such claims. Hamdi v. Rumsfeld (2004) Relevant Case Facts: Afghan elements supporting the United States captured Hamdi and delivered him to U.S. forces. Hamdi was an American citizen by virtue of his birth in Louisiana, but his family moved to Saudi Arabia when he was a child. The government claimed Hamdi was an enemy combatant and as such he could be held indefinitely without formal charges, court proceedings, access to counsel, or the freedom to communicate with anyone beyond the prison walls. H m i fhrid pti fr aes ops n a dsa ef a et n o hbacru o ' t l e i o behalf of his son, arguing that his son did not engage in military activity but was in Afghanistan as a relief worker. Hamdi v. Rumsfeld (2004) Legal Question: May the executive branch detain citizens who qualify as enemy combatants? May an alleged enemy combatant challenge such status in a court of law? Answer: Yes. No. The Court ruled 5-4 in favor of Rumsfeld on the first question, and 8-1 in favor of Hamdi on the second question. Hamdi v. Rumsfeld (2004) Reasoning: There is no bar to the United States holding one of its own citizens as an enemy combatant (Quirin). Nothing in that case suggests that the citizenship (or lack thereof) of an enemy combatant would have precluded his detention. Because preventing combatants from returning to the field of battle is fundamental to waging war, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. We agree that indefinite detention for the purpose of interrogation is not authorized. But the United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants engaged against the United States. Hamdi v. Rumsfeld (2004) Milligan does not undermine our holding as we df e o bt ttdyT e orseet en cm a nsoa. h C ut r a d i a ' p e explanations that Milligan was not a prisoner of war suggest that had these different circumstances been present, he could have been detained for the duration of the conflict. Everyone agrees that the writ of habeas corpus has not been suspended here. Hamdi v. Rumsfeld (2004) History teaches us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. It is during the most challenging moments that our N t n cm i eto u poe im ss e l ao' o mt n t de rcs s ote ry i s m s ve tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. We therefore hold that a citizen detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for this classification, and a fair opportunity to r ute oe m n'f t ls ros e ra e th gvr et a u a e i bf e b n s c a s tn o neutral decision maker. Hamdi v. Rumsfeld (2004) At the same time, the exigencies of war may demand that the proceedings be tailored to alleviate their uncommon potential to burden the executive during ongoing military combat. Thus, hearsay might be accepted, and the burden of proof could shift to the petitioner. Giving due process will not have a dire impact on the central function of war making. Hamdi v. Rumsfeld (2004) Souter (with Ginsburg) dissenting in part and concurring in judgment: If the government shows nothing more than is in this record, Hamdi is entitled to be released. The Use of Force Resolution speaks of military power but not the power to deal with dangerous citizens within the United States. Thus, I would not reach the question of what poe ideI o o te fracp te l ats rcs s u. d nthr oe ceth p ri' s e ul y resolution of the constitutional issues that I would not reach. Hamdi v. Rumsfeld (2004) Scalia (with Stevens) dissenting: Citizens who aid the enemy are considered traitors and are subject to the criminal process. If the executive does not follow this course of action, then the writ of habeas corpus must be suspended. Thus, unless one of the two courses is taken, Hamdi is entitled to a habeas decree. The plurality seems to view it as its mission to Make Everything Come out Right, rather than merely to decree the consequences, as far as individual rights a cne e,fh ohrw bace at n ad r ocr do te teto r hs cosn e n n ' i omissions. Hamdi v. Rumsfeld (2004) Thomas dissenting: The petition here should fail because the actions taken here are squarely within the executive power. The plurality fails to account for the gvrm n'cm ei i e s oe et o pl gn r t n s l te . n Hamdan v. Rumsfeld (2006) Relevant Case Facts: After the 9/11 attack, Congress adopted the Authorization for Use of Military Force (AUMF), which authorized the president to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks. During the hostilities in Afghanistan, Hamdan was captured and detained at Guantanamo Bay. H amtd o e i aO a a iLdn pr nlr ead e d ie t s v g s s b ae' e oadi rn t rn m n s s v bodyguard. With U.S. troops still in Afghanistan, the president issued a ml rodrt " e no, r t et n Ti o C riN n ia re h D t tnTe m n, d rlf e a oiy t ,e ei a a a tn Ctesn h WaA a sTr rm" net odray i e i n it i z e r gi t e oi .U drh re n ci n n r s e , t z or noncitizen known as an enemy combatant may be tried by a military commission. Hamdan fell under this order, even though the government did not allege that he had any command responsibilities, exercised any leadership, or participated in the planning of any activities. Seeking to stop the proceedings before a military tribunal, H m a'aonyid wi f aes opsSot aet a dn t re f a r o hba cru.hry frh st l e t l t e Spe e orar d o er a dn cs C nr s a e t ur C utg e t haH m a' a , og sps d h m e s e e s e Detainee Treatment Act, which stripped courts of jurisdiction to hear or consider habeas petitions filed by detainees at Guantanamo Bay. Hamdan v. Rumsfeld (2006) H m a' t r y r e t t e hu nt e a dn aon a ud h h sol o b st e g a d tried by a military tribunal and that the procedures adopted to try him were inconsistent with the basic tenets of military and international law, including the principle that a defendant must be permitted to see the evidence against him. Hamdan v. Rumsfeld (2006) Legal Question: Does a military tribunal have the power to try enemy combatants during a time of war? Answer: No. The Court ruled 5-3 in favor of Hamdan. Hamdan v. Rumsfeld (2006) Reasoning: Exigency alone does not justify the establishment of penal tribunals not contemplated by Article I or Article III of the Constitution. And, contrary to the gvrm n'a e i , oe et s ro Quirin does not view the n s s tn authorization to set up military commissions as a sweeping power that the president may use whenever he deems necessary. At most, the two laws in question here acknowledge a general presidential authority to convene military commissions. It is our job here to inquiry whether the more specific congressional authorization here is justified. Hamdan v. Rumsfeld (2006) Neither an agreement with bin Laden, nor an overt act of war, is alleged to have occurred here. This alone casts doubt on the legality of the charge and therefore the commission. The offense must also have been committed both in the theater of war and not during, rather than after, the relevant conflict. Additionally, any urgent need for imposition or execution of judgment is utterly belied by the record; Hamdan was arrested in November 2001 and was not charged until mid-2004. Hamdan v. Rumsfeld (2006) The procedures the government uses here actually violate the UCMJ (Uniform Code of Military Justice) and the law of nations. The rules governing courts martial apply here, and the practicability determination the president made is insufficient to justify variances from the procedures. At least one provision of the Geneva Convention applies here. Article 3 provides that Hamdan must be tried by a regularly constituted court affording all the judicial guarantees that are recognized as indispensable by civilized peoples. Hamdan v. Rumsfeld (2006) We agree with Justice Kennedy that the procedures adopted to try Hamdan deviate from those governing courts martial in ways not justified by any evident practical need. We do not deal with the issue of whether Hamdan can be detained for the duration of the hostilities. Hamdan v. Rumsfeld (2006) Breyer (with Kennedy, Souter, and Ginsburg) concurring: Nothing in our decision precludes the president from returning to Congress to seek the authority he believes necessary. Judicial insistence upon such a consultation does not weaken our nt n aiyo el i dne T te ao' bi t dawt agr o h i s l t h . cnr ytai iec seg esh nt n ot r ht st e t nt n te ao' a , n sn r h i s ability to determine how best to do so. Hamdan v. Rumsfeld (2006) Kennedy, with Souter, Ginsburg, and Breyer (concurring in part): Respect for laws derived from the customary operation of the executive and legislative branches gives some assurance of the stability in time of crisis. The Constitution is best preserved by reliance on standards tested over time and insulated from pressures of the moment. Hamdan v. Rumsfeld (2006) Thomas, with Scalia and Alito (dissenting): T e or blfht i ule t pso t h C ut eetais afd o a n h ' i s tq i i s e ml rncsto te o m neici'dci ia ee i fh cm adrn h f eio iy t sy es s n to employ a particular form of force is antithetical to our constitutional structure. The plurality has appointed itself the arbiter of whether a policy decision is a good one. A cursory glance at authorities gives military commissions wide ranging jurisdiction. The plurality overturns longstanding precedents to seize jurisdiction over this case and to second guess the political branches. This is unprecedented and dangerous. Hamdan v. Rumsfeld (2006) Alito, with Scalia and Thomas (dissenting): Common Article 3 is satisfied here because the commissions qualify as courts, were appointed and established in accordance with domestic law, and procedural improprieties that occur can be reviewed. Upcoming 3/6: Federalism: p.344-390 Federalism: p.344MidMid- Term Essays will be handed out/emailed 3/13: No Class Spring Break 3/20: Turn in Essays and do Multiple Choice in Class (no readings assigned this week) Chapter 6 Federalism NationNation-State Relations: The Doctrinal Cycle McCulloch v. Maryland (1819) Relevant Case Facts: During the 1790s Congress enacted a bill for the creation of a national bank of the United States. President Washington waited to sign the bill until he had received the opinions of Alexander Hamilton, his secretary of the treasury, Thomas Jefferson, his secretary of state, and his attorney general, E m n R no hH ml n a u etht d ud adl . a i ' r m n taa p t sg o bank was constitutional convinced Washington, and the president signed the bill. The first bank of the United States was established in 1791. McCulloch v. Maryland (1819) The Republican-controlled Congress refused to renew Republicante ak ca ei 81At te r f 82hr h bn' hr rn 1. f rh Wao 11 te s t 1 e e was pressure to create a second bank (why?) and (why?) Congress did so in 1816. The second bank was mired in controversy, however, due to speculative investing as well as fraud and embezzlement charges. In short, the bn w s l e frh nt n eoo ipol s ak ab m d o te ao' cnmc rb m . a i s e Congress held hearings on the bank while some states simultaneously attempted to regulate the banks within their borders. When a state official came to collect taxes from a Baltimore branch of the Bank of the United S t , m s C lc, e ak csi,e s t te J e Mc uoht bn' a e r ue o as a l h s hr f d pay. McCulloch v. Maryland (1819) Legal Question: Two issues: (1.) Does Congress have the power to charter a national bank? (2.) Did the state of Maryland exceed its power by trying to tax a federal entity? By a vote of 6 the Court ruled that 6 0 Congress has the power to incorporate a national bank and that a state may not tax it. Holding: McCulloch v. Maryland (1819) Reasoning: 1. While the Constitution was passed by conventions within states, it was ratified by the people. Of course the people act within states, but when they do, they still act as people and not as the state. That is, the people do not become measures of the state government. McCulloch v. Maryland (1819) 2. Even the Tenth Amendment omits the word "xr s" hn e rn t teatht epe l w e r e i o h f ta sy frg c pw r"o dl a d o h US nr o e nt e gt t te .,o s e e . prohibited to the states, are reserved to the s t o t te ep .T im ashth te ro h pol" h en tate as e s power to create a bank is an implied power that Congress can retain for itself (note that this section (note effectively guts the Tenth Amendment). Additionally, Amendment) the Constitution does not depend on the states to execute laws. Congress alone makes laws for the nation! McCulloch v. Maryland (1819) 3. Maryland argues that states should still have the power to tax national banks and that the Constitution affords the state this power along with the confidence that it will not abuse that power. However, the power to tax is the power to destroy. Additionally, only the legislature of the Union can be trusted by the people with the confidence to which Maryland points. McCulloch v. Maryland (1819) 4. The government of the United States was not designed to depend on the states. The people of the state created the government and have conferred on it the general power of taxation. The states have no power to impede (by taxation or otherwise) the operation of the constitutional laws passed by Congress. constitutional provisions: the necessary and proper clause, the 10th Amend. And the supremacy Clause Three Scott v. Sandford (1857) Relevant Case Facts: Dred Scott was a slave, purchased by John Emerson in Missouri. In 1834 Emerson took Scott to the free state of Illinois, and in 1836 to the Upper Louisiana Territory, which was to remain free under the Missouri Compromise of 1820. Scott and Emerson returned to Missouri, and Emerson died shortly thereafter. Irene Sandford Emerson then inherited Scott, but when she moved to Massachusetts she left Scott and his family behind. Scott v. Sandford (1857) Scott believed he no longer had slave status and sued for his freedom in Missouri. Although he won at trial, he lost in the Missouri Supreme Court and his ownership was transferred to E e o'bohr -law, John Sandford. The m r n rte in s s -incase was then argued in federal court as a diversity suit, and the lower court ruled for Sandford. Meanwhile, Congress repealed the Missouri Compromise in 1854, replacing it with legislation declaring congressional neutrality on the issue of slavery. Scott v. Sandford (1857) Legal Question: Can an African American whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such be entitled to all the rights, privileges, and immunities guaranteed by that instrument to the citizen? Holding: No. By a vote of 7 the Court ruled 7 2 in favor of Sandford. Reasoning: 1. Scott v. Sandford (1857) The words people of the United States and citizens are synonymous terms. The question here is whether Scott is a part of this people and whether he is a constituent member of this sovereignty. We think his class of people is not, and were not, to be included under the words citizens, citizens, and therefore they cannot claim any of their rights and privileges. At the time of the Constitution they were considered an inferior and subordinate class of beings. Scott v. Sandford (1857) 2. We must not confuse the rights of citizenship that a state may confer within its limits and the rights of citizenship as a member of a union. Certainly, a state may confer citizenship, but the right and privileges the citizen would enjoy are restricted to that state. This Court has conferred on Congress the right to establish a uniform rule of naturalization, and is exclusive. No state can naturalize an alien and invest them with the rights and privileges secured under the federal government. Scott v. Sandford (1857) 3. Those who were considered citizens of the states became citizens of the country at the time of the ratification of the Constitution. Slaves were not to be considered as part of the people prior to adoption of the Constitution, and therefore did not become citizens of the United States when the Constitution was ratified. In this case Scott was not a citizen of Missouri within the meaning of the Constitution of the United States and was therefore not able to sue in the courts. In short, the suit should have been dismissed by the Circuit Court because it had no jurisdiction to hear the case Scott v. Sandford (1857) 4. The power to expand the territory of the United States by admission of new states is plainly given in the Constitution and the propriety of admitting a new state is committed to the discretion of Congress. The point is that there is no express regulation in the Constitution that defines the power that the federal government may exercise over a person or property in the territory thus acquired. Thus the Court must look to provisions and principles of the Constitution, as well as its distribution of powers, for the rules and principles by which the decision should be made. Scott v. Sandford (1857) 5. We find that Congress does not have the power to hold open a territory without restriction. Indeed, the acquisition of a territory is for the benefit of the several states that created it. When the territory enters into the United States, the federal government has powers over it that are strictly defined by the Constitution. The government cannot, therefore, assume discretionary or despotic powers that the Constitution denies to it. Scott v. Sandford (1857) 6. The right of property in a slave is expressly confirmed in the Constitution. The government also pledged to protect owners at all times if slaves escaped. Additionally, no words in the Constitution give Congress greater power over slave property. The only power it has is that to ga ad rt t w e 'i t Gvn hs ur n poe o nr rhs i te d c sg . e e considerations, the act of Congress (the Missouri Compromise) is void. Scott v. Sandford (1857) 7. In this case Scott was a slave taken into the state of Illinois by his owner from Missouri. This finding is based on our decision in Strader v. Graham, which demonstrates that the laws of Missouri, and not those of Illinois, should apply. Hammer v. Dagenhart (1918) Relevant Case Facts: When the United States entered the Industrial Age there were no government regulations over business. As such, some employers often paid their employees little and forced them to work more than fourteen hours per day, under awful conditions. Sometimes children under sixteen years of age worked as well. In 1916 Congress passed the Federal Child Labor Act, which would prohibit the shipment in interstate commerce of factory products made by children under the age of fourteen or by children aged fourteen to sixteen who worked more than eight hours per day. Hammer v. Dagenhart (1918) An opponent of the law found a test case to challenge the law. It involved Fidelity, a cotton mill in North Carolina that employed Roland Dagenhart and his two sons. Under state law D gna 'sn cu w r e vn orpr aehrsos ol ok l e hus e t d e day, but the new federal law allowed his older son to work only eight hours per day and his younger son not to work at all. Hammer v. Dagenhart (1918) Legal Question: May Congress use its power to control interstate commerce to enforce labor standards within states? No. By a 5 decision the Court ruled 5 4 in favor of Dagenhart. Holding: Hammer v. Dagenhart (1918) Reasoning: 1. There is no power vested in Congress to require states to exercise their police power so as to prevent unfair competition. The Commerce Clause gives Congress the power to regulate commerce, not to control the states in their exercise of police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the states in the Tenth Amendment to the Constitution. Hammer v. Dagenhart (1918) 2. We admit that there should be limits on child labor. However, the maintenance of the authority of the states over matters purely local (here, the employment of children) is as essential to the preservation of the institutions as is the conservation of the supremacy of the federal power. It must never be forgotten that the nation is made up of states--and that powers not states--and expressly delegated to the national government are reserved. (N T : iu s ra' nli (N E ts r Mahl aas O h tn s l ys s in McCulloch on its head.) head.) Hammer v. Dagenhart (1918) 3. The end here may be good but such an end must be attained without invading state power. This act transcends the authority delegated to Congress over commerce and exerts a power as to a purely local matter to which the federal authority does not extend. Hammer v. Dagenhart (1918) Dissents/Concurrences: (Holmes, dissenting): When states send their products beyond their borders they are beyond state authority. Under the Constitution commerce belongs to Congress to regulate and it may carry out its activities no matter what indirect impact they may have on the states. In short, national welfare may require a different attitude than self-interested states. self- U.S. v. Darby Lumber (1941) Relevant Case Facts: In 1938 Congress passed the Fair Labor Standards Act (FLSA). It stipulated that all employers engaged in interstate commerce must pay their employees a minimum wage of twenty-five cents twentyan hour and not to permit them to work longer than forty hours per week without paying them time-and-atime-andhalf overtime pay. Fred W. Darby was indicted for not adhering to the minimum-wage requirements. He minimumargued that this law violates the Tenth Amendment because it is an unconstitutional attempt to regulate conditions in production of goods and commodities. The government argued that no state alone could require standards higher than those of other states where competition exists. Legal Question: Does Congress have the authority to invoke the FLSA under the Commerce Clause? Yes. By a vote of 8 the Court ruled 8 0 in favor of the United States. Holding: Reasoning: 1. The motive and purpose of this regulation of interstate commerce are to make effective the congressional conception of public policy that interstate commerce should not be the instrument of competition in the production of goods produced under substandard labor conditions. These matters are for the legislature, upon which the Constitution places no restrictions, and over which the courts are given no control. Thus regulations of commerce that do not infringe on some other constitutional prohibition are within congressional power. 2. This decision is unaffected by the Tenth Amendment. The amendment states only a truism that all is retained that has not been surrendered. (Again, the Tenth Amendment is (Again, gutted.) gutted.) This amendment gives the government the authority to resort to all means for the exercise of a granted power that are appropriate and plainly adapted to the permitted end. National League of Cities v. Usery (1976) Relevant Case Facts: In 1974 Congress again expanded the FLSA, to include all public employees previously not included. The National League of Cities challenged the changes, arguing that it represented a collision bten ee lxas n n s t 'i ti e e f r epni ad te rhsn w da o as g violation of the Tenth Amendment. The government argued that the Tenth Amendment was inapplicable because Congress had passed the 1974 amendments under its power to regulate commerce. National League of Cities v. Usery (1976) Legal Question: May Congress regulate the wages of state employees under its Commerce Clause powers? No. By a vote of 5 the Court ruled 5 4 in favor of the National League of Cities. Holding: National League of Cities v. Usery (1976) Reasoning: 1. Congress may clearly regulate businesses within states but it cannot regulate states as states. Indeed, one undoubted attribute of state sovereignty is the power to determine wages to be paid to its public employees. 2. The question we must resolve is whether te dt mnt n a " nt n e etl hs e r i i sr f cos s ni t e e ao e u i s ao s a tadneedn eiec" o ht e r e n i pnetx t e s ta pa d sn C nr s a nt fne n h s t ' og sm y o i r g o te te e ni as authority to make them. 3. The FLSA standards place substantial costs upon the states that will have a significant impact on the functioning of the governmental bodies involved. They displace state policies in the manner in which they will provide the delivery of the governmental services to citizens. National League of Cities v. Usery (1976) National League of Cities v. Usery (1976) 4. Minimum wage restrictions pose a burden because states are not merely private businesses. Rather, they are a coordinate element in the system established by the Framers of the Constitution. The act essentially penalizes states for hiring employees on terms different from those that Congress has sought to impose. In short, it restructures state-run affairs. state- National League of Cities v. Usery (1976) 5. The act impermissibly interferes with the governmental functions of local bodies. If Congress removes these decisions from states, te wl eillt fh s t 'ea tad hr ib l ee o te te s r e n e l t f t as p a independent existence. The key is that Congress has used the Commerce Clause to prescribe wage restrictions. Idns im as ete aiyouc n n ogo t pi t st'bi tf t i , i r h as l t ni o effectively in a federal system. National League of Cities v. Usery (1976) 6. Insofar as the challenged amendments oe tt d et d p c te te f eo pr eo icy i l eh s t ' edm a r l sa as r to structure integral operations of traditional governmental functions, they are not within the authority granted to Congress in Article I, Section 8, Clause 3. 7. We reaffirm that states as states stand on different footing as individuals or corporations. Thus we must overrule Wirtz. Wirtz. National League of Cities v. Usery (1976) Dissents/Concurrences: (Blackmun, concurring): T e or dci aota a ni h C ut eio dps bl c g ' sn s a n approach that does not outlaw federal power in certain areas where the federal interest is demonstrably greater, and where state facility compliance with imposed federal standards would be essential. National League of Cities v. Usery (1976) (Brennan, dissenting, with White and Marshall): Congress has the exclusive power to regulate commerce among the several states. The Tenth Amendment is but a truism. In short, it means nothing and gives no power to the states. The decision of the majority today is a transparent cover for invalidating a congressional judgment with which they disagree. Judicial restraint in this area is quite important. It recognizes that the political branches of our government are structured to protect the interests of the states as well as the nation as a whole. Finally, the C ut cvlrr t et f orsaaet a n o Wirtz is obvious. In the end, ' i em tics ia bd b w t te o eo C nr so h a s "oy l "o h pw r f og st s e o e regulate commerce. Garcia v. San Antonio Metropolitan Transit Authority (1985) Relevant Case Facts: This case is virtually a carbon copy of National League of Cities. It focused Cities. on an amendment to the FLSA that required states to pay virtually all public employees minimum wages and overtime. In 1959 San Antonio created a mass transit system (SAMTA) that was ultimately subsidized by federal grants. In 1979 the Department of Labor issued an opinion that SAMTA must abide by the FLSA. Garcia and other employees filed a suit for overtime pay from SAMTA. Garcia v. San Antonio Metropolitan Transit Authority (1985) Legal Question: May the federal government ipsF S s na s n cy t ni m ot L A t dr o a i' r s a d ts a t authority? Yes. By a 5 vote the Court ruled in 5 4 favor of Garcia. Holding: Reasoning: Garcia v. San Antonio Metropolitan Transit Authority (1985) 1. The traditional governmental function framework created in National League is unworkable and inconsistent with ideas of federalism. As such, we now overrule National League of Cities. Cities. Garcia v. San Antonio Metropolitan Transit Authority (1985) 2. To be faithful to the principles of the C ntuo w m sl k o te ps le ost i e ut o frh "ota s it n o ut tal i n cnrl Fdr sut e l e htmt d ot . ee lt c rp cs i a o" a r u a limits on the Commerce Clause, but it is difficult to determine what those limits are. We doubt that courts can identify constitutional limitations o te cp o C nr s C m e e l s n h s e f og ss o m r Ca e o e' c u powers over the states merely by relying on a priori definitions of state sovereignty. Garcia v. San Antonio Metropolitan Transit Authority (1985) 3. The Constitution limits state sovereignty. For example, Article I, Section 10 withdraws powers from states, and Section 8 gives Congress a great deal of power over state sovereignty (the Elastic Clause). 4. The Constitution does not explicate any state powers that Congress may not displace. The Court has no license to employ freestanding conceptions of state sovereignty when measuring congressional authority under the Commerce Clause. Garcia v. San Antonio Metropolitan Transit Authority (1985) 5. Congress has not just placed a financial burden on states. It has also protected states by providing financial assistance to them. The internal safeguards of the political process have performed as intended. We do not overrule recent precedent lightly. But National League of Cities tried to fix what did not need to be repaired. Garcia v. San Antonio Metropolitan Transit Authority (1985) Dissents/Concurrences: ( ' n o d s t gwt P w l n R h qi) OC nr ie i , i o e ad enu t o , s nn h l s: Federalism cannot be reduced to the weak essence that the Court reduces it to here. There is more to federalism than the nature of the constraints ips o s t i" eel o atoi lt m oe n te n t r m fu rye d as h a h t f oe t te b te ost i .T ere pn o hm yh C ntuo " h t it n u "s ne o f e lmitas t as t hv e ec" fe ri shtte ste ae s d as as as legitimate interests that the national government is bound to respect even though its laws are supreme. The spirit of the Tenth Amendment is that states retain their integrity in a system in which the laws of the United States are supreme. It is not enough that the end be legitimate, but that also the means to that end chosen by Congress must not contravene the spirit of the Constitution. The proper resolution is to weigh state autonomy as a factor in the balance when interpreting the means by which Congress may exercise its authority on the states as states. Garcia v. San Antonio Metropolitan Transit Authority New Return of Dual Federalism York v. U.S. (1992) Relevant Case Facts: In 1980 Congress passed the Low-Level LowRadioactive Waste Policy Act (LLRWP). The act declared that states were responsible for their own waste within their borders, and encouraged states to develop disposal sites. The law allowed South Carolina, Washington, and Nevada sites to impose surcharges on waste that originated in noncompliant states. Three incentives were used to encourage compliance. First, 25 percent of the surcharge would go to the secretary of energy and be distributed to compliant states. Second, the longer a state failed to comply the higher the surcharge that would be imposed on its waste brought to existing sites. Third, any state still noncompliant by 1996 would be fully responsible for disposing of its own waste. New York argued that the incentives violated the Tenth Amendment. New York v. U.S. (1992) Legal Question: May the federal government constitutionally command states to carry out the LLRWP? No. By a vote of 6 the Court ruled 6 3 in favor of New York. Holding: New York v. U.S. (1992) Reasoning: The Constitution does not confer on Congress the ability to simply compel the states to comply with the regulations in this case. More specifically, the Constitution does not allow Congress to commandeer the state legislative process (Hodel and FERC v. MS). (Hodel MS). New York v. U.S. (1992) Congress may, however, encourage states to comply with a federal regulation. It can do so in a number of ways. First, Congress may attach conditions to the receipt of federal funds. Second, Congress may offer states the choice of regulating the activity themselves (cooperative federalism). When such encouragement happens, states remain responsive to its own ci n'r e ne ad te fc lr a i espe r cs n s tofise i t z fe , a ia m n accountable to the people. New York v. U.S. (1992) If a state does not feel a regulation (here, for the disposal of radioactive waste) is in their best interest, the federal government may preempt the state through the Supremacy Clause. Through this course, the coercion is made public. If it is done through the mechanism used in this case, accountability is diminished New York v. U.S. (1992) In this case the conditions of the grants for attaining milestones of disposal are within congressional power. So too is the second incentive--t cni nlxrs f og ss incentive--te odi aee i o C nr s h t o ce e' commerce power. New York v. U.S. (1992) T e t ei " r i nhw vr s oro h " k tl po s ,o ee ice i a t e vi o , cn rather than encouragement. While it may be argued that states have consented to this provision, it is not enough to have such consent. Iisl oro, v li o C nr s t t ce i i iao f og ss si l c n n o tn e' authorized power. While the results of this case may seem formalistic, they are not. We simply argue that the federal government cannot compel the states to enact or administer a federal regulatory program. Dissents/Concurrences: (White, dissenting, with Blackmun and Stevens): The decision today has a rigid view of federalism. Today, the Court gives Congress fewer incentives to defer to the wishes of state officials in achieving local solutions to local problems. By invalidating this law, the Court upsets the delicate balance of compromise achieved among the states. It therefore forces Congress to erect several additional formalistic hurdles to clear before achieving exactly the same objective. Printz v. U.S. (1997) Relevant Case Facts: In 1993 Congress amended the Gun Control Act of 1968 with the Brady Handgun Violence Prevention Act. The law required the attorney general to create a national database for instant background checks of those wanting to buy handguns. In the interim those who already possessed a handgun permit or who lived in states with existing background checks could purchase guns. Where these alternatives were not available, the act mandated that the local chief law enforcement officer (CLEO) receive handgun purchase forms and make a reasonable effort within five business days to verify that the proposed sale was not to a person unqualified under the law. In short, CLEOs were required to conduct background checks. These responsibilities were to terminate once the federal instant background check program would become operative. Printz v. U.S. (1997) Legal Question: Does the Brady Bill provision commanding local law enforcement to do background checks violate the Constitution? Yes. By a vote of 5 the Court ruled 5 4 in favor of Printz. Holding: Printz v. U.S. (1997) Reasoning: We must understand the challenge to this law in historical context. First, the Constitution permits the imposition of an obligation on state judges to enforce federal prescriptions, but this did not extent to state executive officers. Printz v. U.S. (1997) The 1882 act pointed to by the government only empowers the secretary of the treasury to enter into contracts with states. Additionally, recent laws can be described as putting conditions on the grant of federal funding rather than as mandates on the states. The Tenth Amendment indicates that the powers not delegated to the United States nor prohibited to the states are reserved to the states or to the people. Printz v. U.S. (1997) The Framers rejected the concept of a central government that would act upon and through the states. Rather, they designed a system in which the state and federal governments would exercise concurrent authority over the people. (How does this square with precedent?) Furthermore, precedent?) the Framers chose a Constitution that conferred power on Congress to regulate individuals and not states. Printz v. U.S. (1997) The Constitution indicates that only the president can administer the laws enacted by Congress. The Brady Bill effectively transfers this power to CLEOs in the fifty states. Printz v. U.S. (1997) When the Necessary and Proper Clause violates the principle of state sovereignty it is not proper for carrying into execution the Commerce Clause. It is an essential attribute of state sovereignty that the states remain independent and autonomous in their sphere. balancing approach is inappropriate because the whole concept of the law violates the tenets of federalism. A Printz v. U.S. (1997) Dissents/Concurrences: (Thomas, concurring): The law here violates the Second Amendment guarantee of the right to bear arms. Printz v. U.S. (1997) (Stevens, dissenting, with Souter, Ginsburg, and Breyer): Article I, Section 8 gives Congress the power to regulate commerce among the states. There is nothing in the Constitution that allows local police officers to ignore a command mandated in a statute passed by Congress. If Congress believes a law will benefit the people of the nation and serve the interests of cooperative federalism, we should respect both its policy judgment and its appraisal of constitutional power. Printz v. U.S. (1997) (Souter, dissenting): The Federalist Papers support that Congress has the authority to force CLEOs to enforce this law. Indeed, Hamilton says the state government atoi wl enopr e i o h nt n u ry ib i roa dn te ao' h t l c t t i s operation. Federalist, No. 44 also indicates that state magistrates should swear to support the Constitution. Upcoming Today: Federalism: p.344-390 p.344MidMid- Term Essays will be handed out/emailed 3/13: No Class Spring Break 3/20: Turn in Essays and do Multiple Choice in Class (no readings assigned this week) week) 3/27: readings 390-422 3904/3: readings 424-430; 453-482 4244534/10: readings 482-49 C t u/ ' 482- 8/ a h p ? c s 4/17: Final Exam Hand Out- Review Out- ...
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This note was uploaded on 04/18/2008 for the course POS 4603 taught by Professor Bundy during the Spring '08 term at University of Central Florida.

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