Exam 2

Question 2

Checks and balances. Why is this in the Consitution?

Answer 2

Each branch imposes limitations/ restraints on another so no branch becomes too powerful. Our framers were suspicious of strong national govt, fearful of monarchy, and govt abuse

Question 3

Separation of powers

Answer 3

Leg makes law, executive enforces law, and judiciary interperts the law. Each branch has powers explicitly allocated to them.

Question 4

Formalist

Answer 4

They believe that there should be clear boundaries between the branches. They should not deviate from the constitution unless they rehearse specific areas that allow them to do so in the Constitution. Neat and clear division of powers.

Question 5

Functionalist

Answer 5

They believe that there are shared responsibilities between the branches and less clear boundaries. overlap of powers- it rejects the strict division of powers and believe the Constitution is only there to prevent extreme departures from the text.
Benefits: allows congress to experiment with other branches in enacting policy

Question 6

Some argue misnomer

Answer 6

Branches are really separate institutions that share power.

Question 7

Court is only…

Answer 7

ONE actor in policy system. They must take into account preferences of others. They are not the only institution that interprets the constitution. Other actors have ambitions and their are constraints on courts power

Question 8

Sources of Judicial Power

Answer 8

1. Article III
   (SC and jurisdiction)
2. Judiciary Act of 1789
   (Created lower fed courts and appellate jurisdiction of Sc)
3. Court decisions
   (Force of decision depends on legitamacy- court has no enforcement mechanism (sword) and no monetary authority (purse)

Question 9

What is Judicial Review?

Answer 9

Power of Court to review laws and strike them down if they are inconsistent with the Constitution
-It is the power to say what the law is

Question 10

Ogrin of Judicial Review Power

Answer 10

1. Not in US constitution
   2 Federalist 78 spoke of it in propaganda spread to persuade peopel to ratify constitution. Gives insight to what framers possibly considered
2. Consitutional Convention: Discussed, most people agreed, but always vetoed and never put in Constitution. James Madison proposed “Council of Review” in which Pres and Justices would decide consitutionality

Question 11

Did the framers intend to have judicial review

Answer 11

It was discussed and agreed upon, but James Madison council of review was vetoed and everytime it was proposed it was defeated.

Question 12

How is Judicial Review Controversial?

Answer 12

-Antidemocratic? unelected officials striking down laws from elected officials
-Countermajortian dilemma: Branch opposing will on people even though branch is unelected

Question 13

First use of judicial review

Answer 13

Dr. Bonhams’s case (1610)- in England
* Lord Chief Justice Sir Edward Coke struck down act of parliament.
* But not seen as significant
* Ship Money (1636) case.
* Could Charles I declare an emergency and require each town to provide the Royal Navy with
a ship or money to build one.
* Important judges in majority declare that English courts have the power to declare
Parliamentary laws unconstitutional.
* Ware v. Hylton (1796) – articulated doctrine similar to judicial review. Federal courts the place to
resolve conflict
* Argued Feb. 6-12, 1796. Decided March 7, 1796
* Hylton v. United States (1796)
* Argued Feb. 23-25, 1796. Decided March 8, 1796
* Main Differences
* In Ware- Court compared state law to Treaty (said treaty superceded state law)
* In Hylton v. US – Court reviewed Act of congress with Constitution

Question 14

Marbury v Madison Date

Answer 14

1803

Question 15

Marbury v Madison Facts

Answer 15

Election of 1800 Thomas Jefferson (Republican) v John Adams (federalist). Election could not be determined initially due to a tie but the House chose Jefferson and he defeated Adam’s for presidency. At the time there was high animosity and polarization between the two parties and the federalists had just lost both the executive and legislative branch. Adam’s and congress passed the Circut act of 1801 which created new federal courts for the states. The Federalist Party wanted to appoint people to infiltrate the judicial branch- 16 new Circut judges and 42 justices of peace “Midnight appointments”. Ellsworth resigned so Marshall could take his spot in SC, but he continued to work as secretary of state. Jefferson administration heavily at odds and openly talking about impeaching Marshall. The appointees were signed and given official seal, Marshall delivered 37 but left 5. Incoming Secretary of State from Jefferson admin had five left on desk including Marbury and Jefferson ordered Madison to not deliver them. Marbury was one of the five and he sough this commison but Jefferson/Madison refused. Irony is that Marshall would now have to decide his controversy. Marbury called upon section 13 of Judiciary Act of 1789 to bring his complaint under original jursidiction to court under original Jursidiction. Section 13 gave court power to issue writs of mandamus under original jursidiction. SC granted cert.

Question 16

Why was Marshall in delicate position? Marbury v Madison 1803

Answer 16

Marshall was in a delicate position because he knew the hostility and the courts had little legitimacy and credibility and that Jefferson would ignore any unfavorable order and not enforce and the popular position favored a strong executive.

Question 17

Legal Question- Marbury v Madison 1803

Answer 17

“Does SC have power to issue writ of mandamus in order for appointed judges to secure their positions?”

Question 18

Answer/Vote Marbury v Madison 1803

Answer 18

No. No such power is within the Consitution.

Vote: 4-0 Majority opinion by John Marshall

Question 19

Majority Reasoning Marbury V Madison 1803

Answer 19

1. Did Marbury have right to his commission? Yes, why? It was already signed and the signature is the only requirement according to the court. Delivery is a formality and not a requirement, and Adams delivered it to Marshall (SC of state) so it should be considered delivery as it is out of the presidents hands. Once seal has been given possession is irrelevant, does not matter if Jefferson had them when he came into office. Denial is a violation of his rights.
2. If he has a law that has been violated do the laws afford him remedy? Yes, why? Rationale says that if there is a right and it has been violated and there is no remedy then it there would be no real rule of law. There must be a remedy it is pure logic. Because Marbury civil liberties have been harmed there is a remedy.
3. If so, should Marbury be afforded the remedy he seeks which is a writ of mandamus of SC? No, why? The courts do have the power to issue writs of mandamus but in terms of article III the SC has appellate jursidiction and it states that original jursidiction is between states unless it deals with foreign actors, or two states power, but otherwise it has to be appellate jurisdiction. While Marbury may be entitled the court cannot help because only congress can change appellate jurisdiction of the court. Section 13 of the Judicary act of 1789 which was invoked by Marburyt enlarged the original jursidiction of the court which is a violation of the Consitution. Therefore, section 13 is struck down and this petition is denied

Marshall also asserts the power of judicial review by saying legislative power is defined and limited, Consitution is the supervene law of the land, and the court has the duty to say what is law.Judicial review is the province of the Judicary because without it Congress would be omnipotent and too powerful. The executive branch cannot have it because it already executes the laws. Someone has to have the power and it is the courts check on the other branches. Marshall invokes framers intent

Question 20

Holding Marbury v Madison 1803

Answer 20

Section 13 of Judicary act of 1789 is unconstitutional

Question 21

Implications/ Broader Policy Marbury V Madison 1803

Answer 21

Judicial Review established and The executive branch (Jefferson) is able to deny 5 commissions.

Question 22

Why did Marshall not dismiss the case if he had no jursidiction?

Answer 22

1. Marshall was savvy and wanted to increase long-term institutional power, stopping would have given Marshall’s nothing and Jefferson would have won a major battle.
2. Marshall vying for short term political survival w Jefferson and both preferred judicial review.

Question 23

Criticisms of Marbury v Madison 1803

Answer 23

-Lack of jurisdiction. Courts usually establish this first?
-Marshall conflict of interest - should have dismissed dhimself
-Should interpret the Consitution to avoid “Consitutional Issues” when possible (whether court has Consitutional authority to review acts of leg)
Could have said “Marbury does not have right to commission unless delivered” or “Case should be resolved through political process not judicial process”
-Marshalls opinion is just assertions that don’t necessarily lead to conclusion that court has judicial review

Question 24

Post-Marbury:

Answer 24

-Judicial branch can review leg branch
-Delicate time states still likely to ignore unfavorable order
-Started a large debate about who the Constitution is a contract with - State or People?

Question 25

Martin v Hunter’s Lessee date

Answer 25

1816

Question 26

Martin v Hunter’s Lessee 1816 Facts

Answer 26

Facts: Lord Fairfax (British subject) inherited land in VA prior to revolutionary war. He died and a Virginia Statute said no “enemy” could inherit land. At the same time Denny Martin (Fairfax) his newphew inherited the land and began to sell pieces of the land to John MArshall and his brother. Irony: Marshall involved. The conflict resulted in a suit regarding who really owned the land. Fairfax appealed to Supreme Court and won but the VA SC refused to follow the US SC ruling because Virginia viewed themselves as sovereign and to decide who owned land in their state and they did not see themselves as subordinate to the SC. It also struck down sec 25 as unconstitutional.

Question 27

Martin v Hunters Lessee 1816 Legal Question

Answer 27

1. Does the Supreme Courts appellate jurisdiction extend to reviewing state court decisions?
2. Does a ruling by the US SC bind the state of VA to follow the ruling in question?

Question 28

Martin v Hunter’s Lessee 1816 Answer/Vote/Judgement

Answer 28

Yes and Yes. The Court ruled 6-0 that the US Supreme Court Jurisdiction and that its decision is binding on Virginia. Martin wins, The Virginia court of appeals judgement is reversed and the district court judgement at Winchester is affirmed. Justice Stormy wrote maority reasoning

Question 29

Martin v Hunter’s Lessee 1816 Majority Reasoning

Answer 29

1) An unwelcome task and preliminary considerations: He emphasizes things like “The Consitution of the United Stats was ordained and established not by the states in the us sovereign capacities but empathtically as the preamble of the Consitution declares “by the people of the United States” 1) implies the Consitution comes from the people not the states
2) Consitution gives the SC appellate jursidiction in all cases in which it does not have original jursidiction. It is the case, not the court, that gives the SC jursidiction. If cases before state courts do not fall under the courts appellate jurisdiction, then the appellate power does not extend to all cases. Evidence for point: when article 3 of Consitution was written, there were no other federal courts. Meaning= only appellate jursidiction would be from STATE courts.
3) The Supreme Court power over states is not an improper control of power.
4) Presumptions and motives to review state court decisions? Why do they have an incentive to do so? Because if states interpreted the federal law then you would have a unified federal law and that would problematic. States have biases and interests.

Question 30

Holding Martin v Hunter’s Lesse 1816

Answer 30

The supreme court’s appellate power does cover cases pending in State Courts. (25th section of Judiciary Act of 1789 is supported by the letter and spirit of the constitution)

Question 31

Marbury and Martin outline two major powers of SC

Answer 31

1. Review acts of Congress (Federal Law)
2. Review decisions of state courts (State Law)

Question 32

Two key arguments on why SC should be able to review federal law and statw law

Answer 32

1. State supreme courts should not be omnipotent because they
   are bound by the Constitution
2. the Supreme Court should be able to oversee state courts so
   that the interpretation of the Constitution is uniform

Question 33

Eakin v Raub date

Answer 33

(PA 1825)

Question 34

Eakin v Raub is the…

Answer 34

Best rebutall to John Marshall in MArbury

Question 35

Eakin v Raub Reasoning

Answer 35

-professional dogma; idea that everyone talks about this reasoning as if it is fact and strong.
-only judge to claim this power in writing is John Marshall. Important because of this is incorrect than we have a major power happening based on one justice.
-It is a fallacy to suppose that the Consitution and an act of Congress can come into collision before the Judicary
-The right of the leisgiature to pass the act may be in collision, but it is not a legitimate subject for judicial determination
Gibson asks- what part of the Consitution is Judicial review found in?
-While the courts have authority to interpert laws, they do not have the authority to scan the authority of the lawgiver to make sure the legislature is acting properly.

Question 36

Implication of Eakin v Raub (PA 1825)

Answer 36

Gibson makes strong argument for judicial restraint

Question 37

Weaknesses of Eakin v Raub argument

Answer 37

1. Legislature is omnipotent. It will always be whatever the majority wants the majority gets.
2. Can we leave the determination of constitutionality to the popularly elected branches? When Congress passes a bill into law they ae not likely to admit to making a mistake and repeal it, so we need the power to go to someone who is unbias and not worried about popularity.

Question 38

Constraints on Judicial Power:

Answer 38

1. Jurisdiction (authority to hear case)
2. Justiciability issues (can case be decided by courts?)
   3 Standing to sue (does the party suing have standing to do so?_

Question 39

Ex Parte McCardle date

Answer 39

1869

Question 40

Ex Parte McCardle facts 1869

Answer 40

Post civil war Republican Congress instituted reconstruction acts and imposed military rule. William McCardle a journalist wrote newspaper editorials urging resistance of reconstruction laws. He was arrested and went to a military tribunal. He was allegedly illegally detained and petitioned writ of habeas corpus under 1867 act. He lost and appealed to US SC on which the 1867 act conferred appellate jurisdiction because he could not petition the state. The case was argued orally but before the decision in 1868 congress enacted a law that repealed the 1867 act. President Johnson vetoed it but Congress overrode the veto. Congress did this because of the political situation pre-civil war- Dred Scott case (1857) blamed SC for starting civil war and starting hostilies between North and South. Then, congress was unhappy in 1866 congress was unhappy with court for invalidating President Lincoln’s use of military tribunals. Congress did not want another controversial decision. Case was reargued and the government argued that the court no longer had jursiction because the case depended on a statute that no longer existed. (stripped jurisdiction)

Question 41

Ex Parte McCardle 1869 Leal question

Answer 41

Can Congress remove the court’s appellate jurisdiction for a certain class of cases?

Question 42

Ex Parte McCardle 1869 Answer/Judgement/Vote:

Answer 42

Yes 8-0 Chief Justice Chase wrote opinion

Question 43

Alt Phrasing for Ex Parte McCardle 1869

Answer 43

Can the Supreme Court hear a
petition for a writ of habeas corpus when Congress has taken away such authority

Question 44

Ex Parte McCardle 1869 reasoning

Answer 44

-It is unnecessary to consider whether the court might not have exercised general appellate jurisdiction.
-The Judicary act of 1789 has already established judicial courts and set the jursidiction for these courts.
-The 1867 act on which jursidiction relied was repealed
-Congress is trying to keep court away from the case and it seems very politically motivated. He takes a veilied shot at Congress but saying We can’t question Congress motives (however political they may appear) we can only look at the power Congress has under the Consitution. AND that power to determine the appellate jursidiction of the court is given by express words.
-This leaves the court without jursidiction - “WITHOUT JURISDICTION THE COURT CANNOT PROCEED AT ALL IN ANY CASE”Jursidiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause”.

Question 45

Ex Parte McCardle 1869 Holding

Answer 45

The repealer act of 1868 is Consitutional.

Question 46

Ex Partle McCardle 1869 Implications

Answer 46

-Congress can withdraw the Court’s appellate jursidiction (based on Article 3, Section 2)
-Pretty clear, Court was favoring McCardle but instead exercised Judical restraint
-Win for congress
-Motivation: Article III, section 2 pretty clear about giving Congress authority to determine appellate jursidiction, but excerised so little, why?
U.S. v Klein (1872): Court said congress can’t use Articlde 3 powers to try and race court to hear a certain class of cases or avoid a certain class of cases because that would be Congress subscribing to the outcome of cases.

Question 47

Conclusion Ex Parte McCardle 1869

Answer 47

: Passing of time issue resurfaces again in Hamdan v Rumsfeld and also in Bounmediene v Bush

Question 48

Why is judicial restraint an important concept

Answer 48

If court gets excited and starts deciding on all cases that could be seen as problematic because they are unelected. It is the idea of going too far crosses the line. If not Congress could introduce the court curbing bills that are meant to strip jurisdictions of the court. When congress laws are struck down by court they propose those bills out of frustration and want to express this rage. This is a signal to quit being so active and striking down so many laws.

Question 49

Patchak v Zinke date

Answer 49

2018

Question 50

Patchak v Zinke 2018 Facts

Answer 50

Native Americans want to build casino on land and so they asked the secretary of ____ to do so and have the land put into a trust. She agreed and put it into a trust. David Patachake filed suit in federal court to challenge the action because he did not want a casino near his land. The case went to the SC first not on merits but on procedural grounds- whether the challenge of the case could proceed? Send case back down to district court level. After, Congress passed a very specific Gun Law which made the Bradley land trust and included section 2 (b) regarding law suits saying that court cases involving this land can’t be taken to the Supreme Court. Therefore, it stripped the Supreme Court of jurisdiction.

Question 51

Patchak v Zinke (2018) Legal Question

Answer 51

: Does section 2(b) violate Article III of the Consitution?

Question 52

Patchak v Zinke (2018) Answer/Vote/Judgement

Answer 52

No. t: 6-3, Justice Thomas writing majority - affirming Zinke win

Question 53

Patchak v Zinke (2018) Holding

Answer 53

Section 2(b) of the Gun Lake Act does not violate Article III

Question 54

Patchak v Zinke 2018 reasoning

Answer 54

-Distinguish permissible exercise of legislative power from impermissible infringements of Judicial power
Permissible legislative power vs impermissible leg power
Impermissible if it compels court to obtain a certain outcome
BUT you CAN change law
Permissible: change law
Impermisible: rig it to get a certain outcome
-Section 2(b) changes the law and strips jurisdiction in relation to Bradley property
(within congress authority)
-Court has held previously ExParte McCardle that jurisdiction stripping statutes do NOT involve exercising judical power
-Patchak argument says section 2(b) violates article III arguing it directs a particular outcome relies on Klein. They say mandatory language imposing consequences is not the same as directing outcomes.

Question 55

Patchak v Zinke (2018) Dissent

Answer 55

CJ John Roberts
-They say that on the basis of the original Seperation of powers Congress is doing impermissible leg
-Congress is exercising judicial power when it manipulates jurisdictional rules to decide outcome of particular cases. This is dangerous because Congress can now avoid any issue that may be threatening to them and avoid judicial scruntity. They could be picking and choosing winners and losers with no judicial recourse.

Question 56

What is Justiciablity?

Answer 56

can it be decided by courts?
5 types:
Advisory opinions
Collusive suits
Mootness
Ripeness
Political questions

Question 57

Justiciability Political Questions background

Answer 57

-Long standing court doctrine of political questions set up by Luther v Borden (1849) where the court wanted to avoid any issues that were political or that specifically included other branches of government like Congress and the President
-Congressional districts were becoming badly malapportioned, which led to the case of Cole Grove v Green (1946) where the court affirmed the Luther decision and said that reapportionment constituted a political thicket into which courts ought not enter

Question 58

Baker v Carr date

Answer 58

1962

Question 59

Baker v Carr 1962 facts

Answer 59

Tennessee had not reapportioned its congressional districts since 1900, but was it even required to do so? Based on Cole Grove v Green (1946) it was not constitutionally mandated to do so. Civil rights movement intensified or exposed disparities in voting power between rural and urban voters in Tennessee were continuing to increase as more people moved into urban centers (ADD FIGURE INBOOK). Colegrove indicated that those who wanted to force reapportionment could not use the guarantee clause of the Consitution: Article 4 we are guaranteed a republic form of government. Colegrove showed we could not bring this. Therefore, Voters in Tennessee turned to the 14th amendment equal protection clause which states that “no state shall deny to any person within its jursidiction th equal protection of the laws” In short, failure to reapportion led to unequal treatment. The Lower federal district court dismissive it by relying on Colegrove saying that reapportionment constitutes a political question on which it can not rule.

Question 60

Who is baker and who is carr?

Answer 60

Baker Tennesse Resident and Carr Secretary of State of Tennessee

Question 61

Baker v Carr 1962 Leal Question

Answer 61

: Does a lawsuit that seeks to protect a political right— in this cases reapportioning districts to make representation equal- mean this case raises a political question?

Question 62

Baker v Carr 1962 Answer/Vote/Judgement

Answer 62

No. The court ruled 6-2 that suits could be brought if a provision of the Consitution was violated. Case Reversed and Remanded. Majority written by Brennan

Question 63

Baker v Carr 1962 Majority Reasoning

Answer 63

-This case does not rest on or implicate the guarantee clause therefore it is justiciable. The district court misinterpreted Colegrove V Green and other decisions.
-Questions of Separation of powers leave the court with the responsibility to interpret whether a power has been left to another branch of government. While foreign relation cases are often considered political qiuestions, not all foreign cases are outside of the courts purview. The duration of hostilities may involve a political question, but this doctrine falls away when there are clearly definable criteria for ending hostilities.
-There should not be a dismissal for non justiciability on the grounds of a political question presence. The doctrine of which we treat is one of political questions not one of political cases.
-Ultimately for a case to be involve a political question, it must meet one of seevral criteria - all of which are ground in the sep of powers (6 criteria listed)
-Luther v Borden does not apply because the only question raised here is whether state action violates the federal Consitution.
-This case does not involve a political question because it does rest on a decision of another branch of gov. The court does not risk embarrassment of our gov abroad, or grave disturbance at home. Plus the court has clear standards to decide questions of equal protection. Therefore, this case is decided.
-Nonjusticiablity claims resting on the guarantee clause have no real bearing upon the Justiciablity of equal protection claims

Question 64

Baker v Carr 1962 Concurring opinion Clark

Answer 64

-This case is different from earlier cases, and a patent violation of the Equal Protection Clause of the US Constitution has been shown, and an
appropriate remedy may be formulated
* He would not enter this delicate field, even though the Tennessee statute
violates the Constitution, if there were another way to relieve this problem
* But the people of Tennessee have no “political opportunities for exerting
their political weight at the polls” to correct the existing “invidious
discrimination.”
* Tennessee has no ballot initiative or referendum possibilities or other
practical possibilities
* There may be a remedy in Congress, but from a practical standpoint this is
without substance. To date Congress has never undertaken such a task in any State.
* Only the federal courts can offer a remedy to the discrimination at the state level

Question 65

Baker v Carr 1962 Holding

Answer 65

The challenge to apportionment presents no non justiciable “political question”

Question 66

Baker v Carr 1962 Dissenting opinion Justice Frankfurter

Answer 66

– This is simply a Guaranty Clause case masquerading under a different label.
– Federal courts are not the proper forums for political debate.
»Could cause harm to the Court
– This case is controlled by Luther and therefore, even if the equal protection claim is utilized, the Court cannot
decide this case.
– What is asked of the Court in this case iso choose among competing bases of representation, ultimately, among competing theories of political philosophy- to establish an appropriate frame of government for the State of Tennessee (and all other states)

Question 67

Baker v Carr 1962 Implictaions

Answer 67

-Federal courts now involved in partisan area
– Did not eliminate Colegrove v. Green
– Political Questions are still nonjusticiable, but
more clarity about what is justiciable
* Clear designation to another branch of government
* Lack of judicial standards

Question 68

Standing: What is standing?

Answer 68

: standing: a party’s right to bring a lawsuit
because the party is directly affected by the legal issues
raised
* General issue- when does standing apply?
* In many cases it is obvious, but others not so
* Book covers two types of lawsuits
– Taxpayer suits- Flast v. Cohen (1968)
– Government-induced suits (executive branch declines
to defend a law)

Question 69

Where does judicial constraints come from?

Answer 69

1. Justices own interpretation of Article III
2. Separation of powers system
   * (fear of) Congressional overrides…
   * Lack of executive branch enforcement

Question 70

Where does legislative power come from? or important areas of consitution

Answer 70

• Article I versus Article III: Article I most lengthy part of Consitution- happened because framers wanted congress to be the strongest branch because they are elected and wanted leg to have power because the leg had NO power in AOC, but they did not know how much to give because they came for a corrupt paralaminet. They wanted to make sure leg power was taken care of- already knew how courts worked
• Historically, Court done relatively little on Article I, Sections 1-7
  – Focus mostly on Article I, section 8
• Article I, section5 - who gets to join congress

Question 71

Powell v McCormack Date

Answer 71

1969

Question 72

Powell v McCormark 1969 Facts

Answer 72

Representative Adam Powell (D-NY) first elected in 1944. He was entangled in legal controversies such as refusing to pay
damages assessed for a defamation lawsuit, and he actively avoided paying it. Powell controversial but well-loved by his constituents. The 89th Congress (1965-1966) inquired into Powell’s activities and
found two major violations: used federal money to fly staff member to his vacation home, and paid his wife a salary of 20,000 dollars even though she didn’t work in his offices.Powell was reelected to congress (90th congress, 1967-1968) and the
house refused to seat him pending further investigation March 1967, new investigation found: (1) from a constitutional standpoint, Powell satisfied all requirement to be seated for office; and that (2) Powell had tried to actively evade the fine associated with the defamation of character offense, had misused public funds, and filed false expenditure reports. That committee recommended he be censured by the House, fined $40,000, and stripped of his seniority. BUT the House ignored that recommendation and adopted by a
vote of 307-116 a resolution that excluded Powell from the House and directed Speaker McCormack to notify the governor of New York that the seat was vacant. Powell filed suit along with some of his constituents, making an Article 1, section 5 claim. McCormack’s side argued that the Qualifications Clause and Section
5 should be read separately, that the house has the authority to exclude members, even if they meet constitutional standards. Also asserted it was a “political question” which the Supreme Court should not answer. Meanwhile, Powell runs in the special election of April 1967 and wins, and
also wins reelection in November
1968. In January 1969, when the Court was
about to hear the arguments for him
being excluded from office in 1967,
the House agreed to seat him but
stripped him of his seniority status

Question 73

Underlying issue in Powell v McCormack (1969)

Answer 73

Scope of legislature power- interpretation
of Article 1, Section 5
– “Each House shall be the Judge of the
Elections, Returns and Qualifications of its
own Members…”
* Who will have a more authoritative
interpretation of the Constitution?
– Court or Congress?

Question 74

Powell v McCormack 1969 Legal Question

Answer 74

Does Congress have the right not to seat a
duly elected member when he/she has met all the constitutional requirements to be seated?

Question 75

Answer/Vote/Judgement Powell v McCormack 1969

Answer 75

NO, the House does not have such a power. By vote of 7-1, Chief Justice Earl Warren writing majority opinion, Justice Stewart dissenting.
Powell won the Supreme Court case (and the 1967 & 1968 elections)…but his consituents may have lost because Powell now has no senority or leverage in the house

Question 76

Majority Reasoning Powell v McCormack 1969

Answer 76

-Political question?
No because it did not meet any criteria outlined in Baker v Carr
– The framers made the age requirements for membership in Congress, and that was the only requirement they added. The
framers opposed any ability of Congress to add to thesequalifications necessary for membership.
* Madison’s argument: urged rejection “would provide legislature with dangerous power and requirements must be fixed Constitution” If Congress is allowed to interpret what it means for requirements - the dominant power will construe and make up qualifications to maintain control and make it hard for weaker party
* Congress could judge the enumerated qualifications: ONLY can judge age and residency
-The framers believed that the expulsion of members of Congress was serious enough that it should take a two-thirds majority to doso. The fact that they did not make such a requirement for judging the qualifications of members suggests that the Framers
thought that Article I, Section 5 already limited congressional power over qualifications.
– Those exclusions cases that came immediately after ratification
demonstrate Congress’s belief that it could not expand on the qualifications necessary to seat a member
Thus, the House cannot exclude those who meet the qualifications to be seated

Question 77

Powell v McCormack 1969 Dissent

Answer 77

Stewart
Case is moot because Powell has own reelection twice and is now seated but stripped of seniority

Question 78

Powell v McCormack 1969 Holding

Answer 78

Congress does not have discretionary power to deny membership by a majority vote

Question 79

Powell v McCormack 1969 implication

Answer 79

the Court is dangerously close to meddling in Congress’s
business, and this leads to a natural transition to another heated
Article I debate- - - - term limits, which also raised another
Article I, Section 5 question

Question 80

U.S Term Limits, Inc v Thorton date

Answer 80

1995

Question 81

U.S Term Limits, Inc v Thorton 1995 Facts

Answer 81

In early 1990s, 24 states enacted term limits. Initiative in Arkansas, where in 1992 voters approved amendment 73 to the state constitution that prohibited anyone seeking reelection from the ballot who previously had served two terms in the Senate or three terms in the House (but did allow a write-in candidate) Arkansas voters approved it and it applied to anyone seeking reelection after January 1, 1993. It was challenged by Rep. Ray Thornton, various citizens of Arkansas, and the League of Women Voters, they argued amendment 73 violated Article I, Section 5. Arkansas and U.S. Term Limits (an organization supporting the amendment) argued 3 things:
* Section 4 of Article 1 applies while the Qualifications Clause does not. (what does section 4 say?)
* Powell talks only about the House setting thequalifications for office, not the states.
* The Constitution does not explicitly prohibit the states from setting qualifications for office, it is a power
reserved to the states under the 10 th amendment
– Lower courts in Arkansas struck down the
amendment as a violation of Article 1 of the
Constitution, the Arkansas state supreme court affirmed.
Political Enviroment: 1994 republican take over of congress - tried to ride this wave of popularity by enacting term limits - always failed. Threshold for cons amen ¾ of states and ⅔ of both houses

Question 82

U.S Term Limits, Inc v Thorton 1995 Legal Question

Answer 82

May states alter requirements set out in the Consitution for members of congress
Is a simple ballot access restriction Consitution?

Question 83

U.S Term Limits, Inc v Thorton 1995 Answer/Vote/Judgement

Answer 83

No and No, states do not have that power and ballot access restriction is unconstitutional. 5-4
Affirmed, Thornton wins, no term limits
(Stevens for the majority, Thomas for dissenters)

Question 84

U.S Term Limits, Inc v Thorton 1995 Holding

Answer 84

The requirements for holding Congressional
office can only be changed by an amendment to
the US Constitution (not by the states
themselves)

Question 85

U.S Term Limits, Inc v Thorton 1995 Majority Reasoning

Answer 85

-The decision in Powell suggests that “the people should choose whom they please to govern them.
-The framers intended the qualifications in the Constitutions to be exclusive. There is no precedent to suggest any other understanding of Powell. In short, Congress or the states may not alter or add to qualifications in Article I, Section 5.
We reaffirmed this argument in Nixon (1993).
– The 10th amendment does not apply in this case, and the states therefore do not have the power to change the Qualifications Clause.
-Restrictions by states would also violate the principle that the right to choose representatives belongs not to the states, but to the people
–Keeping certain senators and representatives off of a ballot, even if they can run as write-in candidates, is an indirect attempt to accomplish
what the Constitution prevents it from doing directly
– Any change must come through the amendment process, that the framers decided this, and that they wanted the requirements to be uniform throughout the nation

Question 86

U.S Term Limits, Inc v Thorton 1995 Dissent

Answer 86

Irony - majority is arguing that majority’s will is being infringed but it was the majority’s will that voted in favor of these amendments
Majority is misinterpreting - where the Constitution is silent about the exercise of a particular power, fed gov lacks power, the states enjoy it
-Qualifications Clause only restricts power of the states from abolishing all eligibility requirements for membership in Congress
-The historical evidence is inadequate to warrant the majority’s position. Records from the Philadelphia convention “affirmatively support my unwillingness to find hidden meaning in the Qualifications Clauses, while the surviving records from the ratification debates help neither
side

Question 87

U.S Term Limits, Inc v Thorton 1995 Implications

Answer 87

Court made decision that disagreed with a lot of the people (public opinion favored term
limits)

Question 88

What question did U.S. Term Limits Inc. V Thorton 1995 raise?

Answer 88

sc really guardian of Consitution?

Question 89

Gravel v United States date

Answer 89

1972

Question 90

Gravel v United States 1972 facts

Answer 90

Rep Mike Gavel f Alaska - held meeting of sub committee on Buildings and Grounds - before meeting read statement about Vietnam war and pentagon papers claiming its relevancy due to effects upon domestic economy. For him to be protected - it must somehow connect to the legislative act the is doing. He could face criminal charges if not connected. He arranged to have the 47 volume introduced in Congress record and published with beacons press. Justice Department investigated and requested grand jury, which subpoenaed Rodberg (a Gravel aide), editor of Beacon press, and Webber (director of MIT press). Rodberg and Gravel asked the subpoena be quashed, as the government wanted to interrogate his aid, which they argued
violated the speech or debate clause of Article I, Section 6, that they argued extended to aides. The government argued to the contrary, that the speech or
debate clause did not extend to aides. When the case reached the supreme court, interestingly, the government limited their arguments to only Gravel’s aide and
the publisher.

Question 91

Speech and Debate clause in Gravel v United States 1972

Answer 91

Article 1 Section 6 - protects Congress members from lawsuits for what they say during legislative activity.

Question 92

Gravel v United States 1972 legal question

Answer 92

Does the Speech or Debate Clause extend to congressional aides and other third parties?
* Does it only extend to material directly related to legislative duties?

Question 93

Gravel v United States 1972 answer/ vote/judgement

Answer 93

Yes, aides are afforded the same protection as members of Congress as long as it has a direct connection with the legislative process. 5-4. White for majority, Stewart and Brennan dissents. Vacated and remanded to Court of Appeals

Question 94

Gravel v United States 1972 Majority Reasoning

Answer 94

Reasonable for reps to talk to aides about legislative acts - must be treated as one entity .
This ruling does not afford aides protection from critical conduct or testifying at trials or grand juries involving third party crimes where questions do not require testimony about a legislative act.
BUT, arrangement with beacon was not part or parcel of leg process: court said this was not essential to leg process.
Aids immunity only goes as far as what gravel would enjoy

Question 95

Stewart Part Dissent Gravel v United States 1972

Answer 95

The Court’s ruling is highly dubious because the very essence of the speech or debate clause was to protect against intimidation of members of congress by the executive and accountability before a hostile jury. need to strike a balance between to important constitutional interests: the claims of the Speech or Debate Clause against the claims of the
grand jury in the particularized contexts of specific cases. Aren’t the Houses of Congress the properminstitution (in most situations) to impose sanctions
upon a member who withholds information about a crime acquired during legislate duties?

Question 96

Brennan Dissent Gravel v United States 1972

Answer 96

-Court takes too narrow a view of the Speech or Debate Clause it endangers it.
-The Court excludes from the “sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system….the legislator’s
duty to inform the public about matters affecting the administration of government.” (it is legislators duty to inform consitutents and public about war and role of ov/involvement)

Question 97

Gravel v United States 1972 holding

Answer 97

The Constitutional protections of the Speech or Debate clause (of Article I, Section 6) are afforded to aides as long as it pertains to the legislative process. (If it does not have direct connection and/or does not “impugn” the legislative acts of Senator/Rep, then there is (no constitutional protection)

Question 98

Gravel v United States 1972 implications and conclusions

Answer 98

– Who (in this case) decides what is essential business of congress and what is not directly relevant?
– Who decides whether investigations would
impinge on the legislative process?
– Would this ruling hinder acts of intimidation?

Question 99

Article 1 section 8 Clause 18

Answer 99

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers better by cons in gov …”
Gives Congress power to make laws anything that is necessary to carry out enumerated powers

Question 100

McCulloch v Maryland date

Answer 100

1819

Question 101

McCulloch v Maryland 1819 holding

Answer 101

Broadly: Congress has implied powers that are beyond those enumerated in the Constitution.
Narrowly: Congress has the power to incorporate a national bank and that a state may not tax it.

Question 102

McCulloch v Maryland 1819 conclusion and implications

Answer 102

Gave power to Congress that it did not previously have.The long term effect was that the Necessary and Proper Clause of Article I, section 8 became a great “source” of power for Congress to use in doing all sorts of activity. Redefined meaning to be more legitimate + appropriate
(idea of legislative supremacy)
* Established supremacy of federal government over states
* Preservation of the constitution for the future
* How much time did it take to issue the opinion after oral argument?

Question 103

McCulloch v Maryland 1819 controversy over national bank

Answer 103

1. Washington said it was not an enumerated power
2. Constitutional history - framers rejected proposal to allow congress to make corporations (partly bc of banks)

Question 104

McCulloch v Maryland 1819 legal question

Answer 104

1. Did congress have the authority to establish a bank?
2. Did Maryland law unconstitutionally interfere with cogressional powers?

Question 105

McCulloch v Maryland 1819 majority reasoning

Answer 105

1. Congress power is not explicit
2. Constitution is supreme even though the states have taxation power

Question 106

Framers knew they did not want a king- but the dilemma was how to elect a president in a …

Answer 106

-Country with protective and jealous colonies (elect a president unbias to all states)
-Country that is spread out geographically (vastly different natural resources and problems affecting each area)
-Country that hated parties (anomisty towards other party more than like for their own)

Question 107

Article 2

Answer 107

Very little indication of powers, those that are are vauge:
1. Executive power
2. Faithfully execute laws
3. Commander and chief

Question 108

Case that dealt with biggest issue involving the electoral college and date

Answer 108

Bush v. Gore (2000)

Question 109

Bush v Gore 2000 Facts

Answer 109

Magic number to win presidency in ec: 270
All states called except Florida but neither had 270 so they both needed it. Media called Florida for Gore early - media retracted it because it was too close to call
Set the stage for biggest election recounts in history , Automatic recall if margin was within .5%. George W Bush named winner of FL. Big challenge/claim or recounts: The punch ballots were undercounted ballets and concern about overcounted ballets. Australian Butterfly ballots caused problems because when someone tried to vote for Democratic Party they accidentally voted for reform ballot. Not main crisis. Main crisis was the paper ballots you had to mark out the chads and the machines made errors- therefore they would have to be hand counted. When we look at a ballot we are interpreting what the voter wants and when you have chads the intent of the voter can be morphed. Votes must be recounted through machines and persons so the paper ballots become damaged and the chads start to fall out and then it makes it even harder. Recounts became controversial because Gore wanted specific counties and Bush wanted all of the states recounted. This made it hard to decide which standards would be put in place for recount. The issue was there was no clear standard for intent of voter that could be applied across state and deadlines for recount were in danger of not being met.

Question 110

What does political science say about Bush v Gore (2000)

Answer 110

Policy Preferences matter. Each side has legitimate arguments based on law so the attitudes of justices matter
Example:
All conservative members of SC switched their position and voted for the individual rather than the state to get Bush elected.

Question 111

Legal Question Bush v Gore 2000

Answer 111

Did the Florida Supreme Court violate federal law by altering
election procedures? And 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 vote
intent?

Question 112

Bush v Gore 2000 Answer/Vote/Judgement

Answer 112

Yes and yes. 7-2 on equal protection violation, (5-4 vote on the remedy).
Majority opinion, Per Curiam.

Question 113

Bush v Gore 2000 majority opinion

Answer 113

The right to vote is protected as well as is the manner in which the exercised is carried out, by the equal protection clause of the 14th amendment. A state may not, by later arbitrary treatment, value one person’s vote over another. Because the standards for votes were arbitrary and Florida SC never gave uniform standard the equal protection clause was violated
Florida SC could have gave standards to apply in recountWhy did they not do this? 5 believed not enough time left to do so with deadlines (republicans) Other justices said their was time to do this. Idea that the funbdmanegtal right to vote is imported at for democracy so the recount should be upheld no matter deadlines. We have an election to determine will of people and that should be valued over all
Overvotes: Voting for more candidates then you can/should - multiple people on ballot
Undervotes: Voting for less candidates then you can/should/ can not determine which person they voted for and which president they wanted Multiple equal protection claims: under votes, over votes, and certified votes from Miami Dade County
The voting polls were not certified in Miami Dade and Court said because of all of these multiple equal protection claims the entire process is inconsistent.

Question 114

Safe Harbor Provision:

Answer 114

deadline in which votes have to be certified. (Bush v Gore 2000)

Question 115

Two theories of executive power

Answer 115

1. Executive power is a designation of office and is therefore limited ins cope of power. (Ex: have to be enumerated powers from Consitution- we don’t want a king the president is very limited).
2. Office is a general grant of power:Implied discretnatory residual powers - section III take care clause. President has any powers he needs to faithfully execute laws
   2nd one has the most sway rn. President power has extended and presidents have taken over a lot more power

Question 116

In Re Neagle date

Answer 116

1890

Question 117

In Re Neagle 1890 facts

Answer 117

Bad history between Justice Field and David Terry in California. Both on Cali SC but Terry had duel with a state senator and shot him. Justices rode the Circuit and occasionally sat at lower courts. Field was in California for Gold Rush and sitting on lower court hearing case regarding a woman’s inheritance (on officals judicial work). Field rules against woman and Terry her now husband threatened Justice. David Terry jailed Sarah jailed. President Harrison assigns Marshall Neagle to protect Justice Field when riding Circuit in California. The problem with this is that is that it is unconstitutional because there is no national law that allows that and congress never authorized it. On train ride between courthouses, Field stopped for lunch and is hassled by Terry, Neagle shoots him. Terry was not armed. Neagle arrested and charged with murder. Federal court granted habeas corpus, California appealed

Question 118

In Re Neagle 1890 legal question

Answer 118

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?

Question 119

In Re Neagle 1890 Answer/Vote

Answer 119

Yes. 6-2 vote. Majority opinion by Miller.

Question 120

in Re Neagle 1890 majority reasoning

Answer 120

Field was on officials judicial duty in California when this happened
It may be different if he was on vacation but he was on officials judicial business and doing his job. It is true there is no law that allows this protection, but to say it must is
overly restrictive because:
* The courts can’t protect him- weakest branch. It relies on the executive branch to
execute its laws
* Congress can’t protect him. Congress can only pass a law, but that is just a law
Executive can- the “take care” clause exists to ensure that the laws are
“faithfully executed”
* We can’t doubt the power of president when protecting judges
* Imprisonment of Neagle is wrong, he was following law. Neagle’s actions

Question 121

In Re Neagle 1890 dissent lamar

Answer 121

No jurisdiction
* Majority asserts that Neagle’s actions were in pursuance of the law.
There was NO law granting this power. Law must be traced back to
Congress
* It is a slippery slope to start inventing rights/powers

Question 122

Executive power

Answer 122

President is much more constrained domestically than in issues of foreign policy!
* Presidential Vetoes and the Presentment Clause (Article I Section 7) -
* Presidents can sign, ignore, or veto bills (as well as pocket veto them)

Question 123

Clinton v. City of New York Date

Answer 123

1998

Question 124

Clinton v. City of New York 1998 facts

Answer 124

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 bring a federal suit if the Line
Item Veto Act harmed them. (they did this but what happened?) Raines v. Byrd (1997) – lacked standing…President Clinton vetoed eighty items in conjunction with the Balanced Budget Act of 1997, including monies earmarked for New York hospitals; and also the Taxpayer Relief Act of 1997, which gave a tax break to potato growers in Idaho; the potato farmers and the city of New York and hospitals sued. District Court consolidated the cases and ruled that the Line Item Veto Act violated the presentment clause (Article I, Section 7, clause 2)

Question 125

Why did Congress the line item verto in 1996

Answer 125

Congress realized there is a mutual good in reducing unnecessary spending and out takes more time for congress to do things than it does President
Why do Congress want to bring fed dollars back to districts? Help re-election and claim credit for the dollars they bring back. Members don’t want to cut there own stuff but may want to cut stuff from other districts

Question 126

Clinton v City of New York 1998 Legal Question

Answer 126

Does the Line Item Veto violate Article I, Section 7, Clause 2
(the Presentment Clause) of the Constitution?

Question 127

Clint v City of New York 1998 Answer/vote/judgment

Answer 127

Yes, 6-3 (Stevens for majority), case is affirmed-Clinton

Question 128

Clinton v City of New York 1998

Answer 128

The President has very clear responsibilities in terms of procedures that the Constitution puts in place for making law. One is a state of union in which they may suggest laws or they may sign a bill or veto it or pocket veto it in the presentment clause. This is only role President has he cannot have any other roll specifically ones that allow President to carve out …..
By trying to give this additional power they have changed the fundamental basis of Consitution. Solution to give him this power that is consistent with Consitution is to amend the Consitution that gives him Line Item Veto Power.If it was constitutional then you would have a law then you would have a law that is not voted on house or senate and this would mess up how a bill becomes a law

Question 129

Clinton v City of New York implication

Answer 129

• Supreme Court made an unpopular decision
• Have direct impact on how much money Congress passed for budget every year
  -We will see pork bell projects continue because of this and the thing people wanted to prevent has not been stopped

Question 130

Executive Power

Answer 130

Can the President refuse to provide information to other branches of the government?
Assert that the duties, conversations, documents of the President are so closely tied to sensitive duties of the president that they should remain confidential especially in matters related to national security or foreign policy.

Question 131

Nixon v US 1974 facts

Answer 131

This case was one of many court actions spawned by the Watergate scandal, which began on June 17, 1972, when seven men broke into the Democratic National Committee headquarters located in the Watergate complex in Washington, D.C. The men were apprehended and charged with criminal offenses. All had ties either to the White House or to the Committee to Re-elect the President. Five of the seven pleaded guilty, and two were convicted. At the end of the trial, one of the defendants, James McCord Jr., claimed that he had been pressured to plead guilty and that other people involved in the break-in had not been prosecuted. Many suspected that the break-in was only the tip of a very large iceberg of shady dealings and cover-ups perpetrated by influential persons with close ties to the Nixon administration.
On May 17, 1973, the Senate began its investigation of the Watergate incident and the activities related to it. The star witness was John Dean III, special counsel to the president, who testified under a grant of immunity. Dean implicated high officials in the president’s office, and he claimed that Nixon had known about the events and the subsequent cover-ups. As surprising as Dean’s allegations were, the most shocking revelation came from Nixon adviser Alexander Butterfield, who testified that the president had installed a secret taping system that automatically recorded all conversations in the Oval Office. The tape recordings, many observers believed, held information that would settle the dispute between the witnesses claiming White House involvement in the Watergate affair and the administration officials who denied it. counsel) was appointed to look into the Watergate affair. The first person to hold this position, Archibald Cox, asked the president to turn over the tapes. When Nixon declined, Cox went to court to get an order compelling him to deliver the materials. The district and appeals courts ruled in favor of Cox. Nixon then offered to release summaries of the recordings, but that did not satisfy Cox, who continued to pursue the tapes. In response, Nixon ordered that Cox be fired. When the two highest officials in the Justice Department resigned rather than comply with Nixon’s order, Solicitor General Robert Bork became the acting attorney general and dismissed Cox. The firing and resignations, popularly known as the “Saturday night massacre,” enraged the American people, and many began calling for the president’s impeachment. Leon Jaworski was appointed to take Cox’s place. An attorney from Houston, Jaworski pursued the tapes with the same zeal as had Cox. Finally, Nixon relented and agreed to produce some of the materials. But when he did so the prosecutor found that the tapes had been heavily edited. One contained eighteen and one-half minutes of mysterious buzzing at a crucial point, indicating that conversation had been erased. Jaworski obtained criminal indictments against several Nixon aides. Although no criminal charges were brought against the president, he was named in the indictment as a co-conspirator. At about the same time, the House Judiciary Committee began an investigation into whether the president should be impeached. The Judiciary Committee and Jaworski sought more of the tapes to review, but Nixon steadfastly refused to comply, claiming that it was his right under executive privilege to decide what would be released and what would remain secret. The district court issued a final subpoena duces tecum, an order to produce the tapes and other documents. Both the United States and Nixon requested that the Supreme Court review the case, and the justices accepted the case on an expedited basis, bypassing the court of appeals.

Question 132

US v Nixon (1974) legal question

Answer 132

Does the president have an absolute right of executive privilege not to turn over evidence that has been subpoenaed by a court of law?

Question 133

US v Nixon 1974 Answer/Vote/Judgement

Answer 133

No. 8-0 majority burger

Question 134

US v Nixon 1974 Holding

Answer 134

Subpoena is valid because the president does not…

Question 135

US v Nixon 1974 majority reasoning

Answer 135

Presidents claim - absolute immunity
Court responded by breaking it down into two categories:
Need to protect communications
Seperation of powers
On Seperation of powers: (Whether SOP doctrine precludes judicial review of executive privilege claim):
It is the duty of courts to say what the law is.
Pertaining to question of presidential power v Judicial needs (fair admin of justice):
The importance of confidentiality for high gov officals is without question. the enumerated powers for pres provide this protection. In short, the needs of the judicial process outweigh the president.

Question 136

US v Nixon 1974 implication/ Conclusions

Answer 136

When national security is involved then the president has the right to an immunity claim
Rule of Law: If we put the president above the law it would destabilize the law.
the president does not place the claim of privilege based on….
but may make it valid - military or diplomatic secrets
The right to have all evidence….the sixth amendment guarantees the right to confront witnesses

Question 137

Mississipi V Johnson Date

Answer 137

1867

Question 138

Mississipi V Johnson (1867) Facts

Answer 138

Reconstruction acts
Johnson veto
Congress override so Pres has to enforce
State of Mississippi sues Johnson asks for order prohibiting President from enforcing laws

Question 139

Mississippi v Johnson (1867) Legal question

Answer 139

May the president be restrained by injunction from carrying out laws that a state thinks are unconstitutional?

Question 140

Answer/Vote/Judgement Mississippi v Johnson 1867

Answer 140

No 9-0 majority opinion by Chase

Question 141

Mississippi v Johnson 1867 holding

Answer 141

The Judiciary is forbidden from interfering with the exercise of executive discretion (from Constitution)

Question 142

Mississippi v Johnson 1867 majority reasoning

Answer 142

Distinguishing ministerial duties from executive duties. Ministerial duties require no discretion like in the Marbury case.
Actions here require much discretion as a part of pres duty as commander in cheer
If the courts were to issue the order that Mississippi wants, it is clear that the executive and legislative branches would be in collision. Congress could then begin impeachment processes.

Question 143

Cases that pertain to Judicial Power

Answer 143

1. Marbury v Madison 1803: judicial review
2. Martin v Hunter’s Lesse 1816: appellate jurisdiction over states
3. Eakin v Raub: rebuttal to Marshall in Marbury
4. Ex Parte McCardle 1869: judicial restraint from jurisidction stripping
5. Patchak v Zinke 2018: restraint/stripping
6. Baker v Carr: Justiciability/ Political question criteria

Question 144

Cases that pertain to legislative power

Answer 144

Powell v McCormack 1969: scope of leg power
US Term Limits v Thorton 1995: requirements for holding congressional office
Gravel v United States 1972: speech ad debate clause and congressional aides
McCulloch v Maryland 1819: Neccessary and proper clause

Question 144

Cases that pertain to Executive power

Answer 144

Bush v Gore (200) equal protection
In Re Neagle (1890) executive order
Clintion v New York (1998) presentment clause
United States v Nixon 1974
Mississsippi v Johnson 1867

Question 145

Marbury v Madison 1803 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 146

Martin v Hunter’s Lessee 1816 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 147

Eakin v Raub PA 1825 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 148

Ex Parte McCardle 1869 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 149

Patchak v Zinke 2018 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 150

Baker v Carr case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 151

Powell v McCormack 1969 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 152

US Term Limits v Thorton 1995 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 153

Gravel v United States 1972 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 154

McuColloch v Maryland 1819 ase brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 155

Bush v Gore 2000 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 156

In Re Neagle 1890 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 157

Clinton v New York 1998 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 158

United States v Nixon 1974 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 159

Mississippi v Johnson 1875 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 160

Old latin maxim: delegata potestas non potest delegari

Answer 160

A power once delegated cannot be redelegated.”
* Non-delegation doctrine: If the Constitution delegates power to Congress, Congress cannot give power to a different branch

Question 161

Problem of delegation

Answer 161

textbook example of grading: Exam day professor gives it to TA/ grad student to grade. TA delegates it to their friend. Students have honest questions of legitimacy. Friend may not have credentials to do so and may know nothing of topic/ no knowledge.
Problem of accountability- who do you go to ?

Question 162

Non-delegation doctrine is not often followed. Why?

Answer 162

Throughout history congress regularly delegates powers
- Congress is really busy: more efficent to delegate to others with expertise.
- Expertise: . Congress may not be knowledgeable on specific areas. Ex: Taxes, Poision,
- Flexibility
- politics: Don’t want to deal with hot potato issues, rather shift the blame. Ex: Grundy V U.S. Congress did not clarify in legislation whether pre-act offenders had to register or not- removes congress from blame

Question 163

Early precedents of delegation of powers

Answer 163

Wayman v. Southard (1825)
* First major ruling on delegation of domestic powers
* Ruled that Congress can grant authority depending on the
“importance” of the subject
* In Hampton & Co. v. US (1928), the power was broadened and okay
so long as Congress “shall lay down by legislative act an intelligible
principle…”
* Some changes at the Court in 1930s led to switches in decisions in
this area of la

Question 164

Gundy v U.S. date

Answer 164

2019

Question 165

Gundy v US 2019 facts

Answer 165

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires sex offenders to register where they live or work before completing their prison sentence or face criminal penalties. SORNA delegated the over 500,000 pre-act offenders to the US attorney general (who heads department of justice) because they believed they had the authority and better expertise to do so. The attorney general office made N.A. interim rule 6 months later that stated pre-act offenders had to register and it was finalized later on. Gundy moved to New York after his prison release and was arrested and convicted for failing to register. In challenging his conviction, Gundy argued that Congress unconstitutionally delegated legislative power when it authorized the attorney general to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders. After a federal trial court and court of appeals rejected his argument, Gundy asked the Supreme Court to hear his case.SC did not actually agree to decide entire case, just whether Congress can delegate this authority to AG

Question 166

Gundy v U.S. 2019 legal question

Answer 166

: Does the SORNA delegation of authority to US attorney general violate the non delegation doctrine?

Question 167

Gundy v U.S. 2019 answer/vote/judgement

Answer 167

Vote: 5-3
Kavanaugh not confirmed yet
Plurality opinion did not have 5 members that agreed on both disposition and the reasoning
Alito concurred in outcome, but he did not agree with reasoning

Question 168

Gundy v U.S. 2019 pulrality opinion

Answer 168

Kagan
Time and time again ruled delegation is ok as long as Congress provides congress
Because Congress provided some sort of guiding principle it is ok
Explicitly reject Gundy’s argument that AG has unchecked power because he can do whatever he wants to do (dangerous because they are chief prosecutor for entire country)
1st meaning of delegation
2 whether not it violates - does not
3 end in hyperbole - if SORNA is unconstitutional then almost all of govt would be unconstitutional

Question 169

Gundy v U.S. 2019 Gorsuch dissent

Answer 169

AG allows EB to write criminal code for half a million citizens - in Gorsuch mind that is congresses job not the AG. Taking a formalistic approach. Framers gave us a three prong test
1.
2. Executive fact-finding make rule
3. Congress may assign non-legislative responsibility to other branches
Failed all three rules

Question 170

INS v Chadha date

Answer 170

1983

Question 171

INS v Chadha 1983 facts

Answer 171

Chadha had 6 year student visa that expired, ordered to court hearing. After more hearings, judge suspended deportation. Acting under provision of the Immigration and Nationality Act, the Attorney General recommended he be allowed to remain in US Congress had authority to veto this, and did at last
minute with no debate.

Question 172

INS v Chadha 1983 legal question

Answer 172

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?

Question 173

INS v Chadha 1983 Answer/Vote/Judgement

Answer 173

No, by a 7-2 vote, the Court ruled in favor of Chadha

Question 174

INS v chadha 1983 majority reasoning

Answer 174

Reasoning
* Congress argues legislative veto is efficient and convenient, but that
doesn’t mean it is democratic or consistent with Constitution
* Presentment clause and bicameral requirement of Article 1, Section 1
and Section 7, Clause 2 guide the resolution of the case
* Presidential vetoes protect citizens from improvident laws
* Legislative power should follow the path in the Constitution
* The action by one house of Congress cannot be justified as an
attempt to amend the standards set out in the Act

Question 175

INS v Chadha 1983 Justice White Dissent

Answer 175

Should decide on narrower grounds and should (punt) this issue to
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

Question 176

INS v Chadha 1983 Holding

Answer 176

Legislative Vetoes are unconstitutional but they still happen

Question 177

INS v Chadha 1983 implications

Answer 177

• Congress still passes laws that contain legislative vetoes.
• While Congress has not exercised a veto against agency, they have vetoed
  agency requests to move funds from one program to another (a type of veto)
• Open defiance of Court decision because political branches don’t agree with it
• Agencies don’t want to upset Congress (fear retaliation in future over funding for agency

Question 180

INS v Chadha case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 181

Hypothetical each case on syllabus

Answer 181

Guide for answering hypothetical
1. Start by stating a proposition/fact/premise about the issue in the
hypothetical case
2. identify controlling precedent. Explain why the precedent is similar (fact
patter/legal question). Explain via analogy how the resolution of the
precedent leads to the same resolution of the current case
3. Distinguish other relevant precedents. Explain why these precedents are
not controlling. This should include a reasoning by analogy why some
fact or issue, etc. in the precedent is different from the current
hypothetical.
4. A conclusion
- note- the order of 2 or 3 can be switched

Question 182

Practice Hypothetical from class

Answer 182

hypothetical • In reaction to wide discrepancies in sentencing by federal court judges, Congress created the U.S. Fair Sentences Commission as part of the Fair and Equal Sentences Reform Act. The commission was created as “an independent commission in the judicial branch of government,” and 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.
• The Commission promulgated the sentencing guidelines, but lower courts disagreed on the constitutionality of the guidelines. In this case, Herbert “Big Ace” Frank was found guilty of selling a small amount of meth and received a long prison sentence that was mandated by the guidelines. “Big Ace” appealed his conviction because the lower court judge upheld the guideline set by the commission. Specifically, lawyers for “Big Ace” argued that the law violated the delegation of powers principles by giving the commission “excessive legislative authority.”
• How should the Court decide this case? Explain your reasoning

Question 183

Be able to discuss the federal legislature’s role in Constitutional
interpretations

Question 184

Identify when Congress delegates some of its authority to another
branch and when Congress tries to assert powers assigned to other
branches

Question 185

Explain the power authority when it comes to foreign affairs

Question 186

United States v. Curtiss-Wright Export Corp Date

Answer 186

1936

Question 187

Presidents and Foreign Policy

Answer 187

• Has special authority over foreign matters
• Commander in Chief
• Power to make Treaties
• Power to appoint ambassadors etc. and to receive
ambassadors etc.
• Congress’ check on the above powers…Congress has to approve treaties, senator approves ambassadors

Question 188

United States v. Curtiss-Wright Export Corp 1936 Legal Question

Answer 188

May Congress issue a resolution that concerns external
affairs, that gives the president the power to control U.S.
involvement in foreign affairs?

Question 189

United States v. Curtiss-Wright Export Corp. (1936) Answer

Answer 189

Yes by vote of 7-1 the court upheld the congressional delegation of power

Question 190

Majority reasoning United States c Curtiss-Wright export (1936) Majority Reasoning point

Answer 190

1. 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
   -congress is 533 people president is one person which is why he can act quickly and move quickly - one voice. Also- it is IMPOSSIBLE to keep a secret in congress
2. Foreign and Democratic 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. The president needs leeway in foreign affairs

Question 191

United States c Curtiss-Wright export corp 1936 conclusion/ implications

Answer 191

1. President has strong power when it comes to foreign affairs
   -implications for post 9/11 America
2. President is not solely responsible in foreign affairs
   -congressional powers v presidential powers
   Military
   War
   Treaties
   Ambassadors

Question 192

The prize cases date

Answer 192

1863

Question 193

The Prize Cases 1863 facts

Answer 193

Before his inauguration (Lincoln) of March 4, 1861, 7 southern states seceded from the union. Mid April shots fired at fort sumter then President elect Lincoln imposed a naval blockade of southern ports. He did so unilaterally without seeing congressional approval. 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 with a congressional declaration of war. Congress did not enact a formal declaration of hostilities until July 14 and did not ratify the blockade until August 6.

Question 194

The Prize cases 1863 Answer/ Vote/ Judgement

Answer 194

Yes, 5-4 favoring pres Lincoln (union)
Grief - majority
Nelson- dissenting

Question 196

The Prize cases 1863 holding

Answer 196

President Lincoln’s blockade was a constitutional use of president powers (given to him by acts of Congress 1795,1807) to suppress an insurrection

Question 197

The Prize Cases 1863 majority reasoning

Answer 197

Does war exist?
Can President initiate a blockade?
Majority reasoning: Congress alone can declare the war but pres must ensure laws are faithfully executed
Outlined president’s powers in war
Since there was a rebellion/insurrection there was war conditions and the president was just faithfully executed

Said war existed - yes a state of civil war existed because we know when a war starts when foreign nations declare neutrality, when a hostile group declares an insecurection, hostile actions or conditions causes courts to shut down and that is an indicator that we are at war

Can the president initiate the blockade:
The president has a responsibility under article 2 to defend nation because he is the commander in chief
President can call out militia to defend against this aggression

Question 199

The Prize Cases 1863 Nelson dissent

Answer 199

It is CONGRESS job to declare war because the Constitution gives them the ability to do so

Clearly formalist

Question 200

United States v Curtiss-Wright Export Corp. (1936) Holding

Answer 200

Congressional resolution delegating power to President is constitutional

Question 201

The Prize Cases 1863 legal question

Answer 201

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?

Question 202

The Prize Cases 1863 conclusions and implications

Answer 202

1. Pres may take action w/o waiting for Congress
2. Also established when war comes into existence (or atleast on argument of it) that a state of war is not conditional upon Congress declaring war
3. Remains controversial on how much Pres can do and for how long
4. Has modern day implications with controversy that surrounds Iraq and Afghanistan war

Question 203

Ex Parte Milligan date

Answer 203

1866

Question 204

Ex parte Milligan 1866 facts

Answer 204

Civil war. Lincoln worried about Southern sympathizers, known as Copperheads, who were active in Illinois, Indiana, Missouri, and Ohio. Lincoln decided combating enemies and security/union more important than individuals rights. gave his military commanders broad powers to arrest civilians suspected of engaging in traitorous activities. These suspects were to be tried in military courts.

the army had no legal authority to arrest and try civilians. State and federal courts were in full operation and were capable of trying civilians charged with treason or any other crime. Before civilians could be tried by military courts, a state of martial law had to be declared, and for that to happen the right of habeas corpus had to be suspended. Article I, Section 9, of the Constitution provides for the suspension of habeas corpus in the following words: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This provision posed two problems for Lincoln. First, the suspension provision is in Article I, which outlines legislative, not executive, powers. And second, if the civilian courts are in full operation and no armed hostilities are taking place in the area, then public safety probably does not demand a suspension of habeas corpus.

Several times during the war he issued orders expanding military control over civilian areas, permitting military arrests and trials of civilians, and suspending habeas corpus. Congress later endorsed some of these actions. Arrests of suspected traitors and conspirators were common and often based on little evidence. Were such actions constitutional under the war powers doctrine?

Question 205

Ex Parte Milligan 1866 legal question

Answer 205

Does a military tribunal have jurisdiction to try a citizen during a time of war for allegedly treasonous activities in a peaceful state

Question 206

Answer/Vote/Judgement/ reason Ex Parte Milligan 1866

Answer 206

No. 9-0 vote on illegal imprisonment
Majority - Davis:

Question 207

Majority reasoning ex parte Milligan 1866

Answer 207

The Constitution guarantees due process under law and martial law cannot override this
President can’t strip Consitutional rights during war
President does not have right to suspend habeas corpus during a peaceful state
Indiana was a peaceful state with open courts so Milligan should have been tried

No graver question was ever considered….to be charged and punished according to law”
Milligan was denied a trial by jury. When the courts are open all citizens possess this right only those within the military are subject to the jurisdiction of the court.

Question 208

Civil war cases summary

Answer 208

The prize cases 1863-(increases president power over Congress)
When does a state of war exist?

yes a state of civil war existed because we know when a war starts when foreign nations declare neutrality, when a hostile group declares an insecurection, hostile actions or conditions causes courts to shut down and that is an indicator that we are at war

Ex Parte Milligan 1866 (takes power from President)
-military may not try citizens who are rebelling

Question 209

War time decision making

Answer 209

”Inter arms enim silent legas”- in times of war the law falls silent/mute (Cicero)
Trade off between liberty and order
War balance shifts towards order and security and suppress individual rights and liberties
peacetime - balance towards freedoms

“Inter arma enim silent leges” (Cicero)
• Korematsu v. U.S. (1944) • “We uphold the exclusion order…Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warefare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
• Ex parte Milligan (1866) • “When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty;…but if society is disturbed by civil commotion…these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws

Question 210

QUESTION: what happens to law during times of crisis
When exec and leg act during times of crises what happens to the Judiciary role as the guardian of liberty?

Answer 210

Judiciary has article 3 lifetime tenure
-they do not have to run for election - they can make unpopular decisions

Question 211

Korematsu v United States date

Answer 211

1944

Question 212

Korematsu v United States 1944

Answer 212

Japanese bombed Pearl Harbor on December 7, 1941. Anti-
Japanese sentiments very high among the public. US feared
Japanese invasion on the western coast, plus there were large
numbers of people of Japanese ancestry living on the coast that
many feared were sympathetic to Japan.
• President Roosevelt issued several orders: first curfew, then
evacuate individuals of Japanese race to inland detention centers.
Congress enacted both into law.
• These orders affected ALL people of Japanese ancestry. It didn’t
matter where their loyalty lied or if they were a citizen or not.
• Fred T. Korematsu was arrested for being on streets in violation of
government evacuation orders.
• After his arrest the American Civil Liberties Union offered to
represent him and to challenge the validity of the evacuation
orders.
• Case of Hirabayashi v. United States (1943), where Court upheld
constitutionality of the curfew program.

Question 213

Korematsu v United States 1944 legal question

Answer 213

May the president order the internment of all persons
suspected of being of Japanese ancestry?

Question 214

Korematsu v United States 1944 answer/vote/judgement

Answer 214

• Yes, vote 6-3, affirmed in favor of US government

Question 215

Korematsu v United States 1944 holding

Answer 215

Government’s evacuation and detainment orders are
constitutional.

Question 216

Korematsu v United States 1944 majority reasoning

Answer 216

All legal restrictions that restrict the civil rights of a particular group
are immediately suspect. Courts must therefore subject these laws to
rigid scrutiny.
• 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.
• 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.
• 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.
• 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.

Question 217

Korematsu v United States 1944 concurrence

Answer 217

Frankfurter • War power is “the power to wage war successfully” (Hirabayashi v.
US)
• Therefore the context of war is key. The same action during times
of peace would be lawless.
• Invokes Framers of constitution, whom a majority of participated
in a war
• “I find nothing in the Constitution which denies Congress the
power to enforce such a valid military order…”

Question 218

Korematsu v United States 1944 dissent

Answer 218

• Murphy • The exclusion of all people of Japanese ancestry “falls into the ugly
abyss of racism.”
• “We must accord great respect to military authorities” …however
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.
• Concede to fear of invasion, but the response should be
reasonably related to the removal of the dangers of invasion,
sabotage, and espionage
• It is not reasonable to assume that all Americans of Japanese
ancestry were aiding the enemy. Many reports were way
overblown or half-truths (no convictions post-pearl harbor)
• As such, I dissent from the legalization of racism.

Question 219

Korematsu v United State dissent 2

Answer 219

Jackson • “Korematsu was born on our soil…The Constitution makes him a
citizen of the United States…”
• 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, because of the location of his parents’ birth. If he had been of 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. “here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.”
• 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.
• “The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward…

Question 220

Korematsu v United States (1944) conclusion and implications

Answer 220

• Severely criticized decision
• 1983 Korematsu’s conviction overturned in federal district
court
• Congress later awarded $20,000 to survivors
• Remains debated topic on whether it was the “right” thing
to do • Philosophies of Law: Natural law vs. Positivism

Question 221

Two philosophes of law

Answer 221

Natural law: individuals have natural born rights that cannot be taken away under any circumstances. Morals, ethics, justice
Positivism: “a law is a law is a law” as long as the governing body passes a law within the procedures that are allowed it is good law

Question 222

Ex parte endo

Answer 222

• American woman of Japanese descent who was fired from
her job and arrested and moved to a detention camp.
• Court unanimously ruled the government could not
continue to detain citizens who were loyal to the US
• Decided same day as Korematsu. Led to the reopening of
the west coast
• Are Korematsu and Endo (in)consistent?
Shocker- They did not overturn their Korematsu - they were decided the SAME day deciding different things
Are Korematsu and Endo inconsistent?
Similar facts

Question 223

Korematsu recent

Answer 223

Korematsu case resurfaces during June 2018 Supreme Court’s ruling on
President Trump’s travel ban. • Dissenters (Sotomayor and Ginsburg) criticized the rule and likened it to Korematsu
• Majority (written by Roberts) said that Korematsu was “objectively unlawful” and that it
was based on a “morally repugnant order”

Question 224

Youngtown Sheet and Tube co v Sawyer date

Answer 224

1952

Question 225

Youngtown Sheet and Tube co v Sawyer 1952 facts

Answer 225

In 1951 a labor dispute began in the steel industry and the
union called for a strike.
• Because of the Korean War, President Truman issued an
executive order commanding the secretary of commerce to
seize the nation’s steel mills and to keep them in operation.
• 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.

Question 226

Peace time v war time

Answer 226

Security / order valued over individual rights during war
During peace individual rights valued mode

Question 227

Peace v war time

Answer 227

Security / order valued over individual rights during war
During peace individual rights valued more

Question 228

Youngstown Sheet and Tube Co. v. Sawyer (1952) legal ?

Answer 228

• May a president take over an industry in order to prevent a
union from striking?

Question 229

Youngstown Sheet and Tube Co. v. Sawyer (1952) answer

Answer 229

No. By a vote of 6–3 the Court ruled in favor of Youngstown
Sheet and Tube

Question 230

Youngstown Sheet and Tube Co. v. Sawyer (1952) holding

Answer 230

President’s order to take over private industry is
unconstitutiona

Question 231

Youngstown Sheet and Tube Co. v. Sawyer (1952) reasoning

Answer 231

• 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.
• The order cannot properly be sustained as an exercise of
the president’s inherent military power as commander in
chief. Only the nation’s lawmakers can take private
property.
• Nor can the order be sustained because of the several
provisions of the Constitution that grant executive power
to the president.
• The president’s order does not direct that a congressional
policy be executed in a manner consistent with the
intention of Congress, but in a manner consistent with the
president’s wishes. The lawmaking power in the United
States is within Congress’s domain. Congress does not give
this power to president or to the judicial branch

Question 232

Youngstown Sheet and Tube Co. v. Sawyer (1952) jackson concur

Answer 232

There are three classes of presidential power (p. 307-8).
• 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

Question 233

Youngstown Sheet and Tube Co. v. Sawyer (1952) Vinson dissent

Answer 233

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.

Question 234

Youngstown Sheet and Tube Co. v. Sawyer (1952) implications and conclusions

Answer 234

s • Property rights vs. civil rights
• Which opinion is most important? • Jackson’s concurrence provided useful framework for dealing with
presidential power vis-a-vis Congress

Question 235

Youngstown Sheet and Tube Co. v. Sawyer (1952) counterfacutals

Answer 235

What if this was WWII?
• Shortly after Pearl Harbor?
• Does the type of industry matter?

Question 236

Separation of powers? Are Korematsu and Youngstown Sheet and Tube consistent with each
other

Question 237

Prize cases 1863
case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 238

Ex parte milligan 1866 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 239

Korematsu v US 1944 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with

Question 240

Youngtown sheet & tube co v sawyer 1952 case brief + institutional power (increase or decrease) + take away + consider hypotheticals and what cases it may consistent or inconsistent with