II. Structural Protections and Democratic Design

Question 1

Constitutional Interpretation – Judicial Review

What are the Modalities of Interpretation and how do they operate

Answer 1

Textual
* examining the meaning of the text, words, clauses, amendments
Structural
* examining the structure of the constitution and how they opperate; sep of power & check and balance
Historical/Original Intent
* examining the principles and meaning as it would have been understood by the founders
Purpose
* examing the purpose of the provisions
Precedent/Practice
* binding decisions; supreme court cases
* original; constitution stands as it was created
* persuasive; what is the similarity between cases
Policy
* what leads towards the betterment of society
Other sovereigns
* what do other countries do

Question 2

Constitutional Interpretation – Judicial Review

What is Brutus XI

Answer 2

Faults of the Judiciary
* Only fired under extremes
* Will make up laws to expand its power
* Subversion of state judiciary
* Bias towards federal government
* Binds other branches by their own interpretation
Powers are vague and judges will make them up as they go; judicial power will become independent from any check and contain an ultimate finality of law
Nemo iudex in causa sua

Question 3

Constitutional Interpretation – Judicial Review

Fed No. 78 + Fed No. 81

Answer 3

• Need a federal judiciary to protect against exec and tyranny of majority
• Needs to be independent to do job correctly
• Limited in scope
• Least dangerous branch b/c no power of purse or sword
• Needs to be powerful enough to protect private rights and protect against congressional abuses
• Lasting tenure prevents corruptions

Question 4

Constitutional Interpretation – Judicial Review

Holding of Marbury v. Madison

Answer 4

Does the applicant have a right to the commission he demands?
* Yes the signing of the commission is what confers the right, not the placement of the seal

Do the laws of the country give Marbury a legal remedy? (ubi ius ibi remedium)
* Yes, where there is a right there is a remedy and the right was established by the judiciary act
* Not political question doctrine b/c it was an administrative task to deliver and affix the seal, not a political act

Is Marbury “entitled to the remedy for which he applies”?
Is asking the Court for a writ of mandamus the correct legal remedy?
* Yes, this is only to compel an administrative task from a gov official, which is all that’s being sought

Does the Supreme Court have the power to issue the writ?
* No, Judiciary Act that gave original jurisdiction to issue a writ of mandamus is unconstitutional since according to Constitution, Congress can only alter appellate jurisdiction, not its original jurisdiction - Courts have to uphold and enforce laws but cannot do so if a law is contrary to the supreme law of the land (Constitution) so courts have to possess the power of judicial review (to declare a law unconstitutional and void)
* Congress cannot extend Original jurisdiction through an act only through an amendment

Question 5

Constitutional Interpretation – Judicial Review

What is Judicial Review

Answer 5

• It is emphatically the province and duty of the judicial department to say what the law is
• The written nature of the constitution binds the courts and the judiciary hotels the power to review constitutionality on these terms
• Marshall secedes the battle, however establishes Judicial review and Political Doctrine explaining the court’s power*

Question 6

Constitutional Interpretation – Judicial Review

Significance of the Supremacy Clause

Answer 6

• Departmentalism + Supremacy clause (with the oath clause) - every branch has to determine constitutionality
• Since for a bill to become law, has to be checked off by 2/3 branches, Court should be more conservative in striking it down

Question 7

Separation of Powers

Importance of Youngstown Sheet & Tube Co. v. Sawyer

Answer 7

Did the pres have power to seize steel plants without congressional authorization
* No, 6/3 → president can’t determine the own reasons for expanding their power
* Douglas → only congress can pay in exchange for property
Better to have a government that operates slowly
* Vinson → Congress is funding the war, but is getting upset for President acting on it, President must act to ensure the continuance of the legislative programs when congress is too slow to act
* Frankfurter → Take-care gives duty not to exceed the Constitution; no law here!
* Don’t want an unhindered exec – deliberately put friction – Fed 51 - A vs. A

Question 8

Separation of Powers

Justice Jackson 3 Ebbs of Power – Youngstown

Answer 8

First, when the President acts with the express or implied authorization of Congress then the President’s authority is at its greatest.
* President acts in parallel authorization by congress

Second, in the absence of either a congressional grant or prohibition then the President acts in a zone of twilight.
* President uses Art 2 powers
* In this circumstance, Congress and the President may have concurrent authority.
* In this zone of twilight, an actual test on authority will be dependent on the events and the contemporary theory of law existing at the time.

The third circumstance is when the President takes measures that go against the expressed will of Congress, his power is at its lowest.
* Pres acts against expressed or implied powers of Congress
* Jackson placed the action of President Truman in the third category making the order to seize the mills invalid.

Question 9

Nondelegation, Appointment and Removal

Unitary Exec importance to Removal

Answer 9

• Power to → (1) direct, supervise, and control subordinates, (2) remove subordinates at will.
• Four arguments: (a) executive power theory; (b) advice-and-consent theory; (c) congressional-delegation theory; (d) impeachment theory

Question 10

Nondelegation, Appointment and Removal

Fed 67 on exec (pres ain’t monarch)

Answer 10

Anti-federalists have overblown President’s power → fear is unwarranted b/c not a monarch

Question 11

Nondelegation, Appointment and Removal

Fed 68 on exec (electors)

Answer 11

Have to ensure electors are elected by people who are serving the national interest. Justification for electoral college

Question 12

Nondelegation, Appointment and Removal

Fed 69 on exec (Pres not Monarch)

Answer 12

very different from the crown: 4 year terms, can be impeached, veto can be overridden, must have Senate agree to treaties, and can receive ambassadors

Question 13

Nondelegation, Appointment and Removal

Fed 70 on exec (how should the exec be?)

Answer 13

Need an energetic Executive → see AoC’s failure w/ Shay’s Rebellion + Unity

Question 14

Nondelegation, Appointment and Removal

Fed 71 on exec (Imp of term length)

Answer 14

Independent to allow to act in best interest of the nation even against public interest; Duration ensures stability and if it was too short, would tempt self-enrichment

Question 15

Nondelegation, Appointment and Removal

Fed 72 on exec (go again)

Answer 15

Adequate provision for support: re-electability

Question 16

Nondelegation, Appointment and Removal

Fed 73 on exec (Exec Check on Leg)

Answer 16

Competent powers - veto on legislation. This is limited by override veto and madisonian check

Question 17

Nondelegation, Appointment and Removal

Fed 77 on exec (relationship with leg)

Answer 17

discusses the power of the Senate to approve a President’s appointments, the Executive’s ability to call Congress together to give the State of the Union

Question 18

Nondelegation, Appointment and Removal

Importance of Gundy v. US on Nondelegation

Answer 18

• Locke: the legislative can have no power to transfer their authority of making laws and place it in other hands.
• The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government.
• SORNA gives AG discretion to decide applicability – does not give total legislative power, only discretion on how to implement it and its feasibility (applicable intelligible principle) – AG doesn’t have discretion if it applies or not, only how registration should be done
• Legislative branch can give the power to decide just not to pass laws

Question 19

Nondelegation, Appointment and Removal

Importance of Myers v. US on Removal

Answer 19

Does Pres have the power of removing executive officers that he’s appointed with advice and consent of senate
*Article II.1 (VC) Gives President executive power, that includes ability to fire officers
* Article II.3 (TCC) President has to rely on subordinates to carry out the law so must be able to control them
* Article II.2 (Advice and Consent) separate from executive powers so more narrowly construed than general executive powers
* Article II.2 (Appointments clause) was intended to prevent small states from being run over by big states, not to give Senate ability to remove officers

After tracing legislative debate of the First Congress in 1789 which dealt with the interpretation of the President’s appointment power, Chief Justice Taft concluded that the power to remove appointed officers is vested in the President alone.
* Brandeis Dissent: Executive power vested through vesting clause is only what Congress allows it to be

Question 20

Nondelegation, Appointment and Removal

Importance of Humphrey’s Executor v. US on removal limits

Answer 20

Can pres remove officers for inefficiency, neglect of duty, or malfeasance in office?
* Myers did not → included officer who occupies no place in the executive power or doesn’t exercise executive power
* Narrows Myers → President doesn’t need Congressional approval to remove when officer is entirely executive

Here, officer is quasi-legislative/quasi-judicial b/c Federal Trade Commissioner so removal limits are appropriate
* Quasi-legislative b/c makes reports for Congress and administers provisions of statute
* Quasi-judicial b/c master in chancery

Question 21

Nondelegation, Appointment and Removal

Importance of Morrison v. Olson on Removal Limits

for court appointed special prosecutors + scalia dissent

Answer 21

Test: Does the ability of the President to fire officers at will impede upon their executive power or impede ability to make sure laws are faithfully executed?
* Inferior officer b/c can be removed by higher exec branch officials, has limited duties, jurisdiction, and tenure → not limiting President so constitutional
* Inferior → subject to removal by higher official, empowered to limited duties, office is limited in jurisdiction and tenure

Scalia dissent
* Function is purely executive (prosecutor) so therefore according to Humphreys, President should be able to remove
* Article II VC gives ALL executive power and removing an executive officer is one of them

Question 22

Direction and Control

Textual, Structual, Historical, and Policy justifications for Presidential Direction and Control

Answer 22

• [T] VC - if subordinates are exercising executive power so President has to be able to control them; TCC - has to make sure laws are being followed so needs to control subordinates
• [S] lack of authority in the other branches vesting clause
• [H] Weak AoC and need for a strong executive; 1607 Jamestown and King’s ability to control the governors; Washington, Jefferson, and Adams controlling executive
• [Policy] Allow executive to avoid being split by other branches; allows exec to function efficiently, want depoliticized civil service

Question 23

Direction and Control

What was William Writ’s Opinion on the Accounting Officers

Answer 23

• President has to execute laws, but can’t do execute every law everywhere, nor cannot intervene every single time → need subordinate officers he can control
• The president cannot interfere with officers; it would be impractical to assume that the TCC expected the President to be involved in every aspect of the execution

Question 24

Direction and Control

What was Roger Taney, Opinion on the Jewels of the Princess of Orange

Answer 24

Existence is necessarily implied by the duties imposed upon him that clause of the constitution before referred → TCC gives president power to interfere
* [T] the president can only pardon after prosecution though
* [S] judicial power have the power to prosecute and this would interference in prosection; TCC the president needs to determine when the execution of law is unlawful
* [Policy] this would impede foregin affairs

Question 25

Direction and Control

Significance of US v. Cox

Discretionary powers & Pres Non Prosecution

Answer 25

Whether the controlling discretion as to the institution of a felony prosecution rests with the Attorney General or with the grand jury
* Jury can still require an indictment from the AG, however, the AG can then refuse to execute the indictment; courts cannot force the AG to act beyond this directive

If the president can pardon or act on the back end, then it makes sense to allow intervention at the front end
* Trial’s allow the victims their day in court and the defendant gets to defend their name → pres intervention would prevent this
* VC gives power to control executive officers who have discretion as a function of being part of the executive

Gewin concurrence- AG required to assist in preparing and signing indictment (acting as judicial officer) but can choose not to pursue it (acting as exec officer) + Decisions must be made in open court for accountability

Brown concurrence - AG is scribner for GJ - have to prepare indictment but don’t have to sign it

Wisdom concurrence - don’t need to prepare indictment b/c judicial efficiency + AG has discretion and prosecution is an executive function so don’t need to do anything

Question 26

Direction and Control

What is the Karl R. Thompson Memo

Answer 26

• DHS has power to prioritize certain groups bc it is a part of a general framework and not legislating
• DHS is more informed than legislative, still has to abide by congressional policy underlying statutes

Question 27

“Of Cases and Controversies”

What are the 9 Categories of Cases and Controversies (3 SMJ + 6 PJ)

Answer 27

Subject Matter
1. All cases in law and equity arising under Const., fed law, treaties
2. All cases affecting ambassadors/other public ministers and consuls
3. All cases of admiralty and maritime Jx

Personal Jx
4. Controversies to which US is a party
5. Controversies between 2+ states
6. Controversies between a state and citizens of another state
7. Controversies between citizens of different states
8. Controversies between citizens of same state claiming land
elsewhere
9. Controversies between a state/citizens thereof and foreign states,
citizens, or subjects

Question 28

“Of Cases and Controversies”

What are the 8 causes for Political Question Doctrine

Judicial Powers

Answer 28

(1) Guarantee clause cases
(2) Cases about whether war begun/ended/foreign gov recognition
(3) Challenging Senate rules
(4) Ratification of constitutional amendment
(5) Impeachment
(6) National guard training procedures
(7) regulation of political parties
(8) Status of Native American tribes

PQ Doctrine: is the legal issue presented appropriate for judicial resolution or is it instead a matter left to the resolution of the political branches of government

Question 29

“Of Cases and Controversies”

Judicial Supremacy v. Departmentalism

Answer 29

Idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overruled them

During the early years of U.S. history, it was widely believed that each branch or department of government should interpret the Constitution for itself, without any branch’s interpretation necessarily binding the others

Question 30

“Of Cases and Controversies”

What is the Justiciability doctrine

Answer 30

intended to prevent judicial activism, promote meaningful use of resources, s.o.p, lead to better cases b/c have to prepare, and promote fairness by ruling has an actual effect

Question 31

“Of Cases and Controversies”

What is Standing

Answer 31

right person has to come before the court and has to show (1) injury in fact to a legal interest (2) defendant is responsible for injury and (3) redress is possible

Question 32

“Of Cases and Controversies”

What is Mootness

Answer 32

Requisite injury no longer exists:
4 exceptions:
(1) secondary injuries/collateral consequences
(2) repetitive injury (could happen again and again),
(3) repetitive behavior from defendant
(4) class action lawsuit

Question 33

“Of Cases and Controversies”

What is Ripeness

Answer 33

if premature/injury is speculative: (1) hardship to parties b/c enforcement is certain, just hasn’t started yet
(2) fitness of the record

Hardship
* There is a likelihood of prosecution with substantial consequences unless a plaintiff forgoes engaging in allegedly lawful behavior
* The enforcement of a statute is certain but enforcement proceedings have not yet begun
* There is a substantial hardship from collateral injuries

Fitness
* The more the questions is purely legal in the less development of a factual record matters, the more likely it is that a case will be deemed ripe for judicial review

Question 34

“Of Cases and Controversies”

Importance of Massachusetts v. Mellon + Frothingham v. Mellon

PQ Case

Answer 34

Both cases challenged the constitutionality of the Maternity Act

Frothingham case
* The effect of the statute will be to take plaintiffs property via further taxation under the guise of taxation without due process of law

Massachusetts Case
* Alleged that the plaintiffs rights and powers as a sovereign state and the rights of its citizens have been invaded and usurped by these expenditures and acts - the state has not accepted the act - its constitutional rights are infringed by the passage of the Act

In MA: no standing b/c no injury has occured yet so the Court lacks jurisdiction + political question

In Frothingham: individual can’t sue fed government over taxes b/c it is a matter of public interest, not individual concern

Question 35

“Of Cases and Controversies”

Importance of Walter Nixon v. US

Answer 35

• Senate Rule 11 (only a certain part of Congress has to hear impeachment material) does not violate impeachment clause b/c it is a political act so it is a political act and especially improper to give this question to courts since it pertains to impeachment and that is the only way SCOTUS can be removed
• Article I Legislative Branch, Section 3 Senate, Clause 6 Impeachment Trials
• Court finds that the claim is non-justiciable due to its political nature

Question 36

“Of Cases and Controversies”

Importance of Luther v. Borden

Answer 36

• Guarantee clause (Article IV.4) - POTUS (because can aid against foreign invasions so has to decide what is proper gov – makes sense b/c need President to act swiftly in a situation like that) or Congress decide (b/c Congress accepts congress people from proper gov of each state)
• The controversy and legal issue arose from determining when the old government’s authority ceased and the new government’s authority began, as the defendants actions in the prior form would have been a sufficient authority for their actions and the latter not.
• The power of determining that a state government has been lawfully established, which the courts of the State disown and repudiate, is not a power that the courts of the US have under the constitution

Question 37

“Of Cases and Controversies”

Importance of Baker v. Carr

Answer 37

a controversy is nonjusticiable, i.e. it involves a political question, where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it