Académique Documents
Professionnel Documents
Culture Documents
Framing Constitution
A. Articles of Confederation (Expressly)
1. Expressly Delegated
1. In Congress Assembled
1. Articles of Confederation Problems
a) Factionalism
(1) Balance factions and level of government against each
other
a) Self-Interest
(1) Ambition to counter ambition
a) Centralized Government distanced from will of the people
(1) Horizontal and vertical balancing of power
I. Horizontal Separation of
Powers
A. Judicial Power
1. Supreme Court Limited Jurisdiction
a) Marbury v. Madison
(1) Finite list of items with original jurisdiction
i) The judicial power shall extend (Art. III Sec. 2)
Ambassadors, Public ministers and consuls, admiralty and
maritime, US a party, land grants, diversity
i) In all cases affecting ambassadors, public ministers
and consuls and in which a state shall be a party, the
Supreme Court shall have original jurisdiction (Art 3
Sec. 2)
(a) Affirmative language gives negative implication to
other areas of original jurisdiction
(a) Absence of similar alteration language as with
appellate jurisdiction (Exceptions Clause)
a) Criticisms
(1) Could extend to constitutional floor instead of floor and
ceiling
(1) Exceptions clause could be meant to take from
appellate and add to original
1. Judicial Review
a) Marbury v. Madison
(1) Courts decide > Executive Discretion or Vested Rights
(Purely Ministerial)
1. Standing
a) Constitutional Limits
(1) Injury In-Fact
i) Concrete/Particularized/Individualized
(a) NO Standing
i) Not general taxpayer grievance
i) Broad Race-Based stigmatic Injury not sufficient
(Allen v. Wright)
A. Executive Power
1. Inherent Power (No herein granted, Take Care, Discretion to
enforce, Foreign Affairs,Sole Organ, Chief Executive,
Commander in Chief, Self-Executing Treaty)
a) No herein granted, Take Care Clause
a) Greatest in Foreign Affairs > Sole Organ of Foreign
Affairs (Dames & Moore) (Curtiss-Wright)
(1) Congress can delegate more broadly to presidential
discretion in areas of Foreign Affairs (Curtiss-Wright)
Allowing president to determine if selling arms is detrimental to
peace in South America
A. Legislative Power
(1) Chadha (Impermissible attempt to maintain a onehouse veto over decisions delegated to attorney
general which would otherwise require an act of
congress to accomplish)
a) Removal and Appointment Control Over Agencies
(1) All executive power must be exercised by the president
because they vest in him > Must have general control
over officers; Only executive doing executive functions
(1) Congress CANNOT aggrandize itself; can ONLY provide
one layer of good cause removal
i) Who can remove? and How?
i) Limitation on another branch?
i) Aggrandizement of power?
i) Interference with faithfully execute?
i) Type of Officer and Functions Performed
i) Inferior Officer?
i) How many layers of protection?
a) Legitimate Control
(1) Budgets OR Amending/Repealing agency authority
a) Cases
(1) Strongest Cases
i) Improper aggrandizement with pure executive >
Myers
i) Pure Executive for good Cause (Special Prosecutor)
No aggrandizement > Morrison
i) Mixed Officer; Two levels for good cause is
interference > Free Enterprise Fund (limiting
Humphries executor)
i) Executive functions and legislative removal improper
> Bowsher
i) Case Details
(a) Myers: Pure executive superior officer and
aggrandizement (Postmaster general)
(a) Morrison: No aggrandizement. Good cause on purely
executive officer. No interference with faithfully
execute. Second order (Special Prosecutor)
(a) Bowsher: Legislative agent (congressional power to
remove) impermissibly given executive functions.
Congressional removal justification beyond
impeachment is improper (Article II Section 4)
(a) Humphries Executor: Mixed Officer. No
aggrandizement. Good cause. (FTC)
I. Vertical Separation of
Powers (Federalism)
A. Implied Powers
1. Broad Framework (Enumerated; NO expressly, Broad
Principles, Constitution Expounded (McCulloch); Not strictly
necessary)
a) The federal government is one of enumerated powers
(1) However, the lack of expressly as in the Articles of
Confederation
(1) and the nature of the constitution as a broad
principles rather than prescriptive detail document
i) Allows for the existence of implied powers which the
necessary and proper clause gives textual permission
(a) Not Strictly Necessary > Among granted powers,
omits absolutely, proper would be superfluous
i) Necessary is not strictly necessary because it is
listed among the grant of powers (Art 1 Section 8)
AND omits absolutely as in Article 1 Section 10.
Further, a strictly necessary interpretation would
make proper Superfluous and thus is disfavored
(1) Example
i) The federal government is one of enumerated
powers.[(Article 1 Section 1 (Herein Granted; Article I
Section 8(Enumerated Powers)]. However, the lack of
"expressly" in the grant of congressional powers in
the constitution, a document of broad principles not
prescriptive details, allows one to infer other implied
powers and the necessary and proper clause gives
the textual permission to do so. The necessary and
proper clause is an expansion of congressional power.
It is listed among the powers granted to congress, not
its limits and omits "absolutely" as it is included in
Article I Section 10. Furthermore, a "strictly
necessary" interpretation would make the addition of
"proper" superfluous making such an interpretation is
disfavored. McCulloch v. Maryland.
(a) Let the end be legitimate, let it be within the scope
of the Constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter
and spirit of the constitution. McCulloch v. Maryland.
1. No Taxation without Representation (McCulloch)
a) States CANNOT tax instrumentalities of the government
> Serves as indirect tax on other states citizens
(McCulloch)
States did not have this power before the constitution and are not
textually granted it. The purpose of the constitution is to promote
and enforce democracy and representation.
1. Is X a Federal Power?
a) Does it have a basis in Article 1 Section 8? + Necessary
and Proper
(1) All other powers reserved for the states and people
(Tenth Amendment)(Remainder? (Holland); Core
Sovereignty (Bond); Treaty Not independent (Reid)
i) BUT SEE Missouri v. Holland (Tenth merely remainder
and treaty independent)
i) but even more BUT SEE Bond (No police power even
with treaty)
a) Is it Not included in Article I Section 10?
A. Commerce Clause
1. YES Commerce Clause
a) No executive commandeering
(1) Printz: Using state sheriffs for Brady Bill background
checks
a) Yes judicial commandeering > Article VI shall be bound
by oath or affirmation to support this constitution
A. Pre-Emption
1. Background (Not independent power, not negate, choice of
law, trump)
a) No independent power to negate state laws
(1) Only supremacy clause as a choice of law rule
(1) Congress has the power to trump where it has the
power to regulate
1. Preemption Types (Congress Action to Inaction)
a) Express Preemption (Broaden Conflict)
(1) Congress expressly adds preemption language
i) Expands scope of regulation beyond actual conflicts
to areas that congress COULD be regulated
a) Conflict Preemption (Impossibility)
(1) Physical impossibility to comply with both state and
federal law
a) Obstacle Preemption (Frustrates Purpose)
(1) State law frustrates the purpose or interferes with
federal law
a) Field Preemption (Pervasive OR strong interest)
(1) Federal regulation is so pervasive that it can be inferred
congress has intended to occupy the field
(1) OR there is a strong or uniquely federal interest
(immigration)
a) Federal Common Law (Judicially created to protect strong
interest (Defense Tort Immunity Boyle)
(1) Judge created law to protect strong federal interests
(Boyle Defense contractor tort liability immunity)
a) Dormant Commerce Clause (Unified National Market, NOT
Exclusive;
(1) Strong Federal interest in a unified national market
i) NOT Exclusive because power can give back to states
power to impede commerce
(a) States have the ability to regulate so long as they
dont interfere with interstate commerce
(1) Analysis
i) Facial Discrimination ALMOST Per Se Invalid