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ARTICLES OF CONFEDERATION - approx. 10 years / weak centralized govt. / only legislature, no executive or judicial / no ability to tax or regulate trade / A. of C. abandoned at Constitutional Convention
CONSTITUTIONAL CONVENTION - Concerns - Fed. Govt. required: 1) Power to raise revenue without state intervention; 2) Power to regulate foreign commerce; 3) Power to levy import taxes and regulate interstate commerce; 4) Power to break down and prohibit commercial barriers among states; 5) Power to deal with national and state debts; 6) Power to ensure creditors have debts properly satisfied.
Art. I - Creates Legislative branch / sec. 8 - enumeration of Congressí power
Art. II - Creates Executive branch
Art. III - Creates Judicial branch
Art. IV - sec 1 - full faith & credit
Art. V - Amendment procedure
Art. VI - sec. 2 - Supremacy clause
X - Powers not delegated to U.S., nor prohibited to States, are reserved to the States
XIII - Congress passed civil rights laws pursuant to this article
XIV - More enumerated freedoms / restrictions
CHAPTER 1: NATURE & SCOPE OF JUDICIAL REVIEW
* Line between political/executive discretion and judicial authority not clear
* Any conflict between Const. and legis. Act(statute) resolved in favor of Const. (Marbury - Marshall)
* Court decides rights of individuals, not how Exec. branch officers perform discretionary duties
* (Deference) affirm constitutionality of statute if Congress has rational basis / if Bill of Rights at issue = more scrutiny.
* In the interest of Uniformity, state courts must not interpret statutes, treaties, or the Const. differently (Martin)
- Art. III - U.S.S.C. jurisdiction/review over all federal law Qís / cases arising under Const./laws/treaties of U.S.
- issue must have been raised in lower court for U.S.S.C. to hear it on appeal
- Review by Certiorari(discretion, not a right) or Certification
- Rule of Four - takes 4 justices to put a case on the courtís plenary docket
- Congressional power to affect jurisdiction of Fed. courts, may grant less authority, never more.
- No jurisdiction to redetermine issues of state law
- Marbury & Martin - established U.S.S.C. ability to determine constitutionality of exec. & legis. actions.
- Nonjusticiable (involving pol. Q.) - either 1) Textually demonstrable constitutional commitment to a coordinate political dept., or 2) a lack of judicially discoverable and manageable standards for resolving it.
- Judiciary - fragile, no army, no power / issues too fact complicated / sep. of powers / unseemly / impossibility of deciding issue without making policy decision / difficulties enforcing / disrespecting another branch (intrusion)
CHAPTER II : NATIONAL LEGISLATIVE POWER
-Art I, sec. 8, #18 (enumerated powers) - Necessary & Proper Clause - power to make laws
- Sources of power outside Art. I exist - XIV Amend., power to establish judiciary, etc.
McCulloch (Marshall)(Creation of national bank)(Maryland challenge)
- Let the ends be legitimate, means not prohibited are constitutional - necessary = appropriate
- Constitution = great outlines marked, important objects designated, minor ingredients deduced
- lay & collect taxes / borrow $ / regulate commerce / declare & conduct war - raise & support army/navy
- Framers must have intended to give legislators the ability to execute granted powers.
NATIONAL COMMERCE POWER
- Art. I sec. 8 - gives powers where national legislation is essential & where states are separately incompetent
Gibbons (Marshall)(N.Y. steamboat)
- Congressí power to regulate commerce between/among the states is plenary
- 1st great ìTrustî decision - Emancipation Proclamation of American commerce - 1st railroad 5 years later
- Led to N.Y. emergence as a commercial center
- Commerce Clause - enumerated power most directly concerned with business, economic, & commercial matters.
-Commerce Clause extensions - Disfavored local activities (gambling, prostitution, distribution of unhealthy food or mislabeled drugs, loan sharking) / Discrimination based on race, sex, or age / Labor relations or Wages in local factory / activities harmful to environment / Crop production & use
- Congress may regulate commerce for any reason it sees fit (economic, moral, safety), subject only to specific prohibitions of Constitution.
- FDR - ìcourt packing planî threat = court retreat to deference on comm. cl. issues.
- ìdirect effectî on commerce no longer required - Substantial Effect/Impact is the proper inquiry
-îCumulative effectsî doctrine - if everyone did it . . .
- 10th Amendment considerations?
- 3 ways to challenge law - 1) Broad attack ( C.C. doesnít support, 5th Amend.) law on its face invalid; 2) Narrow attack (C.C., 5th) law as applied in this instance; 3) Narrowest attack (beyond scope, authority) implementation/application of law = Congress never intended this.
* Court must defer to Congressional finding that a regulated activity affects interstate commerce if any rational basis is offered = judicial task at an end.
3 categories of activity Congress may regulate under commerce power
1) The use of the channels of interstate commerce
2) The instrumentalities of I.C., or persons or things in I.C.
3) Activities having a substantial relation to, or substantially effect on I.C.
NATIONAL TAXING & SPENDING POWER
- Art. I sec. 8 - grants Congress power to lay & collect taxes, duties, imposts & excises, to pay the debts and provide for the common defense & General Welfare of the U.S.
- Courts have long recognized that Congress may use its taxing power both to enforce its regulatory powers and to produce ìincidentalî regulatory effects.
- TAXES - 1) raise revenue; 2) regulate (encourage, discourage) behavior
* Power to tax not unlimited, its confines are set in the clause which confers it
* Congress act valid if addressing a legitimate national concern.
* Must not be coercion, but a condition which the state is free to disregard or fulfill
Spending Power subject to several limitations
1) Language of Const. - exercise must be in pursuit of general welfare
2) If receipt of federal grants conditional, it must be unambiguous
3) Conditions on federal grants must be related to federal interest
4) Other Const. provisions may bar action
5) Statute does not call for surrender of essential state power (essential to quasi-sovereign existence)
FOREIGN AFFAIRS POWER
- Treaties - national interest of high magnitude / interest can only be protected by national action in concert with that of another power / subject matter transitory within the state
* No agreement with a foreign nation can confer power on Congress, or any other branch of govt., which is free from constraints of the constitution.
- Constitution & laws made in pursuance thereof are supreme, they control the constitution and laws of the respective states.
Corollaries - 1) A power to create implies a power to preserve - 2) A power to destroy, if wielded by a different hand, is hostile to, and incompatible with, those powers to create and preserve - 3) That where this repugnancy exists, that authority which is supreme must control, not yield to that over which it is supreme.
* An economic burden on traditional state functions, without more, is not sufficient to sustain claim of immunity
* Regarding taxation - is source of revenue uniquely capable of being earned only by the state?
* State and local municipalities enjoy no more exclusive immunity than do citizens of the states
* Const. limitation on Comm.Cl. to protect the states is one of Process, rather than one of result - Court will intervene when political system completely breaks down, not if one party simply loses a political dispute.
National League of Cities balancing test - Fed. needs vs. Local interests (financial impact, local accountability, etc.)
4 Prerequisites for governmental immunity - 1) Fed. statute at issue must regulate the ìstates as statesî - 2) Statute must address matters that are indisputably attributes of state sovereignty - 3) State compliance with the fed. obligation must directly impair states ability to structure integral operations in areas of traditional state govt. functions - 4) Relation of state and fed. interests must not be such that the nature of the fed. interest requires state submission.
2 Congressional methods to urge a state to adopt a legislative program consistent with fed. interests
1) Congress may attach conditions on the receipt of fed. funds (South Dakota v. Dole)
2) Where Congress has power under Comm. Cl. to regulate private activity, Congress has power to offer states the choice of regulating that activity according to fed. standards or having state law preempted by federal regulation (Hodel)
* Unfunded mandates disfavored
CHAPTER III: DISTRIBUTION OF FEDERAL POWERS - SEPARATION OF POWERS
PRESIDENTIAL ACTION AFFECTING CONGRESSIONAL POWERS
*Presidential Powers Fluctuate depending upon their disjunction or conjunction with those of Congress
-Maximum Authority - Acts pursuant to express or implied Congressional authorization
-Zone of twilight - Acts in absence of Congressional grant or denial of authority
-Minimum Authority - Measures incompatible with express or implied will of Congress, Pres. may only rely on his own Const. powers minus any Congress has over the matter.
CONGRESSIONAL ACTION AFFECTING PRESIDENTIAL POWERS
* Art. 1 sec. 7 - detailed, specific requirements for enacting laws, Congress may not alter the procedures set out in this article without amending the constitution.
Delegation - Congress may decide that it cannot make the necessary detailed decisions after it has legislated an issue, it may then turn to the executive or judicial branch to implement the details
* Stututorily prescribed executive (delegated) exercise of judgment provides no objection
* Essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct.
* Lawmaking is separate from law implementation, if Congress intends to retain implementation powers, it must follow law making requirements of Art. 1 - bicameralism, presentment (Framers required these)
- 4 provisions in const. allowing one house to act alone with unreviewable force of law, not subject to presidential veto: 1) House power to initiate impeachment; 2) Senate power to try and convict on impeachment charges; 3) To approve or disapprove of Pres. appointments; 4) To ratify treaties
* Law may be severable, unconstitutional portion may be struck without disbanding the whole bill
* Structure of Const. does not permit Congress to execute the laws = Congress cannot grant to an officer under their control what it does not possess (retaining removal power = control) = intrusion into the executive function
- Art. II grants power over superior (as opposed to inferior) executive branch officers to president alone.
FOREIGN AFFAIRS AND WAR POWERS
* Marshall - ìThe Pres. is the sole organ of the nation in its external relations, and its sole representative with foreign nations
* When Pres. action is taken pursuant to Congressional authorization, it is supported by the strongest of presumptions and is given the widest latitude of judicial interpretation.
Executive Orders - Constitution sometimes grants authority (most denied exec. orders are on const. grounds) / Congress - Admin. R & Rís = green light = implicitly authorized by legis. / Treaties, once ratified, can authorize actions taken pursuant to its implementation
EXECUTIVE PRIVILEGE & IMMUNITY
Madison v. Marbury - Art. III sec. 1 - vests judicial power of U.S. in fed. courts - ìIt is emphatically the province and duty of the judicial dept. to say what the law is.î
* Absent a claim of need to protect Military, Diplomatic, or sensitive National Security Secrets, the President DOES NOT enjoy an absolute, unqualified privilege of immunity from the judicial process in all instances
* The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial - 6th Amend. ìcompulsory processî & 5th Amend ìdue processî
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