Constitutuional Law Notes: 07/23/10

JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer

Government by Congress does not work well in abnormal times.

You can’t campaign as if you were president already, you have to campaign as a people person, and as president assert yourself higher as soon as you get to be president.

Coyle v. Smith (1911) – Oklahoma was admitted as a state into the Union in 1906. Congress provided that the capital would be located in Guthery in 1913. The State Congress moved the capital to Oklahoma City. If this territory wants to become a part of the states, then Congress has the complete authority to make whatever they want in order to make it a state. The Court asks a second question. Will those limitations be binding after admition as a state? No. So Guthery had to be the capital as a territory, but as soon as it was a state, it could change its mind.

So if Congress can impose its authority before a state becomes a state, why can it not maintain that authority after the territory becomes a co-equal state? It’s all up to Congress. So long as Congress doesn’t have the intent, you will have a power vaccum to be filled by executive authority. You better pray that he’s able.

I. Presidential power
a. Boils down to several items: executive power (mainly an introduction clause), commander in chief, “take care”, recognition, treaties, executive agreements.
b. It is apparent however that Congress is the most powerful branch. The Framers were mostly considering the equality of ability to abuse power.
i. Lincoln takes the top three, makes it a resulting power (add powers together and get more power than its components) called war power. Go to Section 50 of U.S. Code and you will see emergency statutes from 1792. Gives the President absolute power with a kiss of legality.
ii. Emergency is where any of the regular procedures of government cannot operate the way they should.
c. The development of presidential power was not really inherited through evolution of the Constitution. Presidents have simply broken the law at times and were supported by the people and other branches.

Prize Caseo (1863) – a blockade is an international declaration of war.

Clinton v. New York (1997) –
US v. Nixon (1997) -
Line Item Veto Act of 1996 – allows the president to veto individual sections of bills.
The President’s immunity begins the day he takes office and leaves the day he leaves. There will be a degree after he leaves.
When a President takes an action that is unconstitutional and it gets contested in the courts, the lower courts would be upheld except in emergency declarations.

Kendal v. US (1839) – 6 votes, but 6 different opinions. It has no precedential weight.

In re Negal – there is nothing in the federal statutes that allows for an US Marshall to be assigned to a sitting justice to act as a bodyguard. Furthermore the appointment was made by the Attorney General. However, since the Attourney General, an inferior executive officer did it, the President must be able to do it, so therefore it is legal. It is ultimately that the President should preserve national peace, so the ruling was that the Marshall was protecting the Justice, therefore protecting justice, therefore protecting peace.