JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer
I. Judicial Liberalism
a. The first term was synonymous with Judicial Restraint.
b. However, you can’t do your job if you’re not doing anything activist. No decision is going to be non-activist.
II. Selective Incorporation
a. The Framers of incorporation believed that the first Amendment was particularly more important than any of the others.
i. All of this is a game of balancing whether rights in a particular case more important to an ordered free society than the free hand the government has to use.
III. Sherbert v. Warner
a. Even though there are rules and stuff for working hours and wages and all, no matter what the intent was, the fact is that the 1st amendment free practice is more important than any policing of any corporation.
IV. Caroine Products Co. Case (1938)
a. Footnote 4 – the possibility that when the first Amendment is at stake in the litigation, you actually reverse the presumption of constitutionality. An act of legislature that directly infringes will be presumed unconstitutional, and the full burden of proof will be placed on the government. This footnote becomes the “Preferred Freedom Test”. Freedom will always be preferred.
Saturday, July 31, 2010
Constitutuional Law Notes: 07/29/10
JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer
I. Rights/Liberties
a. Liberties are guaranteed without the need for government confirmation. Rights are enumerated to the people by the government.
i. Liberty: Freedom of speech
ii. Right: Right to remain Silent.
b. The Miranda warning is simply moving the constitutional guarantees are protected in the court an also on the street.
II. Liberties
a. You will find that the liberty debates in the notes change a lot in the language. Madison’s language is very different. The 1st amendment has the most significant changes.
i. 1st Amendment included the right of conscience, the right of religious believe or akin that doesn’t necessarily have to be directly tied to religion. This disappears.
III. Barron v. Baltimore (1833)
a. Marshall rules that the Bill of Rights were intended as limitations on the central government. Technically correct.
i. On two centuries of hind sight, he would’ve said that the state v. federal limitations by the bill of rights is not applied to both equally, so it needs to be incorporated.
IV. Civil Rights Act of 1866
a. Struck down by the Supreme Court, but the same text was later recycled for the 14th Amendment.
b. Civil Rights Cases of 1883 – only state action violates the law. These say nothing about individual discrimination.
V. Incorporation
a. Total Incorporation – through the due process clause of section I of the 14th amendment, the bill of rights gets incorporated, and made applicable to the states at the same level of coverage as in the federal government.
i. Some rights are incorporated at different times because some are simply more important.
b. Case by case – fundamental fairness.
VI. Free Exercise of Religion Clause
a. Two things with respect: Belief and action. In the great scheme of legal things in the U.S., the free exercise of religious belief is pretty much absolutely guaranteed. The practice or action is a problem.
i. Belief: Private faith.
ii. Worship: Practice of faith in a designated time and place.
iii. Action: Most forms of religious action are protected. Polygamy was the first that was not protected. Handling live copperhead snakes during religious ceremonies.
iv. Proselytizing: Vigorous conversion by any and all means.
b. Minersville School District v. Gorbitis -
c.
Cuts off here...
Congressional Law, Dr. Marty Sheffer
I. Rights/Liberties
a. Liberties are guaranteed without the need for government confirmation. Rights are enumerated to the people by the government.
i. Liberty: Freedom of speech
ii. Right: Right to remain Silent.
b. The Miranda warning is simply moving the constitutional guarantees are protected in the court an also on the street.
II. Liberties
a. You will find that the liberty debates in the notes change a lot in the language. Madison’s language is very different. The 1st amendment has the most significant changes.
i. 1st Amendment included the right of conscience, the right of religious believe or akin that doesn’t necessarily have to be directly tied to religion. This disappears.
III. Barron v. Baltimore (1833)
a. Marshall rules that the Bill of Rights were intended as limitations on the central government. Technically correct.
i. On two centuries of hind sight, he would’ve said that the state v. federal limitations by the bill of rights is not applied to both equally, so it needs to be incorporated.
IV. Civil Rights Act of 1866
a. Struck down by the Supreme Court, but the same text was later recycled for the 14th Amendment.
b. Civil Rights Cases of 1883 – only state action violates the law. These say nothing about individual discrimination.
V. Incorporation
a. Total Incorporation – through the due process clause of section I of the 14th amendment, the bill of rights gets incorporated, and made applicable to the states at the same level of coverage as in the federal government.
i. Some rights are incorporated at different times because some are simply more important.
b. Case by case – fundamental fairness.
VI. Free Exercise of Religion Clause
a. Two things with respect: Belief and action. In the great scheme of legal things in the U.S., the free exercise of religious belief is pretty much absolutely guaranteed. The practice or action is a problem.
i. Belief: Private faith.
ii. Worship: Practice of faith in a designated time and place.
iii. Action: Most forms of religious action are protected. Polygamy was the first that was not protected. Handling live copperhead snakes during religious ceremonies.
iv. Proselytizing: Vigorous conversion by any and all means.
b. Minersville School District v. Gorbitis -
c.
Cuts off here...
Constitutuional Law Notes: 07/28/10
JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer
I. Economics
a. Four Periods of Economic Development
i. Marshall Period 1789-1835
1. There is a national economy and as such it is best to be regulated controlled, and it’s parameters enlarged by the national government. Congressional power comprehends all aspects of commercial life.” it is plenary, absolute, and it is complete power. It allows the legislature, to prescribe the rules in which commerce would be governed. Its exercise, would supersede any state attempts to regulate commerce. It included the regulation of economic activity even if conducted wholly within one state.
a. Taney period was possible because Marshall left out the word exclusive. The battle royal begins. The court is part of the national government and it takes sides.
ii. Taney Period 1835-1865
1. Taney Period: Taney is states’ rightist and argument for dual federalism reflects that. He said that this nation was one of constituently equal state. In Taney’s mind, it is “we the states” rather than “we the people.” Call him Lockian to the extreme. Believed in compact theory, but compact of states, not people.
a. What rights did the states retain? What’s left over goes to federal or central govt. Sovereignty has to be somewhere.
b. Dual federalism turns history upside down to the articles of confederation. Taney begins to allow state to regulate “intra state” commerce.
c. There’s very little of what we call “stream of commerce” that federal government can actually regulate.
c. Industrial Growth 1865-1932
i. Corporate America goes unregulated. Sugar Trust Case: 1890, first comprehensive anti-trust act. First attempt at national regulation on mega-scale. Things like monopolies would be questioned seriously. BC company is sugar trust monopoly, and Supreme Court rules that act doesn’t apply to sugar monopoly. Years later, rules that meat company out of Chicago does apply to the Sherman act.
ii. Cooley v. Port of Port Wardens: In the absence of national legislation, the states may temporarily regulate commerce until the national government properly enters the field. Under supremacy clause, national supremacy supersedes state supremacy. If we’re talking about something that requires national regulation and the national government is regulating, than an area of life goes unregulated.
iii. It is the court that will determine the legality of action taken by government and by the states. Set itself up as group of platonic guardians.
i. Think about what the government does: it’s main contribution to the economy during the latter part of the 19th century: building of the transcontinental railroads. Laissez-faire (Let alone) Did the government let the economy alone? Do you think these railroads would have been built if money hadn’t been given?
iv. EC Knight- government using Sherman act to pull back monopoly. Supreme Court had problems here. Is it the physical trip across numerous state lines?
i. When an issue comes up, major issues will remained unresolved. If production of something takes place within one state, it can’t be regulated as interstate commerce.
ii. The minute the court recognizes national economy, congress can regulate the national economy. It doesn’t matter if goods are manufactured with the intention on going to another state, it only becomes interstate commerce when it begins its journey in interstate commerce.
iii. According to the courts, the Sherman Act didn’t address monopolies or this issue. It was just to restrain states from forming together to make monopolies.
d. New Deal 1933-N/A
i. 1933-1935 Relief Acts were completely upheld by the Supreme Court.
i. 1935 – Unconstitutional delegation of legislative power to the executive finally forced the courts to rule unconstitutional.
ii. Railroad Retirement Board v. Alton Railroad Company (1935) – the idea was that the company challenged the board that thought it would be appropriate for Railroad workers to put them under retirement funds. Because this is just a beneficiary to the worker, it’s not commerce at all! Finally there is something that you can’t rule away with the Commerce Clause.
iii. Checter Poultry v. U.S. (Hot Chicken Case) – the NIRA is declared unconstitutional.
Two Economic Systems – Socialism for the rich and Capitalism for everybody else.
Note: Primaries were instituted by the time Regan was in business because it is such a big business! When only state legislatures determine the candidates, it’s such a lack of revenue.
II. Property
a. From the genesis of this nation, property defined everything.
b. 1654 – Harrington wrote a book, The Commonwealth of Oceana, mostly talking about New England. He sets up a standard as to what a government from scratch should be doing in order to have some chance at a successful experiment.
i. If you’re going to create a democratic form, understand that you need to base it on a long term stability guarantee. Democracy on its own is not a stable government.
ii. His argument is to look around you, at the things that exist, and ask yourself, of all of the things that exist, what is the single most stable quality? By stable, Harrington is the one that is the most acceptable, appreciated, and is desirable to protect. PRIVATE PROPERTY.
1. Build democracy on private property.
III. Moarhead v. New York (1936) – five justices strike down the laws that establish the machinery to establish the wages for women and children in all industries. You can’t regulate industry in America!? Our freedom to establish contracts is unconstitutional by the due process clause.
IV. Heart of Atlanta Hotel v. -
Cuts off right there...
Congressional Law, Dr. Marty Sheffer
I. Economics
a. Four Periods of Economic Development
i. Marshall Period 1789-1835
1. There is a national economy and as such it is best to be regulated controlled, and it’s parameters enlarged by the national government. Congressional power comprehends all aspects of commercial life.” it is plenary, absolute, and it is complete power. It allows the legislature, to prescribe the rules in which commerce would be governed. Its exercise, would supersede any state attempts to regulate commerce. It included the regulation of economic activity even if conducted wholly within one state.
a. Taney period was possible because Marshall left out the word exclusive. The battle royal begins. The court is part of the national government and it takes sides.
ii. Taney Period 1835-1865
1. Taney Period: Taney is states’ rightist and argument for dual federalism reflects that. He said that this nation was one of constituently equal state. In Taney’s mind, it is “we the states” rather than “we the people.” Call him Lockian to the extreme. Believed in compact theory, but compact of states, not people.
a. What rights did the states retain? What’s left over goes to federal or central govt. Sovereignty has to be somewhere.
b. Dual federalism turns history upside down to the articles of confederation. Taney begins to allow state to regulate “intra state” commerce.
c. There’s very little of what we call “stream of commerce” that federal government can actually regulate.
c. Industrial Growth 1865-1932
i. Corporate America goes unregulated. Sugar Trust Case: 1890, first comprehensive anti-trust act. First attempt at national regulation on mega-scale. Things like monopolies would be questioned seriously. BC company is sugar trust monopoly, and Supreme Court rules that act doesn’t apply to sugar monopoly. Years later, rules that meat company out of Chicago does apply to the Sherman act.
ii. Cooley v. Port of Port Wardens: In the absence of national legislation, the states may temporarily regulate commerce until the national government properly enters the field. Under supremacy clause, national supremacy supersedes state supremacy. If we’re talking about something that requires national regulation and the national government is regulating, than an area of life goes unregulated.
iii. It is the court that will determine the legality of action taken by government and by the states. Set itself up as group of platonic guardians.
i. Think about what the government does: it’s main contribution to the economy during the latter part of the 19th century: building of the transcontinental railroads. Laissez-faire (Let alone) Did the government let the economy alone? Do you think these railroads would have been built if money hadn’t been given?
iv. EC Knight- government using Sherman act to pull back monopoly. Supreme Court had problems here. Is it the physical trip across numerous state lines?
i. When an issue comes up, major issues will remained unresolved. If production of something takes place within one state, it can’t be regulated as interstate commerce.
ii. The minute the court recognizes national economy, congress can regulate the national economy. It doesn’t matter if goods are manufactured with the intention on going to another state, it only becomes interstate commerce when it begins its journey in interstate commerce.
iii. According to the courts, the Sherman Act didn’t address monopolies or this issue. It was just to restrain states from forming together to make monopolies.
d. New Deal 1933-N/A
i. 1933-1935 Relief Acts were completely upheld by the Supreme Court.
i. 1935 – Unconstitutional delegation of legislative power to the executive finally forced the courts to rule unconstitutional.
ii. Railroad Retirement Board v. Alton Railroad Company (1935) – the idea was that the company challenged the board that thought it would be appropriate for Railroad workers to put them under retirement funds. Because this is just a beneficiary to the worker, it’s not commerce at all! Finally there is something that you can’t rule away with the Commerce Clause.
iii. Checter Poultry v. U.S. (Hot Chicken Case) – the NIRA is declared unconstitutional.
Two Economic Systems – Socialism for the rich and Capitalism for everybody else.
Note: Primaries were instituted by the time Regan was in business because it is such a big business! When only state legislatures determine the candidates, it’s such a lack of revenue.
II. Property
a. From the genesis of this nation, property defined everything.
b. 1654 – Harrington wrote a book, The Commonwealth of Oceana, mostly talking about New England. He sets up a standard as to what a government from scratch should be doing in order to have some chance at a successful experiment.
i. If you’re going to create a democratic form, understand that you need to base it on a long term stability guarantee. Democracy on its own is not a stable government.
ii. His argument is to look around you, at the things that exist, and ask yourself, of all of the things that exist, what is the single most stable quality? By stable, Harrington is the one that is the most acceptable, appreciated, and is desirable to protect. PRIVATE PROPERTY.
1. Build democracy on private property.
III. Moarhead v. New York (1936) – five justices strike down the laws that establish the machinery to establish the wages for women and children in all industries. You can’t regulate industry in America!? Our freedom to establish contracts is unconstitutional by the due process clause.
IV. Heart of Atlanta Hotel v. -
Cuts off right there...
Constitutuional Law Notes: 07/26/10
JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer
I. Federalism
a. When you create a system of government that is divided between central authority and the people, you have to realize that one of the two must emerge more supreme.
b. Article VI, Clause 2 is the Federal supremacy, in Amendment X the states are supreme. If they conflict, it refers to Article VI.
i. Marshall - National Federalism/Supremacy.
1. Marshall’s system is built on the proposition that the federal government conflict with each other in a world of superior and subordinate government respectively. This is to protect national power from state encroachment.
a. He also realized that the Supreme Court is an agency of the government, so therefore the Supreme Court must win. These decisions of the contest between the states and national aren’t state friendly.
2. This theory is dropped after his death and re-emerges after FDR’s attack.
3. Gibbons v. Ogden – he left out the word “exclusive” which meant that the states did have a role to play.
ii. Taney – dual supremacy.
1. According to Taney’s view, the U.S. came up with the idea that there are totally sovereign states. The Constitution is a compact of the separate states, not an ordinance of the people. (Kinda contradictory?) The National Government and the states face each other as equals across a fine line. Basically argues that the Supreme Court is the final say on the constitutionality of any action.
a. Strange, there is nothing mentioned in the original constitution about states…
2. N.Y. v. Miln (1837) – “The authority of the state is complete, unqualified, and exclusive.”
a. This basically states by Taney that the states define first what their power is. When their power is determined, the federal government picks up the leftovers.
3. Chism v. Georgia – does the Supreme Court have the ability to decide something between an individual and the states? The court says yes. The power of the court to hear a question extends to controversies between an individual and a state. 11th amendment is quickly passed.
4. Note that if there should be Federal influence where there is nothing yet, the states operate until the Federal regulation can come in and the Federal Regulation supersedes it.
5. Hammer v. Dagenhart – mining and stuff is not commerce, but when it crosses state lines, it is inevitably commerce.
II. Printz v. U.S.
a. The court strikes down provisions on the basis that the federals may not compel the states to act a federal regulatory program, and in this case regulation of gun use.
III. National League of ___ v. Usery (1976) – Fair Labor Standards Act, Overtime pay clause. The original act specifically excluded the states form its coverage. 1974 added more provisions. By these amendments, Congress extended the minimum wage to all public jobs and political subdivisions. Rehnquist’s opinion – while the 10th amendment has been characterized as a truism, stating merely that all is retained what is not surrendered, the amendment expressly declares the constitutional policy that Congress may to exercise power that impairs the states’ integrity or the ability to function affectively in the federal system. We have repeatedly recognized that there are different attributes of sovereignty that are attached to the state governments that may not apply to Congress because the constitution prohibits it from exercising the authority in that manner.
IV. Pensylvania v. Nelson (1956) – Pennsylvania Sedition Act statute states that sedition against the state or the federal government is punishable, the dude is charged for federal threat of Communism. Does the Smith Act of 1940 (Not intended for Communism, just Nazism) supersede the Pennsylvania Sedition Act? They ruled yes. This was a Federal decision, not a Taney Dual Federalism decision.
V. New York and Saratoga Springs Commission v. U.S. (1946) – Issue is over bottled water. Can you put a federal tax on a state drawn resource of water? Yes. The Federal government is of all the states, so therefore they have to be under laws passed by Congress, so therefore the states had already approved it. Dual federalism can’t be applied.
Congressional Law, Dr. Marty Sheffer
I. Federalism
a. When you create a system of government that is divided between central authority and the people, you have to realize that one of the two must emerge more supreme.
b. Article VI, Clause 2 is the Federal supremacy, in Amendment X the states are supreme. If they conflict, it refers to Article VI.
i. Marshall - National Federalism/Supremacy.
1. Marshall’s system is built on the proposition that the federal government conflict with each other in a world of superior and subordinate government respectively. This is to protect national power from state encroachment.
a. He also realized that the Supreme Court is an agency of the government, so therefore the Supreme Court must win. These decisions of the contest between the states and national aren’t state friendly.
2. This theory is dropped after his death and re-emerges after FDR’s attack.
3. Gibbons v. Ogden – he left out the word “exclusive” which meant that the states did have a role to play.
ii. Taney – dual supremacy.
1. According to Taney’s view, the U.S. came up with the idea that there are totally sovereign states. The Constitution is a compact of the separate states, not an ordinance of the people. (Kinda contradictory?) The National Government and the states face each other as equals across a fine line. Basically argues that the Supreme Court is the final say on the constitutionality of any action.
a. Strange, there is nothing mentioned in the original constitution about states…
2. N.Y. v. Miln (1837) – “The authority of the state is complete, unqualified, and exclusive.”
a. This basically states by Taney that the states define first what their power is. When their power is determined, the federal government picks up the leftovers.
3. Chism v. Georgia – does the Supreme Court have the ability to decide something between an individual and the states? The court says yes. The power of the court to hear a question extends to controversies between an individual and a state. 11th amendment is quickly passed.
4. Note that if there should be Federal influence where there is nothing yet, the states operate until the Federal regulation can come in and the Federal Regulation supersedes it.
5. Hammer v. Dagenhart – mining and stuff is not commerce, but when it crosses state lines, it is inevitably commerce.
II. Printz v. U.S.
a. The court strikes down provisions on the basis that the federals may not compel the states to act a federal regulatory program, and in this case regulation of gun use.
III. National League of ___ v. Usery (1976) – Fair Labor Standards Act, Overtime pay clause. The original act specifically excluded the states form its coverage. 1974 added more provisions. By these amendments, Congress extended the minimum wage to all public jobs and political subdivisions. Rehnquist’s opinion – while the 10th amendment has been characterized as a truism, stating merely that all is retained what is not surrendered, the amendment expressly declares the constitutional policy that Congress may to exercise power that impairs the states’ integrity or the ability to function affectively in the federal system. We have repeatedly recognized that there are different attributes of sovereignty that are attached to the state governments that may not apply to Congress because the constitution prohibits it from exercising the authority in that manner.
IV. Pensylvania v. Nelson (1956) – Pennsylvania Sedition Act statute states that sedition against the state or the federal government is punishable, the dude is charged for federal threat of Communism. Does the Smith Act of 1940 (Not intended for Communism, just Nazism) supersede the Pennsylvania Sedition Act? They ruled yes. This was a Federal decision, not a Taney Dual Federalism decision.
V. New York and Saratoga Springs Commission v. U.S. (1946) – Issue is over bottled water. Can you put a federal tax on a state drawn resource of water? Yes. The Federal government is of all the states, so therefore they have to be under laws passed by Congress, so therefore the states had already approved it. Dual federalism can’t be applied.
Friday, July 30, 2010
Constitutuional Law Notes: 07/24/10
JSA Georgetown Summer Session II, 2010
Congressional Law, Dr. Marty Sheffer
I. Executive Power Cases
a. In re Negal (1890) – 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 Attorney 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.
i. This established the domestic peace of the United States.
b. In re Debbs (1895) – Socialist Eugene v. Debbs was arrested for publicly speaking against World War I and therefore used his ability as the head of the unions to stop the train system and so on despite warnings by the mayor and governor. The Supreme Court hears the case yet on the grounds of regulating commerce. Turns out, it was U.S. Mail that was trucking along those railroad lines, so therefore the executive must protect the trains, therefore Debbs’ arrest was constitutional.
i. The President has to maintain the welfare of the country, and therefore can use the full force of the nation to enforce it.
ii. Add the Prize Cases, which deals with war, automatically shows how the President’s power has grown.
iii. Ways to set Precedent:
1. Supreme Court Case
2. President does something illegal, yet no one stopped him.
c. Youngstown Sheet v. U.S. – the Steel workers left their jobs and Truman replaced them and socialized the steel industry. The Supreme Court ruled against this despite the precedents that during war times, the President can seize private property. May the president relying on inherent powers and relies on Commander in Cheif, can it usurp the authority of Congress? No.
i. Justice Jackson – delineates presidential power and determines when the power can be used. He bases the whole thing based on separation of powers has been violated. The president lacked the power to seize them based on Congressional consent. (Foot in mouth:) If the principle of separation of power prevents the president from doing anything the Congress may do, then by the very same token, it bares the Supreme Court from doing anything that Congress may do! That means that this entire case is kindof invalid.
ii. There are too many incoherent opinions, so it’s not a good precedent.
Note: The Courts can say what the Constitution is in any case during domestic tranquility. In an emergency, they have absolutely no say about what Article II, the powers of the President. The President determines over time and precedent what the Article II stipulates.
d. Humphrey’s Executor v. US – quasi-executive agencies, otherwise known as the bureaucracy or the 4th branch, have elements of both executive authority, and legislative authority. Humphrey on the Federal Trade Commission. According to Roosevelt, Humphrey should resign so that Roosevelt can appoint someone more aligned. So Roosevelt removes the poor basterd. Supreme Court ruled that you can fire them, but only with cause, not to have alignment. Because they are not purely executive, you can’t have purely removal. Myers was overturned and was changed to non-absolute.
i. Myers v. US (1926) – precedent that appointment and removal are absolute powers of the Chief executive.
e. US v. Belmont – Russia had invested some money in Belmont’s bank. So had the expropriation been recognized by treaty, he would have no case. There was no treaty, so therefore the laws of the State of New York prevailed. This was an executive agreement. This next time that this problem happened, there was a treaty. This treaty acts as though it is an amendment to the constitution. You can do the same thing with an executive agreement that you can do with a treaty. Does that also mean that an executive treaty could be an amendment to the Constitution? Does this increase the presidential power?
f. Ex parte Merryman – the decision in this that the suspension of habeas corpus is legal is not a good precedent because Lincoln completely disregarded it.
g. Korematsu v. United States (1944) – Presidential order 9066 was made, making the containment camps. Basically says that in time of war, the government can make any means to emerge victorious in a military conflict. (Legal racism?) This all happened due to haste, but if haste was the justification for the government, then look at the time chart.
i. Justice Jackson Opinion – A military commander may overturn the bounds of constitutionality and it is an incident, but if we review and approve of that passing incident, it will become the doctrine of the constitution. All that it creates will be of its own image, cease to exist as law, and only as war power.
h. Duncan v. Hawaiian Person – was the President's institution of Marshal Law after 1941 constitutional? Yes. Hawaii was just attacked at 1941. The war was over for a year when this case was heard, so they rendered the decision as FDR was dead.
i. New York Times v. U.S. – The government seeks an injunction from preventing the Pentagon Papers from being printed in 3 newspapers. Two highly placed people, Nixon as VP and Senate Majority leader LBJ didn’t agree with Eisenhower’s refusal to send ground troops to Vietnam.
j. Hamdi v. (2004) – Hamdi is an American citizen, is labled an enemy combatant. The question, does due process require that a held citizen as an enemy combatant be given a chance to explain himself?
i. Anyone detained as an enemy combatant is treated as if they were citizens.
True meaning of the Constitution (according to Merryman decision): “The constitution of the United States is a law for rulers and people equally in war and peace and covers with its shield of protection under all times and under all circumstances… [none] of its great provisions can be suspended during the great energies of war.
Congressional Law, Dr. Marty Sheffer
I. Executive Power Cases
a. In re Negal (1890) – 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 Attorney 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.
i. This established the domestic peace of the United States.
b. In re Debbs (1895) – Socialist Eugene v. Debbs was arrested for publicly speaking against World War I and therefore used his ability as the head of the unions to stop the train system and so on despite warnings by the mayor and governor. The Supreme Court hears the case yet on the grounds of regulating commerce. Turns out, it was U.S. Mail that was trucking along those railroad lines, so therefore the executive must protect the trains, therefore Debbs’ arrest was constitutional.
i. The President has to maintain the welfare of the country, and therefore can use the full force of the nation to enforce it.
ii. Add the Prize Cases, which deals with war, automatically shows how the President’s power has grown.
iii. Ways to set Precedent:
1. Supreme Court Case
2. President does something illegal, yet no one stopped him.
c. Youngstown Sheet v. U.S. – the Steel workers left their jobs and Truman replaced them and socialized the steel industry. The Supreme Court ruled against this despite the precedents that during war times, the President can seize private property. May the president relying on inherent powers and relies on Commander in Cheif, can it usurp the authority of Congress? No.
i. Justice Jackson – delineates presidential power and determines when the power can be used. He bases the whole thing based on separation of powers has been violated. The president lacked the power to seize them based on Congressional consent. (Foot in mouth:) If the principle of separation of power prevents the president from doing anything the Congress may do, then by the very same token, it bares the Supreme Court from doing anything that Congress may do! That means that this entire case is kindof invalid.
ii. There are too many incoherent opinions, so it’s not a good precedent.
Note: The Courts can say what the Constitution is in any case during domestic tranquility. In an emergency, they have absolutely no say about what Article II, the powers of the President. The President determines over time and precedent what the Article II stipulates.
d. Humphrey’s Executor v. US – quasi-executive agencies, otherwise known as the bureaucracy or the 4th branch, have elements of both executive authority, and legislative authority. Humphrey on the Federal Trade Commission. According to Roosevelt, Humphrey should resign so that Roosevelt can appoint someone more aligned. So Roosevelt removes the poor basterd. Supreme Court ruled that you can fire them, but only with cause, not to have alignment. Because they are not purely executive, you can’t have purely removal. Myers was overturned and was changed to non-absolute.
i. Myers v. US (1926) – precedent that appointment and removal are absolute powers of the Chief executive.
e. US v. Belmont – Russia had invested some money in Belmont’s bank. So had the expropriation been recognized by treaty, he would have no case. There was no treaty, so therefore the laws of the State of New York prevailed. This was an executive agreement. This next time that this problem happened, there was a treaty. This treaty acts as though it is an amendment to the constitution. You can do the same thing with an executive agreement that you can do with a treaty. Does that also mean that an executive treaty could be an amendment to the Constitution? Does this increase the presidential power?
f. Ex parte Merryman – the decision in this that the suspension of habeas corpus is legal is not a good precedent because Lincoln completely disregarded it.
g. Korematsu v. United States (1944) – Presidential order 9066 was made, making the containment camps. Basically says that in time of war, the government can make any means to emerge victorious in a military conflict. (Legal racism?) This all happened due to haste, but if haste was the justification for the government, then look at the time chart.
i. Justice Jackson Opinion – A military commander may overturn the bounds of constitutionality and it is an incident, but if we review and approve of that passing incident, it will become the doctrine of the constitution. All that it creates will be of its own image, cease to exist as law, and only as war power.
h. Duncan v. Hawaiian Person – was the President's institution of Marshal Law after 1941 constitutional? Yes. Hawaii was just attacked at 1941. The war was over for a year when this case was heard, so they rendered the decision as FDR was dead.
i. New York Times v. U.S. – The government seeks an injunction from preventing the Pentagon Papers from being printed in 3 newspapers. Two highly placed people, Nixon as VP and Senate Majority leader LBJ didn’t agree with Eisenhower’s refusal to send ground troops to Vietnam.
j. Hamdi v. (2004) – Hamdi is an American citizen, is labled an enemy combatant. The question, does due process require that a held citizen as an enemy combatant be given a chance to explain himself?
i. Anyone detained as an enemy combatant is treated as if they were citizens.
True meaning of the Constitution (according to Merryman decision): “The constitution of the United States is a law for rulers and people equally in war and peace and covers with its shield of protection under all times and under all circumstances… [none] of its great provisions can be suspended during the great energies of war.
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.
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.
Her Majesty Has Spoken.
It has been called to my attention during the JSA Constitutional Law class that I haven't updated my blog in a week. That is striking! But at the same time, has a poor explanation for it. I have been SOOO lazy, it really hasn't been funny and I have also been working intermittently on some case briefs and other things. But thank you, Lia Cromwell, for "respectfully" reminding me to get on my stuff.
Rehash of the last week? TOO many things. In fact, if I told you everything that has happened to me, I would have to kill you. And the sad fact is, that is completely true. I have made some new friends along the way, really great people, but have experienced JSA drama on an unprecedented level. Oh, and the cliques are solidifying at an exponential rate.
I will be announcing the Assistant Secretary of State for the Bureau of Public Affair Phillip Crowley's entrance today as we are going to the State Department for the speakers program. Here's my manuscript as to what I'm going to say:
"Hello fellow Junior Statesmen of America. It is my distinct pleasure and honor to introduce to you a man of great character and history. As a man of the people, he is the Assistant Secretary of State for the Bureau for Public Affairs, but as a man of government, he is a politician with teeth. Having experience in the Department of Homeland Security, the Presidential Clinton administration, and currently the Senatorial Clinton administration tank, he has also served in our Nation's Air Force, and a retired colonel after 26 years. Without any further delay, and as they occasionally say in the UAF, I welcome death from above, the honorable Philip Crowley."
I will be uploading all of my class notes in separate consecutive notes. Peace.
Chris Carl
"A people that values its privileges above its principles soon loses both." - Dwight Eisenhower
P.S. Happy birthday to Hillary Swank and Arnold Schwarzenegger, two of the hottest people alive.
Rehash of the last week? TOO many things. In fact, if I told you everything that has happened to me, I would have to kill you. And the sad fact is, that is completely true. I have made some new friends along the way, really great people, but have experienced JSA drama on an unprecedented level. Oh, and the cliques are solidifying at an exponential rate.
I will be announcing the Assistant Secretary of State for the Bureau of Public Affair Phillip Crowley's entrance today as we are going to the State Department for the speakers program. Here's my manuscript as to what I'm going to say:
"Hello fellow Junior Statesmen of America. It is my distinct pleasure and honor to introduce to you a man of great character and history. As a man of the people, he is the Assistant Secretary of State for the Bureau for Public Affairs, but as a man of government, he is a politician with teeth. Having experience in the Department of Homeland Security, the Presidential Clinton administration, and currently the Senatorial Clinton administration tank, he has also served in our Nation's Air Force, and a retired colonel after 26 years. Without any further delay, and as they occasionally say in the UAF, I welcome death from above, the honorable Philip Crowley."
I will be uploading all of my class notes in separate consecutive notes. Peace.
Chris Carl
"A people that values its privileges above its principles soon loses both." - Dwight Eisenhower
P.S. Happy birthday to Hillary Swank and Arnold Schwarzenegger, two of the hottest people alive.
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