/

CONSTITUTIONAL
Spring 2014

LAW

Professor Neal Katyal

katyaln@law.georgetown.edu
This course is a basic introduction to principles in constitutional law. We will study the
structure of our government, a structure defined by the Constitution, by Supreme Court
precedents interpreting the document as well as by practice and interpretation by the other
branches. The course centers around the question of division of power -- how power is divided
in our system of government, and why such divisions exist. The first part of the course centers
around the division of power between our three branches of government; the second part focuses
on the division of power between the federal government and the states. By the end of the
course, I hope you will gain an understanding of how the Constitution's novel division of power
checks abuse and enhances political accountability.

A central question raised by this course is what happens if we try to take the Constitution
of the United States seriously as a source of guidance in regard to the resolution of fundamental
political issues. As lawyers, you will all take a formal oath, similar to that taken by President
Bush and, indeed, similar to those taken by all public officials, to conduct yourselves within the
limits of the Constitution. What does that oath mean to you? What should it mean to other
public officials?
Much of the material in this course is historical. One implication ofthis approach is that
those of you who know some American history are at an advantage in the early part of this
course. This should not be a source of worry for the rest of you; as I've tried to provide you with
the relevant historical material. If you would like to consult additional historical background
material, two good sources are Link et ai., The American People; and Burner et al., An American
Portrait.
I will not kid you: this stuff is tough. Structural constitutional law is based on theory and
reasonable interpolation from practice and text, not on solid and unbreakable case precedent.
And so sometimes the discussion will be at a high and theoretical level. But it is my hope that
such theory will have concrete and helpful application, as the cases we will read will
demonstrate.
Your final course grade will be based on an in-class, open-book examination, as well as
class participation. The exam is scheduled for April 30.
Good luck, and welcome to the legal profession .

OTHER MA TIERS
I.

The assigned casebook is BREST,LEVINSON,BALKIN,ANDAMAR, PROCESSESOF

CONSTITUTIONAL
DECISIONMAKING
(5TH ED). There is also a packet of additional reading
material available at the distribution center. This packet will be supplemented later in the
term.

2.

I expect you to be prepared for class. If, on occasion, you are not prepared, please send
me an email beforehand.

3.

I expect to see you and hear from you in class.

4.

This class meets in 2 hour blocks on Mondays and Wednesdays. Because of a heavy
litigation schedule, class meeting times will sometimes have to be altered with very little
advance notice. For your planning purposes, however, it is probable that we will have
class on most of the following days: January 21, 23, 28, 30. February 4,6,25,27.
March 4,6, 20. April 1, 3, 8, 10, 15, 17, 22, 24.

I.

II.

III.

Preview
A.

Roe v. Wade (Supplement)

B.

Federalist Papers 47-51 (Supplement)

Case Study:
A.

The First & Second Banks of the United States

B.

McCulloch v. Maryland (1819) & Judicial Examination of Congress' Authority to

Create a Bank

Judicial Review
A.

Judicial Review of State Legislation (84-91)

1.

Judicial Review of Federal Legislation & Marbury v. Madison (1803) (108-36)

C.

Restrictions on Judicial Review

2.

A Note on Federal Judicial Review, Lochner v. New York (417-22)

B.

1.

IV.

Bank of the United States (1-84)

Jurisdiction Stripping, Political Questions, Standing, Mootness,

Justiciability (887-92)
a.

Powell v. McCormack (1969) (Supplement)

b.

Coleman v. Miller (1939) (Supplement)

c.

The 27th Amendment (477-81)

Congressional Power to Define Constitutional Rights, City of Boerne v.

Flores (1997) (629-49)

The Executive Branch in Conflict

A.

The Veto Power

1.

Legislative Veto. INS v. Chadha (1983) (795-817 note 8) -

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2.
B.

Line-Item Veto. Clinton v. City of New York (1998) (Supplement)

The Prosecution Power & Executive Privilege

1.

United States v. Cox (5th Cir. 1965) (Supplement)

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2.
C.

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United States v. Nixon (1974) (749-61)

The Appointment Power

1.

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The Independent Counsel Act. Morrison v. Olson (1988) (761-92) - l-<-<--

D.

War Powers

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Youngstown Sheet & Tube Co. v. Sawyer (1952) (819-41)

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VI.

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Return to Jurisdiction Stripping?

Federal Legislation Over States

A.

National League of Cities v. Usery (649-53)

B.

Garcia v. San Antonio Metropolitan Transit Authority (653-63)

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The Commerce Clause

A.

Hammer v. Dagenhart (441-49)

B.

United States v. Lopez (601-27)

C.

Case Study: The Affordable Care Act (Special Supplement)

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VII.

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Boumediene, Military Commissions and Hamdan v. Rumsfeld

(Supplement)

a.
V.

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Executive Detention and Hamdi v. Rumsfeld (841-87)

The Anti-Commandeering

Principle

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A.

New York v. United States (674-92)

B.

Printz v. United States (693-711)

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