CONSTITUTIONAL LAW

Williams, Spring 2005

I. JUDICIAL REVIEW
A. Supreme Court’s Authority
1. SC = ultimate interpreter of law: Article VI states that the constitution is the “supreme
law of the land.” In Marbury v. Madison, the US Supreme Court declared, “it is
emphatically the province and the duty of the judicial department to declare what the law
is.”
a. Federal legislation and state actions: Federal courts have the power to review the
constitutionality of federal legislation and state actions. Marbury.
b. State court decisions: Federal courts also have the power to review state court
decisions, but only if the case arises out of federal law and there is no “independent
and adequate” state grounds for the court’s decision. Article III; Martin v. Hunter’s
Lessee.
c. Policy behind judicial review: Since the constitution is silent, it is more practical to
have an ultimate arbiter, and that should be the Sprm. Ct. because they can protect
the interests of the minority because they are not subject to political pressures.
2. Congress power to limit Jurisdiction of SC: Under Art. III, §2, congress has the general
power to limit the appellate jurisdiction of the Court; however, it may not expand the SC’s
jurisdiction beyond the federal judicial power. (Ex-Parte McCardle).
a. From this case comes the idea that if congress gives a list of powers in a statute
expanding the courts appellate jx, anything not listed is prohibited. Today, there
must be a statutory grant for any appeal.

B. Is State Being Sued?: State Immunity under 11th Amendment

1. State governments cannot be sued in federal court or state court without their consent.
a. Exceptions when state governments can be sued:
i. Waiver: states may waive 11th Amendment waiver and can be sued. But
state’s must expressly waive right.
ii. The federal government may sue state governments: No sovereign
immunity bar in such actions.
iii. State governments may be sued pursuant to federal statutes adopted by
Congress under section 5 of the 14th amendment: Section 5 of the 14th
amendment authorizes congress to make laws to enforce 14th amendment.
1. Example: Title VII of Civil Rights Act. State governments can be
sued for violating Title VII.
2. State officers may be sued in federal court: even where state government can’t be sued,
state government official can be sued. But what’s not allowed
a. Example: state officers can be sued for injunctive relief. To stop California law,
can’t sue state, but can sue state attorney general.

C. Case/ Controversy Requirements

1. Introducing rule: The court will only hear suits involving a concrete controversy, and will
not issue advisory opinions. To prevent advisory opinions, the suit must meet the following
requirements:
a. issue is not a political question;
b. issue is not moot;
c. issue is ripe; and
d. complainant has standing;
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2. Political Questions: The Court will not hear political questions.
a. Determining if political question: Per Baker v. Carr, to identify whether the issue
is considered a political question that should not be decided by the Court, the court
looks at whether there is:
i. a textual commitment to an alternate branch of the government; and/ or
1. Nixon v. US: Congress has the sole power of deciding to impeach
someone – judicial branch has no power to look at this decision (it is a
political issue).
ii. an absence of judicially manageable standards to decide the issue;
1. Bush v. Gore: can’t come up with a method to recount votes properly,
so no judicially manageable standards.
iii. Other secondary things to consider:
1. impossibility of deciding without a policy determination that is not for
judicial discretion
2. no way for an independent resolution without showing lack of respect
for another branch
3. need for unquestioning adherence to a decision already made
4. potential for embarrassment from a variety of announcements by
different governmental departments on one question.
b. Note: Don’t confuse things having to do with politics and political questions!!
Things having to do with politics are not necessarily political questions.
3. Mootness: prevents courts from hearing cases when events subsequent to the institution of
the lawsuit have deprived the P of a stake in the action. If events after the filing of a lawsuit
end the P’s injury, the case shall be dismissed as moot. A P must present a live controversy,
an ongoing injury, at all stages of the federal court proceedings. If anything happens to end
the injury, the case is dismissed as moot.
a. Exceptions, where court can hear case even if P’s injury ends:
i. Wrongs capable of repetition but evading review: Some injuries will
happen over and over but the injury will end before adjudication. If chance it
will happen again, court can decide case even if P’s injury is over.
1. Example: Roe v. Wade. At time P was pregnant and seeking abortion.
By time case was decided she was no longer pregnant – injury was
over, but nonetheless court decided issue because it was a wrong
capable of repetition but evading review.
ii. Voluntary cessation: If D voluntarily halts offending practice, but is free to
resume it at anytime, case will not be dismissed as moot.
1. Example: Employer sued for racially discriminatory hiring practices.
Employer says he will stop using test, but legally employer is free to
start using test again. If legally binding settlement, then case would
be dismissed. So long as it is just voluntary cessation and D can
resume practice, case will not be dismissed.
2. Ripeness: Bars courts from deciding cases that are premature – too speculative or remote to
warrant judicial intervention. A ripeness issue will come into play where a person wants to
challenge a law without violating it – declaratory judgment. Court must be sure there is a
case or controversy.
a. Two criteria court will review:
i. Hardship that P will suffer without pre-enforcement review: Greater the
hardship, the more likely court will decide the case
ii. Fitness of the issues and record for judicial review: Simply means does
the federal court have all that it needs to effectively decide the case.
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4. Standing:
a. Two Types of Standing Requirements:
i. Article III Standing Requirements. The party invoking federal jurisdiction
bears the burden of establishing the following Article III Standing
Requirements:
1. Imminent and concrete injury in fact
a. Type of injury: The injury may be either a present injury or a
threatened injury, so long as the threat is not too speculative or
remote (it's imminent). (Examples: violations of common law
rights - torts, breach of K, invasion of property - violations of
constitutional rights, violations of statutory rights.)
b. Future harm/ injunctive or declarative relief: P seeking
injunctive or declarative relief must show a likelihood of
future harm. Example: Guy seeks injunction against police
from using chokehold can’t show likelihood of future harm, so
no standing.
2. Fairly traceable to the challenged conduct (conduct is the but-for
cause of injury)
3. Likely to be redressed by the Court
a. In other words, Court can fashion some relief that can alleviate
the injury P is suffering
b. Causation and redressability: the P must show that the D
caused the harm so that a favorable court decision is likely to
remedy the harm. This prevents court issuing advisory
opinions. The best way to do this is to show that D caused the
harm. Example: Homeless people turned away from hospital.
They sue IRS to change revenue rule. Court dismissed b/c
changing revenue rule wouldn’t necessarily change free care.
4. Allen v. Wright
ii. Prudential bars to suit (look to see if Congress has waived them): In
addition to the Article III standing requirements, a party must meet Prudential
standing requirements, unless Congress has taken action to override the
Prudential bars to suit. FEC v. Aiken; Lujan. There are three prudential bars
to suit:
1. Cannot be a generalized grievance
a. A generalized grievance is when P’s only claim is a citizen or
a taxpayer objecting to his government violating the law.
What’s key to remember is that P must not be suing solely as
citizen or taxpayer. This is a matter of degree.
b. Issue: Whether P can distinguish himself from the mass
citizenry?
2. Must claim a personal right as basis for injury, not the rights of
third parties – Bar justerii
a. Doesn’t come into play unless a party otherwise has Article III
standing
b. Exceptions (P must still meet other standing requirements):
i. Third party standing is permitted if close
relationship btwn P and injured third party.
Example: Doctor-patient relationship. Doctors
challenge law that affects patients.
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 ii. Third party standing is allowed if the injured third
party is unlikely to be able to assert his own rights.
Example: Criminal Ds have third-party rights to raise
the rights of prospective jurors in jury selection to be
free from discrimination.
3. Must be within the zone of interest protected by the constitution
or statutory provision invoked
a. This deals with statutes
b. “I don’t expect you to apply this on exam.”
4. CITE: Lujan
iii. Congress can waive Prudential requirements: Congress does not have the
power to waive/ override constitutional standing requirements, but does have
the power to waive prudential standing requirements. So if Congress has
taken action to override prudential requirements, then it is ok. FEC v. Aiken.
1. Exam: So look to see if the statute overrides prudential standing
requirements.
b. Associational/ Organization Standing: To get associational standing, a person
must meet the following elements:
i. at least one of its members would otherwise have standing to sue in their
own right;
1. At least one member must meet all the standing requirements. So in
addition to the other requirements, at least one member must have
suffered a personal injury in fact. For example, Sierra club protests
park being destroyed. At least one member must have walked
through park to allege personal harm.
ii. the interests the association seeks to protect are germane to the
organization’s purposes; and
iii. neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.

II. POWERS OF CONGRESS

A. Exam Questions to Ask:
1. What does the statute authorize?
2. Can Congress validly authorize this activity under some power granted to it by the
Constitution?
a. First, ask if Congress is authorized under commerce clause (go through three
categories). Then if not, go through Congress’s other powers.
b. War and Treaty power?
c. Taxing and Spending Power?
3. If conflict btwn federal and state law, under the Supremacy clause, federal law trumps state
law.

B. Necessary and Proper Clause, Article 1, § 8: Under the "Necessary and Proper" clause of
Article 1, §8, if Congress is seeking an objective that is within the enumerated powers of the
Constitution (i.e., commerce clause, taxing, spending, war, treaty, equal protection), then Congress
can use any means that are rationally related to the objective Congress is trying to achieve provided
it is not specifically prohibited by the Constitution. McCulloch v. Maryland.
1. Example: Congress can raise and army and navy. Congress makes law to have national
bake sale for army and navy. Nothing in constitution about bake sale, but congress can
make a bake sale to raise army.
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C. City of Boerne Test/ Equal Protection Clause, 14th Amendment, §5
1. Under section 5 of the 14th amendment, legislation which remedies constitutional violations
can fall within the sweep of Congress's enforcement power under section 1 of the 14th
amendment, ((even if in the process it prohibits conduct which is not itself unconstitutional
or intrudes into legislative spheres of autonomy previously reserved to the states)) provided
the legislation 1)remedies a violation recognized by the courts and 2)the remedy is a
proportional and congruent response to the violation. City of Boerne. ***The Court, not
Congress, is the final interpreter of the 14th Amendment, section 1. Marbury. (So it doesn’t
matter if Congress thinks there was a violation and the response is congruent – that is the
court’s job.)
a. Questions to ask:
i. Violation of legal/ constitutional right?
ii. Is legislation proportionate to the violation?
1. Example: City of Boerne: Is the means to reach the end proportional
and congruent with that end? No. The legislation was too sweeping.
This is not congruent to the problem that Congress may permissibly
address under 14th amendment. So this can’t be justified as “remedial”
legislation.

D. Commerce Clause:
1. Three Categories Congress Can Regulate: Per Lopez, Congress may regulate three broad
categories of activity under the Commerce Clause of Article I, §8:
a. the use of channels of interstate commerce (Gibbons); the channels of interstate
commerce are the places where interstate commerce occurs.
i. Examples: Navigable waters, highways, waterways, and air traffic.
ii. Page 180 of E and E.
b. the instrumentalities of interstate commerce or the persons and things in
interstate commerce, even though the threat may come only from intrastate
activities (Shreveport Rate Cases; Katzenbach); “instrumentalities” are things that
facilitate interstate commerce
i. Examples: Planes, trains (Shreveport Rate Cases), automobiles, trucks,
telecommunications (telephones, etc.), internet, radiowaves, stock, insurance,
cattle.
ii. Page 187 of E and E.
c. commercial activities having a “substantial” effect on interstate commerce
(Wickard; Morrison; Lopez);
i. Commercial activity - Aggregation effect: Under the aggregation effect of
Wickard, if the activity itself is “commercial,” it doesn’t seem to matter
whether the particular instance of the activity affects interstate commerce, as
long as the instance is part of a general class of activities that, collectively,
substantially affect interstate commerce. So even purely intrastate activities
can be regulated if they’re directly “commercial.”
1. Example: Wickard: D’s own wheat-growing activities are in a sense
“commercial,” but they’re entirely intrastate; however, when taken
together with all other wheat-growing there is a substantial effect on
interstate commerce, so Congress could regulate it.
ii. Non-commerical activity: But if the activity is not commercial, then there
must be a pretty obvious connection btwn the activity and interstate
commerce. Lopez; Morrison.
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 1. Example: Lopez. Guns in school zones is not commercial activity.
No obvious connection btwn the activity and the interstate commerce,
so Congress can’t regulate it.
iii. Environmental issues: Environmental issues will be difficult: it can depend
on whether you characterize the activity as economic or non-economic. Cite
Babbitt: court found statute regulating Dehli Sands Flower Loving Fly fell
within the commerce clause b/c it fell within category one and three of Lopez.
It fell within category one because: First, the prohibition against takings of
an endangered species is necessary to enable the government to control the
transport of the endangered species in interstate commerce. Second, the
prohibition on takings of endangered animals falls under Congress' authority
" 'to keep the channels of interstate commerce free from immoral and
injurious uses.' per Heart of Atlanta. ***It fell within category three because
it had a substantial effect on interstate commerce due its potential effect
(biodiversity argument).
a. Arguing environmental issue is economic:
i. **Biodiversity (potential effect) argument: the
availability of a large number of animal and plant
species has a substantial effect on interstate commerce.
Each species is important under this argument b/c it is
the number of species that matters, not the
characteristics of any particular species. Biodiversity
is valuable b/c it improves the probability that we will
find a species that possesses the medicinal, nutritional,
or other benefit we seek. The likelihood of finding a
cure of AIDS or for cancer is greater if there are
millions of species of plants to investigate for possible
resources instead of only hundreds of species of plants
available.
ii. Ecosystem argument: the loss of any individual species
affects the ecosystem of which it is part. This
argument works if a species is crucial to an ecosystem
that plays a role in interstate commerce. But this could
be weak b/c it’s unknown if the loss of a species will
have an actual affect on ecosystem and if that
ecosystem is actually tied to interstate commerce.

E. Taxing and Spending Powers

1. Taxing and Spending Power: Under Article I, §8, Congress can create any tax to raise
revenue, and any scheme to spend it that Congress believes will benefit the general public.
This is an independent source of congressional power, which means it can be used to reach
conduct that might be beyond other sources of congressional power, like the Commerce
Clause. However, Congress cannot coerce states to comply with regulations that restrict
state’s rights. Butler.
a. Spending Power Limitations: Per South Dakota v. Dole, the spending power is
limited to several restrictions:
i. First, the exercise of the spending power must be in pursuit of the
“general welfare,” (Butler). In considering this restriction, courts should
defer substantially to the judgment of Congress. Analyze: Has Congress
offered evidence that it is in support of the general welfare? Easy to satisfy.
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 ii. Second, if Congress desires to condition the States’ receipt of federal
funds, it must do so unambiguously; Analyze: Is it ambiguous?
iii. Third, whether the condition imposed is related to the expenditure;
Analyze: Are conditions related to federal interest?
1. Example: South Dakota v. Dole: Any state accepting federal highway
funds must enforce drinking age of 21. Court said this condition was
directly related to the one of the purposes of the highway funds: safe
interstate travel. Higher drinking age helps promote safe interstate
travel, so it's related to the expenditure.
iv. Finally, other constitutional provisions may provide an independent bar
to the conditional grant of federal funds. Williams said: If power exists, is
it limited by a prohibition? He said this gets confusing.
v. ((Whether financial inducement passes to the point of coercion, in which
case it must be upheld, if at all, as a regulation.))
2. So, questions to ask:
a. Is the exercise of the spending power in pursuit of the general welfare?
b. Is the condition unambiguous?
c. Is the condition related to the expenditure/ federal interest?
d. Are there other constitutional provisions that may provide an independent bar to the
conditional grant of federal powers?

F. War Power/ Treaty Powers

1. War Power: Under Article I, §8, Congress has the power to declare war. This war power
includes the power to remedy the evils which have arisen due to the war and does not
necessarily end with the cessation of hostilities. Woods.
a. Example: Woods – Congress was attempting to put ceilings on rent as people came
back from war and needed placed to live. Prices were raising because there were not
enough apartments to accommodate all people. The court said this could be
sustained because of the effect of the war on the building efforts during the war were
reduced.
2. Treaty Power: Under the Necessary and Proper clause, Congress has power to implement
the provisions of a treaty though legislation even when there is no independent power to
pass such legislation. Missouri v. Holland.
a. Example: Holland: A treaty between US and Britain provided for certain closed
seasons and protection of certain birds. Congress then enacted an Act that prohibited
killing these birds included in the terms of the treaty. MO said that it was
unconstitutional. The court sustained the act saying that the power was under the
necessary and proper clause (Art I, §8).

G. Is Congress Compelling the State?: If Congress is not authorized by a Constitutional power to

regulate an activity, then under the 10th Amendment, the power has been reserved to the states.
**Under the 10th amendment, even where Congress has the Constitutional authority to pass laws
requiring or prohibiting certain acts, Congress may not 1)directly compel the States to enact or
enforce a particular law or type of law (NY v. US) or 2)compel state/ local officials to perform
federally-specified administrative tasks (Prinz – local authorities had to do gun-background checks
for federal law). Key rule: Congress can’t force state to adopt laws, enact legislation, or administer
federal mandates.
1. Encouragement, not compulsion: Congress may encourage a State to regulate in a
particular way, as long as the encouragement does not rise to the level of compulsion. First,
under the Spending Power, Congress may attach conditions on the receipt of federal funds,
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 so long as the conditions are constitutional (see Spending Power section). South Dakota v.
Dole. Second, where Congress has the authority to regulate private activity under the
Commerce Clause, Congress has the power to offers States the choice of regulating that
activity according to federal standards or having state law pre-empted by federal regulation
(“cooperative federalism”).
a. Example: NY v. US: NY did not contend that Congress lacked the power to regulate
the disposal of radioactive waste, nor that federal law would pre-empt state
radioactive waste law. NY said, and the court agreed, that Congress may not compel
the states to regulate in a particular field in a particular way. Here the take title
provision, which required the state to claim the radioactive waste from private
generators, rose to compulsion because Congress didn’t have the power to under the
Constitution to do this (so it’s reserved to the States), nor did it have the power to tell
the state to regulate it.

III. STATE POWER LIMITATIONS

A Powers reserved to states: Per the 10th Amendment, the powers not delegated to the US by the
Constitution, nor prohibited by it to the States, are reserved to the States.

B. Preemption: State and national governments may have concurrent power to regulate an area.
The supremacy clause, article VI, paragraph 2, establishes that where the nation and the state have
concurrent power, the national legislation shall prevail over the state legislation.
1. Three Types of Pre-emption:
a. Express Preemption occurs where a statute contains a provision specifically
referring to preemption and indicating which state laws the national statute
supplants. However, the courts will often be called on to interpret the precise scope
of the express preemption provision, and in doing so they may invoke more general
concerns.
b. Field preemption occurs where the scheme of federal regulation is so pervasive as
to make reasonable the inference that Congress left no room for the States to
supplement it. E & E page 225.
c. Conflict preemption occurs where the compliance with both federal and state
regulations is a physical impossibility – federal law trumps state law.
2. Preemption and judicial decisions: The doctrine of preemption means that a judicial
decision on a commerce clause challenge need not be final. If the challenge is rejected,
those who oppose state regulation may secure federal legislation preempting it. If the
challenge is sustained, those who support state regulation may secure federal legislation
permitting it.

C. Dormant Commerce Clause: Under the doctrine of the Dormant Commerce clause, the states
are restricted from discriminating against, or unduly burdening, interstate commerce.
1. Facially discriminatory or discriminatory purpose?:
a. Facially discriminatory/ discriminatory purpose: If the statute is facially
discriminatory or has a discriminatory purpose against out of-staters, it is virtually
per se invalid. This means the State has the heavy burden of proving 1)that the
measure is virtually certain to achieve its legitimate purpose and 2)that the purpose
cannot be served well by available less discriminatory means. City of Philadelphia
v. NJ. Policy: The central rationale for the rule against discrimination is to prohibit
state or municipal laws whose object is local economic protectionism, laws that
would excite jealousies and retaliatory measures the Constitution was designed to
prevent. C&A Carbone, Inc. (See Exceptions, below.)
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 i. Exception – Discriminatory purpose justified: Maine v. Taylor: The Court
upheld the constitutionality of a Maine statute that prohibited the importation
of live baitfish because out of state baitfish could damage the fish population
of Maine and there was no satisfactory way to inspect imported baitfish for
parasites and commingled species.
ii. Some out of state companies discriminated: The mere fact that the entire
burden of a statute falls on some, but not all, out-of-state companies, is
insufficient to establish that “interstate commerce” is discriminated against.
Exxon.
b. Taxation that discriminates or unduly burdens out of staters: State taxation may
be found to unduly burden or discriminate against interstate commerce, and thus
violate the Dormant Commerce Clause if the challenger shows 1)that the state is
discriminating against interstate commerce by taxing in a way that unjustifiably
benefits local commerce at the expense of out-of-state commerce (C&A Carbone) or
2)that the state’s taxing scheme unfairly burdens interstate commerce even though it
doesn’t discriminate on its face (West Lynn Creamery).
i. Example: In C&A Carbone, state set system that required all trash, whether
from in state or out of state, to pass through a locally subsidized recycler.
Without the ordinance, some of the trash would have been sent to out of state
recyclers. This ordinance deprived out of state businesses of access to a local
market. T/f it was held as discriminatory and virtually per se invalid.
ii. Example: In West Lynn Creamery, there would normally have been three
groups to lobby against he tax for milk: dairy farmers, milk dealers, and
consumers. But b/c the tax was coupled with a subsidy, one of the most
powerful of these groups, the MA dairy farmers, instead of exerting their
influence against the tax, were in fact its primary supporters.
c. Facially neutral statutes with significant effects on commerce: If a statute is
neutral, but has significant effects on commerce, some courts hold that it still may be
challenged in the courts, while others hold that it should be left to Congress.
i. Barnwell Bros. interpretation: Under the approach of Barnwell Bros., if
the burden is excessive, it is up to Congress to remove the burden by
congressional preemption and the court should leave the balancing test to the
Congress.
ii. Court should use balancing test: A different view is that courts should use a
balancing test and if the burdens on interstate commerce outweigh the
benefits from the state regulation, the state regulation may be invalidated.
Bruce Church; Hunt; Kassel. This view implies that Congress is too busy to
legislate everything and the State must justify the burden in court.
1. Burden mostly on out-of-staters: However, just because a law
burdens out-of-staters more than in-staters does not necessarily mean
that the law violates the dormant commerce clause. The Commerce
Clause protects the interstate market, not particular interstate firms,
from prohibitive or burdensome regulation. Exxon

D. Exceptions where discrimination is allowed:

1. (Discriminatory purpose justified)
2. Congressional approval: If Congress has specifically authorized the state to regulate in this
fashion, for whatever reason, then the state action is constitutional. This is because
Congress has the power to regulate interstate activity. (So look to see if Congress has given
approval.)
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 3. Market participant: Under the market-participant doctrine, if a state or local government is
acting as a participant in the market, it may favor its own citizens in receiving benefits from
government programs or in dealing with government-owned businesses. Example: State
college can charge less tuition to in-staters and more tuition to out of staters. State college is
regarded as a government benefit program. State can favor its own citizens who have paid
taxes. Example: South Dakota factory charged less to in staters who purchased cement than
to out of staters. Did not violate dormant commerce clause.
a. Exception – Privileges and Immunities Clause, Article 4: If a state or local
government discriminates (only applies if discrimination) against out of state citizens
(doesn’t apply to corporations) with regard to civil liberties or the ability to earn a
livelihood, it violates the privileges and immunities clause of Article IV unless it is
necessary to achieve an important government purpose.
i. Step-by-step:
1. There must be discrimination against out-of-staters. Only applies
when discrimination.
2. Discrimination must be in regard to civil liberties or ability to earn a
livelihood. (That’s what the phrase “P and I” means.)
3. Corporations and aliens cannot invoke Privileges and Immunities
clause
4. Law struck down only if the discrimination is necessary to achieve an
important government purpose
ii. My Note: So state legislation that is discriminatory could violate both the
dormant commerce clause and the privileges and immunities clause.

V. DELEGATION OF POWERS
A. President can’t make the laws: The President cannot make the laws; he may only carry out the
laws made by Congress. Youngstown Sheet; Dames & Moore.
1. Interpreting Presidential actions: The court has adopted a pragmatic and flexible approach
in interpreting how power is delegated among the three branches and whether the President
has authority to perform a specific action. Jackson’s concurring opinion in Youngstown,
which was adopted in Regan, provides three guidelines:
a. If Congress implicitly or explicitly agrees with the presidential action, then
there is a presumption that the action is permitted.
i. Implied Congressional consent: A systematic, unbroken executive practice,
long pursued to the knowledge of Congress and never before questioned may
be treated as a gloss on Executive Power vested in the President by §1 of Art.
II. Past practice does not, by itself, create power, but long-continued
practice, known to and acquiesced in by Congress, would raise a presumption
that the action had been taken in pursuance of its consent. Dames Moore.
1. Dames & Moore. Congress acted pursuant to Congressional
preference, so action was permitted.
b. If the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a
zone of twilight in which he and Congress may have concurrent authority, or in
which its distribution is uncertain. In this area, any actual test of power is likely to
depend on the imperatives of events and contemporary imponderables rather than on
abstract theories of law (pragmatic considerations.)
c. If Congress implicitly or explicitly disagrees with the presidential action, then
the President must have a substantial justification for his actions – that he has
power under the Constitution.
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 i. Youngstown: Congress hadn’t legislated in the area where the president had
acted, but the action was inconsistent with Congress’s preferences. T/f, the
court held Presidential action was not permitted.

B. Legislative vetoes and line-item vetoes

1. Key analysis: Whether a governmental (Congressional action?) action is permitted turns on
how the action is characterized. If it is characterized as legislation, as it was in Chadha,
then like all legislation, it requires bicameralism (passage by both houses) and presentment
(presenting law to President to sign or veto). Furthermore, the President must then sign or
veto the bill in its entirety. This means that legislative vetoes and line-item vetoes are
unconstitutional. Chadha.
a. Only part of legislation unconstitutional: Legislative veto can be removed while
keeping the rest of legislation unless the particular legislation contains a severability
clause that prohibits any severance from the legislation.
b. Definitions:
i. A legislative veto is where Congress attempts to overturn an executive action
without bicameralism and/or presentment. Just remember, law must pass
both houses and be presented to president.
ii. A line-item veto is where president attempts to veto part of a bill and sign the
rest into law – this is unconstitutional.

C. Domestic Affairs
1. Appointment and Removal:
a. Appointment power: Under Article II, §2 (the “Appointments” Clause), the
President, not Congress, is given the power to appoint federal executive officers.
Congress has no power to directly appoint federal executive officers, though it may
say which of the three other entities – the President, the Courts, or the Cabinet – may
appoint inferior officials. Morrison v. Olson.
i. Appointment power specifically:
1. The President appoints ambassadors, federal judges, and officers
of the US: The Senate must approve the nominations for the person to
take office, but the appointment power is solely within the president
2. Congress may vest the appointment of inferior officers in the
President, in the heads of departments, or in the lower federal
courts: notice the difference btwn i and ii. In ii, congress can vest
appointment power of inferior officers in three places. But, Congress
cannot give the appointment power to itself or its officers.
b. Removal power: Generally, the President has the power to remove federal executive
officers without cause. However, the President must have good cause in order to
remove: 1)an officer who is appointed pursuant to a statute specifying the length of
the term of office; or 2)an officer who performs a judicial or quasi-judicial function,
like a special prosecutor.
2. Executive privilege protects presidential papers and conversations, but such privilege
must yield to overriding needs of information: Executive privilege is conversations from
advisors. Key case is US v. Nixon (Nixon’s Watergate scandal). Nixon invoked executive
privilege to keep information secret, but court says it’s not absolute. Need for evidence in
criminal trial overrides executive privilege.

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