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3 Types of Federal Power
1. Expressly Delegated Powers
Those we speak about in the Constitution. The federal
government, we normally say, consists only of delegated powers,
except for a few inherent powers in foreign affairs. When we say
delegated powers we mean, people of the United States, through
their chosen representatives, got together back in 1787 and held a
constitutional convention and decided to delegate the federal
government certain powers. The federal government would have
those powers and not others with the exception of inherent powers
in foreign affairs.
2. Impliedly Delegated Powers (McCulloch)
McCulloch Case - Two issues: (1) Whether or not the
Constitution authorizes Congress to create a national bank; and
(2) whether the state can tax that bank. The court says that the
government is a government of delegated powers. Marshall did not
depart from that concept at all. The question is really whether
delegated powers means only expressly delegated powers or also
include some powers that are impliedly delegated. Marshall
reasoned that the delegated powers included implied powers, based
in part on the necessary and proper clause (Art. I, Sec. 8), and
in the Articles of Confederation they had language similar to the
10th Amendment, . . . powers not delegated to the United States
are reserved to the states, in the Articles it said powers not
"expressly" delegated. When the framers of the 10th Amendment
chose not to use that word "expressly" was an implied recognition
on their part that the authors of the 10th Amendment clearly meant
that the federal government had implied powers as well as express.
3. Inherent Powers (Curtis-Wright)
Foreign Affairs "Comes with the Job!" Power originally
vested in the King of England. Certain powers are just inherent
in being the sovereign head of any nation. Power to deal with
other nations, power to make war and defend the nation against
attacks. These are inherent powers. States did not delegate to
the federal government because the states never had them. They
came from England. So long as England was our sovereign, they
remained in England. When England ceased to be over the United
States, those powers transferred from England to whatever the
federal government was at the time.
Key Case - Curtis-Wright - dealing with the power of the
President to impose tariffs and alter the rates of tariffs.
II. JUDICIAL POWER (Article III)
Article III says the judicial power of the United States shall be
vested in a Supreme Court and such other courts as Congress may
1. Judicial Review not expressly granted but may be implied
Judicial Review was not specified in the Constitution.
Marshall reasoned in Marbury v. Madison that since the
Constitution takes precedence over a statute, it would follow that
any statute that is inconsistent with the constitution is
unconstitutional and null and void. Since they derive their
authority from the constitution and they are invalid if they
violate it. Marshall takes the last step in this case that since
we already have the authority to interpret the constitution and
statutes and decide if they are in conflict and if so, the statute
is null and void, then someone has to take the initiative to
strike down acts of Congress or acts of the President or various
states, if those acts violate the constitution. Since the
Constitution doesn't specify anyone in particular to do it, the
Supreme Court will humbly volunteer for the job.
a. Supreme Court
Very rare. Applies to ambassadors, ministers, cases
involving states, etc.
All other cases. Can't take what the Constitution says
is appellate jurisdiction and give it to the Supreme Court in the
form of original jurisdiction. (Marbury v. Madison)
a. May be limited (Ex Parte McCardle)
Ex Parte McCardle - petition for writ of habeas corpus -
Congress had rescinded the Supreme Court's authority to hear writs
of habeas corpus. Congress can remove or limit appellate
jurisdiction in any way they choose.
b. Other Federal Courts - Est. by Congress
Their jurisdiction is established by Congress.
3. Self-Imposed Judicial Constraints
a. Ripeness (When?) (Longshoremen)
Longshoremen Case - Alaska fishermen. Resident aliens
of the United States working in union jobs. Their jobs required
them to go to Alaska, a territory, for several weeks each year
during the height of the fishing season and then come back to
California. The federal government announced that if resident
aliens left the 48 United States that when they tried to come back
they would be subject to denial of re-entry into the U.S. These
people are concerned about what will happen and file a lawsuit.
The court says this issue is not ripe for adjudication. The court
says they receive so many cases they can only take cases where
there is truly a case or controversy going on. Can't take
hypothetical cases. Will hear only cases that involve actual ripe
Nothing in the Constitution places this restraint on the
Court. It is self-imposed.
b. Standing (Who?) (Mellon)
Massachusetts v. Mellon and Frothingham v. Mellon -
challenge of a federal appropriation. Massachusetts was held not
to have standing. They were not a party and could not stand in
place of their taxpayers. They were not being deprived of any
funds. Mellon was held not to have standing by just being a
federal taxpayer without more. Too remote. If we allowed being a
federal taxpayer being sufficient to give standing, there would be
no point in the standing rule. Anyone could challenge anything.
State or local level challenging a local program, being a
taxpayer may give standing at the local level. May have standing
to challenge a legislative act if the challenge addresses a
federal constitutional issue. (Valley Forge Christian College
Case) Flast v. Cohen - says a federal taxpayer can challenge a
congressional appropriation if in addition to being a taxpayer, he
alleges violations of a federal constitutional provision. In
Flast v. Cohen, it dealt with a legislative appropriation. In
Valley Forge, the cases are distinguished. It wasn't the
legislature, it was the Department of Interior, that was the
difference. Essentially the court didn't want to follow the Flast
v. Cohen rationale but didn't want to actually overrule it. Flast
v. Cohen - J. Brandeis wrote guidelines: p. 81
The court developed, for its own governance in the cases
confessedly within its jurisdiction, a series of rules under which
it has avoided passing upon a large part of all the constitutional
questions pressed upon it for decision. They are:
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary, proceeding, declining
because to decide such questions "is legitimate only in the last
resort, and as a necessity in the determination of real, earnest,
and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act."
Sweetheart Suits - Challenging the constitutionality of the
window tinting law. Talk to the attorney general and he agrees
the law is ridiculous. He suggests that you file a suit and tells
you he won't put up much of a defense. The problem is that people
are being denied adequate representation. The best way in our
adversary system to get a good sound decision on a case is to
present both sides fully and vigorously. In a sweetheart suit,
one side is not being given adequate representation. The court
and the public at large is being denied having the benefit of
having a constitutional decision made on a full consideration of
the merits. The proper merits haven't been presented.
2. The Court will not "anticipate a question of
constitutional law in advance of the necessity of deciding it."
"It is not the habit of the court to decide questions of a
constitutional law in advance of the necessity of deciding it."
They will not decide a case until it comes to the point
where it absolutely has to. If a case could be decided on
statutory grounds, the court will not look at the constitutional
issues. Ex. Challenging the window tinting law in that it
doesn't really apply to you because your windows are rose tinted
but also that it to the extent it does, it interferes with your
basic right to privacy under the 14th Amendment and is therefore
unconstitutional. The court will not consider the constitutional
question in advance of the necessity of deciding it. If they can
decide the case on the statutory issue alone, they don't have to
decide whether the statute was constitutional. On the other hand,
they say there is no way to decide on the statute, they have to
consider the constitutional issue.
3. The Court will not "formulate a rule of constitutional
law broader than is required by the precise facts to which it is
to be applied."
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be disposed of.
This rule has found most varied application. Thus, if a case can
be decided on either of two grounds, one involving a
constitutional question, the other a question of statutory
construction or general law, the Court will decide only the
latter. Appeals from the highest court of a state challenging its
decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an
independent state ground.
5. The Court will not pass upon the validity of a statute
upon complaint of one who fails to show that he is injured by its
Among the many applications of this rule, none is more
striking than the denial of the right of challenge to one who
lacks a personal or property rights.
6. The Court will not pass upon the constitutionality of a
statute at the instance of one who has availed himself of its
7. "When the validity of an act of the Congress is drawn
in question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly possible
by which the question may be avoided."
4. Issues Affecting Judiciary
a. Strict v. Loose Construction
Strict construction - Hugo Black most well known for strict
construction. Take the words literally and give them that meaning
and no other.
Loose construction - a few things implied in the words that
give the language less than a literal interpretation that strict
constructionists give. Frankfurter most well known for loose
b. Activism v. Restraint
Judicial restraint - except in areas where the constitution
is fairly explicit about limiting the power of government, the
function of the court is to interpret the laws and let the elected
Congress determine what the laws would be. Bork was an advocate
of judicial restraint. Many activist decisions in civil rights
areas were made because the legislative branch was dragging its
feet to do something about the injustices that came about. They
started passing activist remedies.
c. Original Intent v. Evolutionary Meaning
(Interpretative v. Non-Interpretative Review)
Ed Meese believed in interpreting the constitution as it
was written. If there was any ambiguity in the words, it was up
to the intent of those who wrote it. Justice Brennan said we can
not interpret the constitution according to the words of a world
that is dead and gone, but rather each generation must give its
own meaning to the constitution and we need to interpret the
constitution according to an evolutionary standard that is the
inevitable and true meaning of the text.
We tend to think that strict construction, original intent
and judicial restraint all mean the same thing. Not necessarily.
Generally speaking today, those who are politically conservative
are going to be advocating strict construction, restraint and
original intent. Those who are liberal will generally be
advocating the opposite. This is not always true. Hugo Black was
the most strict constructionist. However, he repeatedly struck
down laws of congress as violative of free speech. In that area,
he was very much an activist because he believes the law was to be
interpreted strictly, and when statutes violated the constitution
he would strike them down. His strict construction made him into
an activist. Original intent and strict construction don't always
go together. Interpret the constitution strictly where the
framers intended it to be interpreted strictly and in other parts,
like the necessary and proper clause, where it was intended to be
interpreted more loosely, to be faithful to the original intent,
should interpret it more loosely.
How would you apply today's modern technology, such as air
travel, to the framer's intent? You would take the framers, with
the basic values they hold, and place them in today's society and
given those values, how would they apply those values today?
Fifty years ago the issue was how to interpret the constitution. Today, it is whether to interpret the constitution.
d. Natural Law v. Positive Law
This issue will come up in the confirmation hearings for
Judge Clarence Thomas. Thomas believes that natural law is a
limiting factor on a judge that limits both Congress' and judges
from exceeding their due restraint. The idea of positive law is
simply that law is the creation of man. Law is law, not because
God had established law and right and wrong, but rather law is law
because the highest human authority of the state has made it law
and has the power to back it up. Natural law says there is
something higher than this.
Natural law permeates the constitution.
e. Liberal v. Conservative
III. LEGISLATIVE POWER
1. Found mostly in Article I, Sec. 8
a. Includes Implied and Express Powers (McCulloch)
b. Implied Powers
1. Congress need not address entire problem
The fact that a particular portion of a statute does
not totally eradicate the problem, such as housing discrimination
in single family housing, not multi-family units. Addressing
problems in a piecemeal way is part of how Congress works.
2. Congress need not be only means of solving problem
Necessary and proper. McCulloch and interstate
commerce cases. Is this necessary? By necessary, Justice
Marshall says we don't mean "absolutely necessary". There can be
other means by which it can be done. Doesn't have to be the only
means or not even the most efficient means.
3. Congress may make findings of fact
Jacobson v. Massachusetts - Vaccination Case -
findings of fact about vaccinations. Split of medical authority.
Majority said vaccination was a good idea. Other doctors said it
was not effective and could be dangerous. When there is a split
of authority, the legislature is free to believe some experts and
not others. They are not always required to go by the majority.
They can choose to believe the minority of experts.
a. Judicial Standard of Review: Reasonability
The standard the court uses in reviewing a legislative
finding of fact is not whether it is right or wrong, but whether
it is reasonable. Usually, the legislature has made a thorough
fact finding decision. The court is not in as good a position to
do so. The court says if the legislature has acted in such a way
that it is obvious their motives are wrong or they are trying to
protect local industry, etc., if it is obvious they considered
factors they had no right to consider, their fact finding is
2. Delegation of Legislative Authority
a. Congress may not delegate legislative authority
That which the people have said in the constitution is a
function of Congress will remain a function of Congress.
b. But may delegate rule-making authority if reasonably
clear guidelines. (Panama Refining, Schechter Poultry)
The test is "Has Congress set forth some guidelines?" The
guidelines must be reasonably clear.
c. Application of Non-Delegation Rule at state level depends
on state law.
At the state level, the doctrine will be applied more
strictly than at the federal level. In the majority of cases,
about the same. In very few cases, not as strictly. In some
cases, the doctrine of non-delegation may not apply at all in
state courts and various branches and levels of state government.
Probably less need for delegating at state level than federal
3. Power to Investigate
Nothing in the Constitution says Congress has the power to
investigate. Implied from necessary and proper clause.
Obviously, they can't make good laws if they don't know what is
going on. They must have the facts. Thus, they must be able to
b. But may not infringe fundamental rights without good
reason (Gibson v. Florida)
Fundamental rights - free speech, freedom of association,
etc. Gibson v. Florida - The state of Florida wanted a list of
NAACP members to investigate communist connections or, possibly to
harass the NAACP. The court said that before they could conduct
this investigation and require them to disclose this kind of
information, must show there is some need for it. The state tried
to show that some members were involved in communist activities.
This wasn't enough. Haven't showed that one of the communist
front organizations had infiltrated or influenced the
organization. Haven't shown whether they were former members,
long-term or short term members, active or inactive, etc. The
court needs more of a connection and a greater need and relevance
of the information before the state will be allowed to infringe
upon these people's rights in this way. The court said the state
must show the connection before they would let them have the list.
The state said if they would let them have the list first they
would then show the connection.
4. Speech and Debate
a. Applies to Congressmen & Aides while pursuing legislative
Proxmire - Golden Fleece Newsletter. When they go beyond
those legislative functions, such as publishing not directly
related to legislation, the speech and debate clause no longer
protects them and they are subject to libel and slander suits.
IV. EXECUTIVE POWER
1. Appointment & Removal
a. Removal broader
Power to appoint is limited by congressional legislation
and is usually subject to confirmation by the legislature. Even
in cases where confirmation is required, it isn't required for
removal. Ex. Postmaster general, secretary of defense. Senate
may confirm but is still subject to being fired by the President.
The Senate can do nothing except possibly refuse to confirm anyone
else. There are some positions, such as the Federal Reserve
Board, where the President has the power to make appointments.
However, the terms are fixed by statute and the President may not
have the power to remove. Cannot remove the Supreme Court
justices he appoints.
b. Decision-making Employees
At the lower level, the power to appoint has been limited
by Congress and it has been upheld as far as people in non-
decision-making capacity. Civil service. Civil service
protection is like tenure. They cannot be fired without good
cause. Good cause could include the job is no longer needed, the
funds have been cut back, incompetence on the job, etc. Before a
person is fired, he is entitled to due process. Must show that
good cause does exist in his being fired.
People who are in decision-making capacity, the President has
the right to hire and fire these people solely on the basis of
whether he wants them there or not. Personality clash, disagrees
with their views, etc. It can be important that the President has
people who share his views. In the lower level, the continuity
and personal job security are more important. President can't
remove someone for any reason.
There is no clear definition as to what is a decision-making
a. All federal offenses, including contempt (Grossman)
b. Can be before, during, after trial (Murphy v. Ford)
Hamilton said in the Federalist, a well-timed pardon can be
very important in quelling disturbance and unrest.
3. Executive Privilege
In the Nixon era, dealing with tapes and documents the
administration claimed were privileged. The court rejected an
absolute privilege. They then claimed that some things were
privileged because of national security and were classified. The
court said that merely stamping something classified, the court
will not give absolute deference to the Executive's determination
that this is a classified document. Too easy to abuse. The court
will use an in camera proceeding and examine the documents and use
a balancing test.
a. Balancing Test
1. Need for Privilege
2. Need for information
4. Foreign Affairs
a. Inherent as well as delegated (Curtiss-Wright)
In many cases, powers are specifically delegated in the
constitution that could be inherent as a means of their
distribution. It is clear that the federal government has the
power to negotiate treaties. It wouldn't be clear from a natural
law standpoint whether that power should rest with the executive
or with the legislature. Those matters are set forth in the
constitution so we know who. These areas in foreign affairs is a
shared power. Ex. Congress has the power to declare war but the
President is the commander in chief of the armed forces. Congress
has the power to raise and support armies and control the purse
strings but the President is responsible for the day to day
activities of the war. War Powers Act is a good faith effort to
try and delineate how the constitution divides those powers.
b. Therefore broader (Dames & Moore)
The power of foreign affairs is broader than the power the
President has in domestic affairs. Dames & Moore v. Reagan -
involved the release of Iranian assets for the release of
hostages. People who had claims against the Iranians were not
able to make them. However, if the President did not have the
authority to make that type of commitment to Iran, his ability to
negotiate the release of the hostages would have been severely
hampered. To deny that kind of authority to the President would
greatly restrain the United States in foreign affairs.
5. War & Emergencies
a. Military Courts (Milligan)
Milligan - military courts tried him for expressing
southern sentiment. He was sentenced to be hanged. He appealed.
The supreme court ruled that the military courts, while they are
valid courts and predate the constitution (military courts are
Article II courts). As far as jurisdiction, their jurisdiction
does not extend to civilians in areas where civilian courts are in
existence and functioning. Therefore, the military court lacked
authority to try Milligan.
b. Effect on contract clause (Blaisdell)
Mortgage moratorium case - While this mortgage moratorium
was an impairment of the obligation of contracts, it meant the
bank could not foreclose for non-payment, they had to wait for the
moratorium to be up. The court said that given the emergency of
the national depression, this impairment of an obligation of
contracts will be considered reasonable. The word "reasonable" is
not written into Article I that says that no state shall impair
the obligation of contracts. The court writes this in.
c. Effect on civil liberties (Korematsu)
Based upon a determination by members of the administration
that there were some Japanese in the nation that could be disloyal
and since there was a possible or reasonable danger that if an
attack were to take place on the coast of California, Japanese
Americans in the area would join in the attack. Under this
national emergency situation, the government action to remedy the
problem, even though it involved a substantial curtailment of
civil liberties for the Japanese, it was permissible.
V. FEDERAL-STATE RELATIONS
1. Tenth Amendment
a. Original purpose & meaning
If the federal government can apply these laws to the
states, as to their own state employees and the courthouse, then
you really have the federal government telling the state when it
can open their courthouse, types of condition, etc. If there is
any area in which the state should decide in the running of its
own institutions, the court said these minimum wage and hour laws
cannot be applied to state governmental institution.
Overrules Usery - decided around 1985. Rules that the
Usery case was decided on the wrong basis. Governmental v.
proprietary distinction is a vague distinction and one that is
almost impossible to make. This will not be the test. Blackmun,
in a 5-4 decision, overruling a 5-4 decision in Usery, says that
ultimately the meaning of federalism means that the state finds
the protection of various spheres of influence by the democratic
process. By electing people to the legislature you vote to keep
the federal government out of those areas. O'Connor dissented and
said that was not her understanding of the meaning of federalism
at all. There are certain areas that are off limits whether the
majority of Congress thinks they are off limits or not.
2. Interstate Commerce - History
Article I, Sec. 8, one of the powers granted to the federal
government is to regulate commerce in three areas: between
states, foreign nations and with the Indian tribes. The category
not mention is intrastate. It is implied that intrastate commerce
is within the province of the states to regulate and not the
federal government. General evolution in history of the
development of the interpretation of the commerce clause.
a. 1824 Gibbons; Interstate is supreme, navigation is
Federal franchise v. state franchise to conduct steamboats
across the Hudson River between New York and New Jersey. The
court said that (1) navigation is commerce and thus (2) the
federal government's right to regulate interstate commerce is
supreme and takes precedence over the state's right to regulate
b. 1903 Champion; Power over interstate commerce is
Champion v. Ames (Lottery Case) - The court ruled that the
power of Congress over interstate commerce is unlimited. They can
regulate interstate commerce in any way they see fit. Their
motive is not the issue.
c. 1918 Hammer v. Dagenhart; production is not commerce
The court makes the distinction that the federal government
can regulate commerce but production is not commerce. Commerce
means the sale of things and so on, but as far as the manufacture
of things, commerce succeeds to manufacture and is not part of it.
The commerce is the selling part, not the manufacturing part.
Since the constitution authorizes the regulation of interstate
commerce, the use of that term commerce implies there is no
authority to regulate production.
d. 1935 Schechter: Production which directly affects
interstate commerce may be regulated.
Can't regulate production but can regulate commerce.
Sometimes it may be necessary to regulate production in order to
effectuate our regulation of commerce. If that production
directly affects commerce, then we can regulate it.
e. 1937 Jones and Laughlin Steel; Direct/Indirect Test
Amended; Production may be regulated if affects commerce
One of the most famous cases. Huge conglomerate with
refining plants all across the country with things being shipped
across the country. The court said that if they had strikes in
their factories it would paralyze interstate commerce. A national
labor relations board ruling that they should be required to
submit to good faith bargaining as a means of avoiding strikes,
this was a regulation of production that was necessary in order to
regulate commerce. In this unique situation, the production
substantially affects commerce. They do away with the direct-
indirect test in Schechter. The test now is not whether the
effect on commerce is direct or indirect, the test is whether the
effect is substantial.
f. 1941 Darby: Production for commerce may be regulated
Moved away from the substantial test. Now the question is
whether the production is intended for commerce. If you are
producing these goods intending that they be used in commerce,
then the regulation on that production, whether it is a child
labor regulation or minimum wage regulation, the regulation will
be upheld so long as it involves the production of goods intended
g. 1942 Wickard: Production may be regulated if potentially
Farmer who raised wheat and fed the excess to his own pigs
on his own farm. The court said if he hadn't done that he would
have had to buy some and that would have affected commerce.
Production may be regulated if it potentially affects commerce.
3. Interstate Commerce - Current Doctrine
a. Congressional authority over interstate commerce is
b. Federal/State powers over commerce are: (1) exclusively
federal, (2) exclusively state, or (3) concurrent.
c. State can't regulate that which directly affects
interstate commerce, because purpose of commerce clause is to
preserve free flow of commerce.
d. State can regulate that which only indirectly affects
interstate commerce unless Congress has preempted field.
e. Whether Congress has preempted the field depends on:
1. Congressional intent
2. Extensiveness of regulation
3. Whether state regulation could make federal regulation
4. Nature of industry
f. Court will sustain exercise of state police power if
1. It has rational basis
2. It does not substantially inhibit interstate commerce
(Balancing test between these two)
3. Less restrictive means (sometimes)
g. Court will not sustain exercise of police power in
commerce, if purpose or effect is simply to protect against
h. The state may not deny non-residents the use of its
facilities or privileges granted to it's residents. However, state
may make interstate commerce pay it's own way.
i. The federal government may regulate intrastate commerce,
if necessary to regulate interstate commerce (Houston Railway Case).
This case involved Texas' maximum fares being lower than
the Interstate Commerce Commission's minimum fares. The question
was what to do about fees from Dallas to Abilene affecting rates
from Dallas to outside the state. The court said it was necessary
to regulate some of the intrastate rates as well. The court found
the federal government had the authority to do that.
4. Treaty Power
a. An inherent power that is divided between the executive
and legislative branches. President makes and Senate confirms.
b. Treaty Power is supreme over state statutes and state
constitution (Supremacy Clause - Art. 6 Sec. 2)
c. Executive agreements and conventions have the same legal
effect as treaties even though they need not be submitted to the
Senate for ratification.
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