Chapter 5 + 6 - President and Congress/Due Process

Question 1

Is there a necessary and proper clause for the President?

Answer 1

No, there is a legislative power of the President.

Question 2

Can Congress delegate a power to the President to aid non-domestic, foreign conflicts?

Answer 2

Yes, President can be delegated powers if the goal is provide relief in the foreign conflict (United States v. Curtiss-Wright Export Corp.)

• President has more resources and is better situated to engage in international affairs

Question 3

Does the President have the power to create executive orders?

Answer 3

No, the executive orders must come from either an act of Congress or the Constitution.

(In Youngstown Sheet & Tube v. Sawyer, President does not rely on statutory authority to seize real property, nor has Congress granted seizure powers to the President in labor disputes so the President’s authority must come from Constitution but although President can control his troops, he has no control over their steel)

Question 4

What are “lawful combatants?”

Answer 4

Soldiers in uniform, fighting for country, are subject to capture and detention as prisoners of war by opposing military forces

Ex: fighting for Germany

Question 5

What are “unlawful combatants?”

Answer 5

Spies, saboteurs, belligerents, not entitled to “prisoner of war” treatment

• not fighting for country, not fighting in uniform, just fighting

Ex: fighting for Taliban

• can keep in prison indefinitely
• subject to capture, detention BUT have trial and punishment by military tribunals
• US citizen CAN be unlawful combatant

Question 6

When do habeas corpus rights for enemy combatants not apply (under Article III Courts)?

Answer 6

Article III courts have no jurisdiction over foreign enemy combatants outside of US jurisdiction if he/she:
- is enemy alien
- never been or resided in the United States
- was captured outside our territory + held in military custody as POW
- was tried and convicted by military commission sitting outside of the US
- for offenses against laws of war committed outside of the US
- at all time imprisoned outside of the United States

Question 7

What did Hamdi v. Rumseld rule re: citizens and their right to due process?

Answer 7

Every US citizen has a right to due process, even as an enemy combatant, and should have meaningful opportunity to challenge classification of their detention before neutral decision-maker (basic procedures, does not specify whether entitled to attorney) AND can only be detained for no longer than the active hostilities

Question 8

What happens when a treaty and a statute conflict?

Answer 8

the newer/later one applies

Question 9

What happens when there is a separate treaty and separate statute?

Answer 9

Courts will try to enforce them both

Question 10

How do you get out of a treaty?

Answer 10

• Congress passes a statute
• President signs notice saying US is done w/ the treaty
• To ratify a treaty, you need 2 branches of government but to get OUT of treaty, you need 1 branch

Question 11

What power does the President have to enter into agreements w/ foreign nations?

Answer 11

The president can enter into executive agreements (bilateral) that don’t need to be ratified by the senate and have the same dignity and power as a treaty, although they’re not treaties (US v. Pink)

BUT executive agreements CANNOT violate prior congressional acts and CANNOT violate anything relating to Bill of Rights

Question 12

What is general acquiescence?

Answer 12

When a President has done something that Congress has never stopped before in the past

(ex: other presidents have frozen assets and Congress has never prevented it)

Question 13

Does the President have the power to enter into binding executive agreements to resolve foreign matters?

Answer 13

Yes, President has the power to resolve outstanding private claims by nations of one country against nationals of another country by settling them to keep the peace

** Concept of general acquiescence = Congress reluctantly accepts w/o protest

Question 14

How does the 14th amendment define citizenship?

Answer 14

All persons born or naturalized in the United States and subject to the jurisdiction therefore, are citizens of the US and of the state in which they reside.
- have right to privileges and immunities
- has the power to give up their citizenship (Congress cannot take it away)

Question 15

Citizen v. Person

Answer 15

Citizen: protected by P&I clause, cannot be taken away citizenship

Person: protected by due process and equal protection clause

Question 16

What is an alien?

Answer 16

• non-United States citizen
• are PERSONS (protected by DPC & EPC)
• cannot invoke privileges and immunities clause
• can be restricted by Congress in terms of immigration (b/c has constitutional power over immigration/deportation)
• BUT if legally admitted into the United States, then they are subject to due process rights before being kicked out

Question 17

Does the Supreme Court have much power over questions regarding immigration and classifications in immigration?

Answer 17

No, the Supreme Court does not have judicial scrutiny b/c immigration is a political question controlled by Congress which can make classifications and create preferential immigration status

• Congress has broad power over immigration (Fiallo v. Bell - preferential treatment to mothers rather than fathers seeking entry from their children)

Question 18

What did Afroyim v. Rusk (Polish immigrant case) rule on re: loss of citizenship by Congress?

Answer 18

Congress is not granted the power in the Constitution to withdraw citizenship absent voluntary acts by the citizen themselves

• cannot take away citizenship just b/c the person did not act like a citizen BUT person does have constitutional right to voluntarily expel their own citizenship

Question 19

When can Congress revoke a person’s citizenship?

Answer 19

When the person was NOT naturalized in the United States and when they have failed to comply with post-naturalization standards

(ex: Rogers v. Belleli - Italian was born to American mother + Italian father; was naturalized as citizen in Italy but failed to live in US for 5 yrs between ages 14-28 and was warned multiple time of the revokement of his citizenship; did not do anything to comply + SC ruled that it was constitutional for Congress to revoke)

• fourteenth amendment protection does not apply here

Question 20

What is the difference between a 14th Amendment First Sentence Citizen AND a Non-14th Amendment First Sentence Citizen?

Answer 20

14th Amendment applies when…
- born or naturalized in US
- citizenship cannot be taken away, citizen can only be renounced by voluntary act (unless acquired by fraud)

14th Amendment does NOT apply when…
- not born or naturalized in US (Italian guy case)
BUT are protected under due process clause of 5th amendment

Question 21

What is qualified immunity and absolute immunity of the President?

Answer 21

Absolute immunity = President cannot be sued for money damages for acts within the outer perimeter of his official responsibility (can be sued for acts done BEFORE his presidential term) (ex: Nixon v. Fitzgerald - analyst of dept. of air force could not sue president for being fired)

Qualified immunity = (broader for more than just President) only shielded if the activities are…
- within scope of his/her office
- are in objective good faith
- do not violate clearly established constitutional rights

Question 22

What protection/immunity does the President have for subpoenas?

Answer 22

A president cannot assert privilege over generalized interest in keeping files confidential to overcome producing relevant judicial evidence (US v. Nixon - court used balancing test to determine whether confidentiality or fair administration of justice was better weighed)

• When communications do not concern military, diplomatic or sensitive national security secrets, they may be rebutted due to constitutional need to provide all relevant evidence in criminal case

Question 23

What immunity do presidential aids have?

Answer 23

• qualified immunity for money damages (not absolute like the president)
• only have qualified immunity for damages relating to conduct that did NOT violate constitutional rights

No qualified immunity if aid knew that his actions would violate constitutional rights or did things maliciously

Question 24

Does President have absolute immunity for actions taken unrelated to his official duties and before he started his term?

Answer 24

No, President is responsible for his misconduct which is unrelated to his official duties and those that occurred prior to his start of the term (Clinton v. Jones - woman sued for defamation resulting from sexual assault)

(ex: judge is immune from damages when he acts as judge; NOT immune when he is a boss and fires someone –> outside perimeter)

Question 25

Can a grand jury subpoena presidential records w/o infringing on President's duties?

Answer 25

Yes, (Trump v. Vance) grand jury is entitled to president's records w/o heightened showing of need b/c providing records does not... (1) divert --> properly tailored subpoena will not divert from duties (2) stigmatize --> citizen's duty to provide evidence will not stigmatized b/c every citizen's duty to do so + grand jury is sworn to secrecy (3) harass --> rules in place to prevent harassment

Question 26

What is the Presentment clause to pass legislation?

Answer 26

* requires that all legislation presented to the president before becoming law * after both houses have reviewed, President can either approve of it or veto it * president's role in checking propensity of Congress to enact oppressive, improvident or ill-considered measures

Question 27

What is the bicameral requirement in passing legislation?

Answer 27

* ensures legislation won't be enacted unless it has been considered by all of nation's elected officials * both houses must act * for bill to become law, it must be presented to both houses and passed by both houses

Question 28

What was the rule from Immigration and Naturalization Service v. Chadha?

Answer 28

Legislation providing Congress w/ a 1-house vote over an action of executive branch is unconstitutional b/c it does not meet constitutional requirements of presentment (= bill must be presented to president to be passed) and bicameralism (= bill must be passed by both houses)

Question 29

What did the Line Item Veto Act case (Clinton v. City of New York) state re: presidential veto powers?

Answer 29

A president does not have the power to cancel portions of bills after their enactment; only has the power to veto + send back to Congress for reanalysis OR accepts it as a whole * No where in Constitution does it say President has unilateral power to repeal or amend (b/c of Presentment and Bicameralism clauses)

Question 30

What are the appointment and removal clauses in the Constitution?

Answer 30

Appointment clause = Article 2, Section 2, Clause 2: The President...shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.... Removal clause = there is NO removal clause

Question 31

Who has the power to appoint/remove federal executive officers?

Answer 31

President has power to appoint (Congress does NOT have power to directly appoint federal executive officers) President may remove federal executives WITHOUT cause (typically Congress can remove with cause) UNLESS (aka must have cause) when there is (1) officer who is appointed pursuant to statute specifying term (2) officer who performs judicial or quasi-judicial function

Question 32

What did Bowsher v. Synar rule re: Congress's power to supervise officials?

Answer 32

Congress does NOT retain a role of supervising officers tasked w/ executing laws in the United States (Congress tasked officials w/ providing president w/ budget reports that the President was REQUIRED to order --> unconstitutional b/c provided executive power to officials rather than president)

Question 33

What did Morrison v. Olsen conclude re: the appointment of independent counsel?

Answer 33

Act allows for the appointment of an “Independent Counsel” (inferior judicial officer) by a special court, upon the recommendation of the Attorney General (part of exec. Branch) ---> doesn’t violate separation of powers b/c IC can be terminated by the Attorney General, an exec officer, for good cause. So overall power stays with executive b/c president controls AG. (would be unconstitutional if gave federal court the authority to supervise the independent counsel in exercise of investigative authority)

Question 34

What is the rule re: state amendments to congressional terms in leadership?

Answer 34

Requirements for membership in the United States Congress are established in Qualifications clause in Constitution and may NOT be amended by individual states (ex: US Term Limits, Inc. v. Thornton - Arkansas attempted to place max. term limits on HoR member but SC found unconstitutional as 10th amendment provides no power to do so + framers intended Constitution to be exclusive source of qualifications for members of Congress)

Question 35

What is the Speech and Debate clause?

Answer 35

Article 1 Section 6 Clause 1: Speech and Debate Clause For any Speech or Debate in either House, they shall not be questioned in any other Place Clause protects legislative acts integral to the deliberative and communicative processes by which members participate in committee and house proceedings with respect to other matters, which the constitution places within the jurisdiction of either house.

Question 36

What did United States v. Helstoski state re: the Speech and Debate clause (and Congressional privilege) in criminal cases?

Answer 36

A former member of the House of Representatives (Def) was indicted by the United States on corruption charges for allegedly accepting bribes to introduce private bills, including a bill to suspend immigration laws so aliens could remain in US RULE: A member of Congress may be prosecuted under a criminal statute provided that the government’s case does not rely on legislative acts or the motivation for legislative acts. - evidence pertaining to legislative act of member of Congress CANNOT be introduced to criminal proceeding

Question 37

What are considered legislative acts?

Answer 37

Matters that are integral part of the deliberation and communication process by which members participate in committee and house proceedings

Question 38

In a civil matter, what is not protected under the Speech and Debate clause?

Answer 38

Court ruled in Hutchinson v. Proximire that newsletters and press releases are NOT legislative process and are NOT protected under Speech and Debate clause

Question 39

What amendments provide due process to the state and to the federal government?

Answer 39

States = 14th amendment (No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.) Federal gov't = 5th amendment (No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.)

Question 40

Who has "rights" and who has "powers?"

Answer 40

People have rights; government has powers.

Question 41

What is the process for "due process" analysis?

Answer 41

(1) is something "life," "liberty" or "property? (2) if yes, then the gov't cannot deprive a person unless gov't offers procedural due process

Question 42

What is the substantive due process and what are the levels of scrutiny?

Answer 42

Looks to whether there is sufficient justification for govt's action and whether there is justification is based on the level of scrutiny: (1) rational basis review = if law is in area where rational review basis is implied, substantive due process is met where the law is rationally related to legit gov't purpose - ex: safety, health, welfare, etc. (2) strict scrutiny = law is in an area where strict scrutiny is used, then gov't will meet substantive due process only if it can prove that law is necessary to achieve compelling gov't purpose - ex: fundamental rights ** substantive means reasonable and rational (w/ a purpose and means)

Question 43

What is the difference between non-fundamental rights and fundamental rights?

Answer 43

Non-fundamental rights = only has to meet "mere rationality test" -> state is pursuing legit gov't objective and the means is rationally related to the objective Fundamental rights = court will use "strict scrutiny test" -> only if action if necessary to achieving compelling gov't objective, will gov't avoid violating SDP

Question 44

What standard do economic regulations and social welfare regulations need to pass substantive due process tests?

Answer 44

(1) legit state objective (2) minimally rationally related

Question 45

What is procedural due process?

Answer 45

Refers to the procedures that the government must follow before it deprives a person of life, liberty, or property * remedy is to be awarded more process = notice + the opportunity to be heard (another hearing BUT outcome can still be the same)

Question 46

When does the law NOT violate due process?

Answer 46

(a) law is reasonable and not arbitrary, discriminatory or capricious (b) law/means have direct relation to legit legislative purpose (safety, health, morals, general welfare)

Question 47

What did Lochner v. New York State re: state legislation regulating employee wages?

Answer 47

New York is limiting the number of hours bakers can work. New York claims they are doing it for the health of the bakers and they can argue public health. Concern for heat, dehydration, for the quality of the bread. The legislature had a reason to protect the health of the employees RULE: state may NOT regulate working hours mutually agreed upon by employers and employees as it violates 14th amendment right to contract freely under DPC --> employer has right to make K in relation to his business as part of individual liberty protected by 14th amendment

Question 48

What did Nebbia v. New York state re: economic regulations by the state?

Answer 48

DPC of 14th amendment does NOT prevent states from enacting economic policies like price regulations to further the public AS LONG AS the policies are not unreasonable or arbitrary ** This case does not overrule Lochner but signaled a change in understanding that there is no fundamentally protected freedom to K and in giving more deference to Congress in economic regulations. Court moved from a stricter judicial review to rational level review. That’s why government began to win more cases.

Question 49

What is "property?"

Answer 49

- something which a person has more than abstract need for - must have more than unilateral expectation for it - mutual - he must have legit claim of entitlement for it - cannot be taken away w/o process

Question 50

What did Board of Regents v. Roth rule and what was the court's line of reasoning? (college prof. not rehired case)

Answer 50

RULE: PDP under the 14th Amendment only protects “liberty” interests in an individual’s reemployment by the state when the state’s actions have foreclosed the opportunity for an individual to seek employment elsewhere, and protects “property” interests in reemployment when an individual has a legitimate claim of entitlement to reemployment by the state. (1) has state deprived person of life, liberty of property here? - P argues liberty but FAILS b/c harming professor's professional relationship is NOT liberty; P argues property but FAILS b/c an abstract need is not enough and does not have legit claim to entitlement (2) if so, proper notice and opportunity to be heard? no deprivation so no process

Question 51

Perry v. Sinderman?

Answer 51

Teacher in state system worked for four years and then wasn’t rehired after he spoke out against the school. He was not told why he wasn’t rehired and didn’t get a hearing. He said school had no formal tenure system but a de facto one upon which he relied. RULE: A person’s interest in a benefit is a “property” interest for due process purposes if there are rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. - Person’s interest in a benefit is a property interest if there are explicit understandings supporting a claim of entitlement. (professor may be able to show that b/c he had implied K and worked for 10+ years, he had property interest)

Question 52

Do you have a right to life, liberty or property?

Answer 52

NO, you have a right to process.

Question 53

The kind of procedural due process (pre- or post-termination) is dependent on...

Answer 53

the extent by which the recipient may be condemned to suffer loss, and if recipient's interest in avoiding the loss outweighs the gov't interest (balancing test)

Question 54

Features of Procedural Due Process:

Answer 54

- notice - opportunity to be heard - receiving adequate and effective notice of pending action - appearing before neutral decision-maker - appearing personally + making oral presentation - presenting evidence/witnesses - confronting + cross-examining - being represented by attorney - afforded decisions based only on the record w/ statement of reasons/explanation

Question 55

What did Goldbery v. Kelly state re: PDP of gov't welfare?

Answer 55

NY terminated public assistance payments (welfare) (property right from statutes) to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination. Residents who had been receiving welfare, brought action alleging that the benefits had been terminated without prior notice and hearing. Balancing test: gov't - fiscal/money; if we have hearings, we have less money on budget to help poor people; BUT individual - welfare essential for living; can't afford things; brutal living conditions RULE: Under 14th amendment PDP, a State must hold a pre-termination hearing and provide a quasi-judicial evidentiary hearing before cutting off public assistance payments to a welfare recipient. Not doing so denies PDP.

Question 56

What did Matthews v. Eldridge rule re: federal gov't provided assistance?

Answer 56

RULE: Due Process Clause of the Fifth Amendment DOES NOT require that the recipient of Social Security disability benefit payments be afforded an opportunity for an evidentiary hearing prior to the termination of his benefits - Post deprivation hearing satisfies PDP here ** social security is not based on need like welfare

Question 57

What did Cleveland Board of Education v. Loudermill state re: termination of state employees?

Answer 57

Loudermill was employed by the Cleveland Board of Education as a classified civil servant, who under Ohio law could only be terminated for cause, with a right to administrative review if terminated. On his employment application Loudermill stated that he had never been convicted of a felony. When the Board later discovered that Loudermill had been convicted of a felony, he was terminated for dishonesty in his application without an opportunity to respond to the charges of dishonesty or to challenge his termination. Loudermill brought suit, alleging that the Board had deprived him of property without due process. RULE: State employee is entitled, under DPC, to a pre-termination hearing; once a law confers substantive right, person may not be deprived of substantive right w/o adequate procedures

Question 58

What is a Bill of Attainder? Is it constitutional?

Answer 58

A statute that convicts someone and punishes someone for a crime It is unconstitutional --> Clause declares that the gov't cannot declare a person/group of people guilty of crimes and punish them w/o judicial trial (ex: Nixon v. Administrator of General Services - no aspect of the act imposes an unjust punishment or a punitive confiscation of the President’s property. The Bill of Attainder inquiry does not necessarily end with the conclusion that no historically prohibited punishment has been imposed.)

Question 59

How will the courts look at modifications to public contracts versus private contracts?

Answer 59

Public = if state is trying to escape its OWN financial obligations, the court will scrutinize the attempt unless the modification is reasonable and necessary to support public person (mid level review test) Private = if state rewrites private parties K, judicial review is not so stringent; even if substantial modification to K between parties is allowed if state is acting reasonably in pursuit of legit public purpose (mere rationality test) (ex: Home Building & Loan Ass'n v. Blaisdell)

Question 60

What did Home Building & Loan Association v. Blaisdell state re: state legislation altering private Ks?

Answer 60

State can alter private K and it does not violate Contract Clause b/c modification was temporary and for legitimate end

Question 61

What are some factors to determine where contractual interference is constitutional?

Answer 61

- emergency - substantial impairment (if overly impaired, unconstitutional -> Allied Structural Steel Co. v. Spannaus) - reliance - reasonable - temporary - area previously regulated

Question 62

What is "eminent domain" and who has the power over it?

Answer 62

Eminent domain = right of a government or its agent to expropriate private property for public use, with payment of compensation States have power to eminent domain

Question 63

Difference between "takings by possession" and "takings by regulations"

Answer 63

Takings by possession: - duty to compensate arises regardless of whether physical taking is partial or total and whether it is permanent or temporary - individual owner's loss or gov't taker's gain is the usual value of the taking - usually to build road or park Takings by regulations: - gov't not required to pay people to comply w/ regulations - regulations are acts of police power + constitutional - coning power can interfere with people’s enjoyment of land substantially, but if it’s consistent with public welfare (health, safety, noise, aesthetics) it is constitutional. - is unconstitutional when it effectively intrudes on the family structure

Question 64

What did United States v. Causby state re: taking by possession?

Answer 64

Causby owned a chicken farm near an airport; United States began using this airport for frequent and regular military flights, which passed less than 70 feet over Causby’s home and farm. The noise and lights from the behemoth planes was overwhelmingly intrusive, which caused the family to suffer ongoing sleep deprivation, nervousness and fear, led to the death of 150 chickens, and forced Causby to close his business. RULE: The air is a public highway, but it is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken. Property is taken within the meaning of the Fifth Amendment by a direct and immediate interference with the enjoyment and use of private land that renders it uninhabitable. AND Interference with a person’s land by the government that is so direct and immediate that it interferes with the person’s use and enjoyment of the land constitutes a taking of the land that must be compensated for. * only partially took

Question 65

What did Village of Belle Terre v. Boraas state re: taking by regulation?