Exam 2 Flashcards

Question

Martin v Hunter's Lessee date

Answer 1

Facts: Lord Fairfax (British subject) inherited land in VA prior to revolutionary war. He died and a Virginia Statute said no “enemy” could inherit land. At the same time Denny Martin (Fairfax) his newphew inherited the land and began to sell pieces of the land to John MArshall and his brother. Irony: Marshall involved. The conflict resulted in a suit regarding who really owned the land. Fairfax appealed to Supreme Court and won but the VA SC refused to follow the US SC ruling because Virginia viewed themselves as sovereign and to decide who owned land in their state and they did not see themselves as subordinate to the SC. It also struck down sec 25 as unconstitutional.

Answer 2

1. Does the Supreme Courts appellate jurisdiction extend to reviewing state court decisions? 2. Does a ruling by the US SC bind the state of VA to follow the ruling in question?

Answer 3

Yes and Yes. The Court ruled 6-0 that the US Supreme Court Jurisdiction and that its decision is binding on Virginia. Martin wins, The Virginia court of appeals judgement is reversed and the district court judgement at Winchester is affirmed. Justice Stormy wrote maority reasoning

Answer 4

1) An unwelcome task and preliminary considerations: He emphasizes things like “The Consitution of the United Stats was ordained and established not by the states in the us sovereign capacities but empathtically as the preamble of the Consitution declares “by the people of the United States” 1) implies the Consitution comes from the people not the states 2) Consitution gives the SC appellate jursidiction in all cases in which it does not have original jursidiction. It is the case, not the court, that gives the SC jursidiction. If cases before state courts do not fall under the courts appellate jurisdiction, then the appellate power does not extend to all cases. Evidence for point: when article 3 of Consitution was written, there were no other federal courts. Meaning= only appellate jursidiction would be from STATE courts. 3) The Supreme Court power over states is not an improper control of power. 4) Presumptions and motives to review state court decisions? Why do they have an incentive to do so? Because if states interpreted the federal law then you would have a unified federal law and that would problematic. States have biases and interests.

Answer 5

The supreme court's appellate power does cover cases pending in State Courts. (25th section of Judiciary Act of 1789 is supported by the letter and spirit of the constitution)

Answer 6

1. Review acts of Congress (Federal Law) 2. Review decisions of state courts (State Law)

Answer 7

1. State supreme courts should not be omnipotent because they are bound by the Constitution 2. the Supreme Court should be able to oversee state courts so that the interpretation of the Constitution is uniform

Answer 8

Best rebutall to John Marshall in MArbury

Answer 9

-professional dogma; idea that everyone talks about this reasoning as if it is fact and strong. -only judge to claim this power in writing is John Marshall. Important because of this is incorrect than we have a major power happening based on one justice. -It is a fallacy to suppose that the Consitution and an act of Congress can come into collision before the Judicary -The right of the leisgiature to pass the act may be in collision, but it is not a legitimate subject for judicial determination Gibson asks- what part of the Consitution is Judicial review found in? -While the courts have authority to interpert laws, they do not have the authority to scan the authority of the lawgiver to make sure the legislature is acting properly.

Answer 10

Gibson makes strong argument for judicial restraint

Answer 11

1. Legislature is omnipotent. It will always be whatever the majority wants the majority gets. 2. Can we leave the determination of constitutionality to the popularly elected branches? When Congress passes a bill into law they ae not likely to admit to making a mistake and repeal it, so we need the power to go to someone who is unbias and not worried about popularity.

Answer 12

1. Jurisdiction (authority to hear case) 2. Justiciability issues (can case be decided by courts?) 3 Standing to sue (does the party suing have standing to do so?_

Answer 13

Post civil war Republican Congress instituted reconstruction acts and imposed military rule. William McCardle a journalist wrote newspaper editorials urging resistance of reconstruction laws. He was arrested and went to a military tribunal. He was allegedly illegally detained and petitioned writ of habeas corpus under 1867 act. He lost and appealed to US SC on which the 1867 act conferred appellate jurisdiction because he could not petition the state. The case was argued orally but before the decision in 1868 congress enacted a law that repealed the 1867 act. President Johnson vetoed it but Congress overrode the veto. Congress did this because of the political situation pre-civil war- Dred Scott case (1857) blamed SC for starting civil war and starting hostilies between North and South. Then, congress was unhappy in 1866 congress was unhappy with court for invalidating President Lincoln’s use of military tribunals. Congress did not want another controversial decision. Case was reargued and the government argued that the court no longer had jursiction because the case depended on a statute that no longer existed. (stripped jurisdiction)

Answer 14

Can Congress remove the court's appellate jurisdiction for a certain class of cases?

Answer 15

Yes 8-0 Chief Justice Chase wrote opinion

Answer 16

Can the Supreme Court hear a petition for a writ of habeas corpus when Congress has taken away such authority

Answer 17

-It is unnecessary to consider whether the court might not have exercised general appellate jurisdiction. -The Judicary act of 1789 has already established judicial courts and set the jursidiction for these courts. -The 1867 act on which jursidiction relied was repealed -Congress is trying to keep court away from the case and it seems very politically motivated. He takes a veilied shot at Congress but saying We can’t question Congress motives (however political they may appear) we can only look at the power Congress has under the Consitution. AND that power to determine the appellate jursidiction of the court is given by express words. -This leaves the court without jursidiction - “WITHOUT JURISDICTION THE COURT CANNOT PROCEED AT ALL IN ANY CASE”Jursidiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause”.

Answer 18

The repealer act of 1868 is Consitutional.

Answer 19

-Congress can withdraw the Court’s appellate jursidiction (based on Article 3, Section 2) -Pretty clear, Court was favoring McCardle but instead exercised Judical restraint -Win for congress -Motivation: Article III, section 2 pretty clear about giving Congress authority to determine appellate jursidiction, but excerised so little, why? U.S. v Klein (1872): Court said congress can’t use Articlde 3 powers to try and race court to hear a certain class of cases or avoid a certain class of cases because that would be Congress subscribing to the outcome of cases.

Answer 20

: Passing of time issue resurfaces again in Hamdan v Rumsfeld and also in Bounmediene v Bush

Answer 21

If court gets excited and starts deciding on all cases that could be seen as problematic because they are unelected. It is the idea of going too far crosses the line. If not Congress could introduce the court curbing bills that are meant to strip jurisdictions of the court. When congress laws are struck down by court they propose those bills out of frustration and want to express this rage. This is a signal to quit being so active and striking down so many laws.

Answer 22

Native Americans want to build casino on land and so they asked the secretary of ____ to do so and have the land put into a trust. She agreed and put it into a trust. David Patachake filed suit in federal court to challenge the action because he did not want a casino near his land. The case went to the SC first not on merits but on procedural grounds- whether the challenge of the case could proceed? Send case back down to district court level. After, Congress passed a very specific Gun Law which made the Bradley land trust and included section 2 (b) regarding law suits saying that court cases involving this land can’t be taken to the Supreme Court. Therefore, it stripped the Supreme Court of jurisdiction.

Answer 23

: Does section 2(b) violate Article III of the Consitution?

Answer 24

No. t: 6-3, Justice Thomas writing majority - affirming Zinke win

Answer 25

Section 2(b) of the Gun Lake Act does not violate Article III

Answer 26

-Distinguish permissible exercise of legislative power from impermissible infringements of Judicial power Permissible legislative power vs impermissible leg power Impermissible if it compels court to obtain a certain outcome BUT you CAN change law Permissible: change law Impermisible: rig it to get a certain outcome -Section 2(b) changes the law and strips jurisdiction in relation to Bradley property (within congress authority) -Court has held previously ExParte McCardle that jurisdiction stripping statutes do NOT involve exercising judical power -Patchak argument says section 2(b) violates article III arguing it directs a particular outcome relies on Klein. They say mandatory language imposing consequences is not the same as directing outcomes.

Answer 27

CJ John Roberts -They say that on the basis of the original Seperation of powers Congress is doing impermissible leg -Congress is exercising judicial power when it manipulates jurisdictional rules to decide outcome of particular cases. This is dangerous because Congress can now avoid any issue that may be threatening to them and avoid judicial scruntity. They could be picking and choosing winners and losers with no judicial recourse.

Answer 28

can it be decided by courts? 5 types: Advisory opinions Collusive suits Mootness Ripeness Political questions

Answer 29

-Long standing court doctrine of political questions set up by Luther v Borden (1849) where the court wanted to avoid any issues that were political or that specifically included other branches of government like Congress and the President -Congressional districts were becoming badly malapportioned, which led to the case of Cole Grove v Green (1946) where the court affirmed the Luther decision and said that reapportionment constituted a political thicket into which courts ought not enter

Answer 30

Tennessee had not reapportioned its congressional districts since 1900, but was it even required to do so? Based on Cole Grove v Green (1946) it was not constitutionally mandated to do so. Civil rights movement intensified or exposed disparities in voting power between rural and urban voters in Tennessee were continuing to increase as more people moved into urban centers (ADD FIGURE INBOOK). Colegrove indicated that those who wanted to force reapportionment could not use the guarantee clause of the Consitution: Article 4 we are guaranteed a republic form of government. Colegrove showed we could not bring this. Therefore, Voters in Tennessee turned to the 14th amendment equal protection clause which states that “no state shall deny to any person within its jursidiction th equal protection of the laws” In short, failure to reapportion led to unequal treatment. The Lower federal district court dismissive it by relying on Colegrove saying that reapportionment constitutes a political question on which it can not rule.

Answer 31

Baker Tennesse Resident and Carr Secretary of State of Tennessee

Answer 32

: Does a lawsuit that seeks to protect a political right— in this cases reapportioning districts to make representation equal- mean this case raises a political question?

Answer 33

No. The court ruled 6-2 that suits could be brought if a provision of the Consitution was violated. Case Reversed and Remanded. Majority written by Brennan

Answer 34

-This case does not rest on or implicate the guarantee clause therefore it is justiciable. The district court misinterpreted Colegrove V Green and other decisions. -Questions of Separation of powers leave the court with the responsibility to interpret whether a power has been left to another branch of government. While foreign relation cases are often considered political qiuestions, not all foreign cases are outside of the courts purview. The duration of hostilities may involve a political question, but this doctrine falls away when there are clearly definable criteria for ending hostilities. -There should not be a dismissal for non justiciability on the grounds of a political question presence. The doctrine of which we treat is one of political questions not one of political cases. -Ultimately for a case to be involve a political question, it must meet one of seevral criteria - all of which are ground in the sep of powers (6 criteria listed) -Luther v Borden does not apply because the only question raised here is whether state action violates the federal Consitution. -This case does not involve a political question because it does rest on a decision of another branch of gov. The court does not risk embarrassment of our gov abroad, or grave disturbance at home. Plus the court has clear standards to decide questions of equal protection. Therefore, this case is decided. -Nonjusticiablity claims resting on the guarantee clause have no real bearing upon the Justiciablity of equal protection claims

Answer 35

-This case is different from earlier cases, and a patent violation of the Equal Protection Clause of the US Constitution has been shown, and an appropriate remedy may be formulated * He would not enter this delicate field, even though the Tennessee statute violates the Constitution, if there were another way to relieve this problem * But the people of Tennessee have no “political opportunities for exerting their political weight at the polls” to correct the existing “invidious discrimination.” * Tennessee has no ballot initiative or referendum possibilities or other practical possibilities * There may be a remedy in Congress, but from a practical standpoint this is without substance. To date Congress has never undertaken such a task in any State. * Only the federal courts can offer a remedy to the discrimination at the state level

Answer 36

The challenge to apportionment presents no non justiciable “political question”

Answer 37

– This is simply a Guaranty Clause case masquerading under a different label. – Federal courts are not the proper forums for political debate. »Could cause harm to the Court – This case is controlled by Luther and therefore, even if the equal protection claim is utilized, the Court cannot decide this case. – What is asked of the Court in this case iso choose among competing bases of representation, ultimately, among competing theories of political philosophy- to establish an appropriate frame of government for the State of Tennessee (and all other states)

Answer 38

-Federal courts now involved in partisan area – Did not eliminate Colegrove v. Green – Political Questions are still nonjusticiable, but more clarity about what is justiciable * Clear designation to another branch of government * Lack of judicial standards

Answer 39

: standing: a party’s right to bring a lawsuit because the party is directly affected by the legal issues raised * General issue- when does standing apply? * In many cases it is obvious, but others not so * Book covers two types of lawsuits – Taxpayer suits- Flast v. Cohen (1968) – Government-induced suits (executive branch declines to defend a law)

Answer 40

1. Justices own interpretation of Article III 2. Separation of powers system * (fear of) Congressional overrides... * Lack of executive branch enforcement

Answer 41

* Article I versus Article III: Article I most lengthy part of Consitution- happened because framers wanted congress to be the strongest branch because they are elected and wanted leg to have power because the leg had NO power in AOC, but they did not know how much to give because they came for a corrupt paralaminet. They wanted to make sure leg power was taken care of- already knew how courts worked * Historically, Court done relatively little on Article I, Sections 1-7 – Focus mostly on Article I, section 8 * Article I, section5 - who gets to join congress

Answer 42

Representative Adam Powell (D-NY) first elected in 1944. He was entangled in legal controversies such as refusing to pay damages assessed for a defamation lawsuit, and he actively avoided paying it. Powell controversial but well-loved by his constituents. The 89th Congress (1965-1966) inquired into Powell’s activities and found two major violations: used federal money to fly staff member to his vacation home, and paid his wife a salary of 20,000 dollars even though she didn’t work in his offices.Powell was reelected to congress (90th congress, 1967-1968) and the house refused to seat him pending further investigation March 1967, new investigation found: (1) from a constitutional standpoint, Powell satisfied all requirement to be seated for office; and that (2) Powell had tried to actively evade the fine associated with the defamation of character offense, had misused public funds, and filed false expenditure reports. That committee recommended he be censured by the House, fined $40,000, and stripped of his seniority. BUT the House ignored that recommendation and adopted by a vote of 307-116 a resolution that excluded Powell from the House and directed Speaker McCormack to notify the governor of New York that the seat was vacant. Powell filed suit along with some of his constituents, making an Article 1, section 5 claim. McCormack’s side argued that the Qualifications Clause and Section 5 should be read separately, that the house has the authority to exclude members, even if they meet constitutional standards. Also asserted it was a “political question” which the Supreme Court should not answer. Meanwhile, Powell runs in the special election of April 1967 and wins, and also wins reelection in November 1968. In January 1969, when the Court was about to hear the arguments for him being excluded from office in 1967, the House agreed to seat him but stripped him of his seniority status

Answer 43

Scope of legislature power- interpretation of Article 1, Section 5 – “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members…” * Who will have a more authoritative interpretation of the Constitution? – Court or Congress?

Answer 44

Does Congress have the right not to seat a duly elected member when he/she has met all the constitutional requirements to be seated?

Answer 45

NO, the House does not have such a power. By vote of 7-1, Chief Justice Earl Warren writing majority opinion, Justice Stewart dissenting. Powell won the Supreme Court case (and the 1967 & 1968 elections)…but his consituents may have lost because Powell now has no senority or leverage in the house

Answer 46

-Political question? No because it did not meet any criteria outlined in Baker v Carr – The framers made the age requirements for membership in Congress, and that was the only requirement they added. The framers opposed any ability of Congress to add to thesequalifications necessary for membership. * Madison’s argument: urged rejection “would provide legislature with dangerous power and requirements must be fixed Constitution” If Congress is allowed to interpret what it means for requirements - the dominant power will construe and make up qualifications to maintain control and make it hard for weaker party * Congress could judge the enumerated qualifications: ONLY can judge age and residency -The framers believed that the expulsion of members of Congress was serious enough that it should take a two-thirds majority to doso. The fact that they did not make such a requirement for judging the qualifications of members suggests that the Framers thought that Article I, Section 5 already limited congressional power over qualifications. – Those exclusions cases that came immediately after ratification demonstrate Congress’s belief that it could not expand on the qualifications necessary to seat a member Thus, the House cannot exclude those who meet the qualifications to be seated

Answer 47

Stewart Case is moot because Powell has own reelection twice and is now seated but stripped of seniority

Answer 48

Congress does not have discretionary power to deny membership by a majority vote

Answer 49

the Court is dangerously close to meddling in Congress’s business, and this leads to a natural transition to another heated Article I debate- - - - term limits, which also raised another Article I, Section 5 question

Answer 50

In early 1990s, 24 states enacted term limits. Initiative in Arkansas, where in 1992 voters approved amendment 73 to the state constitution that prohibited anyone seeking reelection from the ballot who previously had served two terms in the Senate or three terms in the House (but did allow a write-in candidate) Arkansas voters approved it and it applied to anyone seeking reelection after January 1, 1993. It was challenged by Rep. Ray Thornton, various citizens of Arkansas, and the League of Women Voters, they argued amendment 73 violated Article I, Section 5. Arkansas and U.S. Term Limits (an organization supporting the amendment) argued 3 things: * Section 4 of Article 1 applies while the Qualifications Clause does not. (what does section 4 say?) * Powell talks only about the House setting thequalifications for office, not the states. * The Constitution does not explicitly prohibit the states from setting qualifications for office, it is a power reserved to the states under the 10 th amendment – Lower courts in Arkansas struck down the amendment as a violation of Article 1 of the Constitution, the Arkansas state supreme court affirmed. Political Enviroment: 1994 republican take over of congress - tried to ride this wave of popularity by enacting term limits - always failed. Threshold for cons amen ¾ of states and ⅔ of both houses

Answer 51

May states alter requirements set out in the Consitution for members of congress Is a simple ballot access restriction Consitution?

Answer 52

No and No, states do not have that power and ballot access restriction is unconstitutional. 5-4 Affirmed, Thornton wins, no term limits (Stevens for the majority, Thomas for dissenters)

Answer 53

The requirements for holding Congressional office can only be changed by an amendment to the US Constitution (not by the states themselves)

Answer 54

-The decision in Powell suggests that “the people should choose whom they please to govern them. -The framers intended the qualifications in the Constitutions to be exclusive. There is no precedent to suggest any other understanding of Powell. In short, Congress or the states may not alter or add to qualifications in Article I, Section 5. We reaffirmed this argument in Nixon (1993). – The 10th amendment does not apply in this case, and the states therefore do not have the power to change the Qualifications Clause. -Restrictions by states would also violate the principle that the right to choose representatives belongs not to the states, but to the people –Keeping certain senators and representatives off of a ballot, even if they can run as write-in candidates, is an indirect attempt to accomplish what the Constitution prevents it from doing directly – Any change must come through the amendment process, that the framers decided this, and that they wanted the requirements to be uniform throughout the nation

Answer 55

Irony - majority is arguing that majority’s will is being infringed but it was the majority’s will that voted in favor of these amendments Majority is misinterpreting - where the Constitution is silent about the exercise of a particular power, fed gov lacks power, the states enjoy it -Qualifications Clause only restricts power of the states from abolishing all eligibility requirements for membership in Congress -The historical evidence is inadequate to warrant the majority’s position. Records from the Philadelphia convention “affirmatively support my unwillingness to find hidden meaning in the Qualifications Clauses, while the surviving records from the ratification debates help neither side

Answer 56

Court made decision that disagreed with a lot of the people (public opinion favored term limits)

Answer 57

sc really guardian of Consitution?

Answer 58

Rep Mike Gavel f Alaska - held meeting of sub committee on Buildings and Grounds - before meeting read statement about Vietnam war and pentagon papers claiming its relevancy due to effects upon domestic economy. For him to be protected - it must somehow connect to the legislative act the is doing. He could face criminal charges if not connected. He arranged to have the 47 volume introduced in Congress record and published with beacons press. Justice Department investigated and requested grand jury, which subpoenaed Rodberg (a Gravel aide), editor of Beacon press, and Webber (director of MIT press). Rodberg and Gravel asked the subpoena be quashed, as the government wanted to interrogate his aid, which they argued violated the speech or debate clause of Article I, Section 6, that they argued extended to aides. The government argued to the contrary, that the speech or debate clause did not extend to aides. When the case reached the supreme court, interestingly, the government limited their arguments to only Gravel’s aide and the publisher.

Answer 59

Article 1 Section 6 - protects Congress members from lawsuits for what they say during legislative activity.

Answer 60

Does the Speech or Debate Clause extend to congressional aides and other third parties? * Does it only extend to material directly related to legislative duties?

Answer 61

Yes, aides are afforded the same protection as members of Congress as long as it has a direct connection with the legislative process. 5-4. White for majority, Stewart and Brennan dissents. Vacated and remanded to Court of Appeals

Answer 62

Reasonable for reps to talk to aides about legislative acts - must be treated as one entity . This ruling does not afford aides protection from critical conduct or testifying at trials or grand juries involving third party crimes where questions do not require testimony about a legislative act. BUT, arrangement with beacon was not part or parcel of leg process: court said this was not essential to leg process. Aids immunity only goes as far as what gravel would enjoy

Answer 63

The Court’s ruling is highly dubious because the very essence of the speech or debate clause was to protect against intimidation of members of congress by the executive and accountability before a hostile jury. need to strike a balance between to important constitutional interests: the claims of the Speech or Debate Clause against the claims of the grand jury in the particularized contexts of specific cases. Aren’t the Houses of Congress the properminstitution (in most situations) to impose sanctions upon a member who withholds information about a crime acquired during legislate duties?

Answer 64

-Court takes too narrow a view of the Speech or Debate Clause it endangers it. -The Court excludes from the “sphere of protected legislative activity a function that I had supposed lay at the heart of our democratic system....the legislator’s duty to inform the public about matters affecting the administration of government.” (it is legislators duty to inform consitutents and public about war and role of ov/involvement)

Answer 65

The Constitutional protections of the Speech or Debate clause (of Article I, Section 6) are afforded to aides as long as it pertains to the legislative process. (If it does not have direct connection and/or does not “impugn” the legislative acts of Senator/Rep, then there is (no constitutional protection)

Answer 66

– Who (in this case) decides what is essential business of congress and what is not directly relevant? – Who decides whether investigations would impinge on the legislative process? – Would this ruling hinder acts of intimidation?

Answer 67

“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers better by cons in gov …” Gives Congress power to make laws anything that is necessary to carry out enumerated powers

Answer 68

Broadly: Congress has implied powers that are beyond those enumerated in the Constitution. Narrowly: Congress has the power to incorporate a national bank and that a state may not tax it.

Answer 69

Gave power to Congress that it did not previously have.The long term effect was that the Necessary and Proper Clause of Article I, section 8 became a great “source” of power for Congress to use in doing all sorts of activity. Redefined meaning to be more legitimate + appropriate (idea of legislative supremacy) * Established supremacy of federal government over states * Preservation of the constitution for the future * How much time did it take to issue the opinion after oral argument?

Answer 70

1. Washington said it was not an enumerated power 2. Constitutional history - framers rejected proposal to allow congress to make corporations (partly bc of banks)

Answer 71

1. Did congress have the authority to establish a bank? 2. Did Maryland law unconstitutionally interfere with cogressional powers?

Answer 72

1. Congress power is not explicit 2. Constitution is supreme even though the states have taxation power

Answer 73

-Country with protective and jealous colonies (elect a president unbias to all states) -Country that is spread out geographically (vastly different natural resources and problems affecting each area) -Country that hated parties (anomisty towards other party more than like for their own)

Answer 74

Very little indication of powers, those that are are vauge: 1. Executive power 2. Faithfully execute laws 3. Commander and chief

Answer 75

Bush v. Gore (2000)

Answer 76

Magic number to win presidency in ec: 270 All states called except Florida but neither had 270 so they both needed it. Media called Florida for Gore early - media retracted it because it was too close to call Set the stage for biggest election recounts in history , Automatic recall if margin was within .5%. George W Bush named winner of FL. Big challenge/claim or recounts: The punch ballots were undercounted ballets and concern about overcounted ballets. Australian Butterfly ballots caused problems because when someone tried to vote for Democratic Party they accidentally voted for reform ballot. Not main crisis. Main crisis was the paper ballots you had to mark out the chads and the machines made errors- therefore they would have to be hand counted. When we look at a ballot we are interpreting what the voter wants and when you have chads the intent of the voter can be morphed. Votes must be recounted through machines and persons so the paper ballots become damaged and the chads start to fall out and then it makes it even harder. Recounts became controversial because Gore wanted specific counties and Bush wanted all of the states recounted. This made it hard to decide which standards would be put in place for recount. The issue was there was no clear standard for intent of voter that could be applied across state and deadlines for recount were in danger of not being met.

Answer 77

Policy Preferences matter. Each side has legitimate arguments based on law so the attitudes of justices matter Example: All conservative members of SC switched their position and voted for the individual rather than the state to get Bush elected.

Answer 78

Did the Florida Supreme Court violate federal law by altering election procedures? And did the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment when it ordered a recount to take place without setting a single uniform standard for determining vote intent?

Answer 79

Yes and yes. 7-2 on equal protection violation, (5-4 vote on the remedy). Majority opinion, Per Curiam.

Answer 80

The right to vote is protected as well as is the manner in which the exercised is carried out, by the equal protection clause of the 14th amendment. A state may not, by later arbitrary treatment, value one person’s vote over another. Because the standards for votes were arbitrary and Florida SC never gave uniform standard the equal protection clause was violated Florida SC could have gave standards to apply in recountWhy did they not do this? 5 believed not enough time left to do so with deadlines (republicans) Other justices said their was time to do this. Idea that the funbdmanegtal right to vote is imported at for democracy so the recount should be upheld no matter deadlines. We have an election to determine will of people and that should be valued over all Overvotes: Voting for more candidates then you can/should - multiple people on ballot Undervotes: Voting for less candidates then you can/should/ can not determine which person they voted for and which president they wanted Multiple equal protection claims: under votes, over votes, and certified votes from Miami Dade County The voting polls were not certified in Miami Dade and Court said because of all of these multiple equal protection claims the entire process is inconsistent.

Answer 81

deadline in which votes have to be certified. (Bush v Gore 2000)

Answer 82

1. Executive power is a designation of office and is therefore limited ins cope of power. (Ex: have to be enumerated powers from Consitution- we don’t want a king the president is very limited). 2. Office is a general grant of power:Implied discretnatory residual powers - section III take care clause. President has any powers he needs to faithfully execute laws 2nd one has the most sway rn. President power has extended and presidents have taken over a lot more power

Answer 83

Bad history between Justice Field and David Terry in California. Both on Cali SC but Terry had duel with a state senator and shot him. Justices rode the Circuit and occasionally sat at lower courts. Field was in California for Gold Rush and sitting on lower court hearing case regarding a woman’s inheritance (on officals judicial work). Field rules against woman and Terry her now husband threatened Justice. David Terry jailed Sarah jailed. President Harrison assigns Marshall Neagle to protect Justice Field when riding Circuit in California. The problem with this is that is that it is unconstitutional because there is no national law that allows that and congress never authorized it. On train ride between courthouses, Field stopped for lunch and is hassled by Terry, Neagle shoots him. Terry was not armed. Neagle arrested and charged with murder. Federal court granted habeas corpus, California appealed

Answer 84

Does the President, without congressional action, have the authority to issue an executive order through the attorney general, to authorize the protection of Supreme Court Justice?

Answer 85

Yes. 6-2 vote. Majority opinion by Miller.

Answer 86

Field was on officials judicial duty in California when this happened It may be different if he was on vacation but he was on officials judicial business and doing his job. It is true there is no law that allows this protection, but to say it must is overly restrictive because: * The courts can’t protect him- weakest branch. It relies on the executive branch to execute its laws * Congress can’t protect him. Congress can only pass a law, but that is just a law Executive can- the “take care” clause exists to ensure that the laws are “faithfully executed” * We can’t doubt the power of president when protecting judges * Imprisonment of Neagle is wrong, he was following law. Neagle’s actions

Answer 87

No jurisdiction * Majority asserts that Neagle’s actions were in pursuance of the law. There was NO law granting this power. Law must be traced back to Congress * It is a slippery slope to start inventing rights/powers

Answer 88

President is much more constrained domestically than in issues of foreign policy! * Presidential Vetoes and the Presentment Clause (Article I Section 7) - * Presidents can sign, ignore, or veto bills (as well as pocket veto them)

Answer 89

The Line Item Veto Act allowed the president to cancel discretionary spending, new spending, or limited tax benefits. Congress could cancel these cuts, but the congressional cancellation would be subject to presidential veto. Additionally, any member of Congress--or individual--could bring a federal suit if the Line Item Veto Act harmed them. (they did this but what happened?) Raines v. Byrd (1997) – lacked standing...President Clinton vetoed eighty items in conjunction with the Balanced Budget Act of 1997, including monies earmarked for New York hospitals; and also the Taxpayer Relief Act of 1997, which gave a tax break to potato growers in Idaho; the potato farmers and the city of New York and hospitals sued. District Court consolidated the cases and ruled that the Line Item Veto Act violated the presentment clause (Article I, Section 7, clause 2)

Answer 90

Congress realized there is a mutual good in reducing unnecessary spending and out takes more time for congress to do things than it does President Why do Congress want to bring fed dollars back to districts? Help re-election and claim credit for the dollars they bring back. Members don’t want to cut there own stuff but may want to cut stuff from other districts

Answer 91

Does the Line Item Veto violate Article I, Section 7, Clause 2 (the Presentment Clause) of the Constitution?

Answer 92

Yes, 6-3 (Stevens for majority), case is affirmed-Clinton

Answer 93

The President has very clear responsibilities in terms of procedures that the Constitution puts in place for making law. One is a state of union in which they may suggest laws or they may sign a bill or veto it or pocket veto it in the presentment clause. This is only role President has he cannot have any other roll specifically ones that allow President to carve out ….. By trying to give this additional power they have changed the fundamental basis of Consitution. Solution to give him this power that is consistent with Consitution is to amend the Consitution that gives him Line Item Veto Power.If it was constitutional then you would have a law then you would have a law that is not voted on house or senate and this would mess up how a bill becomes a law

Answer 94

- Supreme Court made an unpopular decision - Have direct impact on how much money Congress passed for budget every year -We will see pork bell projects continue because of this and the thing people wanted to prevent has not been stopped

Answer 95

Can the President refuse to provide information to other branches of the government? Assert that the duties, conversations, documents of the President are so closely tied to sensitive duties of the president that they should remain confidential especially in matters related to national security or foreign policy.

Answer 96

This case was one of many court actions spawned by the Watergate scandal, which began on June 17, 1972, when seven men broke into the Democratic National Committee headquarters located in the Watergate complex in Washington, D.C. The men were apprehended and charged with criminal offenses. All had ties either to the White House or to the Committee to Re-elect the President. Five of the seven pleaded guilty, and two were convicted. At the end of the trial, one of the defendants, James McCord Jr., claimed that he had been pressured to plead guilty and that other people involved in the break-in had not been prosecuted. Many suspected that the break-in was only the tip of a very large iceberg of shady dealings and cover-ups perpetrated by influential persons with close ties to the Nixon administration. On May 17, 1973, the Senate began its investigation of the Watergate incident and the activities related to it. The star witness was John Dean III, special counsel to the president, who testified under a grant of immunity. Dean implicated high officials in the president’s office, and he claimed that Nixon had known about the events and the subsequent cover-ups. As surprising as Dean’s allegations were, the most shocking revelation came from Nixon adviser Alexander Butterfield, who testified that the president had installed a secret taping system that automatically recorded all conversations in the Oval Office. The tape recordings, many observers believed, held information that would settle the dispute between the witnesses claiming White House involvement in the Watergate affair and the administration officials who denied it. counsel) was appointed to look into the Watergate affair. The first person to hold this position, Archibald Cox, asked the president to turn over the tapes. When Nixon declined, Cox went to court to get an order compelling him to deliver the materials. The district and appeals courts ruled in favor of Cox. Nixon then offered to release summaries of the recordings, but that did not satisfy Cox, who continued to pursue the tapes. In response, Nixon ordered that Cox be fired. When the two highest officials in the Justice Department resigned rather than comply with Nixon’s order, Solicitor General Robert Bork became the acting attorney general and dismissed Cox. The firing and resignations, popularly known as the “Saturday night massacre,” enraged the American people, and many began calling for the president’s impeachment. Leon Jaworski was appointed to take Cox’s place. An attorney from Houston, Jaworski pursued the tapes with the same zeal as had Cox. Finally, Nixon relented and agreed to produce some of the materials. But when he did so the prosecutor found that the tapes had been heavily edited. One contained eighteen and one-half minutes of mysterious buzzing at a crucial point, indicating that conversation had been erased. Jaworski obtained criminal indictments against several Nixon aides. Although no criminal charges were brought against the president, he was named in the indictment as a co-conspirator. At about the same time, the House Judiciary Committee began an investigation into whether the president should be impeached. The Judiciary Committee and Jaworski sought more of the tapes to review, but Nixon steadfastly refused to comply, claiming that it was his right under executive privilege to decide what would be released and what would remain secret. The district court issued a final subpoena duces tecum, an order to produce the tapes and other documents. Both the United States and Nixon requested that the Supreme Court review the case, and the justices accepted the case on an expedited basis, bypassing the court of appeals.

Answer 97

Does the president have an absolute right of executive privilege not to turn over evidence that has been subpoenaed by a court of law?

Answer 98

No. 8-0 majority burger

Answer 99

Subpoena is valid because the president does not...

Answer 100

Presidents claim - absolute immunity Court responded by breaking it down into two categories: Need to protect communications Seperation of powers On Seperation of powers: (Whether SOP doctrine precludes judicial review of executive privilege claim): It is the duty of courts to say what the law is. Pertaining to question of presidential power v Judicial needs (fair admin of justice): The importance of confidentiality for high gov officals is without question. the enumerated powers for pres provide this protection. In short, the needs of the judicial process outweigh the president.

Answer 101

When national security is involved then the president has the right to an immunity claim Rule of Law: If we put the president above the law it would destabilize the law. the president does not place the claim of privilege based on…. but may make it valid - military or diplomatic secrets The right to have all evidence….the sixth amendment guarantees the right to confront witnesses

Answer 102

Reconstruction acts Johnson veto Congress override so Pres has to enforce State of Mississippi sues Johnson asks for order prohibiting President from enforcing laws

Answer 103

May the president be restrained by injunction from carrying out laws that a state thinks are unconstitutional?

Answer 104

No 9-0 majority opinion by Chase

Answer 105

The Judiciary is forbidden from interfering with the exercise of executive discretion (from Constitution)

Answer 106

Distinguishing ministerial duties from executive duties. Ministerial duties require no discretion like in the Marbury case. Actions here require much discretion as a part of pres duty as commander in cheer If the courts were to issue the order that Mississippi wants, it is clear that the executive and legislative branches would be in collision. Congress could then begin impeachment processes.

Answer 107

1. Marbury v Madison 1803: judicial review 2. Martin v Hunter's Lesse 1816: appellate jurisdiction over states 3. Eakin v Raub: rebuttal to Marshall in Marbury 4. Ex Parte McCardle 1869: judicial restraint from jurisidction stripping 5. Patchak v Zinke 2018: restraint/stripping 6. Baker v Carr: Justiciability/ Political question criteria

Answer 108

Powell v McCormack 1969: scope of leg power US Term Limits v Thorton 1995: requirements for holding congressional office Gravel v United States 1972: speech ad debate clause and congressional aides McCulloch v Maryland 1819: Neccessary and proper clause

Answer 109

Bush v Gore (200) equal protection In Re Neagle (1890) executive order Clintion v New York (1998) presentment clause United States v Nixon 1974 Mississsippi v Johnson 1867

Answer 110

A power once delegated cannot be redelegated.” * Non-delegation doctrine: If the Constitution delegates power to Congress, Congress cannot give power to a different branch

Answer 111

textbook example of grading: Exam day professor gives it to TA/ grad student to grade. TA delegates it to their friend. Students have honest questions of legitimacy. Friend may not have credentials to do so and may know nothing of topic/ no knowledge. Problem of accountability- who do you go to ?

Answer 112

Throughout history congress regularly delegates powers - Congress is really busy: more efficent to delegate to others with expertise. - Expertise: . Congress may not be knowledgeable on specific areas. Ex: Taxes, Poision, - Flexibility - politics: Don’t want to deal with hot potato issues, rather shift the blame. Ex: Grundy V U.S. Congress did not clarify in legislation whether pre-act offenders had to register or not- removes congress from blame

Answer 113

Wayman v. Southard (1825) * First major ruling on delegation of domestic powers * Ruled that Congress can grant authority depending on the “importance” of the subject * In Hampton & Co. v. US (1928), the power was broadened and okay so long as Congress “shall lay down by legislative act an intelligible principle...” * Some changes at the Court in 1930s led to switches in decisions in this area of la

Answer 114

In 2006 Congress passed the Sex Offender Registration and Notification Act (SORNA), which requires sex offenders to register where they live or work before completing their prison sentence or face criminal penalties. SORNA delegated the over 500,000 pre-act offenders to the US attorney general (who heads department of justice) because they believed they had the authority and better expertise to do so. The attorney general office made N.A. interim rule 6 months later that stated pre-act offenders had to register and it was finalized later on. Gundy moved to New York after his prison release and was arrested and convicted for failing to register. In challenging his conviction, Gundy argued that Congress unconstitutionally delegated legislative power when it authorized the attorney general to “specify the applicability” of SORNA’s registration requirements to pre-Act offenders. After a federal trial court and court of appeals rejected his argument, Gundy asked the Supreme Court to hear his case.SC did not actually agree to decide entire case, just whether Congress can delegate this authority to AG

Answer 115

: Does the SORNA delegation of authority to US attorney general violate the non delegation doctrine?

Answer 116

Vote: 5-3 Kavanaugh not confirmed yet Plurality opinion did not have 5 members that agreed on both disposition and the reasoning Alito concurred in outcome, but he did not agree with reasoning

Answer 117

Kagan Time and time again ruled delegation is ok as long as Congress provides congress Because Congress provided some sort of guiding principle it is ok Explicitly reject Gundy's argument that AG has unchecked power because he can do whatever he wants to do (dangerous because they are chief prosecutor for entire country) 1st meaning of delegation 2 whether not it violates - does not 3 end in hyperbole - if SORNA is unconstitutional then almost all of govt would be unconstitutional

Answer 118

AG allows EB to write criminal code for half a million citizens - in Gorsuch mind that is congresses job not the AG. Taking a formalistic approach. Framers gave us a three prong test 1. 2. Executive fact-finding make rule 3. Congress may assign non-legislative responsibility to other branches Failed all three rules

Answer 119

Chadha had 6 year student visa that expired, ordered to court hearing. After more hearings, judge suspended deportation. Acting under provision of the Immigration and Nationality Act, the Attorney General recommended he be allowed to remain in US Congress had authority to veto this, and did at last minute with no debate.

Answer 120

May one house of Congress pass a resolution that vetoes the actions of another branch of government after Congress delegated that power to the other branch?

Answer 121

No, by a 7-2 vote, the Court ruled in favor of Chadha

Answer 122

Reasoning * Congress argues legislative veto is efficient and convenient, but that doesn’t mean it is democratic or consistent with Constitution * Presentment clause and bicameral requirement of Article 1, Section 1 and Section 7, Clause 2 guide the resolution of the case * Presidential vetoes protect citizens from improvident laws * Legislative power should follow the path in the Constitution * The action by one house of Congress cannot be justified as an attempt to amend the standards set out in the Act

Answer 123

Should decide on narrower grounds and should (punt) this issue to future cases * Without the legislative veto Congress is left with the choice of writing laws that are so specific that they are unwieldy, or to abdicate its lawmaking function to the Executive Branch. * The legislative veto is far from instant legislative tyranny over the Executive

Answer 124

Legislative Vetoes are unconstitutional but they still happen

Answer 125

* Congress still passes laws that contain legislative vetoes. * While Congress has not exercised a veto against agency, they have vetoed agency requests to move funds from one program to another (a type of veto) * Open defiance of Court decision because political branches don’t agree with it * Agencies don’t want to upset Congress (fear retaliation in future over funding for agency

Answer 126

Guide for answering hypothetical 1. Start by stating a proposition/fact/premise about the issue in the hypothetical case 2. identify controlling precedent. Explain why the precedent is similar (fact patter/legal question). Explain via analogy how the resolution of the precedent leads to the same resolution of the current case 3. Distinguish other relevant precedents. Explain why these precedents are not controlling. This should include a reasoning by analogy why some fact or issue, etc. in the precedent is different from the current hypothetical. 4. A conclusion - note- the order of 2 or 3 can be switched

Answer 127

hypothetical • In reaction to wide discrepancies in sentencing by federal court judges, Congress created the U.S. Fair Sentences Commission as part of the Fair and Equal Sentences Reform Act. The commission was created as “an independent commission in the judicial branch of government,” and was empowered to create sentencing guidelines for all federal crimes, to which lower courts would generally be bound. Seven commissioners would be nominated by the President and confirmed by the Senate. Three of the commissioners were to be federal judges and no more than four could be from the same political party. • The Commission promulgated the sentencing guidelines, but lower courts disagreed on the constitutionality of the guidelines. In this case, Herbert “Big Ace” Frank was found guilty of selling a small amount of meth and received a long prison sentence that was mandated by the guidelines. “Big Ace” appealed his conviction because the lower court judge upheld the guideline set by the commission. Specifically, lawyers for “Big Ace” argued that the law violated the delegation of powers principles by giving the commission “excessive legislative authority.” • How should the Court decide this case? Explain your reasoning

Answer 128

• Has special authority over foreign matters • Commander in Chief • Power to make Treaties • Power to appoint ambassadors etc. and to receive ambassadors etc. • Congress’ check on the above powers…Congress has to approve treaties, senator approves ambassadors

Answer 129

May Congress issue a resolution that concerns external affairs, that gives the president the power to control U.S. involvement in foreign affairs?

Answer 130

Yes by vote of 7-1 the court upheld the congressional delegation of power

Answer 131

1. The president has the power to act quickly and to be aware of conditions in other countries. Foreign negotiations often rely on secrecy, which is best achieved if negotiating power is vested in one individual -congress is 533 people president is one person which is why he can act quickly and move quickly - one voice. Also- it is IMPOSSIBLE to keep a secret in congress 2. Foreign and Democratic affairs are very different animals in terms of the information required to be presented from the executive branch. It is wise that the legislature not lay down specific guidelines under which the president is to act. The president needs leeway in foreign affairs

Answer 132

1. President has strong power when it comes to foreign affairs -implications for post 9/11 America 2. President is not solely responsible in foreign affairs -congressional powers v presidential powers Military War Treaties Ambassadors

Answer 133

Before his inauguration (Lincoln) of March 4, 1861, 7 southern states seceded from the union. Mid April shots fired at fort sumter then President elect Lincoln imposed a naval blockade of southern ports. He did so unilaterally without seeing congressional approval. Prior to July 13, union vessels seized four ships trading with the confederacy. The owners of the ships sued, claiming that Lincoln had no authority to institute a blockade with a congressional declaration of war. Congress did not enact a formal declaration of hostilities until July 14 and did not ratify the blockade until August 6.

Answer 134

Yes, 5-4 favoring pres Lincoln (union) Grief - majority Nelson- dissenting

Answer 135

President Lincoln’s blockade was a constitutional use of president powers (given to him by acts of Congress 1795,1807) to suppress an insurrection

Answer 136

Does war exist? Can President initiate a blockade? Majority reasoning: Congress alone can declare the war but pres must ensure laws are faithfully executed Outlined president's powers in war Since there was a rebellion/insurrection there was war conditions and the president was just faithfully executed Said war existed - yes a state of civil war existed because we know when a war starts when foreign nations declare neutrality, when a hostile group declares an insecurection, hostile actions or conditions causes courts to shut down and that is an indicator that we are at war Can the president initiate the blockade: The president has a responsibility under article 2 to defend nation because he is the commander in chief President can call out militia to defend against this aggression

Answer 137

It is CONGRESS job to declare war because the Constitution gives them the ability to do so Clearly formalist

Answer 138

Congressional resolution delegating power to President is constitutional

Answer 139

Does the president have the right to institute a blockade of ports under control of persons in armed rebellion against the government before Congress has acted?

Answer 140

1. Pres may take action w/o waiting for Congress 2. Also established when war comes into existence (or atleast on argument of it) that a state of war is not conditional upon Congress declaring war 3. Remains controversial on how much Pres can do and for how long 4. Has modern day implications with controversy that surrounds Iraq and Afghanistan war

Answer 141

Civil war. Lincoln worried about Southern sympathizers, known as Copperheads, who were active in Illinois, Indiana, Missouri, and Ohio. Lincoln decided combating enemies and security/union more important than individuals rights. gave his military commanders broad powers to arrest civilians suspected of engaging in traitorous activities. These suspects were to be tried in military courts. the army had no legal authority to arrest and try civilians. State and federal courts were in full operation and were capable of trying civilians charged with treason or any other crime. Before civilians could be tried by military courts, a state of martial law had to be declared, and for that to happen the right of habeas corpus had to be suspended. Article I, Section 9, of the Constitution provides for the suspension of habeas corpus in the following words: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” This provision posed two problems for Lincoln. First, the suspension provision is in Article I, which outlines legislative, not executive, powers. And second, if the civilian courts are in full operation and no armed hostilities are taking place in the area, then public safety probably does not demand a suspension of habeas corpus. Several times during the war he issued orders expanding military control over civilian areas, permitting military arrests and trials of civilians, and suspending habeas corpus. Congress later endorsed some of these actions. Arrests of suspected traitors and conspirators were common and often based on little evidence. Were such actions constitutional under the war powers doctrine?

Answer 142

Does a military tribunal have jurisdiction to try a citizen during a time of war for allegedly treasonous activities in a peaceful state

Answer 143

No. 9-0 vote on illegal imprisonment Majority - Davis:

Answer 144

The Constitution guarantees due process under law and martial law cannot override this President can’t strip Consitutional rights during war President does not have right to suspend habeas corpus during a peaceful state Indiana was a peaceful state with open courts so Milligan should have been tried No graver question was ever considered….to be charged and punished according to law” Milligan was denied a trial by jury. When the courts are open all citizens possess this right only those within the military are subject to the jurisdiction of the court.

Answer 145

The prize cases 1863-(increases president power over Congress) When does a state of war exist? yes a state of civil war existed because we know when a war starts when foreign nations declare neutrality, when a hostile group declares an insecurection, hostile actions or conditions causes courts to shut down and that is an indicator that we are at war Ex Parte Milligan 1866 (takes power from President) -military may not try citizens who are rebelling

Answer 146

”Inter arms enim silent legas”- in times of war the law falls silent/mute (Cicero) Trade off between liberty and order War balance shifts towards order and security and suppress individual rights and liberties peacetime - balance towards freedoms “Inter arma enim silent leges” (Cicero) • Korematsu v. U.S. (1944) • “We uphold the exclusion order…Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warefare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.” • Ex parte Milligan (1866) • “When peace prevails, and the authority of the government is undisputed, there is no difficulty of preserving the safeguards of liberty;…but if society is disturbed by civil commotion…these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws

Answer 147

Judiciary has article 3 lifetime tenure -they do not have to run for election - they can make unpopular decisions

Answer 148

Japanese bombed Pearl Harbor on December 7, 1941. Anti- Japanese sentiments very high among the public. US feared Japanese invasion on the western coast, plus there were large numbers of people of Japanese ancestry living on the coast that many feared were sympathetic to Japan. • President Roosevelt issued several orders: first curfew, then evacuate individuals of Japanese race to inland detention centers. Congress enacted both into law. • These orders affected ALL people of Japanese ancestry. It didn’t matter where their loyalty lied or if they were a citizen or not. • Fred T. Korematsu was arrested for being on streets in violation of government evacuation orders. • After his arrest the American Civil Liberties Union offered to represent him and to challenge the validity of the evacuation orders. • Case of Hirabayashi v. United States (1943), where Court upheld constitutionality of the curfew program.

Answer 149

May the president order the internment of all persons suspected of being of Japanese ancestry?

Answer 150

• Yes, vote 6-3, affirmed in favor of US government

Answer 151

Government’s evacuation and detainment orders are constitutional.

Answer 152

All legal restrictions that restrict the civil rights of a particular group are immediately suspect. Courts must therefore subject these laws to rigid scrutiny. • In light of our decision in Hirabayashi, however, we cannot conclude that the exclusion orders were beyond the powers of Congress and the executive branch. • The removal of people from a particular area was vital to prevent espionage and sabotage. The military command argued that the curfew policy was not enough to curb these possibilities. Indeed, there was no way to discern the loyal from the disloyal in such a short time span, and approximately five thousand American citizens of Japanese ancestry refused to swear allegiance to the United States. As such, this Court will not question the wisdom of military authorities. • We are mindful of the hardships of war. However, when foreign powers threaten our shores, the power to protect must be commensurate with the threatened danger. • We are dealing with nothing more here than an exclusion order to protect the country. If it were someone being imprisoned in a detention camp solely because of racial prejudice it would be clear that such an action would violate the Constitution. However, there is evidence that some citizens of Japanese ancestry were disloyal, and therefore action was necessary.

Answer 153

Frankfurter • War power is “the power to wage war successfully” (Hirabayashi v. US) • Therefore the context of war is key. The same action during times of peace would be lawless. • Invokes Framers of constitution, whom a majority of participated in a war • “I find nothing in the Constitution which denies Congress the power to enforce such a valid military order…”

Answer 154

• Murphy • The exclusion of all people of Japanese ancestry “falls into the ugly abyss of racism.” • “We must accord great respect to military authorities” …however there must also be limits on their power. • Indeed, where martial law has not been declared individuals continue to possess their constitutional rights. To detain the people as was done here, there must be immediate, imminent, and impending danger. • Concede to fear of invasion, but the response should be reasonably related to the removal of the dangers of invasion, sabotage, and espionage • It is not reasonable to assume that all Americans of Japanese ancestry were aiding the enemy. Many reports were way overblown or half-truths (no convictions post-pearl harbor) • As such, I dissent from the legalization of racism.

Answer 155

Jackson • “Korematsu was born on our soil…The Constitution makes him a citizen of the United States…” • There is no claim made that Korematsu is disloyal to the country. Indeed, he was convicted of an act that is not commonly a crime-- being present in a state where he is a citizen. • His presence in the locality was only made a crime, however, because of the location of his parents’ birth. If he had been of German or Italian ancestry, however, he would not have been singled out by this policy. • If any assumption underlies our system it is that guilt is personal and not inheritable. “here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.” • The law he violated was not created by an act of Congress. Rather it was created by a military order, and as such, the Court is not bound to adhere to them. • Indeed, while the military may make such decisions, if the judiciary legitimates such actions it will legitimate racial discrimination for all time. • “The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward…

Answer 156

• Severely criticized decision • 1983 Korematsu’s conviction overturned in federal district court • Congress later awarded $20,000 to survivors • Remains debated topic on whether it was the “right” thing to do • Philosophies of Law: Natural law vs. Positivism

Answer 157

Natural law: individuals have natural born rights that cannot be taken away under any circumstances. Morals, ethics, justice Positivism: “a law is a law is a law” as long as the governing body passes a law within the procedures that are allowed it is good law

Answer 158

• American woman of Japanese descent who was fired from her job and arrested and moved to a detention camp. • Court unanimously ruled the government could not continue to detain citizens who were loyal to the US • Decided same day as Korematsu. Led to the reopening of the west coast • Are Korematsu and Endo (in)consistent? Shocker- They did not overturn their Korematsu - they were decided the SAME day deciding different things Are Korematsu and Endo inconsistent? Similar facts

Answer 159

Korematsu case resurfaces during June 2018 Supreme Court’s ruling on President Trump’s travel ban. • Dissenters (Sotomayor and Ginsburg) criticized the rule and likened it to Korematsu • Majority (written by Roberts) said that Korematsu was “objectively unlawful” and that it was based on a “morally repugnant order”

Answer 160

In 1951 a labor dispute began in the steel industry and the union called for a strike. • Because of the Korean War, President Truman issued an executive order commanding the secretary of commerce to seize the nation’s steel mills and to keep them in operation. • Truman cited no statutory authority for taking such an action. • The Taft-Hartley Act of 1946 forbade this type of action by the president. • Truman argued that the inherent powers of the office justified such an action despite a law to the contrary. The owners of the steel mills complied with the order under protest and filed suit.

Answer 161

Security / order valued over individual rights during war During peace individual rights valued mode

Answer 162

Security / order valued over individual rights during war During peace individual rights valued more

Answer 163

• May a president take over an industry in order to prevent a union from striking?

Answer 164

No. By a vote of 6–3 the Court ruled in favor of Youngstown Sheet and Tube

Answer 165

President’s order to take over private industry is unconstitutiona

Answer 166

• To issue such an order, the power to do so must stem from an act of Congress, or from the Constitution itself. However, there is no statute that authorizes the president to take property as he did in this case. • The order cannot properly be sustained as an exercise of the president’s inherent military power as commander in chief. Only the nation’s lawmakers can take private property. • Nor can the order be sustained because of the several provisions of the Constitution that grant executive power to the president. • The president’s order does not direct that a congressional policy be executed in a manner consistent with the intention of Congress, but in a manner consistent with the president’s wishes. The lawmaking power in the United States is within Congress’s domain. Congress does not give this power to president or to the judicial branch

Answer 167

There are three classes of presidential power (p. 307-8). • First, when the president acts pursuant to express or implied authorization of Congress his authority is at its maximum. • Second, when the president acts in the absence of congressional grant or denial of authority there is a zone of twilight where both branches have concurrent power. • Third, when the president acts contrary to the implied will of Congress his power is at its lowest ebb. The presidential power here can only be found in the third class of powers. Beyond the suspension of habeas corpus, there is no provision for the president to have extraordinary powers in times of crisis

Answer 168

The president was acting according to the Take Care Clause, to faithfully execute all laws. To determine if he has this power we have to look at the context--in this case the country was in a time of crisis. Thus, although distasteful, the power used here is constitutional.

Answer 169

s • Property rights vs. civil rights • Which opinion is most important? • Jackson’s concurrence provided useful framework for dealing with presidential power vis-a-vis Congress

Answer 170

What if this was WWII? • Shortly after Pearl Harbor? • Does the type of industry matter?

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