1. Marbury v. Madison



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7. Dissent Reasoning: [Scalia] The framers of the constitution intentionally vested all of the executive power in the president. As such, any person executing purely executive power must be under the exclusive control of the President, and thus terminable at will. A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused. The majority has replaced a constitutional requirement with an unprincipled “balancing test” having no guidance.

1. United States v. Curtiss-Wright Export Corp., (1936); pg. 352, briefed 3/25/96
2. Facts: Congress passed a joint resolution authorizing the President to embargo Bolivia and Paraguay who were fighting in Chaco. Curtiss-Wright was indicted for conspiracy to violate the embargo.
3. Procedural Posture: Curtiss-Wright challenged the resolution as being an unconstitutional delegation of legislative power to the President. The lower court sustained the challenge.
4. Issue: Whether the resolution is unconstitutional as a delegation of legislative power to the President.
5. Holding: No.
6. Reasoning: The resolution may have been unconstitutional if it related solely to internal domestic powers, where the President’s power is more constitutionally limited. However, the origin and nature of the President’s domestic and foreign powers is very different. The President’s foreign power is not dependent solely upon the affirmative grants of the constitution. The President has the power to negotiate treaties, and is the representative of the U.S. in international relations. He is in a better position than Congress to handle foreign affairs because he is privy to classified information. Thus, it is unwise to narrowly limit the President’s foreign power.
7. Notes: The War Powers resolution of 1973 now provides that Congress shall be consulted beforehand “in every possible instance” when the President is introducing troops into situations where hostilities are imminent. Afterwards, he must report within 48 hours the reasons and constitutional or statutory basis for his action, and any other information that Congress may request. Also, he must continue to consult with the Congress on a periodic basis. Then, if Congress does not declare war, or otherwise granted statutory power, the President must remove the troops within 60 days, or immediately if directed by Congress.

1. The Prize Cases, (1863); pg. 365, briefed 3/25/96
2. Facts: The civil war had not yet been declared a war, but Congress had passed several resolutions giving the President some limited powers to take action against the seceding states. The President instituted a naval blockade and seized several ships.
3. Procedural Posture: The seizures were challenged as unconstitutional.
4. Issue: Whether the President had the authority, given the circumstances, to initiate a naval blockade in the absence of an express declaration of war by the Congress.
5. Holding: Yes.
6. Reasoning: Congress does not have the power to declare war against a domestic state. However, the President, as the chief executive, has the statutory power to supress insurrection, and to see that the laws are carried out. In fact, he has the obligation to protect the union. It is the President’s decision whether force is necessary when it is authorized. In any event, the Congress subsequently passed laws retroactively granting the power, without admitting that it did not exist.
7. Dissent Reasoning: The Congress alone has the power to declare war, and the naval blockade was war-like force. There is no difference between a civil war or a public war. Also, the subsequent grant by Congress was an ex post facto law.
8. Notes: Before the Iraq war, President Bush sent massive amounts of U.S. troops to Saudi Arabia, relying on his constitutional powers as Commander in Chief, and denied the efficacy of the War Powers resolution. Debate ensued as to whether the President had the power to take action towards starting a war without Congressional declaration of war or statutory grant of power. In Dullum v. Bush, 54 members of Congress sued to prevent the President from initiating an offensive attack without first seeking the approval of the Congress, claiming that it was a justiciable, and not merely a political question. However, as the Jan 15th deadline approached, Congress voted to authorize Presidential use of force and the issue became moot. In 1967, the Fulbright committee issued a report recounting the expanding assertion of power of the Presidency, and recommending that Congress reassert its constitutional authority over the use of the armed forces by using joint resolutions that specifically grant definite and limited power rather than merely express approval for indefinite actions to be taken by the President. After that, Congress also used its purse string powers to cut off funding for american armed forces involvement in Cambodia.

1. Nixon v. Fitzgerald, (1982); pg. 376, briefed 4/2/96
2. Facts: Fitzgerald lost his management position with the Department of the Air Force after “blowing the whistle” on significant budgetary overruns on the building of a military transport plane.
3. Procedural Posture: Fitzgerald sued the President and several of his officials for damages, alleging violation of his First Amendment and other statutory rights due to his firing.
4. Issue: Whether the President is entitled to absolute immunity from damages liability predicated on his official acts.
5. Holding: Yes.
6. Majority Reasoning: [Powell] The absolute [rather than qualified] immunity is required due to the unique position of the Presidency. The President must not be diverted from a proper exercise of discretion for fear of being subject to a lawsuit for private damages. The President is required to make decisions every day that would “arouse the most intense feelings,” and so must enjoy absolute immunity for his official acts. There may be cases where the Congress could take some affirmative action to subject the President to personal jurisdiction, but the court would have to weigh the constitutional weight of the interests to be served with the danger of intrusion on the authority and function of the Executive Branch. There are other ways to keep the President from abusing power, namely the press, impeachment, re-election, and personal reputation.
7. Dissent Reasoning: [White] Attaching absolute immunity to the office of the President, rather than to particular activities that the President might perform places the President above the law. The scope of immunity should be determined by the function, not the office, and the dismissal of employees does not fall under a constitutionally assigned executive function which would be substantially impaired by the possibility of a private action for damages.
8. Notes: In Harlow v. Fitzgerald, the court refused to extend blanket immunity to the top Nixon aids involved in the same conspiracy as charged in the above case. Qualified immunity was the proper standard, unless perhaps the aid was entrusted with “discretionary authority in such sensitive areas as national security or foriegn policy.” However, the court refused to give the Attorney General absolute immunity even while engaged in actions related to national security in Mitchell v. Forsyth.

1. Nixon v. United States, (1993); pg. 73, briefed 4/2/96
2. Facts: Nixon was a Federal Circuit Court judge who was accused of taking gifts from a prominent local businessman in return for asking a local DA to halt the prosecution of the businessman’s son.
3. Procedural Posture: The House adopted three articles of impeachment, and then the Senate, subsequent to its own impeachment rules, appointed a subcommittee to hear the evidence. The subcommittee then summarized the facts and findings for the entire Senate, and open arguments were held on the floor, which culminated in the required 2/3 vote to convict. Nixon appeals on the grounds that the power to “try” impeachments in the Constitution requires a full judicial proceeding where the entire Senate hears all of the evidence.
4. Issue: Whether the Senate procedural rule allowing for a subcommittee to hear and summarize the evidence violates the Impeachment clause which provides that the “Senate shall have the sole Power to try all Impeachments.”
5. Holding: No. This is not a justiciable question, it is a political question.
6. Majority Reasoning: [Rehnquist] A controversy is non-justiciable, i.e. it involves a political question, where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standars for resolving it.” Here, the power to “try” an impeachment is a broad power that precludes any manageable standards. Also, since the Senate has the “sole” power to try impeachments, it must be able to function without interference in these proceedings. Judicial review of the Senate’s trial would introduce risks of violation of checks and balances, because it would make the Judicial Branch the final reviewing authority of the “important constitutional check” placed on them by the Framers.
7. Concurrence Reasoning: [White] This is a justiciable question, and may be judicially managed fairly.

1. United States v. Nixon (The Nixon Tapes Case), (1974); pg. 378, briefed 4/2/96
2. Facts: Several of Nixon’s top aids were indicted in a criminal conspiracy proceeding in relation to the Watergate burglary.
3. Procedural Posture: The District Court, acting on motion of the special prosecutor, ordered that the President produce taped conversations with the aids in order to determine who was involved to what extent. The President refused to comply with the subpoena duces tecum, invoking executive privilege. The District Court rejected his privilege, and the President appealed. While the case was before the Court of Appeals, the Supreme Court granted cert. before judgment.
4. Issue: Whether an assertion of Presidential privilege as to subpoenaed materials for use in a criminal trial is valid when it is based solely on the general interest in confidentiality of Presidential communications.
5. Holding: No.
6. Reasoning: The President does not have the power to determine the scope of his own privilege. Thus, this is a jusiticialbe question. It is the function of the court to say what the law is, and thus separation of powers [Marbury] supports judicial review of executive privilege. Although the executive privilege is broad in scope, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The interests of the Presidential privilege must be weighed against the interests of criminal justice. Since, the Presidential interest is low in this case [because these are not national security related matters], and the interests of the criminal justice system are high, the executive privilege must yield to the need for evidence in the pending criminal trial.

1. U.S. Term Limits, Inc. v. Thornton, (1995); pg. 83, briefed 4/2/96
2. Facts: Arkansas, by popular vote, adopted a State constitutional amendment that prohibited the eligibility of candidates for placing their name on the ballot for re-election if they have already served 2 terms (in the U.S. Senate) or 3 terms (in the U.S. House).
3. Procedural Posture: The lower courts found that the amendment violated the federal constitution.
4. Issue: Whether the states may prescribe additional qualifications for candidates who are otherwise eligible under the federal constitution to have their name placed on the congressional ballot.
5. Holding: No.
6. Majority Reasoning: [Stevens] There is overwhelming historical evidence that it was the intent of the Framers that the qualifications set forth in the Constitution for membership in the House and Senate be the exclusive requirements. It is fundamental that the people be able to choose who is to represent them, not the states. In Powell, the court held that the House of Representatives has no authority to exclude any person, duly elected by his constituents, who meets all of the requirements for membership expressly prescribed in the Constitution. This reasoning applies to the power of States to prescribe additional qualifications as well. The power to add additional qualifications is not within the original powers of the states, and thus not preserved by the 10th amendment. Also, even if it were and original power, it has been divested by the constitution. Only an amendment to the federal constitution can change the framework of the election process so drastically.
7. Dissent Reasoning: [Thomas] Nothing in the Constitution deprives the people of each state to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The states do enjoy reserved powers over the selection of their congressional representatives.

1. Marsh v. Alabama, (1946); pg. 891, briefed 4/6/96
2. Facts: Marsh, a jehovah’s witness, was convicted of trespassing when she passed out religious fliers in the company-owned town of Chicksaw against the corporate owner’s permission.
3. Procedural Posture: Marsh challenged the conviction under the 1st amendment right to free speech, and the corporation defended on the ground that the owner of private property has a privacy interest in excluding persons and behavior that he does not desire.
4. Issue: Whether the conviction violates the 1st amendment, even though the town is privately owned.
5. Holding: Yes.
6. Reasoning: The company town was only different from other towns in that the title was privately owned. The owner, for his own advantage, had opened up his property for use by the public in general, and thus his rights are limited by the constitutional rights of those who use the property. Since these facilities are built and operated primarily to benefit the public, and since their operation is “essentially a public function,” it is subject to state regulation. Here the activity was sufficiently state-like to balance the interests of the owner against the constitutional rights of the user.
7. Notes: Marsh was eventually limited to its facts because of the difficulty in maintaining the argument that a private property owner was serving a sufficiently public function. However, it served as an alternate grounds for the decision in Evans v. Newton, in which a privately owned park was forbidden to exercise racial discrimination since the “service rendered by a private park of this character is municipal in nature.” In Jackson v. Metro Edison, the Court refused to extend the public function doctrine to the actions of a privately owned utility licensed and regulated by a state public utilities commission. Rehnquist noted that there was no state action present, even though the utility was state regulated, because utility provision was not a function traditionally exclusively reserved to the state. Also, the Court rejected a state action attack in Flagg Bros., Inc. v. Brooks, holding that a warehouseman’s proposed sale of goods entrusted to him for storage to satisfy a warehouseman’s lien under the UCC did not constitute state action.

1. Shelley v. Kraemer, (1948); pg. 899, briefed 4/6/96
2. Facts: A 1911 covenant signed by the private property owners in a residential neighborhood to exclude blacks and asians for 50 years. Petitioners are blacks who purchased houses from white owners despite the racial covenant.
3. Procedural Posture: The respondents brought a successful state action to enforce the covenant.
4. Issue: Whether private property covenants that would violate the 14th amendment if enacted as law are nevertheless void under the 14th amendment if enacted by private persons and enforced by the state.
5. Holding: Yes.
6. Reasoning: Although the covenants would not be violative of equal protection if they were solely private in nature, here there is more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. State action refers to all exertions of state power.
7. Notes: In Barrows v. Jackson, the Court used Shelley to block enforcement of a restrictive racial covenant by instituting a suit for damages [rather than absolute exclusion as was the case in Shelley]. However, in Evans v. Abney, the Court refused to extend Shelley to cover the case where a park had been willed in trust to the city for operation as “whites only.” The court rested its decision on the fact that the trust was void for inability to give effect to the donor’s intent, and thus the property reverted to the donor’s heirs. However, in Pennsylvania v. Board of Trusts, the Court held that a board of trustees made up of government officials could not constitutionally exclude blacks from a college that was donated in trust under the condition that it be white only, and that substituting private trustees for the government officials was no more constitutional. In Bell v. Maryland, the court split 3-3 on whether Shelley should apply to prevent enforcement of trespassing laws to prosecute black sit-in protestors when the private owner of the restaurant personally discriminated against black patrons.

1. Burton v. Wilmington Parking Authority, (1961); pg. 906, briefed 4/6/96
2. Facts: A state-operated parking building had a restaurant facility which it leased to a privately-owned business. The restaurant had a policy of discriminating against blacks, and refused to serve Burton solely because he was black.
3. Procedural Posture: Burton brought an action against the owner of the restaurant and the state for violation of equal protection. The state supreme court held that the restaurant was acting in a purely private capacity under the lease, and that its action was not that of the lessor, and therefore not state action.
4. Issue: Whether a private restaurant that is leased as a part of a state-owned public facility may discriminate on the basis of race if there is a sufficient conncetion or nexus between the tenant restaurant and the state owned public facility.
5. Holding: No.
6. Reasoning: The restaurant and the parking garage are inseparably interdependent. The restaurant relies on the presence of parking for its customers, and the parking garage relies on the rent from the restaurant for operating costs. Thus, the state has made itself a party to the discrimination by failing to exercise its power to stop it by writing such terms into the lease. The nexus here is so close that the discrimination can not be considered to be purely private in nature, but rather the state is involved “to some significant extent” with the discrimination.
7. Notes: In Moose Lodge v. Irvis, the Court refused to extend Burton to the case of state licensing, rejecting a state action challenge to a private club’s discrimination, solely on the ground that the private club held a state liquor license. Also, in CBS v. Democratic National Comm., the Court refused to find that refusal of editorial advertisments was state action, solely on the ground that CBS was granted a broadcast license.

1. Edmonson v. Leesville Concrete Co., (1991); pg. 272 Supp., briefed 4/6/96
2. Facts: Race-based peremptory challenge of a civil juror.
3. Procedural Posture: Alleged violation of 14th amendment.
4. Issue: Whether race based peremptory challenges by a private citizen in a civil case violate the 14th amendment equal protection under the state action doctrine.
5. Holding: Yes.
6. Majority Reasoning: [Kennedy] The claimed constitutional deprivation here results from the exercise of a right having its source in state authority. There are several guidelines illustrated by the previous cases, 1. the extent to which an actor relies on governmental assistance and benefits [Burton], 2. whether the actor is performing a traditional governmental function [Marsh], and 3. whether the injury caused is aggravated in a unique way by the incidents of governmental authority [Shelley]. This case meets all three of the guidelines because the discrimination is occuring in a judicial proceeding, during the selection of a jury, which is a unique governmental entity bound by race neutrality.
7. Dissent Reasoning: [O’Connor] It is necessary after Jackson v. Metro Edison, for a showing that the government was involved in the specific decision challenged. Here all of the government action is preliminary to the use of a peremptory challenge, it does not constitute participation in the challenge itself. Trials are adversarial proceedings in which attorneys act on behalf of private clients, not the government. [Scalia] felt that there was no consitutional basis for the holding and it was just evidence of the majority’s hostility to race-based judgments.
8. Notes: In Lebron v. National Railroad Passenger Corp., (1995), the Court [Scalia] held that Amtrak was an “agency or instrumentality of the United States” [since the U.S. had created the corporation and reserved the power to appoint members of its board] and therefore was bound by the first amendment to prohibit content-based restrictions on the leasing of billboards for political purposes.

1. Frothingham v. Mellon, (1923); pg. 1600, briefed 4/11/96
2. Facts: A federal taxpayer disagreed with the Treasury expenditures in a Congressional Act. She felt that it exceeded the general power of the Congress and thereby invade the province of the states under the 10th amendment.
3. Procedural Posture: The taxpayer filed suit challenging the act under the theory that as a taxpayer, she would have property taken without due process, because the expenditure would result in an increase, generally, in her taxes.
4. Issue: Whether a single federal taxpayer has standing to sue the federal government to prevent expenditures if her only injury is an anticipated increase in taxes.
5. Holding: No.
6. Reasoning: The taxpayer’s interest in the treasury money is shared with millions of others and is too small to determine. There are too many uncertain and fluctuating factors to determine the effect this act might have on one person’s taxes. Furthermore, to decide this case, where there is no controversy, would be to assume a position of review of the governmental acts of another co-equal department, an authority which the court does not possess.

1. Flast v. Cohen, (1968); pg. 1601, briefed 4/11/96
2. Facts: Taxpayers disagreed with the congressional spending in subsidizing religious private schools, claiming that it violated the establishment clause.
3. Procedural Posture: The taxpayers brought an action challenging the spending act as unconsitutional under the establishment clause, and the lower court dismissed under Fronthingham.
4. Issue: Whether a taxpayer has standing when he alleges that the congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.


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