The Judicial Power and Its Limits

I.

Judicial Review= The power of a court to say that a law is

unconstl

A. Origins and Legitimacy

1. Marbury v Madison- 1803. The federal judiciary may review
the constitutionality of actions taken by the legislative and
executive branches of the national government.
a. Invalidated 13 of the Judiciary Act of 1789 which gave the
Supreme ct power to issue writs of mandamus. Ct found that
13 gave Sup ct original juris over such cases, however ruled
that it was unconstl for the Sup Ct to have original jurisdiction
under Article III, 2, clause 2 which says that Sup Ct only has
original juris over cases affecting ambassadors, other public
ministers and consuls and those in which a state shall be a
party and appellate juris over other cases.
b. Argument that the Exceptions Clause of Article III allows
Congress to move types of cases from Sup Ct appellate to
original juris. Marshall rejected this argument on the basis that
the Framers wouldnt have bothered defining the Cts original
and appellate juris if Congress could change it. He interprets
this clause to mean that Congress can remove cases entirely
from Cts appellate jurisdiction but doesnt permit Cong to move
cases to original jurisdiction.
2. Marshall makes 3 points: branches cannot exceed the powers
allocated by Const, the judiciary is competent to declare
actions unconstl, and the judiciary is the supreme branch in
evaluating constlty of laws.
a. Textual Arguments
i.
Article 6- Supremacy Clause. This establishes that no law
may conflict with the Constitution, but it doesnt establish that
the Ct has the power to review laws to see if they conflict.
ii.
Article 6 Oath Clause- Judges (as well as exec and legis)
take oath to uphold constitution. Theyd violate it by honoring
an unconstl law. Is this persuasive? Since the other branches
take the same oath, doesnt that imply they should police
themselves?
iii.
Article 3 2- judicial power shall extend to all cases....
arising under this Constitution, the Laws of the US and
Treaties... This is the strongest argument.
b. Structural Arguments
i.
Tripartate structure of fed govt- w/o judicial review, C
could ignore limits placed on it by Const. Is this a good
argument? Doesnt this imply that the other branches also
could review ct decisions?
c. Other arguments
i.
Fact that we have a written constitution which is intended
to be the supreme law
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ii.

Legislative Oath- C imposes on the judiciary a legislative

oath that tells judiciary they have to uphold the Const.

3. Other sources for the legitimacy of judicial review- Framers

Intent
a. Constl Convention of 1787- it was suggested that judges should
get veto power similar to exec power, but anti-Feds argued that
judges shouldnt get this power b/c the laws would come before
them to be evaluated for constlty.
b. Federalist No. 78- Hamilton makes case for judicial supremacy.
The interpretation of the laws is the proper and peculiar
province of the cts.
4. What makes judicial review legitimate for us today?
a. Constraints imposed upon the cts to ascertain that they will not
substitute their judgment for the judgment of the Const such as
power of exec to appoint and legis to confirm judges, power to
impeach judges, Exceptions clause, limitations on judicial power

B. Supreme Ct authority to review state ct judgments

1. Martin v Hunters Lessee- 1816. The Supreme Ct may review
state judgments involving issues of federal law.
a. 25 of the Judiciary Act of 1789 gave Ct right to review state ct
decisions. Justice Story wrote the opinion, Ct held this is constl.
25 limited review to issues involving federal law, a limitation
which was later lifted by C but has been retained by the Sup Ct.
b. Textual Arguments
i.
Article III 1- Doesnt create any federal cts except the
Supreme Ct, but gives Sup Ct appellate jurisdiction. Whose
cases would they have jurisdiction over if they couldnt review
state ct decisions?
ii.
Article II 2- Judicial power extends to cases, not courts.
It says all cases arising undr the Const or the laws of the US, it
doesnt say all cases filed in federal ct arising under...
iii.
Article VI Supremacy Clause says states have to obey
federal law.
c. Structural Arguments
i.
Fed judges are appointed, whereas state judges are
elected. State judges are subject to pressure to please the
electorate, who will want them to do things that may benefit the
state but conflict with fed law.
ii.
Sup ct review will ensure uniformity in constl
interpretation.
C. Authoritativeness of Supreme Ct decisions- Sup ct can only interpret
const in the context of an actual case pending before it. But who is
bound by their interpretation?
1. States- Cooper v Aaron- 1958.
The interpretion of law by the Supreme Ct becomes the
supreme law of the land, and Article VI gives it binding effect
on the states. Ct equates its interpretations of the Const w/ the

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Const itself. This case forced Arkansas to comply with the Brown v
Board of Education desegregation ruling.
2. Judiciary- Sup Ct interpretations are also binding on lower cts due
to the hierarchical nature of our judicial system.
3. Executive and Legislative Branches- Each branch may
interpret the Const for itself w/in its own assigned sphere.
E.g. pardon power (Jefferson pardoning people convicted under
Sedition Act), power of pres to appoint and senate to confirm
judges who reject prior constl interpretations, etc.

II.

Limits on Judicial Power

A. Political Restraints-What can the other branches do when
the Ct issue a decision the other branches think is wrong?
1. You could bring another case if you think they will decide it
differently.
2. Amend the Const- e.g. 11th, 14th, 16th, 26th amendments
3. Exec could appoint a judge who agrees with him
4. Impeach the judge if he actually substituted his will for the Const
5. Change the size of the ct- e.g. Roosevelt court packing attempt
6. Article III Exceptions Clause- Take something out of the Cts
appellate jurisdiction
a. Ex Parte McCardle- C repealed the Cts jurisdiction over habeas
corpus cases brought under the 1867 Judiciary Act. However
could still bring the case under the 1789 act so Ct didnt address
whether C had overstepped its bounds.
b. C cant exercise Exceptions power in violation of other parts of
Const.
7. C cant use its power to interfere with the roles of the other
branches of govt
a. For C to try to use the Exceptions Clause to dictate the outcome
of particular cases is overstepping its bounds
b. Klein- Congress passed a law saying that someone who had
been pardoned for providing aid and comfort to the enemy
during the Civil War still couldnt have his property returned to
him. Ct found this unconstl b/c
i.
Interfered w/ judicial autonomy by prescribing how the Ct
should handle the issue
ii.
Interfered w/ executive autonomy by denying effect to a
presidential power

B. Constitutional and Prudential Limits

1. Constitutional limits= limits imposed on cts by the Const. E.g.
Article III limits judicial power to cases and controversies. There
must be an actual dispute involving the legal relations of
adverse parties for which the judiciary can provide some
type of effective relief.
2. Prudential Limits= limits cts impose upon themselves. Congress
can overcome prudential limits.

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3. Political Question Doctrine (Prudential)= Certain provisions of the

Constitution may not be judicially enforceable, and the resolution of

the controversy must be referred to the political branches.
Baker v. Carr- Nonjusticiabilty of a political question is
primarily a function of the separation of powers. If another
branch of govt has final constl authority over the matter
presented, it is a nonjusticiable pol q. When the issue involved
places the Ct in a possible conflict w/ either the exec or legis
branches, there might be a political question. 5 criteria:
a. Textually demonstrable commitment of power to decide this
issue to another branch
b. Lack of judicially discoverable and manageable standards
c. Initial policy determination required that ct isnt suited to make
d. Lack of respect for another branch
e. Potential of multiple pronouncements

Cases w/o a PQ
Marbury- Although delivery of
commission is exec duty, its imposed
by law, and
interpretation/enforcement of law is
province of cts.
Baker v Carr- Does apportionment of
voting districts in TN violate equal
protection? Dispute between state
and fed interpretations, not between
2 co-equal branches. Involved equal
protection, which is interpretable by
Ct.
Powell v McCormack- House refused
to seat Powell, who had been elected
but was under investigation for
crimes. The text of Article I 5
commits the issue of whether
someone is qualified to House, but it
clearly defines qualified, so not a pol
q.

Cases w/ a PQ
Luther v Borden- What is a republican
form of govt as guaranteed in Article
IV? Ct cant make this determination.
Question for political branches.
Nixon v US- Ct found that Article I of
the Const commits the entire
impeachment process to the Senate.
So the issue of whether a Senate
committee can try a judge being
impeached or whether the entire
Senate must try him is a pol q.

4. Standing
a. Constitutional Requirementsi.
Injury in fact
Warth v Seldin- Low income s claim zoning excludes them. No
injury in fact b/c desire to live there is speculative.
Lujan v Defenders of Wildlife- Endangered Species Act says any
person can sue. Ct says this doesnt take away the constl
requirement for injury inf act. No injury b/c parties didnt show
specifically that they would experience harm, just that some

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people would experience harm by not being able to enjoy

endangered species.
ii.
Causation
Warth v Seldin- Taxpayers claim that zoning in neighboring town
preventing low income housing raises their taxes to pay for low
income housing in their town. Doesnt show causation by the
challenged zoning ordinance.
Allen v Wright- IRS failure to deny tax exemptions to private
schools that discriminate based on race doesnt cause the
segregation.
iii.
Redressability
Warth v Seldin- Favorable ruling still wouldnt make it so low
income s could live in that neighborhood.
Allen v Wright- Changing IRS policy wouldnt mean that the
schools would get integrated.
b. Prudential Requirements- There can be exceptions to these
i.
No 3rd party standing- Lots of exceptions
aa. Interests of 3rd party aligned w/ injuried parties.
Craig- Claim that law violates equal protection by allowing
beer sales to women at age 18 and to men at 21. Seller of
beer has standing b/c his interests are aligned w/ those of the
buyers.
ba. Injured party unable to bring suit.
Eisenstatt v Baird- Illegal for dr to prescribe contraceptives to
unmarried people, but not actually illegal to use them, so
unmarried couple couldnt have injury in fact. Ct allowed dr
to bring claim on behalf of unmarried poeple.
ca. Overbreadth under 1st amendment where injured party is
unlikely to bring or hindered from bringing a suit.
ii.
No claims outside zone of interest- Usually applies
when challenges govt action under a fed regulatory scheme
that doesnt directly regulate s own conduct.
Bennett v Spear- Endangered Species Act says any person may
commence a civil suit to enjoin violations of act. So any person
(who meets the constl requirements) can sue.
iii.
No generalized grievances
Lujan- Suing on behalf of all people who might want to enjoy an
animal who may become extinct is generalized grievance
Exception for cases brought under Establishment Clause casesviolation of individual right to be free from govt establishment of
religion
iv.
Legislative standing- Members of legis have standing if
personally injured but if the injury is shared w/ all members of
legis then no standing
5. Mootness- Article III requirement. If something happens to change
your stake in the outcome, case may be moot. Is this really a constl
requirement? There are exceptions.
a. Something is capable of repetition but evading review

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b. The party causing the injury voluntarily ceases the activity, but
could re-commence it

c. Collateral consequences
6. Non-Ripeness- Case must be ripe in order to be justiciable. Facts
must be developed in such a way that it will be useful for the ct to
review it. Also bars advisory opinions. Can be exceptions but only
w/ showing of hardship.

Federalism
I.

The Powers of Congress

A. What is the scope of Cs power under Article I?

McCulloch v Maryland- Necessary and proper clause of Article I, 8

gives C right to do what is necessary under the circumstances to
reach an object which is w/in its power. Establishes bank is
necessary to give C ample means to execute its powers. Then state may
not tax bank b/c that would give state ability to destroy Cs means of
executing its powers, and state must respect supremacy of fed powers.
10th Amendment- Powers not delegated to fed govt or prohibited
to states by the Const are reserved to states. McCulloch says
doesnt mean everything must be expressly delegated to fed govt- there
are implied powers, such as the implied power to use means necessary
to achieve a delegated end.
B. Look at the means, the end and the pretext of Cs action to
determine if its w/in the scope of Cs power.
1. Is the means necessary and proper to reach the end?
2. Is the end merely a pretext for accomplishing an object not w/in
Cs power?
II.
Commerce ClauseArticle I, 8, cl. 3: C has power to regulate commerce among the several
states.
What is commerce? What is among the several states? What does regulate
mean?
A. Development of Commerce Clause- pre-1937. 2 types of
cases.
1. Regulation of activities w/in a state on the theory that they affect
interstate commerce. Intrastate activities with a direct effect
on interstate commerce may be regulated.
US v EC Knight Co- 1895. Attempt to enforce Sherman Act provisions
against a sugar manufacturer alleged to have gained a monopoly on
the manufacture of refined sugar. Ct held that this manufacturing is a
local activity and so regulation is reserved to the states. There is only
an indirect impact on interstate commerce so it is not w/in the scope of
the commerce clause.
Shreveport Rate- 1914. Ct sustains fed law that prohibits a railroad
from charging a higher rate for interstate services than for similar
intrastate services. Ct says that this has an direct economic impact on
interstate commerce so can be regulated.

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Swift & Co v US- 1905- Upheld Sherman act injunction against pricefixing against meat dealers. The activity of price-fixing was entirely
interstate, but had a direct effect on the price of goods in interstate
commerce.
2. Regulation of goods moving in interstate commerce. Regulations
may be placed on the movement of goods in interstate
commerce unless the regulation is a pretext for an unconstl
end.
a. Cases upheld b/c it regulated goods at a point in the chain of
commerce
Swift v US
Stafford v Wallace- Another Sherman act meat packers case. Goods
go into interstate commerce. Law prevents meat packers who use
unfair/deceptive practices from benefiting from interstate
commerce.
Egg case- 1911. Articles that are outlaws of commerce can be
seized wherever they are found, even if they are out of interstate
commerce by the time they are seized.
b. Cases upheld b/c it directly regulated interstate commerce
Champion v Ames- 1903. Federal Lottery Act prohibited importing,
mailing or transporting lottery tickets. Upheld b/c it directly
regulated interstate traffic.
c. Cases allowed despite being a pretext. Ct makes the distinction
that C may regulate an activity that is inherently bad such as
lottery tickets, transporting immoral women.
Mann Act case- 1913.
Champion v Ames
d. Cases struck down b/c of pretexta
Hammer v Dagenhart- 1918. Struck down law prohibiting the
sending in interstate commerce of goods produced by child labor.
This was a pretext for regulating child labor.
3. New Deal cases regulating intrastate activities- C cant regulate
activities which have no direct effect on interstate
commerce and regulate purely intrastate commerce.
Schecter Poultry (Sick Chicken Case)- 1935. C cant promulgate codes
of fair competition regulating pay, hours, trade practices etc if the
commerce regulated is entirely local. No direct effect, not a good in
chain of commerce.
Carter Coal- 1936. Strikes down Bituminous Coal Conservation Act
which imposed tax on employers not following wage/hour regulations.

B. Decline of Limits on the Commerce Power after 1937

1. Cs power extends to anyone w/ a substantial effect on
interstate commerce. Look at the degree of the effect, not
whether it is direct or indirect
Natl Labor Review Board v Jones & Laughlin Steel- 1937. Ct upholds
NLRB power to bring proceedings against employers who dont comply
w/ their regulations if the employers conduct affects interstate
commerce.

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US v Darby- Prohibits shipment in interstate commerce of lumber made

by employees who arent paid minimum wage and overtime. Upheld.
OVERRULES HAMMER!
Wickard v Filburn- Agricultural Adjustment Act of 1938 sets quota for
how much crops a farmer can grow. Farmer grew extra but didnt sell
it. Ct says the combination of his extra plus all the extra of all the
other people who might maybe someday grow extra crops could sorta
kinda effect interstate commerce, so its upheld.
2. Pretext doesnt matter, as long as the prohibition is on a
good crossing state lines, it may be regulated
NLRB v Jones- Actual end was to enforce employment standards, but
jurisdictional hook requiring that conduct of employer affect
commerce made it okay.
Darby- Actual end is to make employers pay minimum wage and
overtime, but since these activities have a substantial effect on
interstate commerce its okay
Heart of Atlanta- Hotel cant discriminate against blacks b/c blacks are
among those who travel interstate. Civil Rights Act case.
3. C can regulate an activity by an individual which,
aggregated with the same activity by other individuals, will
have a substantial effect
Wickard
Katzenbach- Civil Rights Act forbids discrimination by restaurant that
serves interstate travelers or who buys/sells products in interstate
commerce. Ollies BBQ buys about its food from out of state.
Aggregation w/ other restaurants has substantial effect.

C. Contemporary Limits
1. Pretext analysis is back! Ct requires an economic motive to
commerce clause laws.
Lopez- Federal crime for individual to possess gun in school zone. Not
an economic activity, and no findings to show it affects interstate
commerce.
Morrison- Violence against Women act creates a federal cause of action
for violent crimes against women. Not economic, and findings dont
justify law.
2. 10th Amendment- There are state sovereignity interests which bump
up into the C power area. C shouldnt regulate areas of
traditional state concern.
Morrison- Violence against women is an area of state concern.
3. Jurisdictional hook in law is not sufficient to make it constl.
4. 3 possible ways to justify a law under commerce clause
post-1995:
a. Regulation of the use of channels of interstate commerce
b. Regulation of an instrumentality in interstate commerce
c. Regulation of something that substantially affects
interstate commerce

III.

Other Powers

A. Tax- Article I, 8, cl. 1 gives C power to lay and collect taxes, duties,
imposts and excises.

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Child Labor Tax Case- 1922. Tries to coerce companies into not using child
labor by imposing taxes on them if they do. Ct makes pretext analysis- C
cannot use the tax power to impose penalties. Motive must be to
raise revenue.
B. Spending- Article I, 8, cl. 2 ... to pay the debts and provide for the
general welfare of the US.
1. Govt cant use spending power for coercion or to accomplish
an end outside their constl power.
US v Butler- 1936. Govt cant use the spending power to accomplish
an end that would be outside their constl power. Agricultural Adj Act of
1933 says dept of ag will pay money to farmers to reduce their
productive acreage. This encroaches on an area reserved to the states
and is struck down.
Steward Machine v Davis- Provision in unemployment act giving
employers tax credit for compliance gives states incentive to comply
w/ unemployment act to please employers. Ct finds this isnt coercion.
2. 4 prong test to see if using spending power to regulate is
appropriate or if it is coercion:
a. C must be regulating general welfare
b. Condition imposed on states must be clear
c. The condition must be connected to solving the general
welfare problem
d. No violation of other constl provision
SD v Dole- Law withholds 5% fo federal highway funds to states w/
drinking age under 21. Clearly, C is using the spending power w/ the
intent of regulating drinking ages. Ct rules that this is okay,
establishing the 4 prong test. There is a tension between Dole and
Lopez- is the 10th amendment a tautology?

C. Treaties and Foreign Affairs

1. War Power- Congress has Article I power to raise and support

military and to spend for common defense. Spending for common

defense is broad and includes things that have an effect on the
countrys ability to prepare for, perform in or recover from war.
Woods- 1948. Upheld Housing and Rent Act limited rent that could be
charged in certain areas. Ct found this was intended to ameliorate the
effects of the war on the housing market.
2. Treaty Power- Article II, 2 gives Pres power to make treaties w/
2/3 concurrence of senate. Treaties constitute part of the supreme
law of the land and preempt state laws.
Missouri v Holland- 1920. Migratory Bird Treaty Act implemented to
enforce treaty w/ England. MO argues act conflicts w/ 10 th
amendment. Ct finds that C would not have power to enact the law
w/o the treaty, but b/c treaty power is reserved to fed govt, C has
power to enact such laws as are necessary to enforce a treaty.
Reid- C cannot enter into treaty that violates individual rights.
3. Executive Agreements- Non-treaty compacts w/ other countries.
Validity depends on the scope of the enumerated power pursuant to
which the agreement was made. 2 kinds:

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a. Congressional- C recommends to pres that he should enter into

agreement and he does. Circumvents treaty process.

b. Presidential- he acts w/o Cs recommendation.

D. Reconstruction Amendments- there are 3 reconstruction
amendments
13th amendment bands slavery and gives C power to enforce it by
appropriate legislation
14th amendment says no law can abridge the privileges/immunities of
any citizen, contains due process and equal protection clauses, and
gives C power to enforce.
15th says voting rights cant be denied based on race and gives C
power of enforcement
1. 2 interpretations of how broad Cs power to enforce the Recon
amends is:
a. Broad- C can ratchet up the power by expanding what
constitutes a violation w/o a ct having to rule on it
b. Narrow- C can prevent violations of the amendments or remedy
existing violations, but cannot reinterpret what constitutes a
violation.
2. 14th Amendment cases- Laws that allegedly discriminate based
on race get strict scrutiny, gender gets intermediate scrutiny, other
laws must be irrational to be struck down.
City of Boerne v Flores- 1997. Church is suing based on Religious
freedom restoration act b/c they were denied a permit to expand in its
current location. Ct rules that RFRA is unconstl. Due process only
gives C power to enforce remedially/preventatively, not to
determine what constitutes a constl violation.
Oregon v Mitchell- Lowers voting age to 18 on equal protection
grounds. It was irrational not to allow 18-20 year olds to vote.
Morrison- Attempt to justify Violence Against Women act of 1994.
Shows findings that there is a pervasive bias in state judiciaries that
prevents women from getting due process. Struck down b/c it doesnt
remedy state bias, it only provides an alternative avenue.
3. 15th Amendment cases (voting)
Lassiter- 1959. Literacy tests are not per se unconstl b/c they apply
evenhandedly to both whites and blacks.
SC v Katzenbach- 1966. Upholds provision of Voting Rights Act of 1965
suspending literacy tests for 5 years in jurisdictions where, as of 1964,
state had both a literacy test and a voter registration rate under 50%.
Literacy tests had discriminatory purpose, so C can regulate this. Is
this ratcheting up or is C just trying to prevent violations?
Katzenbach v Morgan- 1966. Voting Rights Act provision says anyone
educated in PR cannot be denied the right to vote just b/c they dont
speak English, which invalidates NY literacy requirement. Ct upholds
the provision even though theres no clear discriminatory purpose on
the theory the provision would prevent discrimination if it exists.
Ratcheting up?

IV.

Limits on Power

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A. External Limits on Congressional Power- 10th

amendment.
1. Congress regulating individuals in areas of state autonomy is

generally constl if it can be justified under an enumerated power.

2. Congress regulating states and individuals alike is constl today, but
wasnt always.
Natl League of Cities- 1976. Ct struck down provisions of Fair labor
standards act that applied to state employees performing traditional
state functions. This was an area of traditional state autonomy and
even though the fed law was valid under the commerce clause, it
violated federalism and so was unconstl. Victory for federalism.
However, it was overruled by...
Garcia- 1985. Returns 10th amendment to truism. Held that
federalism is to be protected through political, not judicial,
process. C, which is composed of representatives of states, must
make decisions about the scope of any intrusion upon state
sovereignty.
3. C cannot regulate how states must regulate individuals.
NY v US- 1992. Provision of Low-Level Radioactive Waste Policy
Amendments Act of 1985 requiring states to take title of their own
waste if they dont meet Cs standards for disposal is unconstl. This
forced them to comply w/ federal regulatory scheme, or
commandeered them into federal service. Commandeering is a
coercive invasion of state sovereignty and violates the 10th
amendment.
Printz v US- 1997. Brady act provision requiring state police officials to
do background checks is commandeering them into the administration
of a federally enacted statute and is unconstl under 10 th amend.

B. Federal Limits on State Power- Dormant Commerce

Clause

Limit on exercise of state power. C hasnt exercised its power under

the commerce clause, but could. Ct overturns state laws based on
commerce clause even though C hasnt legislated in that area.
1. 3 categories of state laws that violate dormant commerce
clause
a. Facially discriminatory legislation
Philadelphia v NJ- 1978. NJ law prohibits importation of most waste
that originated outside NJ. Ct finds it is discriminatory against out
of state business despite the pretext of protecting local interests. A
law that is protectionist on its face is unconstl.
Pike v Bruce Church- Struck down AZ law saying canteloupes being
shipped from AZ to other states had to marked as AZ canteloupes.
Establishes balancing test- even if the law advances a legitimate
state interest, if the effects on interstate commerce interests
outweigh the state interest, the law is unconstitutionally
discriminatory
b. Non-discriminatory legislation that imposes an undue
burden on interstate commerce

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Kassel v Consolidated Freightways- 1981. Struck down IA law that

said double trucks must be shorter than 60 ft claiming shorter
trucks are safer. This imposes an undue burden b/c trucks in
interstate commerce either have to route around IA or split the
doubles. Possible that this law actually had discriminatory intent?
c. Laws whose purpose is to regulate interstate commerce,
or whose effect is to control out-of-state transactions.
2. Make the following inquires to find out if law violates dormant cc
a. Is the law rationally related to a legitimate state purpose?
b. Does the law have the practical effect of regulating out-of-state
transactions?
c. If the law discriminates against interstate or foreign commerce,
does it represent the least discriminatory means for the state to
achieve its purpose?
d. Are the burdens the law places on interstate or foreign
commerce clearly excessive in relation to the benefits which the
law affords the state?
e. Does the law represent the least burdensome means for the
state to achieve its goal?

Separation of Powers
I.

Basic Theory
A. Both textual and structural sources for separation of power
1. Article I enumerates legis powers, Article II, exec power, Article III,
Judical Power. Textual violations take place when one branch
does an action clearly reserved to another branch- e.g. pres
declaring war.
2. Structural-Framers set up 3 distinct branches to prevent tyranny,
but system of checks and balances requires cooperation and also
comingles powers of each branch, leading to tension. A structural
violation of sep of powers occurs when the action of one
branch threatens the tripartate structure by altering the
balance of power between the branches.
B. How to analyze separation of powers problems
1. Has one branch of govt exercised a power or performed a function
that a specific clause of the Const requires to be performed by or in
conjunction with another branch?
2. Has one branch of govt usurped power that more appropriately
belongs to another branch?
3. Has one branch of govt encroached upon the functions of a
coordinate branch so as to undermine that branchs integrity or
independence?
C. Jackson concurrence in Youngstown lists 3 situations where presidential
actions can violate separation of powers.
1. Pres acts pursuant to express or implied authorization of C.
2. Pres acts in absence of congressional grant or denial of authority
3. Pres acts contrary to expressed or implied will of C
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II.

The President, Congress and Foreign Affairs

A. Treaties and Executive Agreements- Executive

Agreements may only be used to exercise a power enumerated

to the executive branch.
Dames and Moore v Regan- 1981. Exec agreement transfers all claims
involving Iranian assets to an intl tribunal. A statute, the IEEPA (intl
emergency act?) doesnt actually authorize him to transfer claims, but ct
rules it is not a violation of separation of powers b/c of implied
authorization of Congress.

III.

The President, Congress and Domestic Affairs

A. Executive Orders

Youngstown Sheet and Tube Co v Sawyer- 1952. Steel workers were going
to strike and a steel shortage would jeopardize natl defense. Pres issued
exec order to take control of steel mills and direct their operation. Pres
contended it was covered by commander in chief authority and his power
to take care that the laws be faithfully executed, however Supreme ct
found this was a lawmaking power reserved to C in Article I 1. It is a
textual violation for President to exercise a lawmaking power.

B. The Legislative Process

1. Bicameralism (Article I, 7 ) requires that legislative act of C must
be approved by both House and Senate
2. Presentment (Article I, 7) requires that before any measure
approved by C becomes law, it must by presented for approval to
Pres and if he vetoes it, it must be passed by 2/3 majority in each
house to become law.
3. A legislative veto generally violates both presentment and
bicameralism.
INS v Chadha- 1983. Statute permits one house of C to overturn the
decision of atty general not to deport an alien. Ct finds this is outside
Cs enumerated powers. It amounted to legislative action b/c it
affected the rights of both the alien and the atty general. It
encroached on the exec branch by requiring atty general to deport
him. It also violated the bicameralism requirement b/c only one house
could overturn the decision. Bicameralism and presentment
required for legislative action- textual violation.

C. The Line-Item Veto

Clinton v New York- 1996 Line-Item veto act allowed pres to cancel out
provisions of the Balanced Budget act. Ct finds this is unconstl b/c it is
essentially a legislative function. After the bill is passed, the pres can
change it, which essentially means it would become a law that wasnt
really approved by C. Note that it doesnt matter C consented by passing
the act- the passing of the act was unconstl C essentially delegated the
lawmaking power. Line-Item veto is unconstl b/c it allows pres to
exercise legislative function- structural violation.

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