Brandeis University

Politics Department

Professor Peter Woll

Constitutional Law

Politics 115a Class Assignments Part II

Class Assignments Part I

Class Assignments Part III

Midterm Examination Oct. 24

Nov. 6-8.

Nov. 13-15 (selected cases will be assigned **).

Discussion of Separation of Powers Cases Nov. 20-22: The Commerce Clause

Nov. 20-22: The Commerce Clause (cont.)

Nov. 6-8.

The Separation of Powers 1051-1058

Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and Practices 1058

Note on Early Interactions Between the Branches of the

National Government, 1790-1798 1061

Section 1. Issues of Executive Aggrandizement

(The Imperial Presidency) 1064

A. The General Post-New Deal Framework (Domestic Arena) 1065

Youngstown Sheet & Tube Co. v. Sawyer (1952) (The Steel

Seizure Case) 1065

Case Analysis
Read carefully the background materials at pp. 1065-1067, including the informative footnotes. President Truman ignored the Taft-Hartley Act procedures and instead used the Wage Stabilization Board to try to get a settlement of the labor dispute.

Note the various statutes that authorized presidential action to settle wage disputes to prevent inflation and to keep military supplies flowing. The Taft-Hartley Act was only one of several statutes that the President could use. He chose not to use Taft-Hartley I think because he had promised its repeal in his 1948 campaign to get the union vote and accommodate union interests that controlled his party.

The President seized the steel mills when all attempts at settlement failed. His order to seize the mills did not invoke any specific statutory authority but relied on "the authority vested in [the President] by the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces of the the United States." (p. 1067). His presidential prerogative powers, those of Chief Executive and Commander-in-Chief, appeared to be his primary source of authority to act.

Note on Frameworks for Thinking About

Separation-of-Powers Issues 1074

Problem 8-1: Does the President Have the Authority To

"Impound" Funds Appropriated by Congress? 1077

B. Foreign Relations (Executive Agreements and War Powers) 1079

United States v. Curtiss-Wright Export Corp (1936) 1079

United States v. Belmont 1080

The War Powers Resolution and Its Background 1081

Notes on the War Powers Resolution: Is It Constitutional? 1084

Problem 8-2: The War Powers Resolution, Separation of

Powers, and Potential Hostilities Against Iraq 1088

Dames and Moore v. Regan (1981) 1089

Note on the Iranian Hostages Case and Precedent 1091

Nov 13-15.

C. Executive Privileges and Immunities 1092

United States v. Nixon (1974) 1092

Notes on Executive Privileges and the Nixon Tapes Case 1097

Note on Congressional Subpoenas of Presidential Documents 1099

Nixon v. Administrator of General Services 1099

Nixon v. Fitzgerald 1100

Clinton v. Jones (1997) 1101

Notes on the Presidential Immunity Cases 1103

Note on Congress's Impeachment Power: The Case of Clinton 1105

Section 2. Issues of Legislative Overreaching (The Meddlesome

Congress) 1107

A. "Excessive" Congressional Delegations to Agencies and to the President 1107

Note on the Decline and Fall of the Nondelegation Doctrine 1108

Mistretta v. United States 1111

Whitman v. American Trucking Ass'ns 1112

Note on the Rise of the Legislative Veto: Congress Can Delegate Its Cake and Eat It Too 1112

Immigration & Naturalization Service v. Chadha. 1114

Notes on Chadha and the Supreme Court's New Direction in

Separation-of-Powers Cases 1122

Note on Severability 1125

The Line Item Veto

Clinton v. City of New York 1127

Notes on Clinton v. City of New York 1134

B. Congressional Versus Presidential Power To Control

Executive Officials 1136

Myers v. United States 1136

Humphrey's Executor v. United States 1137

Buckley v. Valeo 1138

Bowsher v. Synar 1138

Notes on Myers Through Bowsher: Are Independent Agencies Constitutional? 1143

Problem 8-3: Hybrid Airport Agencies 1146

B. Congressional Authority to Create "Executive" Offices Outside of the Presidency 1146

Peter Strauss, The Place ofAgencies in Government: Separation

of Powers and the Fourth Branch 1147

Morrison v. Olson 1148

Notes on the Independent Counsel Case 1156

Steven Calabresi & Saikrishna Prakash, The President's Power To Execute the Laws 1159

Note on the Debate About and Implications of the Unitary

Executive Thesis 1160

Problem 8-4: Congressional Efforts To Improve

Implementation 1162

Weiss v. United States 1162

Section 3. Congressional Structuring of Adjudication and Deployment of Article III Judges 1163

A. Assigning Article III Judges Nonjudicial Duties 1164

Mistretta v. United States 1164

Notes on Mistretta and Junior Varsity Lawmakers 1168

B. Assigning Adjudicative Tasks to Non-Article III

Judges (Article I and Article II Courts) 1169

Crowell v. Benson 1169

Northern Pipeline Co. v. Marathon Pipe Line Co 1170

Commodity Futures Trading Commission v. Schor 1171

Notes on Schor 1173

ExParteQuirin 1173

Problem 8-5: The Constitutionality of Article II MilitaryCornrnissions 1175

A Note on Delegation Within the Judicial Branch. 1176

C. Congressional Attempts To Alter Federal Judicial Jurisdiction and Judgments 1177

Plau tv. Spendthrift Farm, Inc. 1177

Problem 8-6: Congressional Efforts To Strip Federal Courts of Authority To Require Busing as a Remedy for

Brown Violations 1179

Note on the Textual Arguments for and Against Congress' Power To Restrict Federa1. Jurisdiction 1182

Ex Parte McCardle 1182

Felker v. Turpin 1184

Notes on McCardle and Congress' Authority To Restrict the Supreme Court's Jurisdiction 1184

Note on Congress' Power To Restrict the Jurisdiction of Inferior Federal Courts 1185

Concluding Note-on Theories of Separation of Powers 1187

Discussion of Separation of Powers Cases

Functionalism v. Formalism

Functionalism refers to constitutional and statutory interpretation that takes into account the realities of the political system and construes constitutional requirements accordingly.

Formalism is strict construction, textual interpretation of the Constitution and statutory law.

Justices and judges are not always consistent in following a functional or formal approach with the possible exception of Justice Scalia. Nor is it always clear whether one or the other method is the basis of an opinion, as with Rehnquist's seemingly textual and formal approach in Morrison v. Olson (1988) to uphold the Office of Independent Counsel . Scalia's formal approach in that case led to an opposite conclusion. Now we're ready to begin case analysis.

The Schechter Rule For Delegation of Legislative Power

Schechter v. U.S. (1935), and Panama Refining Co. v. Ryan (1935), which are noted at pp. 1108-1109 in your text, are seminal delegation cases.

The Schechter case is one of the most famous in constitutional law both for the Court's unanimous opinions on the meaning of the commerce clause and on constitutional requirements for the delegation of legislative power. The Schechter Rule forbids congressional delegation of its primary legislative authority which the Constitution gives to Congress exclusively.

The Court found absolutely no discernible legislative standards to guide executive action in the statute, the National Industrial Recovery Act; nor were there any requirements for the President to make findings or follow other procedures that might have mitigated to Court's willingness to uphold the statute.

Ultra Vires Action
Unless Congress clearly defines its delegation standards the courts cannot determine ultra vires administrative action, that is action beyond statutory authority. Theoretically Congress must state its intent in an understandable way for the courts to do their job when parties challenge administrative actions on the grounds that they are ultra vires.

As I pointed out in Week I Congress cannot and will not define delegation standards in most regulatory areas. To get around this dilemma the courts have generally accepted the substitution of procedural for policy standards to assure at least that administrative action is properly deliberative and fair to individual parties in adjudication.

After the Schechter Congress inserted procedural requirements in all statutes delegating legislative powers to administrative agencies or the President. The Supreme Court never again declared a law unconstitutional for failing to follow the Schecher nondelegation Rule.

1. Mistretta v. U.S. (1989) .

What is the delegation issue in this case? Did Congress delegate its primary legislative authority to the Sentencing Commission?

Exactly what are the law's delegation standards? If you were on the Sentencing Commission how would you follow those standards?

Describe how Blackmun's opinion is "functional," not "formalistic."

Scalia's Dissent
I'm glad we have Scalia on the Court for this course. His opinions are always well reasoned if a bit formal, often witty, and right on the money.

Contrast Scalia's formal approach with Blackmun's functionalism.

Scalia concedes that Congress can and must delegate some law-making power to executive agencies and even to the courts. But that power must be related to executive and judicial actions, not a "pure delegation of legislative power [which is] precisely what we have before us."

What makes in Scalia's view this delegation "pure" and therefore unconstitutional?

The Separation of Powers Issue
Blackmun cites Madison to support a functional view of the separation of powers. Citing Humphrey's Executor v. U.S. (1935) citation of Madison, "while our Constitution mandates that 'each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,' ... the Framers did not require--and indeed rejected--the notion that the three Branches must be entirely separate and distinct." See in this regard The Federalist, papers 47-51.

Citing Justice Jackson Blackmun supports a flexible and workable, that is functional, view of the separation of powers. The separation of powers doctrine means simply that the "whole" power of one branch cannot be taken over by another. Creating a Sentencing Commission does not undermine the separation of powers by destroying the integrity of Congress or the judiciary. The Commission admittedly is in the judicial branch but does not exercise any judicial functions. So why is it there!

Scalia on the Separation of Powers Issue
"I think the Court errs," writes Scalia in dissent, "not so much because it mistakes the degree of commingling, but because it fails to recognize that this case is not about commingling, but about the creation of a new branch altogether, a sort of junior-varsity Congress."
Presidential Control of Administrative Agencies
The constitutional framework provides that the President is the sole executive. Article II simply provides that "The executive power shall be vested in a President of the United States of America." Article II, sec. 2 lists presidential powers such as Commander-in-Chief and a number of powers that make him Chief Executive. He "may require the opinion in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices...." He nominates his public ministers and by custom the Senate rarely fails to give its constitutionally required advice and consent. The President "shall take care that the laws be faithfully executed."

The President under the Constitution is Chief Administrator in the words of the 1937 President's Committee on Administrative Management. Chief Justice William Howard Taft agreed in Myers v. U.S. (1927). Presidential powers, executive powers, include the power to appoint with the advice and consent of the Senate and the discretionary power to remove executive officials. Congressional interference with the President's removal power over executive officers is unconstitutional. congressional self-aggrandizement and encroachment, an important separation of powers issue.

Congressional Self-Aggrandizement

Bowsher v. Synar (1986) .

Contrast this case with the presidential control cases above. Chief Justice Burger wrote in Bowsher that "The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts."

The opinion cites and discusses the Myers case , then concludes that the Constitution "does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess."

Note the Court's constitutional problem with the statute's provisions for removal of the Comptroller General. Again compare Myers v. U.S. with Bowsher. Why is the removal power solely executive? Because if Congress has the removal power it controls the agency.

The Court concludes that "we see no escape from the conclusion that, because Congress had retained removal authority over the Comptroller General, he may not be entrusted with executive powers."

Note Justice Stevens formalistic concurring opinion . What makes it formal and not functional?

Justice White's Dissent
We are not surprised, are we, that former University of Colorado all-American halfback "Whizzer" White takes a functional approach and argues that the statute should be upheld. (Kennedy nominated him for the Supreme Court in 1962. He went to the Yale Law School and played professional football to help finance his costs.) He rejects the textualists' approach , citing the Steel Seizure Case. Note how he cites the Humphrey's case at along with Weiner to support congressional limitations on the President's removal power. Do you think the Court's reasoning in Humphrey's supports the Gramm-Rudman-Hollings budget-balancing statute? White argues that the law does not undermine the President's primary executive powers and responsibilities; therefore it is not unconstitutional.

Congressional Encroachment on Executive Power

There is a fine line between aggrandizement and encroachment. Essentially aggrandizement is direct congressional exercise of executive power, as in the removal power in Myers and Bowsher.

Congress encroaches when it poaches on executive territory and indirectly interferes with the President's constitutional powers. Madison wrote in The Federalist, no. 51, cited by Justice Scalia , that each branch of government must have the "necessary constitutional means and personal motives to resist encroachment of the others." (I'm happy that the Supreme Court so frequently cites Madison's Federalist papers nos. 48-51 which have occupied a prominent place in the Woll American Government reader since 1962.)


Morrison v. Olson (1988) .

The Ethics in Government Act, the so-called Independent Counsel (Kenneth Starr) law, takes a critical prosecutorial power from the President by providing for court rather than presidentially appointed special prosecutors. The law places the appointive power in the hands a Special Division of the D.C. Circuit Court that acts at the request of the Attorney General after he/she finds that statutorily defined grounds exist.

The Appointments Clause of Article II provides that "Congress may be law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

Chief Justice Rehnquist takes a textual but also a functional approach in reviewing the statute. He discusses and contrasts with the Morrison case the Bowsher, Myers, Humphrey's and Wiener cases . The real question, states Rehnquist, "is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty...."

The Court held that the law did not undermine primary executive power. The President can upon a showing of good cause under the statute indirectly through the Attorney General remove the Special Counsel. The statute does not interfere with the President's powers and responsibilities faithfully to execute the laws. Nor does the law result in congressional usurpation of executive functions. The statute does not undermine the constitutional separation of powers.

Justice Scalia's Dissent
As you brief this case outline Justice Scalia's formal reasoning.

He starts with a reference to Madison's argument in The Federalist, no. 51. He concludes that the statute is a congressional encroachment on executive power. "The context of this statute is acrid with the smell of threatened impeachment." Congressional investigations such as this one politically require the Attorney General to seek the appointment of an independent counsel . Congress is really directing the executive under the cloak of what purports to be a constitutional statute. "Congress has effectively compelled a criminal investigation of a high-level appointee of the President in connection with his actions arising out of a bitter power dispute between the President and the Legislative Branch." In short, Congress is directly exercising executive functions, the prosecutorial power.

Scalia flatly states that the power to prosecute is purely executive, and the Constitution delegates all executive power to the President. There can be no exceptions. What checks then exist of this executive power? "Under our system of government, the primary check against prosecutorial abuse is a political one." (p. 180.) Explain Scalia's argument here. Do you agree?


INS v. Chadha (1983).

Note first that this case involves an alien's statutory right to a suspension of deportation upon the Attorney General's finding that he/she meets statutory grounds for suspension. The grounds included a period of continuous residence in the United States, good moral character, and a finding that deportation would cause "extreme hardship."

As the text notes refusals to suspend were subject to judicial review, while suspensions were to be transmitted to Congress for review and subject to veto by the House or the Senate.

Chief Justice Burger took a formal approach to the case. He found that Congress exercised a constitutionally delegated legislative power under Article I "to establish a uniform Rule of Naturalization" in vetoing the Attorney General's action. A single chamber cannot legislate. The formal constitutional procedures must be following which are approval by both the House and the Senate and a presidential signature.

Contrast Justice Burger's formal opinion with Justice White's "functional" dissent. White argued that Congress has long used legislative veto provisions in over 200 statutes to fulfill its constitutional responsibility to control lawmaking. He continued, "The history of the legislative veto also makes it clear that it has not been a sword with which Congress has struck out to aggrandize itself at the expense of the other branches....Rather, the veto has been a means of defense, a reservation of ultimate authority necessary if Congress is to fulfill its designated role under Article I as the Nation's lawmaker."

To White, administrative rulemaking is lawmaking pure and simple. "If Congress may delegate lawmaking power to independent and Executive agencies, it is more difficult to understand Article I as prohibiting Congress from also reserving a check on legislative power for itself. Absent the veto, the agencies receiving delegations of legislative or quasi-legislative power may issue regulations having the force of law without bicameral approval and without the President's signature. It is thus not apparent why the reservation of a veto over the exercise of that legislative power must be subject to a more exacting test."

Nov. 20-22.

The Commerce Clause

The Commerce Clause: Substantive Constitutional Interpretation.

Cycles of Judicial Activism and Self-Restraint

The Powers Delegated to the National Goverrnnent 821

Note on the Original Understanding 838

A. The Commerce Power 841

Problem 7-1: Regulation of Public Accommodations Under the Commerce Clause 841

Gibbons v. Ogden 841

Notes on Gibbons and the Court's Articulation of Commerce Clause Limits on National Power 844

United States v. E. C. Knight 848

Champion v. Ames (The Lottery Case) 849

Swift & Co. v. United States 850

Houston, East & West Texas Railway v. United States

(The Shreveport Rate Case) 851

Hammer v. Dagenhart (The Child Labor Case) 851

Notes on The Child Labor Case and the Court's Narrow View ?of the Commerce Clause 853

Commerce Clause (cont.)

Note on the New Deal's Early Dffficulties Meeting Commerce Clause Scrutiny, 1934-36 854

National Labor Relations Board v. Jones & Laughlin Steel Corp. 857

United States v. Darby 858

Wickard v. Filburn 861

Heart ofAtlanta Motel v. United States 863

Katzenbach v. McClung 865

Notes on the New Deal/Warren Court Dilution of Commerce

Clause Limiting Doctrines 866

United States v. Lopez 869

Notes on Lopez and the Commerce Clause's New Teeth 880

Problem 7-2: The Reach of Commerce Clause Power After Lopez 882

Discussion of the Commerce Clause, including Gibbons v. Ogden, Hammer v. Dagenhart, and U.S. v. E.C. Knight Co..

Gibbons v. Ogden (1824) - The significance of this case is its broad interpretation of the commerce power of the national government. Ogden obtained an injuction in NY state courts prohibiting Gibbons from operating his ferries in New York waters in violation of the exclusive licence granted to Ogden by the state of NY. Gibbons challenged the injunction on grounds that a 1793 federal statute permitted him to operate his ferries in those waters. Ogden argued that the federal coasting legislation was unconstitutional, because Article I did not expressly delegate such authority to Congress, thereby reserving it for states under the 10th Amendment.

Daniel Webster argued on behalf of the national government, claiming that the commerce power is enumerated but undefined in the Constitution precisely because the Framers intended to give Congress complete power over the regulation of commerce. John Marshall, in the opinion of the Court, held that the navigable waters of the Hudson River were within the scope of federal jurisdiction. The power over commerce is not limited to interstate activity but extends to any activity which affects interstate commerce.

U.S. v. E.C. Knight Co. (1895) - Challenge to federal antitrust legislation, the Sherman Act, on grounds that its regulations went beyond interstate commerce. Question whether manufacturing may be regulated by the national government. Court holds that it may not. Established categorical test for scope of federal commerce regulation, such that manufacturing may not be regulated. Marshall would have dissented. This decision is based on normative review.

Hammer v. Dagenhart (1918) - Challenge to a federal law prohibiting the transport of products of child labor. The Court invalidates the law, both because it "transcends the authority delegated to Congress over commerce" and "exerts a power as to a purely local matter to which the federal authority does not extend." Justice Day argues that the Act in question was aimed not at the transportation of commerce but at manufacturing. This decision is also based on normative review. Justice Holmes writes a strong dissent.

TA Notes

Discussion about the commerce clause and federalism. Professor Woll recommends using Lopez decision to review commerce clause jurisprudence. Raises issues which will be in essay question on mid-term.

Justice O'Connor wrote in Lopez that the Framers viewed federalism as a process or government which would be sustained through enumerated (and thereby limited) powers of the federal government. Webster and Hamilton would disagree -- they would say that federal power is unlimited. From a formalistic view, the Constitution did not create a federal form of government. One might argue that there are no powers which are not delegated to the national government. This point is articulated by the Chief Justice in McCulloch when he writes that Article I includes the necessary and proper clause for the purpose of expanding the authority of the national government.

In Federalist Paper #39, James Madison discusses the balance of national and state power, but he suggests that state power will be protected by the political process of representation, not by the 10th Amendment or judicial review. To Madison, the issue was not so much state sovereignty but state interests which merited protection. In Lopez, O'Connor and Rehnquist argue that we need something more than state representation in the political process to protect the federal system -- the Supreme Court must preserve state sovereignty. On what basis do they make this assertion?

Rehnquist wrote in Lopez that the indirect effect of guns in schools on commerce (e.g. commercial activity will be chilled in a high-crime area) does not justify a national gun-control law. He argued that Congressional authority was limited to activity which directly involved the transportation of goods and service across state lines. Otherwise, the national government would have free reign to control the entire educational system and family life. Ultimately, Rehnquist argued, it would allow Congress to regulate any behavior of any individual.

Both the majority opinions and dissenters engage in substantive judicial review in Lopez.

(Partial) History of commerce clause jurisprudence:
Gibbons (1824) - Anything goes.
E.C. Knight (1895) - Added direct and indirect effects distinction. Held that only activity which directly affected commerce could be regulated by Congress (e.g. manufacturing is excluded). Established Supreme Court as arbiter of what Congress can and cannot regulate.
Schecter (1935) - Held that regulation on intrastate commerce is unconstitutional.
Jones and Laughlin (1937) - Throws out direct and indirect standard. Returns to precedent of Gibbons, that Congress can regulate any activity that affects commerce. But adds that activity must substantially affect commerce.
Carolene Products (1938) - Court declared it was getting out of the business of evaluating the commerce clause.
Darby (1941) - Court held that anything Congress reasonably does to regulate commerce is okay. No more burden of proof on Congress. The "substantial" standard is removed. Reasonable basis test.
Lopez (1995) - Rehnquist returns to direct/indirect test. Congress can regulate only activities which have a direct and substantial effect on commerce.