Judicial Powers and Limitations

Judicial Review – Judicial Branch’s check on the other two branches. When a case comes to the court

involving a statute or act done by the Executive, SCOTUS may deem it unconstitutional which will kill

the law or show cause to impeach the Executive. The power of Judicial Review cannot be overturned by

Congress nor the President.

Interpretive Limits - How the Constitution is // should be interpreted

Congressional Limits - Congress’s ability to restrict the jurisdiction of Federal Courts

Justiciability Limits - Judge made limits created to limit matters federal courts may decide

Justiciability Limits:

Avoidance - They won’t listen to a case if they don’t need to (think controversial topics they don’t want

to answer either because it was recently litigated on or they don’t feel they need to because they’re lazy).

Standing - Litigant’s authority to be heard by the court (Injury + Redressing + Causation)

- Injury - The litigating party must actually have sustained an injury.

- Redressing - The court must be able to actually alleviate//redress the harm.

- Causation - The defendant’s actions must be a cause-in-fact of the plaintiff’s injury.

Prudential Standing - Areas where the court has found standing granted via congressional laws or

statutes.

- Taxpayer Standing - Typically not allowed because everyone would bring it up.

- 3rd Party Standing - Depends on the relationship between the third-party and the non-litigating party
that has standing (Doctor//Patient; Bar Owner//Patrons; School//Student) interests of the parties

must align.

No Judicial Opinions – SCOTUS will not give judicial opinions to any other branch.

Ripeness - Whether it is the right time to bring the case which is determined based on the likeliness of

recursion and how imminent the harm is.

controversy between parties.

- Voluntary Secession - Defendant’s ability to make a case moot during trial by voluntarily ceasing
the action which is harming the plaintiff (think river being polluted by factory)

- Capability of Repetition - If the case is deemed moot, how likely is it to be brought up again.

- Class-Action Suits - During a Class Action, even if one of the plaintiff’s case is mooted for one
reason or another (parolee suing the agency of their parole and is no longer a parolee) the case is not

deemed moot.

- Collateral Consequences - Even though the injury is moot, there are still ongoing consequences that
occur afterwards as a result of the initial harm.

No Political Questions - Court will not hear cases that don’t directly involve the constitution or require

the court to decide on a matter which is the job of one of the other branches of government.

Legislative Powers and Limitations

Congress may only act if there is expressed or implied authority given to it in the constitution whereas the

states may act as they want unless the constitution prohibits the act. The scope of Congress’s power lies in

Article 1 § 8 of the Constitution. Since the 1990’s the Supreme Court has invalidated laws exceeding the

scope of Congress’s power as a violation of the 10th Amendment. Congress will apply every enumerated

power it can when passing legislation to ensure that it survives if it is brought into the courts. Congress is

granted enumerated powers by the Constitution which may be interpreted differently as society changes.

Whenever Congress passes a law, they invoke every power they can so that the law survives Judicial

Review.

Commerce Clause – Grants Congress the authority to regulate commerce among the several states. The

meaning of these ambiguous terms and their relationship to the tenth amendment have changed

throughout the years.

1824-1890 (Pure Federalism)

Among - Intermingled/between/related to stopping at purely internal matters

10th Amendment - Congress acts without consideration for the states, power is given from people to the

federal government and the remainder goes to the states.

1890-1937 (Dual Federalism)

Commerce - One stage of business, manufacturing precedes commerce.

Among - Common instrumentalities, Stream of Commerce, Direct Relationship

10th Amendment - Indirect unregulated relationship to commerce which excludes affairs within a state

and acts as a zone of authority.

1937-1990 (New Deal)

Commerce - Includes channels (transportation and its means), instrumentalities (stuff, labor and people

involved with the transportation), and any activities affecting commerce.

Among - Commerce considered in the aggregate even the purely local may be regulated if they affect

commerce.

10th Amendment - Unimportant, “but a truism”

1990’s - Now

Commerce - Channels, instrumentalities, significantly affecting commerce (while commercial in nature)

Among - Commercial, outside the traditional realm of state activities.

10th Amendment - Congress may not regulate state legislatures. Congress’s intervention via commerce

clause requires interstate commerce.

Necessary and Proper Clause – Allows Congress to fill in the gaps of its power by granting it to create

any law that is “necessary and proper” for carrying out its execution of its foregoing powers. Incidental

grant of powers in contrast to the commerce clause’s more direct grant of authority.

Commandeering – Congress cannot pass a law which forces a state to act thus removing the state’s

ability to regulate and legislate itself. However, Congress may create regulations or programs which

incentivize States to make certain changes through its Taxing and Spending powers.
Non-Delegation Doctrine – Congress may not grant its legislative powers to other branches or agencies

without prescribing a specific purpose or set of written out duties and powers.

Taxing & Spending Clause – Congress’s power of the purse where it taxes the citizens and uses the

revenue to carry out its laws. Congress may use this power to incentivize a state to act a certain way.

Congress may use this power to limit the President’s power of Commander in Chief by cutting the

spending for War.

Bicameral Requirement – Both the House of Representatives and the Senate must act in unison as one

body of Congress when making legislative decisions without exception.

Impeachment Power – The constitution grants Congress the sole power of impeachment which allows

Congress to remove any member of government for nearly any reason so long as the House and Senate

vote on it, the House convicts impeached members and the3 Senate indicts them, formally removing them

from office.

13, 14 & 15 Amendment

13th Amendment - Little to no restrictions, very broadly written though the court’s view these issues as

property issues.

14th Amendment - “Equal Protection,” very broad yet narrowly interpreted by the court requiring a state

actor (acts between private actors CANNOT be regulated). Government agencies, employees, and

bodies cannot deny the rights of citizens in this amendment. Private entities acting on part of the

government also cannot deny the rights of citizens if they are state actors.

15th Amendment - Little to no restrictions so long as the controversy’s subject matter is a citizen’s right

to vote.

Executive Powers and Limitations

The Executive Branch is meant to be a faster branch than the Legislative branch acting instantly to events

that occur. However, in doing so, it may inadvertently step on the toes of the Legislative Branch so to

speak. For this reason, Congress may restrict the actions of the President by enacting statutes so long as
they do not conflict with direct powers given to the President in the Constitution. However, Congress

cannot expand the powers of the President unless it does so via Amendment. Congress also can enact

statutes to grant the President authority to act under his powers such as his power of Commander in Chief

while in times of war or skirmishes. Enacting these statutes is seen as a grant of authority // consent to act

rather than a direct grant of power. President has the most authority while acting as Commander in Chief

and when backed by a statute from Congress granting him said authority.

Commander in Chief – During times of war or conflict, Congress may authorize the President to act as

Commander in Chief of the armed forced via statute and spell out what they allow the President to do.

President must check in with Congress every 30 days and send them an update report every 60 days while

exercising these war powers. Congress may cut the funding of the Executive and hinder the power of

Commander in Chief when they deem necessary because again, Congress has the power of the purse and

wars are expensive as fuck.

Take Care Clause – The President must take care that the laws are faithfully executed as such, the

President may not disobey laws enacted by Congress nor may they advise members of their branch to do

so. However, the President may create agencies which enforce the laws created by Congress such as the

Environmental Protection Agency.

Pardon Power – President may pardon anyone convicted of a federal crime without limit. Congresses

attempts to limit this power have been futile in the past.

Veto Power – President may veto a bill passed by Congress which effectively kills the bill or remands the

bill back to Congress for revision unless they overrule the Veto by a two-thirds majority vote.

Appointment Power – President may appoint federal judges (they require advice and consent of the

senate) and Principle Officers to positions in the Executive Branch.

Removal Power - The President may fire his Principal Officers indiscriminately. To fire an inferior

officer, the President must show “good cause” and receive consent from the Senate.

Principal Officer – One who is appointed to an office in the executive branch and whose position

does not require advice and consent of the senate. These Officer’s positions were not created by

the Legislative branch.

Executive Branch with advice and consent of the Senate. These officers tend to hold powers from

other branches which is why removing them requires more authority than just the President.

Wiener v. U.S. This power does not interfere with the nondelegation doctrine because the

officers are appointed with a specific list of duties and powers or given a certain purpose upon the

creation of their office.

Foreign Affairs – The President has inherent powers to act unless the act is unconstitutional with regards

to foreign affairs. The President is viewed as the sole organ of the nation in its external relations, and its

sole representative with foreign nations. Congress usually grants the President discretion to handle

foreign affairs it otherwise would not afford him when handling domestic affairs.

- President has unilateral authority to recognize foreign sovereigns. Zivotofsky v. Kerry

Immunities – Protections that extend to members of the executive branch and its agencies to bar them

from being sued for certain acts while in the positions of the offices.

Sovereign Immunity – You cannot sue a state unless it allows you, usually by statute.

Qualified Immunity – You cannot sue a government agent for their acts if a reasonable similarly

situated agent would have acted in the same way.

Absolute Immunity – You cannot sue the President for their official acts while in office. This,

however, does not bar previous suits against the person of the president from occurring nor does

it toll them until the President is out of office. Clinton v. Jones.

Federal v. State Government Powers

Preemption - Federal law supersedes state laws depending on circumstances. It occurs when Congress

actively legislates on an issue.

Expressed - There is explicit preemptive language in the statute (Lorillard Tobacco)

Electric Co.), conflicts with the law so that both cannot be followed simultaneously (Florida Lime

and Avocado Growers) or Congress has occupied the field in which the state law is attempting to

enter (Hines v Davidowitz)

Conflict - Did the state make a stricter / looser law whereby a citizen cannot follow both

the Federal and State Law simultaneously.

Impede - Does the state law impede the original objective of the law passed by

Congress? [So long as a state complies with the Federal Objective, they may create their

own terms to it.]

Field - Has Congress occupied the field which the state is attempting to legislate on?

(Think immigration law)

Dormant Commerce Clause - States shall not discriminate against the citizens of other states, nor shall

they grant benefits to their citizens at the detriment of out of states citizens. Occurs when Congress is

silent on a subject but that subject affects commerce. If a situation involves discrimination between out-

of-state residents, which is unduly burdensome only on one class and grants a benefit solely to another

class, this may be triggered.

Privileges AND Immunities Clause - Stems from the Article Four of the Constitution and seeks

to protect out of state citizens from discrimination as to commercial liabilities (ability to travel

and earn a living).

Facially Neutral – The law, on its face, does not appear to be discriminatory, but in

practice, it is whether by creating an undue burden on interstate commerce or granting a

benefit to in-state-citizens at the expense of out-of-state citizens. (Hunt v. Washington

State Apple)

Facially Discriminatory – The law, on its face, is clearly discriminatory by either being

unduly burdensome on interstate commerce or by granting a benefit to in-state residents

that are not extended to out-of-state citizens. (City of Philly v. New Jersey)

EXCEPTIONS // JUSTIFICATIONS TO DCC:

substantial government interest behind it (Maine v. Taylor, Court affirmed a law which

prevented importation of shrimp into the state because the shrimp could potentially destroy the

state’s ecosystem via microorganisms it could carry, it follows that this ban was an equal burden

on both in and out of state citizens; Minnesota v. Clover Leaf Creamery Co., Court held that a

law barring the sale of milk within the state was not unconstitutional because the state legislature

was attempting to manage their resources while not distinguishing between buyers nor sellers

thus being a burden on in and out of state citizens). Another thing to note is whether the law

affects commercial liberties, if not, then discrimination may be allowed (Baldwin v. Montana,

Court held that Montana could price their hunting licenses differently based on citizenship

because hunting is not basic to the maintenance or well-being of the union – States can put

restrictions on recreational activities because they are not required for one to make a living).

When considering whether a law’s purpose is legitimate, consider whether there are any

other reasonable alternatives (Maine v. Taylor, only alternative was checking each

shrimp that was imported one-by-one which was cumbersome and of course not a

reasonable alternative; Toomer v. Witsell, Court held that South Carolina’s reasoning of

preventing overfishing was insufficient to justify a 1,000% difference in license pricing

favoring instate residents over out of state residents, therefore the law was

unconstitutional as there was no justification for it and more reasonable alternatives

available).

If a state has express congressional approval, it may create discriminatory laws. (Western &

Southern Life Ins. Co. v. State Board of California, Court held that a facially discriminatory law

which created a burden on out of state insurance companies was permitted because Congress had

expressly allowed such a tax in the McCarren Ferguson Act.)

Finally, a state may create discriminatory laws while it is acting as a market participant (Reeves

v. William Stake, Court held that South Dakota choosing to sell cement only to in-state citizens

due to a shortage was constitutional because the state was not acting as a market regulator as the
 defense pushed, but rather, as a market participant which is capable of withdrawing itself from

interstate commerce during times of shortage). When considering whether a state is acting as a

market participant, think, “is the state acting like a business?” if so, then yes (Condon v. Reno,

Court held that a law which established regulations that restricted the states’ ability to disclose

their drivers personal information was not unconstitutional because it did not require the states to

enact any laws or regulations, nor did it require states to regulate behaviors between private

entities.) if not, then ask “is the state acting as a market regulator?” if so, then no (South Central

Timber v. Dept. of National Resources of Alaska, Court held that Alaska acted as a market

regulator because it controlled a large portion of the timber market and forced its buyers to

undergo its conditions without just reasoning).

Civil Liberties

Fourteenth Amendment – Three major clauses within it, the common theme among them is extending

protection to citizens from their own states. It follows, invoking the Fourteenth Amendment requires a

state action.

No Deprivation / Due Process – States cannot deprive citizens of life, liberty, or property

without due process of the law.

Equal Protection – States cannot deny persons within their jurisdiction equal protection of the

law. When considering this think of the following: (1) what was Congress’s intent when the law

was passed?; (2) is the law discriminatory (if so is it justified with a purpose)?; (3) Can the

discriminated party change their status (law that discriminates against what someone is wearing is

okay because they can change that v. law that discriminates against someone’s skin color because

that cannot be changed).

Privileges OR Immunities Clause - Stems from the Fourteenth Amendment and was designed to

protect citizens from mistreatment from their own state government. Courts are hesitant to revive

this clause as it has been effectively useless since the Slaughterhouse Cases. Instead, the Courts

use other parts of the Fourteenth Amendment like the Equal Protection and Due Process Clauses.
 Incorporation Doctrine – States violate the Bill of Rights through the fourteenth

amendment, usually through Due Process or Equal Protection.

State Action Doctrine – The Constitution applies to all levels of government but not to private entities

or actors. In order to apply Constitutional rights, one must prove the existence of some type of state

action.

EXCEPTIONS TO S.A.D (had to put the dots so it didn’t spell sad lol)

Public Function – Private entities must comply with Constitutional rights if they are

performing a task that has traditionally and exclusively been performed by the

government (Marsh v. Alabama, Court held that a town, which is owned and run by a

corporation, serves a public function of being a town unless the corporation makes clear

distinctions demonstrating that it is not a town, accordingly, the town in question cannot

eject someone from it based on their religion; Evans v. Newton, Court held that a park,

even privately owned, is municipal in character and traditionally something run by the

state, as such, the private owners of the park cannot eject citizens based on their ethnicity;

Hudges v. N.L.R.A., Court held that the owner of a mall could eject strikers despite their

first amendment right to protest because a mall does not serve a public function rather it

is a private entity).

Entanglement // Entwinement – No direct state action but there is enough government

involvement to merit invoking Bill of Rights protections through the Fourteenth

Amendment (Shelly v. Kraemer, Court held that while racial restrictive covenants do not

violate the fourteenth since they are between private actors, their enforcement is

unconstitutional because enforcing them requires state action in the form of court

intervention; Lugar v. Edmonson Oil Co., Court held that the government was

sufficiently entangled with the defendant because of the court intervention (requested

by the defendant) which deprived the plaintiff of their property, therefore, the plaintiff

was entitled to bill of rights protections). Government subsidies may avail a corporation

to Bill of Rights protections if the plaintiff can show the government endorses the
 corporate behavior via the subsidy thus creating an entanglement situation (Norwood v.

Harrison, distribution of textbooks constituted a state action because they were only

distributed to private schools)

Judicial Powers and Limitations

Marbury v. Madison - Establishes Judicial Review and bars Congress’s ability to expand on the

SCOTUS’s Original Jurisdiction although Congress may limit the court’s appellant jurisdiction.

Exparte McCardle - SCOTUS was unable to hear the case due to the Military Reconstruction Act of 1867

which limited the court’s appellant jurisdiction to hear these cases in militant states such as Mississippi.

Congress may limit courts’ ability to hear cases via restricting their jurisdiction.

U.S. v. Klein - SCOTUS deemed Congress’s action in trying to limit the pardon power of the president

was unconstitutional since the power was granted in the constitution without limit. Furthermore, Congress

cannot regulate how courts can rule on their cases.

Plaut v. Spendthrift Farm Inc. (1995) – Congress cannot enact statutes which retroactively force courts to

change their rulings on cases already decided.

Allen v. Wright (1984) – Basis of the alleged harm must be direct and traceable between the injured party

and the alleged harming party.

Massachusetts v. EPA (2007) – States are given more leeway in terms of speculative harm. Massachusetts

brought suit against EPA to force the agency to enforce the Clean Air Act more strictly. The state won

because of this leeway given to states even though the harm was not necessarily imminent, and the

harming factor is a point of controversy (global warming).

City of LA v. Lyons (1983) – Injury must be personal, concrete, and likely to recur.
Lujan v. Defenders of Wildlife (1992) – Issue at hand must be concrete, the alleged harm must be

imminent, and the plaintiff must demonstrate their harm is redressable by the court’s intervention.

Singleton v. Wulff (1976) – Third party standing is allowed with Doctor // Patient relationships especially

during cases involving stigmas such as abortions. Furthermore, the doctors would have had standing had

they brought this case on their own financial harm rather than their patient’s harm.

Barrows v. Jackson (1953) – Third party standing is allowed with Landlord // Tenant relationships where

the tenants are unable to bring suit due to discriminatory laws.

Craig v. Brown (1976) – Third party standing is allowed with Bar Owner // Patron relationships where the

bar owners sustained financial harm due to laws that discriminated against their patrons.

Gilmore v. Utah (1976) – Third party standing is not allowed with Mother // Son relationships when the

mother attempts to request a writ of habeas corpus which did not align with the interest of her son.

U.S. v. Richardson (1974) – Third party standing is not allowed with Government // Taxpayer

relationships when the plaintiff fails to allege direct harm required for standing. Plaintiff must

demonstrate a “logical nexus” between the asserted status of taxpayer and the claimed failure of Congress

to require the Executive to supply a more detailed report of agency expenditures.

Flast v. Cohen (1968) - A two-pronged test to establish a “logical nexus”: (1) challenging an enactment

under the Taxing and Spending Clause of Article 1 § 8of the Constitution; and (2) claiming that the

challenged enactment exceeds specific constitutional limitation imposed by the Taxing and Spending

powers.

Poe v. Ullman (1961) – Case was dismissed for lack of ripeness because the alleged harm was a statute

that had only been invoked once since its creation 75 years before this case and as such the court found it

unlikely to be invoked and cause the alleged harm.

Baker v. Carr (1962) – When weighing in on a potential political question, the court needs a sufficient

method to formulate and decide future similar cases, otherwise the case will be dismissed as a political

question – Judicially manageable standard.

Rucho v. Common Cause (2019) – Case dismissed as a matter of a political question because the plaintiff

failed to demonstrate a judicially manageable standard.

not be dismissed as a matter of a political question.

Goldwater v. Carter (1979) – Even though the Constitution expressly grants the Senate authority to ratify

a treaty, it is silent as to the Senate’s role in dissolving a treaty as such, the matter was dismissed as a

political question.

Zivotorsky v. Clinton (2012) – Case was held to be justiciable though it contained a political question

because the core of the matter was whether a statute was constitutional or not which is the primary

function of the court.

Nixon v. U.S. (1993) – Congress has the sole power of impeachment which includes removing federal

judges from offices. Congress has full control over how the impeachment hearings take place and what

can and cannot be brought into the hearing etc. Courts will not interfere with this authority.

Legislative Powers and Limitations

McCoulloch v. Maryland (1819) – States cannot tax the federal government as the power to tax is the

power to destroy and it makes no sense that a lone state ought to have the power to destroy the entire

federal government. Even though the Constitution does not expressly grant Congress the authority to

create a national bank, the power was deemed to be within the scope of the necessary and proper clause.

Gibbons v. Ogden (1824) – Commerce is defined as the power to regulate, to prescribe the rule by which

commerce is to be governed which is vested in Congress that may exercise it to the utmost without limit

other than those in the Constitution. “Pure Federalism”

NLRB v. Jones (1937) – Commerce clause was reinterpreted as to affecting commerce between states.

Ergo, if a small business was granted a break, it could have a ripple effect which extends to a national

level.

Wickard v. Filburn (1942) – Congress may regulate how much wheat a dairy farmer can grow and the

power to do so is drawn from the commerce clause.

Katzenbach v. McClung (1964) – The Civil Rights Act of 1964 finds its powers in the commerce clause

as it protects individuals from discrimination against restaurants since allowing said discrimination would

affect commerce on a nationwide level meaning it falls within the authority of interstate commerce.
U.S. v. Lopez (1995) - States should be allowed to be their own laboratories of experimentation so that

they may make their own laws and codes. As such, Congress enacting a statute with criminal

repercussions, is unconstitutional because Congress is effectively commandeering the state’s authority to

regulate themselves.

U.S. v. Morrison (2000) - Congress did not have the authority under the commerce clause to enact the

Violence Against Women Act because the Act did not regulate interstate commerce nor did it have

enough to do with interstate commerce to justify the use of the commerce clause. The court believed that

the state ought to provide the remedy instead of Congress. [Congress also did not have the authority under

the fourteenth amendment to enact VAWA because the amendment regulates harm done by the state to

citizens not harm done between private actors. There was no state actor, ergo, no harm done by the state

for it to fall under the fourteenth.]

Gonzales v. Raich (2005) - Court ruled that the commerce clause extended to a private citizen who was

growing their own medicinal marijuana. The Court drew an analogy to the Filburn case and furthered that

marijuana is only a step away from the federal market thus it classifies as interstate commerce. Drugs are

a type of commerce. Scalia saw this as more of a necessary and proper issue looking into whether

Congress could regulate this.

New York v. U.S. (1992) - Court ruled that an act which forced states to regulate their own pollution was

unconstitutional. While Congress has substantial authority to incentivize states to act, they cannot compel

states to do so.

Printz v. U.S. (1997) - Court ruled that Congress cannot compel states to act or enforce a regulatory

program through the state’s officials/officers.

Reno v. Condon (2000) - SCOTUS deemed the DPPA was constitutional even though it technically

regulated a state agency because it regulated the state as a holder of data. Congress may regulate

information, which is considered commerce, and since South Carolina was selling data to other states, it

became interstate commerce.

Murphy v. NCAA (2018) - SCOTUS deemed the PAPSA law was unconstitutional because Congress

cannot pass laws which commandeer the state’s ability from doing something. Congress cannot issue a
direct order telling a state how to act, this statute prevented states from authorizing legislature involving

gambling on professional sports. (Concept of Preemption came up during this case but not needed till

later, check notes)

Sabri v. U.S. (2004) - Congress can enact legislature which criminalizes bribery to state officials using its

taxing and spending power because it is within the best interest of the general welfare to have these

penalties for their officials.

South Dakota v. Dole (1987) - Four Point Standard for receiving conditional federal funds from

Congress: (1) It must be for the general welfare (anything Congress decides as for the general welfare);

(2) the state must do so unambiguously (drinking age must be 21, in the instance of this case); (3) must be

related to some kind of federal interest (road safety and highway maintenance in this case); and (4) other

constitutional provisions may provide an independent bar for conditional grant of federal funds.

Difference between this case and New York is that in this case, failure to comply with Congress’s request

would have resulted in Congress withholding a percentage South Dakota’s funding for highways as

oppose to the massive repercussions directly to the state for not complying. (Distinction between

commuter clause power and taxing & spending power).

Katzenbach v. Morgan & Morgan (1966) - SCOTUS held that the Voting Rights Act of 1965 was

constitutional after voters from New York challenged it claiming that it prevented the enforcement of NY

election laws which required voters to read and write in English. Court reasoned that Congress did not

create a new order or right with VRA rather, it created a new means to enforce these rights that were

already protected by the fourteenth amendment. Congress can expand views on rights, but it cannot

reduce these rights recognized by the court.

City of Boerne v. Flores (1997) - SCOTUS held that the 1993 Religious Freedom Restoration Act was

unconstitutional because it exceeded the scope of the fourteenth amendment by regulating rights of

private citizens which exceeds the scope of the fourteenth amendment. Narrow view of §5, Congress must

enact laws which are congruent and proportional to the ends they are trying to meet.

Shelby County, Alabama v. Holder (2013) - Congress must treat all states equally (equal footing) when

passing legislature. Since the act had a pre-clearance requirement which automatically applied to certain
states, it “discriminated” against those states by not applying the law with equal footing across the board

and making it selective. When passing new legislation, Congress must also use the newest // most recent

data, not just the last election but every election in between.

Executive Powers and Limitations

Youngstown Sheet & Tube v. Sawyer (1952) - While the President has the authority in certain

circumstances to seize control of an entire industry, without a formal declaration of war his powers as

commander in chief as significantly lessened. Furthermore, the President did not ask permission from

Congress before acting which may have allowed him to do so.

U.S. v. President Nixon (1974) - President Nixon refused to produce evidence pursuant to a subpoena and

claimed two defenses: separation of powers (Court did not have the power to oversee this case because it

involved another branch of government); and, executive privilege (President has discretion to withhold

sensitive information from the other branches).

ALA Schecter Poultry v. U.S. (1935) - Congress cannot delegate its power to legislate to the President

without establishing guidelines, rules or standards for those delegated powers.

Panama Refining v. Ryan (1935) - Reiteration of ALA case, Congress may not share its powers with

another branch of administration without setting guidelines // rules // regulations as to how those powers

are to be used.

Grundy v. U.S. (2019) - The non-delegation doctrine holds that Congress may not transfer to the

Executive branch, “powers which are strictly and exclusively legislative,” but may delegate on executive

agencies discretion to implement and enforce laws so long as Congress provides an, “intelligible

principle,” to which the agency must conform. An “intelligible principle” is a general application of

powers provided to all applicable, rules or regulations as to the extent of those delegated powers.

Chadha v. INS (1983) - Allowing one-house veto of executive orders violates the Constitution by

undermining the bicameral requirement of the Constitution which requires all members of Congress to

vote as a single group. Moreover, the act in question allowed House members to single out six individuals

which the Court viewed as a bill of attainder which is also unconstitutional. The Legislative Veto is an
unconstitutional power Congress had which allowed Congress to Veto certain regulations created by the

executive branch agencies. This power only required a vote from one part of Congress or even a

subcommittee rather than both House and Senate which destroyed the concept of the bicameral

requirement as found in Article 1 of the Constitution.

Morrison v. Olson (1988) - The Appointments Clause of Article 2 designates the power to the Executive

to nominate, with advice and consent of the senate, “all other officers of the U.S. whose appointments are

not herein provided for.” In summary, only the President may nominate “Principal Officers” which are

subordinate only to him (Congress may impeach them) while “Inferior Officers” may be appointed by the

President, heads of departments or by the judiciary. Inferior Officers may be removed by multiple powers

such as, in this case, the President and the Attorney General and as such, do not require Presidential

appointment. So long as you delegate someone with a specific purpose and with written out duties and

powers, the appointment will not be considered a violation of separation of powers nor non-delegation

clause or in this case the Appointments Clause.

NLRB v. Noel (2014) - Article 2 § 2 (3): The President shall have power to fill up all vacancies that may

happen during the recess of the Senate, by granting commissions which shall expire at the end of their

next session (at most one year). “The recess of the Senate,” anytime Congress is not in session (serves a

very limited purpose), “vacancies,” any vacancy that in available, if there is a seat open, it is vacant. The

President cannot invoke the Recess Appointment Clause during congressional recesses that are shorter

than 10 days. Pro-forma sessions during congressional recesses count as Congress being in session.

Myers v. U.S. (1926) - there is no expressed limitation on the President’s Removal Power in the

constitution. The President has the power to nominate and appoint principal officers. As such, the

President ought to have the power to remove those principal officers. Congress does not need to weigh in

on these removals because they already have the sole power of impeachment.

Humphrey’s Executor v. U.S (1935) - The President cannot fire inferior officers with special powers

outside those vested in them via executive appointment without showing “good cause” for the removal.

Since Congress appointed this position, the President’s power to remove was barred.

Wiener v. U.S. (1958) - President cannot remove inferior officers from offices created by Congress.
Bowsher v. Synar (1986) - Congress cannot reserve power to remove positions which fall under the

jurisdiction of other branches—Congress already has the power to impeach.

Nixon v. Fitzgerald - Nixon could not be sued for official acts done in the capacity of his office, definition

of Absolute Immunity. Sovereign Immunity, you cannot sue the government unless it allows you to

(usually through statute). Qualified immunity, you cannot sue government agents for reasonably

discretionary acts that reasonable agents similarly situated may have done.

Clinton v. Jones - Presidents can be sued and deposed for acts they’ve committed outside the scope of

their office. The suit will not be delayed because of their position as President.

Free Enterprise Fund v. PCAOB (2010) – Congress cannot make agencies and specifically bar the

President from removing officers in those agencies entirely. This was seen as a violation of separation of

powers.

U.S. v. Curtiss-Wright Export Corp. (1936) – The President is the sole organ of the nation when it comes

to foreign affairs and Congress may grant the President discretion to handle foreign affairs in matters they

would otherwise not grant if they were domestic affairs. Furthermore, the President’s authority is

strengthened while acting under a direct grant of power via a statute.

Zivotofksy v. Kerry (2015) – Congress cannot undermine the Executive by having the Executive branch

contradict the President’s stance on foreign affairs. Again, the President has the sole power to receive

ambassadors and recognize sovereignty.

Dames & Moore v. Regan (1981) – While acting under a statute regarding foreign affairs, the Court is

more willing to imply powers from that statute to the President that it otherwise would not. However, this

issuance of power is narrow and fact dependent.