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Constitutional Law I Outline - Professor Wallace - Campbell Law - Part 3

By Miller Moreau
Professor Wallace - 2020

Download the PDF version of this outline

<< Part 2 | Part 4 >>

War Powers: Initiating

  • Overview:
    • Art. I grants Congress the power to declare war and the authority to raise and support the army and the navy.
    • Art. II makes the president the commander-in-chief
    • **Based on the constitution, Congress can initiate war, but the President has the remainder of executive power to conduct (manage) and defend (defense) in war.
    • The Supreme Court rarely has spoken as to the constitutionality of the president using troops in a war or war-like situation without congressional approval. The only case is in the context of the Civil war – the Prize Cases ruled that the president had the power to impose a blockade on Southern states without a congressional declaration of war. No other Supreme Court case has addressed the constitutionality of presidential war making without a congressional declaration of war.
    • The Supreme Court often has generally remarked that challenges to the conduct of foreign policy present a non-justiciable (court cannot hear) political question. In Oetjen v. Central Leather Co, the court stated that the conduct of foreign relations of our Government is committed by the Constitution to the Executive and Legislative – the political – Departments of the Government, and the propriety of what may be one in the exercise of this political power is not subject to judicial inquiry or decision.
    • Cases about Vietnam being unconstitutional, Regan’s military activities in El Salvador, and Americans bombing Yugoslavia the court dismissed as to justiciability
    • It is unresolved as to what constitutes a declaration of war sufficient to fulfill the requirements of Art. I.
    • War Powers Resolution
      • The President as commander-in-chief may introduce the US Armed forces into hostilities or situations where hostilities appear imminent only pursuant to (1) a declaration of war (2) specific statutory authorization or (3) a national emergency created by attack upon the US, its territories or possessions, or its armed forces.
      • It required president consult with Congress within 48 hours after troops are introduced into hostilities or risky situations
      • President shall withdraw troops after 60 days unless Congress has declared war or authored an extensions or is physically unable to meet as a result of an armed attack upon the US
      • President can extend for 30 days
  • Madison’s notes on “make war” vs “declare war”
    • Notes that Pres has traditional war powers:
      1. defensive (so when someone starts the fight, Pres can unilaterally go all out), AND
      2. manage (once it starts by Congress, Pres can unilaterally conduct it)
  • The Prize Cases
    • Pursuant to his executive powers, as conferred by the Constitution, the president may use force against rebelling states during a civil war without a formal congressional declaration of war. According to Art. II, § 2 of the Constitution, the president is the Commander-in-Chief of the armed forces and therefore has the power to direct the Army and Navy of the United States, as well as the militias of the individual states in some circumstances. If the country is at war with a foreign nation, the president is not only permitted, but is obligated, to use force against any such threats. This obligation to protect the country during war does not come with the requirement that the president wait for prior legislative approval. This is so whether the opponent is a foreign country or a group of states rebelling domestically against the government, because both situations are considered wars. Here, the war amongst the states was unexpected and abrupt, and the president had to react without waiting for Congress to deem it a war. Whether a civil war is sufficiently severe to warrant the use force against belligerent states is the president’s decision, and it is within the president’s discretion to determine how much force the circumstances require. The order of blockade itself proves that a state of war existed, which justifies the president’s power to use such force. Additionally, though legislative approval was not necessary before the president could act in this way, Congress did later pass a series of statutes that made the president’s actions valid.
    • 2 propositions from the Prize cases that say Comm in Chief power gives president:
      1. defensive power, AND
      2. power to command military during “hostilities”
    • See pg 303, Note 1:
      • Some scholars think, based on historical texts, that
        • The constitution gives a narrow view: Congress can initiate a CONDITION of war and Pres cannot unilaterally do so; OR
        • The constitution gives a broad view: Congress’s power to declare is only a formal recognition of war, but Pres can still unilaterally wage war
  • Operation Desert Shield and Pres Bush
    • Bush sent troops to Saudi Arabia to protect them from an invasion by Iraq; Congress had not authorized this, although UN had; Pres claimed this was offensive; Did he have power to act?
      • Dellums: held that the issue wasn’t ripe but it was not a political question bc the Const. Requires congressional authorization for President offensive action
      • Ange: held that the issue was nonjusticiable bc was a political question
      • Issue became moot bc Congress did authorize it
  • AUMF (Authorization for Use of Military Force)
    • Congress did this after 9/11
    • Is this basically a declaration of war?
  • Libya:
    • The OLC reasoned that Pres could act bc it was a residual executive power which includes foreign affairs
  • Terminating war:
    • Note: textbook says it is a political act, but could be done by treaty, proclamation, or legislation
  • Conclusions?:
    • Seems to be that if the President is acting with congressional authorization or in defense, then Pres is exercising constitutional war powers. If it is an offensive act without congressional approval, then it might be a political question and for Congress to just quit funding or pass a law saying “stop,” which would put Pres in Youngstown 3 and probably unconst.

War powers: Conducting war and detaining US citizens (civilian and enemy status) and foriegn ppl

  • Emancipation Proclamation
    • Could be seen legally as a deprivation of property without due process; was not authorized to do this expressly, although Congress had passed a couple slave-freeing related laws recently
  • Korematsu v. US
    • Court upheld an executive order which imposed an exclusion of Japanese people who were US citizens based solely on ancestry; found it was an inherent power within “Comm in chief” power
  • Ex parte Milligan
    • Court held that the trial of a US citizen, not affiliated with but plotting to assist the Confederate states, would not be tried by a military commission when the civilian courts were still operating
  • Ex parte Quirin
    • Court held that enemy war criminals (including a US citizen) were properly tried by military commission rather than in civilian courts
  • Hamdi v. US
    • Held: If federal legislation grants the President authority to use military force, but does not specify the details, the President has only the powers granted by the Constitution, by other statutes, and by the laws of war. Exercising these powers, the President may detain enemy combatants, if they are accorded certain requirements imposed by the Due Process Clause.
    • No controlling opinion
    • Plurality (O’Connor):
      • Held that the AUMF authorized Pres to unilaterally detain US citizens with status of “enemy combatants” but those detainees must be afforded some sort of DP in order to contest their status (suggested that a military commission would be adequate, with hearsay and not beyond a reasonable doubt, and with a presumption of favor for military)
    • Souter and Ginsberg; concur in judgment, dissent in reasoning
      • Would have found that the Pres was not authorized by AUMF, and that there is actually another law which prohibits that act, but concur in judgment for remand for new hearing
    • Scalia and Stevens; dissent:
      • Say constitution gives 3 options:
        • Charge the person in civilian courts
        • Release the person
        • Or suspend the writ of habeas corpus by legislation
      • Said milligan controls, but glossed over why quirin was inapplicable
    • Thomas dissent:
      • Agreed with the plurality that Pres has the power, but not with the judgment
      • Would find that DP is satisfied by the Pres’s determination of “enemy” pursuant to AUMF, so the act was squarely within his ex power
  • See timeline in notes, as well as the Boumediene case


  • Art II, Sect 4: “can be impeached for treason, bribery, or other high crimes and misdemeanors”
  • Clinton
    • Was impeached but not convicted
  • US v. Nixon
    • Was not impeached but was about to be
    • Claimed absolute executive privilege and argued that the whole impeachment issue was nonjusticiable; Court rejected this argument
    • Court held:
      1. Court can decide if pres his this privilege and its scope
      2. Ex priv does exist bc need for candor in communication and confidentiality
      3. the ex priv is not absolute; presumptive but can be overcome by countervailing gov interests
  • Andrew Johnson
    • Was impeached but not convicted
  • Currie on Johnson’s impeachment
    • Notes on the resolutions and process of impeaching him
    • Some thought that he couldn’t be impeached bc the Const. Says “treason, bribery, or other high crimes and misdemeanors” and the charges were not a high crime or a misdemeanor; the charges were things like misconduct of public men
  • Letter on Clinton’s impeachment:
    • This letter thinks that bc treason and bribery are executive fxn crimes, then the “other high crimes” must also be executive in nature
    • Perjury is not executive in nature, thus not an impeachable offense
The Judiciary Powers (Article III)

Map of art III

  • Begins with vesting clause
  • Historically, judicial power was thought to ideally be law-interpreting only, and no law-making; but realistically, judicial review was something contemplated and perhaps even wanted by a lot of the framers
  • Judicial review power is not expressly in the constitution
  • Limits on judicial power:
    • No advisory opinions
    • Standing
    • Ripe
    • Not moot
    • Genuinely adverse parties
    • Not a political question
    • (these are ideas from both Art 3 and judicial restraint)
  • Art III creates SCOTUS but leaves Congress to create all other federal courts
  • Federal judges (all of them) get life tenures but can be impeached for misbehavior
  • 3 categories of cases:
    • Ambassadors, consuls, and other public ministers (think foreign dignitaries)
    • Admiralty and maritime
    • Cases arising under US laws (federal question)
  • 6 controversies:
    • When US is a party
    • 2 or more states
    • State vs citizen (changed by 11th Am)
    • Diverse citizens (diversity)
    • Citizens of states claiming lands from grants of other states
    • Between a state/citizens of one state and foreign countries/citizens (changed by 11th Am)
  • Original jurisdiction over:
    • The ambassador case type
    • When a state is a party
  • Appellate jurisdiction over all else, and congress can make exceptions and regulations to appellate juris
  • Erie: when in federal court using CL, use state CL bc there is no CL

Judicial review

  • Brutus No. 11
    • Saw the judiciary, if independent and with power of judicial review, as leading to corruption and a judicial oligarchy
    • Saw that impeachment would not be a meaningful check
  • Federalist No 78 (Hamilton)
    • Trying to dissuade Brutus
    • Argued for judicial review, noting that the judiciary is the least dangerous of the branches bc it does not have the power of the purse or the sword but of judgment only
    • But that does not make the judiciary superior (not in favor of judicial supremacy, just judicial review)
    • Who gets to judge? Not the legislature or executive, so must be judiciary
  • Marbury v. Madison (1803)
    • Know the history of this
    • Held: no jurisdiction to rule on Marbury’s case
    • Held that section 13 of the judiciary act of 1789 was unconstitutional as a conferring of original jurisdiction to SCOTUS, which is contrary to Art 3 (which makes no actual sense if you read the statute)
    • Dicta regarding:
      • Removal power of the President
      • Standing
      • Political question
    • Marshall’s argument for judicial review:
      • Bc cosnt is written, which shows supremacy over other laws
      • “Arising under” clause
        • If court can hear cases, it should be able to interpret
      • “Oath” Clause
        • Judges take oath to uphold const
      • “In pursuance” clause
        • Laws are passed in pursuance to const so need to be able to interpret const
    • What Marshall argues for is Constitutional Supremacy, not judicial supremacy
  • Stuart v Laird
    • Upheld the Repeal Act (which took away judgeships and reinstated circuit riding)
    • There, petitioner argued was unconst bc:
      • Fed judges have life tenure so taking away the judgeships/commissions is contrary to const
    • Court did not directly address the life tenure const provision, but said the transfer of the case was authorized by statute so was const and was fine bc it just restored the old way of circuit riding
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