Miller v. California
(1973): ∆ mailed out ads for his “adult illustrated books,” and was
convicted for distributing obscene material.
An offense must be limited to works which, when taken as a whole, appeal
to the prurient interest in sex, which portray sexual conduct in a patently
offensive way, and which lacks serious literary,
artistic, political, or scientific value. The jury shall decide prurience (community
standards), whether patently offensive, and whether the work lacks serious value.
Only “hard core” can be regulated, and
statute must be very specific. *Know this “Miller test” for the exam.
Paris
Adult Theatre v. Slaton (1973): gov’t has a valid regulatory
interest in prohibiting obscene materials because there is an arguable correlation
between obscenity and crime.
Legislature may assume obscene materials are harmful,
and courts should defer to the legislature on this issue.
Stanley v. Georgia
(1969): regulations for regulating obscenity do not reach into the privacy of
the home, therefore the court will reverse a conviction for being in
possession of obscene films, but can still prosecute the store that sold the
tape.
Child Pornography Cases: Ferber
(’82) held that state may ban child porn because this protects the children;
whereas in Ashcroft v. The Free Speech
Coalition (2002) the court held that virtual child porn cannot be banned bc
“1st A freedoms are in danger when gov’t seeks to control thought…and
speech is the beginning of thought.”
City of Renton v. Playtime Theatres
(1986): Renton
prohibited adult theaters within 1K feet of any home, church, park or
school. Court ruled that this was a form
of time, place, and manner regulation. Additionally, the law was primarily aimed at
the secondary
effects of the theaters, not at the content; therefore, this was held
to be a content-neutral speech regulation. The gov’t had a substantial interest and
∆ had reasonable alternatives.
Gov’t was allowed to use evidence from other cities. Statute was held to be narrowly tailored.
City of Los Angeles v. Alameda Books (2002):
zoning ordinances provide a built-in legitimate rationale, which rebuts the usual
presumption that content-based restrictions are unconstitutional -- so use
intermediate scrutiny.
Fighting Words, Captive Audiences, and Hate Speech:
Chaplinsky v. New Hampshire (1942): The ∆, a
religious speaker, called a city marshal a “God damned racketeer” and a “damned
Fascist.” These were held to be fighting
words in violation of the statute that prohibited the use of insulting language
plainly tending to excite the addressee to a breach of the peace.
Fighting words are “of such slight social value as a step to
truth that any benefit which may be derived from them is clearly outweighed
by the social interest in order and morality.” Fighting words are about provocation.
Cohen
v. California
(1971): guy was arrested for wearing a shirt that said “Fuck the draft” in a
courthouse; convicted for disturbing the peace by offensive conduct. Held, statute not location-specific;
form of expression was not obscene (erotic); words not
directed to person of the hearer, and no one violently aroused. Those offended in public should just avert
their eyes; gov’t may not censor dissident views or proscribe the form/content
of individual expression. So long as the
means are peaceful, the speech need not meet standards of acceptability. One man’s vulgarity is another’s lyric. Held, conviction reversed (i.e. “fuck the
draft” not fighting words).
Dissent: this was mainly conduct and little speech.
Notes:
Radio and Television are subject
to different, less protective, 1st A rules than print media. One reason is that they are more intrusive. Another reason is that there are only a
limited number of people who can publicly broadcast on radio and tv (limited
availability).
The heckler’s veto is “if
they speak, I will attack them.” This
would, in effect, silence speakers because they would lose their right to speak
because of the fighting words doctrine.
Captive audiences (those
stuck in their office, classroom, home) have two options: leave or restrict the
speaker. Speech gets less protection when it confronts a captive audience.
Hate speech can be
motivated by a variety of objectives: true threats, incitement, provocation,
cause harm, to express a powerful message, etc.
Commercial Speech:
Overview:
commercial speech is speech proposing a commercial transaction. Commercial speech is not commercial just
because you do it for money. It is
protected, but it is less protected than fully protected speech. Commercial speech falls under the Central Hudson test, which is an intermediate
level of scrutiny (below).
Central Hudson (1980): for commercial speech to be protected, it
must (1) concern lawful activity and not be misleading, (2) Substantial
gov’t
interest, (3) directly advances gov’t interest, (4) no more extensive
than necessary (narrowly tailored). No longer has to be the least restrictive
means, just “narrowly tailored.”
Speech with a Government Nexus | Public Forum Doctrine:
Overview: the
gov’t may have additional powers to regulate speech when it is not only acting
as a regulator but also as an employer, property owner, or source of funding. The public forum doctrine is when the gov’t
acts as a property owner; note and remember that it is different than the time,
place, and manner regulations. The test
for the public forum doctrine is: must be content neutral, significant
or important
gov’t interest, and narrowly tailored means, and adequate alternate channels
of communication. Traditional public forums
are mostly limited to sidewalks, streets, and parks; airports are not a public
forum. Gov’t can also designate its
property as a public forum, known as a designated public forum, and is
revocable at will. Non-public forums can be
regulated in any way reasonable, even if based on
content, so long as it is viewpoint neutral. People have to be
invited
in to participate in order to be considered a forum. Time, place, manner restrictions require
alternate channels.
Hague
(1939): started the public forum doctrine, which says that state property
traditionally open for expressive purposes may not be closed off or abridged
for reasons relating to the content of the proposed expression,
but the state may impose reasonable “time, place, and manner”
restrictions on the use of public property.
U.S.
v. Grace
(1983): statute prohibited having any sign or leaflet in front of the Supreme
Court building. The sidewalk was held to be a public forum; the purpose of the
statute was for protecting or maintaining order and decorum, avoiding any
appearance of outside influence. Held, a total ban is not necessary; ban
unconstitutional.
Hill
v. CO (2000): statute prohibited anti-abortion activists to be within 100
feet of a clinic to knowingly approach within 8 feet of another person without
consent to pass out leaflets, display a sign, etc. Majority upheld statute as a valid time,
place, or manner regulation that was content neutral and narrowly
tailored to protect unwilling listeners from unwanted communications
(right to be left alone).
Ward
v. Rock Against Racism
(1989): a regulation of the time, place, or manner of protected
speech must be narrowly tailored to serve the government’s legitimate
content-neutral interests but it need not be the least restrictive or
least intrusive means of doing so.
Narrow tailoring is satisfied so long as the regulation promotes a substantial
gov’t interest that would be achieved less effectively absent the regulation. Content-neutral regulations receive lower
scrutiny. The Ward test is extremely
deferential, and is like the rational basis test.
Perry
(1983): the “Perry test” is about
speech restrictions on gov’t property (i.e. the public forum doctrine). It says that in a nonpublic forum, the
gov’t can impose any reasonable regulation so long as
there is no viewpoint discrimination.
The Perry test does not apply
to content-neutral regulations – apply O’Brien
instead.
International Society for Krishna
Consciousness (ISKCON)
v. Lee (1992): airport
terminals are not public fora.
Therefore, any restriction must be reasonable. A prohibition on solicitation is
reasonable because solicitation is disruptive to business and face-to-face
solicitation presents risks of duress.
However, a prohibition on leafleting is not reasonable, and
leafleting should not be prohibited because it is Constitutionally protected.
Note: spending on
campaigns counts as speech.
Unconstitutional Conditions:
Overview: If
gov’t is paying you to speak, then there is no abridgement of speech. This doctrine may not work because it’s too
hard to determine what is a punishment and what is a reward.
Rust
v. Sullivan (1991): gov’t made a condition to a benefit where gov’t funds
were not given to places that aided abortion.
Held, when the gov’t uses public funds to establish a program it is
entitled to define the limits of that program.
Rosenburger
v. Rector (1995): a Christian newspaper at a public University was denied
funding because it primarily promoted religion. Held, this is unconstitutional
viewpoint discrimination; struck down the funding ban.
Legal Services Corp. v. Velazquez (2001): condition prohibited grant
recipients from challenging existing welfare law, even so far as requiring that
attorneys withdraw. Held, gov’t may not effect the serious and
fundamental restriction on advocacy of attorneys and the functioning of the
judiciary.
ALA:
Speech within Government Institutions:
Overview: Gov’t
can regulate if reasonable and content-neutral.
Hazelwood
School District v.
Kuhlmeier (1988): the question is whether the school must tolerate
certain speech or whether the school must promote certain speech (high school
newspaper). Held, educators do not
offend the 1st A by exercising editorial control over the style and
content of student speech in school-sponsored expressive activities so long as
their actions are reasonably related to legitimate pedagogical concerns. There
is a deference to school administrators. The school has a right to disassociate itself
from speech that it doesn’t like. The
rights of children is not the same as adults.
Note also: military personnel, prisoners, and public school
children all get less 1st A rights than regular citizens.
Prior Restraints:
Overview: the
clearest example of a prior restraint is a licensing scheme. If you speak without permission, you get
punished for not getting permission to speak.
The focus is on if the licensing scheme is permissible.
Madsen v. Women’s Health Center
(1994): a content neutral court injunction is not a prior restraint.
Overbreadth & Void for Vagueness:
Overview: void
for vagueness is concerned about unbridled discretion of officers and
due process notice requirements.
Overbreadth must be substantial in order to challenge a
law on its face, rather than as applied.
Board of Airport Commissioners v. Jews for Jesus
(1987):
Freedom of Association:
Board of Directors of Rotary International v. Rotary Club
of Duarte
(1987):
Boy Scouts of America v. Dale (2000):
Free Exercise of Religion:
Employment Division v. Smith (1990): π fired from gov’t job for
using peyote at his Native American Church. If a law / prohibition has only an incidental
effect on religion, then use rational basis. But if a law / prohibition has the purpose
to discriminate, then use strict scrutiny (compelling reason). Allowing one “to become a law unto himself”
is dangerous to society and could be courting anarchy. Held, the firing was not unconstitutional.
Church of
Lukumi Babalu Aye v. Hialeah (1993): ordinance that was
facially neutral but targeted against a church’s use of animal sacrifice was
held unconstitutional because they were enacted with the intention and had the
effect of suppressing a religion (used strict scrutiny).
Note: Yoder
and Sherbert used strict scrutiny even though the law didn’t
intentionally discriminate. These cases
were the exceptions to Smith. The
Sherbert decision was due to special individualized circumstances in the
unemployment compensation context. Yoder
was a case that involved not only free exercise of religion, but also a
fundamental right to educate one’s children (the hybrid exception).
The Establishment Clause:
Everson
v. Board of Education (1947): the establishment of religion clause of the 1st
A means the following:
* No gov’t churches; * no laws aiding religion; * no forcing
church attendance or professing beliefs; * No taxes to support religion; * no
gov’t participation in religion. This is
all intended to erect “a wall of separation between church and state.” While the gov’t may not handicap religion, it
must also not favor one either. Accommodation
of religion is o.k. Held, using public
funding to help finance busing students to private parochial schools is not
unconstitutional.
Wallace v. Jaffree (1985): mandating a moment of silence is
unconstitutional because its purpose is to foster school prayer.
Lemon
v. Kurtzman (1971): the “Lemon test” says that for a statute to
survive it must:
1) have a secular purpose,
2) have a primary effect that does not help or hurt religion
(neutral
effect), and
3) no excessive entanglement of
religious and gov’t institutions.
Note: a fourth
factor may be whether the involvement causes divisiveness (religious
fights w/in gov’t).
The Lemon test is still good law, but many Justices ignore
it / don’t apply it. Coercion
automatically violates the establishment clause – the fight is over what counts
as coercion. Discrimination amongst
religions also violates the establishment clause.
Government Endorsement of Religion:
Overview: to
determine whether there is gov’t endorsement of religion, use a three-part
test: 1) non-coerciveness, 2) accommodation or passive acknowledgement, 3)
similarity to accepted historical practices. There is a strong presumption against the
display of religious symbols on public property.
Lee v. Weisman
(1992): prayers were going to be made at a high school graduation
ceremony. Π objected to the
prayers. Held, the State’s
involvement in the school prayers violates the establishment clause of the
Const. There is a psychological indirect
coercion, or an inducing student participation.
Zelman
v. Simmons-Harris (2002): a school voucher program that reimbursed parents
for sending their children to schools of their choosing. Most went to religious schools. Held, this is a private choice, not direct
aid, and is therefore neutral to religion and does not violate the
establishment clause.
Locke
v. Davey (2004): the state gave scholarships to college students so long as
the student would not go to a theology school.
This was held to be constitutional under the free exercise clause, and
without animus towards religion. “The state has merely chosen not to fund a
distinct category of instruction.”
Cutter
v. Wilkerson: see HO3
FEDERALISM
Overview: federal
systems is one where power is divided between two different levels of
gov’t. We have a national gov’t and
state gov’t. Our third level is local gov’t, which is a creature of state
law. The national gov’t has only the
powers enumerated by the Constitution, except for foreign affairs. Assume
states always have unlimited (plenary) power unless it is taken away by the
Constitution.
Preemption Doctrine:
when state laws conflicts with Federal, Federal preempts (trumps) state law.
McCulloch
v. Maryland
(1819): both state and fed have concurrent powers to tax. National immunity has to do with the
supremacy clause, whereas state immunity raises the issue of state sovereignty,
which is not spelled out in the Constitution – it must be implied from the
“penumbras” of the 10th Amendment. This case is primarily about the necessary and proper clause. Art I, Sec 8, Clause 18 (the necessary and
proper clause) extends gov’t power, not limits.
Commerce Power:
Art 1, Sec 8, Clause 3 gives congress the power to regulate commerce among the
several states. Congress may regulate
interstate commerce under its commerce power (1) channels, (2)
instrumentalities (persons/things), and (3) activities w/ a substantial
effect on interstate commerce.
Necessary and Proper: means, in practice, “reasonably related to
legitimate ends.”
Gibbons v. Ogden
(1824): commerce is moving things (goods, services, people) across state lines.
U.S.
v. Darby
(1941): Congress banned interstate shipment of goods made by child labor/not
meeting min wage. This was necessary and
proper to ban because it was the only way to get this harmful practice to stop.
These intrastate practices had a substantial affect on commerce.
Wickard
v. Filburn (1942): Congress put quota on agricultural production of wheat,
and court held that the power to regulate commerce includes the power to
regulate the prices at which commodities in that commerce are dealt in and
practices affecting such prices. In the
aggregate, the effect on commerce could be substantial.
Heart
of Atlanta Motel v. U.S.
(1964): because racial discrimination affects commerce among the states, it is
within Congress’ commerce powers to prohibit it.
U.S.
v. Lopez
(1995): the Gun-Free School Zones Act was struck down as Congress going too far
in attempting to use its Commerce Power to create a Federal Criminal law. Statute had nothing to do w/ commerce, there
was no findings of effects, there is no limit to the reasoning (would req.
piling inference upon inference); therefore the line drawn here and Congress
gets no more deference (note: Lopez
and Morrison was called the
“Federalism revival” by Treiman.)
U.S.
v. Morrison
(2000): the Violence Against Women Act was held to be outside of the scope of
Congress’ power under the Commerce Clause.
See also Reyche (marijuana case)
Note: the
activity being regulated has to have a substantial effect on interstate
commerce, and it is limited to economic activity that has a
substantial effect on interstate commerce.
This is potentially a very broad power.
RECONSTRUCTION
AMENDMENTS
Overview: The 14th
and 15th Amendments require State Action. The 13th A can only be used to
abolish slavery, whether there’s state action or not.
The Civil Rights Cases (1883): private action is to
be remedied by the state. State Action is to be remedied by Congress. i.e. If state law discriminates, then the
Feds can butt in.
Jones v. Alfred H. Mayer (1968): π sued because
private real estate developer refused to sell them a home because of race. Under the 13th A, Congress has the
power to pass all laws necessary and proper for abolishing all badges and
incidents of slavery in the United
States.
Katzenbach
v. Morgan (1966): literacy tests given with intentional discriminatory use are
unconstitutional because it is plainly adapted to the aims of the Equal
Protection clause. However, violation of
§ 1 was not proven. Held, Congress can
remedy the potential for abuse of § 1 (a prophylactic approach that is congruent
and proportional to a history of past violations).
City of Rome v. U.S. (1980): Congress passed
voting act that had no purpose to discriminate, but had a discriminatory
effect. Held, under § 2 of the 15th A, Congress may prohibit
practices that in and of themselves do not violate § 1 of the Amendment, so
long as the prohibitions attacking racial discrimination in voting are
appropriate, i.e. Congress may outlaw
because of the risk of intentional
discrimination.
City of Boerne v. Flores
(1997): church was prohibited from
expansion because of a historic preservation ordinance. Church sued under the “Religious Freedom
Restoration Act” (RFRA) saying that the ordinance was unconstitutional. Held, RFRA was beyond Congressional authority
because there was a lack of proportionality or congruence
between the means adopted and the legitimate end to be achieved. i.e. statute was not remedial, but
substantive, and therefore must fail. Court fears Congress having too much
power if it can interpret the Constitution.
11th
AMENDMENT AND SOVEREIGN IMMUNITY
Overview: local
governments do not have sovereign immunity.
State law says what is local or state.
Sovereigns may waive their own immunity by explicitly consenting to
suit. Congress can not override
(abrogate) state’s sovereign immunity by using its article 1 commerce powers. The U.S. can sue a state. 14th A civil rights violations
will also override state immunity. You
can sue gov’t officials, but can’t make the state pay the damages for which the
gov’t official is liable.
Seminole
Tribe v. Florida
(1996): Congress can not override (abrogate) state’s sovereign immunity by
using its article 1 commerce powers.
Alden v. Maine
(1999): states are sovereign against its own citizens (save consent).
Florida Prepaid v. College
Saving (1999): Congress can not abrogate (abolish) state’s immunity to
patent infringement claims by using the Commerce Power.
Kimmel
v. Florida
Board of Regents (2000): a state’s 11th A immunity from suit is
not abrogated through Congress’ 14th A powers if a statute is not
appropriate legislation under § 5. Since
age discrimination only gets a minimal rationality review, the ADEA enacted
inappropriate legislation. i.e. Congress
can not give a remedy for something that does not violate § 1 (EP, DP,
P&I).
Board of Trustees v. Garrett (2001): the Americans with
Disabilities Act exceeds § 5 power (unconstitutional) because the
disabled only get a rational basis review.
Also, private sector discrimination is not state discrimination, and is
therefore irrelevant in the Congressional record. In order to authorize private individuals to
recover money damages against the States, there must be a pattern of discrimination
by the States which violates the 14th A, and the remedy imposed by
Congress must be congruent and proportional to the targeted violation. Congress can not rewrite substantive law
already decided by the Supreme Court.
Hibbs: Family
Leave Act is Constitutional (6/3 vote).
Lane: Act requiring access for disabled to the courts
is Constitutional (5/4 vote).
TAXING POWER (Art I.
Sec. 8):
Overview: the
issue under the taxing power used to be whether it is a tax or a penalty. In the pre-new deal era, penalties /
punishment were not allowed under the taxing power. It has to really be a tax, and not a fine or
a penalty. However, later cases have
abandoned this theory, and courts are now without authority to limit the
exercise of the taxing power unless it violates Constitutional rights.
SPENDING POWER:
South Dakota
v. Dole (1987):
an Act paid highway funds to states who would not sell alcohol to people <
21 was Constitutional. I.e. Nationally
purchased compliance. There are three
limitations to this spending power:
1) Spending
power must be in pursuit of the general welfare (with deference to
Congress)
2) Conditions
on State’s receipt of funds must be unambiguous (receipt = waiver).
3) Conditions
may be illegitimate if unrelated to National projects or programs
4) The
spending power may not be used to induce the States to engage in activities
that would themselves be unconstitutional.
Pressure may cross the line and turn into compulsion.
However, encouragement to state action
is a valid spending power.
Sabri
v. U.S.
(2004): Fed law made it a crime for one to bribe a state official using Federal
funds. Under Art I, Sec. 8, it is necessary and proper to make this a crime
under the Spending Clause – to make sure that taxes are in fact spent on the
general welfare and not on individual bribes. Key is that money is fungible.
TREATY POWER:
Missouri v. Holland (1920): Act prohibited killing or capturing
migratory birds that migrated internationally from the U.S. This treaty was held to be valid under the
Constitution; it was not sufficient to rely on the States to protect the birds,
therefore the treaty and statute were upheld as necessary and proper.
Note: the Treaty
power is extremely powerful because it becomes the Supreme law of the land. A treaty can be a promise to another nation
to commit to something, but they are not rules.
A treaty is not law until it is made law (can be self-executing or
self-enforcing/implementing).
STATE IMMUNITY FROM
NATIONAL COMMANDEERING:
State Sovereignty
Overview: state sovereignty isn’t a rule, but an idea or value. Since the states pre-existed the country,
they are sovereign, and have delegated powers to the national gov’t
(Federalism). Therefore, the Feds cannot
act when it has not been given the power reserved by the states. Regulation
of the states requires using the 14th A, because the 10th
and 11th A give immunity to the States.
New York v. U.S.
(1992): the nuclear waste case. Held, the
take-title provision of the Act was unconstitutional coercion of the States. Federal action must not commandeer state
gov’t into the service of federal regulatory purposes, as it is a violation of
the division of authority between fed and state gov’t (which protects
individuals). Accountability is a key
factor. Strength of Fed interests is
never sufficiently important enough to justify state submission. Only the Supremacy Clause is enough to
commandeer state judges.
Printz
v. U.S.
(1997): Brady Act required verification of people’s status before gun
sale. Problem was that state officials
were being forced to enforce this federal law.
Held, Feds cannot force states to enforce a law using State law
enforcement. Congress lacks the power to
directly compel the States to require or prohibit Acts. Commandeering says “enforce this law,” and it
is unconstitutional. However, “obey this
law” is constitutional.
Reno
v. Condon (2000): an Act of Congress preventing DMVs from disclosing
person’s personal information is constitutional and within Congress’ Commerce
Clause powers.
DORMANT/NEGATIVE
COMMERCE CLAUSE:
Overview: the
State is allowed to make rules that the Feds would also otherwise be allowed to
make, so long as it does not disrupt national unity. However, states may not discriminate against
other states or cause an undue burden to other states. Reasons: 1) uniformity,
2) free trade, 3) avoid prisoner’s dilemma.
The dormant commerce clause creates an implicit barrier to protectionist
state laws. Overt state discrimination
against interstate commerce is presumptively invalid and can only be sustained
if needed to meet an important state
interest, and must not be clearly excessive compared with legitimate local
benefits.
Gibbons v. Ogden
(1824): Under the dormant commerce clause, regulating waterways is a national
authority, and even though it is not explicit as to how to regulate it in the
Constitution, the States themselves may not violate this implicit, dormant
executive power. When the state law is
one which impedes on the power delegated to Congress, or even under the guise
of acting under Congressional power, there is a conflict of interest. It becomes at that point, an interference
with a national agenda. Therefore the
states can impose any law they wish that is reasonable, as long as it does not
conflict with any federal law, explicit or implicit.
City of Philadelphia
v. New Jersey
(1978): held, state not allowed to restrict incoming garbage from another
state.
SEPARATION OF POWERS
Overview: there
is no hierarchy in the separation of powers – they are all co-equal. Art I is legislative (congress), Art II is
Executive, and Art III is Judicial. All
three branches make laws, execute laws, and adjudicate laws. Statutes can override international treaties
as applied domestically. The legislative
branch sometimes delegates power to the executive branch. There are two approaches to the
constitutional issues: the formalist approach and the functionalist/pragmatic
approach. In the modern administrative
state, the legislative branch must delegate out to administrative agencies to
fill in the details of the rules. If the
legislative branch attempts to reserve power through a legislative veto, then
this is unconstitutional. Chadha.
PRESIDENTIAL
PRIVILEGES AND IMMUNITIES
Overview: there
is a difference between privileges and immunities. A privilege has to do with evidence, and
immunities has to do with prosecution. The
President has absolute immunity of President with regard to official acts. Art I, § 6
LEGISLATIVE
OVERREACHING & NONDELEGATION DOCTRINE
Overview: joint,
concurrent, and simple resolutions. A joint
resolution follows the same procedure as a bill, must be
approved/vetoed by the president, etc, and it enacts law. Concurrent resolution does not
become law – it’s just a suggestion that’s recorded somewhere. A simple resolution does not need to
go to both houses or be approved by the president.
Delegation Doctrine:
asks 1) what power was delegated? 2) what power Constitutionally can be
delegated? Congress cannot delegate the
legislative power. However, they can
delegate “quasi-legislative” power to agencies.
Quasi-legislative if Congress makes the basic policy decisions and the
agency implements. This is just a
formality – with little practical distinction.
Since Congress are not experts, they like to delegate to those who know
what they’re doing and have expertise in the area. Agencies can “take the heat” for Congress’
bad decisions. Agencies have almost no
accountability to the public. Congress
can pass a Bill that benefits a specific individual – but not a bill of
attainder than punishes an individual.
Immigration & Naturalization Service v. Chadha
(1983): if Congress doesn’t like something that an Administrator has done, it
must pass a law to regain control. One
house alone cannot veto an administrative decision – this violates
bicameralism. Formalism won out in this
case.
Clinton v. City of New York (1998): veto
power of the president exists prior to bill becoming law, not after.
EXECUTIVE POWER
Overview:
Congress cannot enforce the laws. The
Executive power (enforcement power) is delegated to the President. The Constitution only explicitly references
the President and the vice-President as the Executive power; the others are
defined in statutes. Sometimes Congress delegates power, not to the President,
but to an agency with specific authority.
The power of Congress to control through appointment and removal of
executive functions is unconstitutional.
Bowsher. Courts of law, heads of departments, or the
President alone can appoint inferior officers, and the President
must be the only one to appoint superior officers with consent of
the Senate. Morrison. There are two
types of government officials: officers and employees.
(1) within the constitutional power
of gov’t?, 
Abrams v. 
