The document provides an overview of the study packet for a course on the US government. It includes sections on the philosophical foundations of the US government, the Constitution and its articles, civil liberties and rights, and the formation of the US government including the Articles of Confederation and the 1789 Constitution. Key figures discussed include Aristotle, Machiavelli, Hobbes, Locke, and political thinkers that influenced the founding of the US system of government.

1. “ The Will of the People: The Supreme Law” WELCOME TO POS 2041: U.S. GOVERNMENT J. David Granger M.P.A. PhD/ABD [email_address]

2. Notes and Study Packet for POS 2041: United States Government This is the study and notes packet for the POS 2041 class. This packet was designed as a supplemental aid in conjunction with the text and other materials that the instructor may give you. Contents Module 1: Foundations and Institutions of U.S. Government Section 1A: Philosophical foundations of U.S. Government Section 1B: The Constitution: Formation Section 1C: Article I: Legislature Section 1D: Article II: Presidency Section 1E: Articles IV - VI Section 1C: Federalism Module 2: Civil Liberties and Civil Rights Section 1A: Article III: Judiciary Section 2B: Amendment XIV: Due Process and Incorporation Section 2C: First Amendment

3. Notes and Study Packet for POS 2041: United States Government Section 2D: Fourth Amendment Section 2E: Fifth Amendment Section 2F: Sixth Amendment Section 2G: Ninth Amendment Section 3H: Obscenity (First Amendment) Section 3I: Civil Rights

4. The Foundations of Government: Political Theory Western ideals of government stem from two dominant philosophical theories: Republicanism and Liberalism Republicanism has a long history. Its origin is Aristotle, and its strongest articulation is probably found in Machiavelli. Republicanism stresses the role of community and society, and other collective endeavors, called “civil society” in contemporary terms. The culturally imbedded moral or “civic virtue” of citizens and leaders is integral to fulfillment of human well being and to the preservation of the collective organization, the nation-state since 1648. Liberalism has a shorter history; its origin is Hobbes, but its best articulation is probably found in Adam Smith. Liberalism emphasizes the individual rather than the collective. The primary mover in liberalism is self interest. The state’s function is to provide the framework and order necessary for individuals to carry out their self interests, i.e. develop and enforce property laws.

5. The Foundations of Government: Aristotle Aristotle (384 – 322 BC) argued that human beings are political animals. Therefore, political actuation can only truly occur in the polis (city-state). “The city exists for the sake of living well.” Aristotle’s political thought is teleological; the city-state is the natural apex of human organization. “ The function of a man is the exercise of his soul, in accordance with a rational principle.” “The function of a good man is to exert such activity well.” “The best societies and states are therefore rational and moderate ones that foster a collective spirit of mutual cooperation and respect.” This means that individuals must think of themselves as citizens first and actively participate in political life, not just passively obey the law. Aristotle’s political philosophy isn’t exactly startling, but it avoids the utopianism of Plato’s Republic. If infallible experts do not exist, then politics has to be something rather more pragmatic. Aristotle’s influence can be seen in contemporary theories of government that emphasize “civil society.” Moral “civic virtue” is culturally imbedded; therefore, its inculcation through education is necessary.

6. The Foundations of Government: Political Theory - Machiavelli Niccolo Machiavelli (1469-1527) was a Florentine diplomat who did something unusual – he described the behavior of politicians and wrote about politics as it is rather than prescribing what it should be. Historically, The Prince has earned Machiavelli much disrepute for what is often taken to be the avocation of treachery and opportunism. To believe that is, however, to misunderstand Machiavelli’s true intentions. Machiavelli also wrote a book called The Discourses , which discusses the role of citizens and not just rulers. What Machiavelli did was to reincorporate Aristotle with pragmatism and without teleology. The basic premise of The Prince and The Discourses involves laying out what is necessary for the preservation of the republic. The preservation of the state imparts different characteristics and actions for leaders and citizens. A leader who wants to preserve his state had best be prepared to do whatever is necessary - even if it involves the abandonment of religious ethics. A good example in The Prince involves the use of an “economy of violence.” Violence is wrong in itself, but a measured use of it is necessary if the republic is threatened. A republic is sustained through the characteristics and actions of its citizens. Civic virtue is very important to the preservation of the republic. Thus, a republic cannot afford for its citizens to be strongly autonomous. Citizens must have a sense of allegiance to the republic or it will not be sustained. “The good man is identified with the citizen, with the result that his goodness, rather than being purely individual, depends crucially on that of others.”

7. The Foundations of Government- Hobbes Hobbes’(1588-1679) argument is profoundly different from preexisting Republican ideals. It is different because his argument is based on the assumption that humans are inherently anti-social. In the state of nature, life was “solitary, poor, nasty, brutish, and short.” “Individuals will act quite rationally in order to produce a situation that none of them wants.” The way out of the state of nature was for people to form a contract between themselves and a sovereign. The sovereign provides a modicum of security for the people. This sovereign cannot be removed unless he violates “the natural right of self preservation.” Hobbes contract theory is significant because it departs from Republican ideals. However, it has inherent problems in that does not account for altruism and generosity. Furthermore, Hobbes assumes that individuals go directly from the state of nature to the political state without recourse to an intermediate state such as civil society.

8. John Locke (1632-1704) was an important source of ideas for the burgeoning U.S. government. In essence, Locke’s ideals represent a much softened version of Hobbes. Like Hobbes, Locke envisions a state of nature, but this state is more benign in that individuals are conscientious of their actions towards others. In Locke’s theory the role of property becomes paramount. According to Locke, all own property by virtue of their labor. But what Locke wants to emphasize is that the institution of property existed long before any kind of political state came into being. Property ownership gives individuals inviolable rights and freedom from state interference. Government in Locke’s ideal is minimal. The state exists to ensure that there are systematic rules governing the transference of property and not to redistribute wealth or maintain public welfare. Locke realized that the idea of everyone consenting to be ruled by governments was problematic. He agrees that the consent of most people is merely tacit – citizens are deemed to have agreed to obey the state because they do not emigrate or because they benefit from what it provides. The Foundations of Government: Locke

10. Formation of the U.S. Government and the Constitution Tudor (16 th century Political Ideals) 1. Supremacy of state over church 2. Organic union of society and government 3. Harmonization of authority within government 4. The subordination of government to fundamental law 5. The intermingling of legal and political realms 6. The balance of powers between Crown and Parliament 7. The vitality of local governmental authorities 8. Reliance on the militia for defense

11. Formation of the U.S. Government and the Constitution Civic classes taught us that the post-colonial government was a essentially an experiment without precedent. However, in reality, the post-colonial government that would form the United States was already well institutionalized. The Articles of Confederation and the 1789 Constitution were essentially modifications to a preexisting “Tudor” political system. All of the English colonies had legislative bodies, called by various names, in which representative officials were elected. Suffrage was limited by property qualifications, but most colonists were not landless peasants. The literacy rate of the English colonists was fairly high and the press was highly developed and accessible. Thus, most colonists were reasonably informed. Note that the success of the ratification of the 1789 Constitution was accomplished largely through the dissemination of political pamphlets. Samuel Huntington (1968) makes the argument that the U.S. governmental system is an anomaly; hence, its odd position in comparison with European democracies today. Huntington argues that the U.S. government was essentially modeled on the Tudor ideals of 16 th century Europe. English colonists carried 16 th century ideals of government beginning with their arrival in the 1630s. From c.a.1630 to c.a. 1754, the English interfered relatively benignly in their American colonies. Thus, the colonists preserved a system that was essentially medieval.

15. Formation of the U.S. Government and the Constitution Colonial leaders constructed a contract called the Articles of Confederation (hereafter referred to as The Articles) during the Revolution. The Articles were based on the idea of a confederacy of states with a weak central government. The federal or central government had virtually no power, especially lacking was a means to effectively collect revenue by taxation. Instead, contributions had to be essentially solicited from the states. Without taxation the central government, after the Revolution, could not pay back its debts to other countries nor could it support a navy, which was necessary to protect trade. A standing army was considered pernicious. The newly formed United States suffered a revolt, Shay’s Rebellion (1786-87), from former soldiers and farmers angry over Massachusett’s failure to relieve crushing debt and hyperinflation caused largely by the printing of worthless paper money. In 1787 representatives gathered to discuss the possibility of modifying The Articles in order to increase the federal government’s commerce powers. In 1789 they met in Philadelphia to discuss the modification. However, by the end of the summer, they had decided to construct a Constitution based on a substantially stronger central government. Agreeing on the necessity of a stronger central government was difficult, but ratification by the states would be even more difficult. In fact, some states did not ratify the Constitution for decades. The ultimate question of power between the states and the central government (pluralism vs. political modernization) would be settled by bloodshed during the American Civil War of 1861-1864. [Read The Federalist Papers #15, #21, #22, #23 for Federalist arguments concerning the failure of The Articles ]

16. Formation of the U.S. Government and the Constitution: The Articles of Confederation Establishes the name of the confederation as the United States of America. Asserts the precedence of the separate states over the confederation government, i.e. "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated." Allocates one vote in the Congress of the Confederation (United States in Congress Assembled) to each state, which was entitled to a delegation of between two and seven members. Members of Congress were appointed by state legislatures; individuals could not serve more than three out of any six years. Expenditures by the United States will be paid by funds raised by state legislatures, and apportioned to the states based on the real property values of each. (The federal government lacked any power of taxation.) Defines the powers of the central government: to declare war, to set weights and measures (including coins), and for Congress to serve as a final court for disputes between states.

17. Formation of the U.S. Government and the Constitution The Constitution was opposed by both the public and most states. Anti-Federalists opposed the Constitution on various grounds that it promulgated an inevitable monarchy via the presidency and that it violated individual and states’ rights by centralization of authority. The Federalists, supported the Constitution largely on the grounds that it would provide a stronger central government capable of promoting economic modernization (international trade) via legislative control of interstate commerce. The Federalist Papers , written by James Madison, John Jay, and Alexander Hamilton, is a collection of 85 essays arguing the need for the Constitution. The Federalist Papers remains the primary source for the interpretation of the Constitution, having been cited in 289 Supreme Court opinions. According to historian Richard Morris they are an "incomparable exposition of the Constitution, a classic in political science unsurpassed in both breadth and depth by the product of any later American writer" (1987, 309). James Madison (1821), on the other hand, stated The Federalist Papers should not be held as a direct expression of the ideas of the Founders and that the “debates and incidental decisions of the Convention should not be viewed as having any authoritative character.” Some of the most cited essays are Federalist # 10, #51, #67, and #78. Federalist #10 outlines the problems of democracy in a large republic. Federalist #51 makes the argument for separation of functions. Federalist #67 provides support for a presidency. Federalist #78 makes argument for judicial review.

18. Formation of the U.S. Government and the Constitution: Federalist #51 Separation of Powers (Functions): Structural Checks and Balances Federalist #51 delineates how the “separation of powers” (functions) can make liberty possible. The political institutions, Congress, Executive, and Judiciary, should have autonomy in the appointment of their officials. The ideal would be that the people elect all political officials. However, the judiciary is not well suited for elections given that the people are not well informed of the qualifications of potential judges. Judges also need to be free of political pressure, hence, their lifetime tenure. There is a natural tendency for power to concentrate in a political institution via the ambitions of leaders within it. Madison thought the legislature was most prone to this, hence, the bicameral division. We may not like to admit that men abuse power, but the very need for government itself proves they do “ [I]f men were angels, no government would be necessary." Unfortunately, all men are imperfect, the rulers and the ruled. Consequently, the great problem in framing a government is that the government must be able to control the people, but equally important, must be forced to control itself. The dependence of the government on the will of the people is undoubtedly the best control, but experience teaches that other controls are necessary.” Ironically, Baron Montesquieu completely misunderstood the English Parliamentary system. As stated by Lehman (1992, 58), “The great strength of the British system lay in the centralizing of all three functions , as Hobbes had admonished, under one supreme authority where “the supreme determining power is all points the same.”

20. Formation of the U.S. Government and the Constitution: Article I - Legislature The U.S. Legislature, Congress, was not meant to emulate the English Parliament. Parliaments are party based; whereas, a Congress is constituent based. Sovereignty, concentration of authority, was not to be based in one institution; instead, it was to be diffused and decentralized to the people via the House and to the states via the Senate. The Senate provides equal representation of states. Individual legislators in a congressional system are essentially more independent than members of Parliament (MPs). This begins with the electoral process. In a parliamentary system, a candidate must persuade his political party to put her on a ballot list. Wilson (2008, 118) states, “In the election voters in the district choose not between two or three personalities running for office, but between two or three national parties.” A “government” in a parliamentary system consists of the Prime minister and her cabinet. The majority party selects the Prime Minister and cabinet. The Prime minister remains in office until removed by a “vote of no confidence” by her party. MPs have little connection to their constituency and serve primarily to debate national issues. “The principle work of a congress is representation and action, most of which takes place in committee” (119). Ironically, action is not a characteristic of the U.S. Congress as the need to please interests and constituents for funds and votes often creates indecisiveness and delay.

27. Congress: Commerce Clause Facts: In 1890, Congress passed the Sherman Anti-trust Act in order to control the formation of monopolies. It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal. The E.C. Knight Company was a monopoly controlling over 98 percent of the sugar-refining business in the United States. U.S. v. E.C. Knight Co. 156 U.S. 1 (1895) Question: Is the Sherman Anti-Trust Act a legitimate constitutional use of the commerce clause power? Finding: Yes. The Sherman Anti-Trust Act is constitutional, but the congressional power to regulate interstate commerce does not extend to manufacturing. The Knight case is a good example of the formal or “categorical” interpretation of the Commerce Clause. The categorical interpretation looks at whether the activity is “local or interstate”, “inside or outside the stream of commerce”, or whether the effects of the activity are “direct or indirect.” The opposite interpretive approach, called “empirical” interpretation, focuses on the magnitude of the effect on interstate commerce. See Houston E & W Railroad Co. v. U.S. ( Shreveport Case ) (1914). In Shreveport , the Court upheld a federal agency's regulation of freight rates on travel completely within Texas because freight transportation within Texas was found to be substantially affecting interstate commerce.

28. Congress: Commerce Clause Lochner v. New York 198 U.S. 45 (1905) Facts: The state of New York passed the Bakeshop Act of 1896 restricting the working hours of bakers to sixty hours a week or ten hours a day. Lochner was fined twice for overworking employees Question: Does the New York law violate the Fourteenth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The New York state regulation of working hours was unconstitutional: not a legitimate exercise of state police power, as it violated the right of contract, Due Process, within the Fourteenth Amendment.

29. Congress: Commerce Clause Adkins v. Children’s Hospital 261 U.S. 525 (1923) Facts: Congress passed a law providing a minimum wage for women employees working in he District of Columbia. Female employees of the Children’s Hospital earned less than the $16.50 per week requirement. The Hospital sued the D.C. Minimum Wage Board in order to prevent the enforcement of the law. The option for the Hospital would have been to fire workers. Question: Does the federal law violate the Fifth Amendment right of due process and right to contract between employees and employers? Finding: Yes. The Congressional law providing a minimum wage for women in the District of Columbia was unconstitutional, The Court stated that the law would “dangerously extend the policy powers of the state.” And, that the law was vague, amounted to price fixing, and had discrepancies in terms of varying minimum wages for different types of jobs. This case is similar to Lochner in that the Court found that law violated the Fifth Amendment Substantive Due Process right to contract between employees and employers.

30. Congress: Commerce Clause Hammer v. Dagenhart 247 U.S. 251 (1918) Facts: Congress passed the 1916 Keating-Owen Act prohibiting the interstate commerce of goods produced by children under the age of fourteen or where children between the ages of fourteen or sixteen worked more than eight hours daily. There was much public sentiment to regulate child labor, but state regulations were not forthcoming as some states argued it would make them uncompetitive with states that allowed child labor. Ruben Dagenhart sued on behalf of his fourteen year old son arguing that such a Congressional law violated his son’s due process and contract rights under the Fifth Amendment. Question: Does the law violate the Commerce Clause and the Tenth and Fifth Amendments? Finding: Yes. Regulation of manufacturing, not interpreted as interstate commerce, is a right relegated to the states under the Tenth Amendment. Child labor did not meet a moral standard, an ”inherent evil”, as interpreted to exist in previous cases involving the regulation of prostitution ( Hoke v. U.S .) and lotteries, ( Champion v. Ames ). Justice Holmes dissented arguing that the Court had essentially upheld a problematic moral relativism, and all forms of manufacturing were clearly within the purview of Congress to regulate under the interstate commerce power. This case was overturned in U.S. v Darby Lumber (1941).

31. Congress: Implied Powers and the Commerce Clause Schechter Poultry Corp. v. U.S. 295 U.S. 495 (1935) Facts: During the Depression, Congress delegated powers to the President to approve “codes” written by private industrial organizations. These codes regulated wages, prices, and collective bargaining in various industries. The Schechter Poultry Corp. was indicted on 60 counts of violating the Live Poultry Code by noncompliance with wage regulations and by selling diseased chickens. Question: Does the approval of the codes by the President, allowed under the National Industrial Recovery Act (NIRA) constitute an unconstitutional delegation of power? Finding: Yes. The Court found this to be an unconstitutional delegation of power. The Schechter Poultry Company was not engaged in interstate commerce as they sold chicken only within the state of New York. The codes were regulating businesses like the Schechter’s that were operating in intrastate commerce only. The Court held that Section 3 of NIRA was "without precedent" and violated the Constitution. The law did not establish rules or standards to evaluate industrial activity. In other words, it did not make codes, but simply empowered the President to do so. A unanimous Court found this to be an unconstitutional delegation of legislative authority. Schechter is referred to as the “Sick Chicken” case.

32. Congress: Commerce Clause NLRB v. Jones and Laughlin Steel Co. 301 U.S. 1 (1937) Facts: Jones and Laughlin Steel Co. fired workers who attempted to unionize. The National Labor Relations Board (NLRB), under the Wagner Act, ordered that the company rehire and provide backpay for the fired workers. However, the company refused in light of the Court’s previous decisions against President Roosevelt’s New Deal legislation. Question: Is the Wagner Act, which allows labor to be regulated under the interstate commerce power, constitutional? Finding: Yes. The Wagner Act is constructed narrowly enough to allow the regulation of labor under the interstate commerce clause. The Court found that labor had a direct effect, verses the indirect effect found in previous cases dealing with New Deal legislation, on interstate commerce. See also U.S. v Carolene Products Co . (1938). In Carolene , the Court upheld a 1923 law banning the interstate shipment of filled milk. However, it is the famous “footnote 4,” which developed the “strict scrutiny” and “rational basis” standards. Legislation affecting “discrete and insular minorities” is to be examined more closely than economic legislation. Government must provide a compelling interest and legislation can only be narrowly applied. Ironically, this strict scrutiny standard was first applied in Korematsu v. U.S . (1944).

33. Congress: Commerce Clause U.S. v. Darby 312 U.S. 100 (1941) Facts: The Darby Lumber Co. violated the 1938 Fair Labor Standards Act (FLSA) by paying below the minimum wage and working employees more than 60 hrs. weekly. An appellate court upheld the ruling set in the Dagenhart case: that this was essentially production and thus not subject to congressional control under the Commerce Clause. Question: Was the FLSA a legitimate exercise of congressional power to regulate interstate commerce? Finding: Yes. The FLSA is a legitimate exercise of congressional power under the Commerce Clause. The regulation of labor, when it involves interstate commerce, does not violate the Fifth and Tenth Amendments. The Court’s unanimous decision affirmed its right to “exercise to its utmost extent” the powers reserved to it under the Commerce Clause.

34. Congress: Commerce Clause During the 1930s, a recalcitrant Supreme Court consistently struck down legislation proposed by President Roosevelt. President Roosevelt’s initiatives for economic recovery during the Great Depression are called the “New Deal.” The Court’s conservative jurisprudence strongly favored individual “right of contract” finding that Congress had exceeded its powers under the Commerce Clause and that states had violated the Fourteenth Amendment. See Lochner v. New York (1905) and Hammer v. Dagenhart (1925). President Roosevelt and the Court literally came to blows culminating in a bill, proposed by President Roosevelt, called the Judiciary Reorganization Act or “Court Packing Law”. This law would have allowed the President to appoint a new justice for every justice over the age of seventy, which have resulted in an additional six justices being appointed. The appointment of Justices by President Roosevelt would have allowed him to control the Court mitigating the dogged resistance of the conservative, “Four Horsemen” wing of the Court and conservative Democrats who controlled the House. Justice Owen Roberts swung the vote in the 1937 case of West Coast Hotel v. Parrish , which involved the constitutionality of a Washington State minimum wage law. West Coast Hotel is called the “Stitch in Time that Saved Nine.” Shortly after the case, Justice Van Devanter resigned and the Court shifted in favor of President Roosevelt allowing several favorable interpretations of the Commerce Clause (See NLRB v. Jones & Laughlin Steel Co . 1937, Steward Machine Co. v. Davis 1937, and U.S. v. Darby 1941).

35. Congress: Commerce Clause – Time Line of New Deal Legislation 1935 Jan 7: Panama Refining Co. v. Ryan (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional 1935 May 6: Railroad Retirement Bd. v. Alton R. Co. (1935) Held, 5-4: Railroad Retirement Act unconstitutional 1935 May 27: Schechter Poultry Corp. v. United States (1935) Held, 9-0: National Industrial Recovery Act unconstitutional 1936 Jan 6: United States v. Butler (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional 1936 May 18: Carter v. Carter Coal Company (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional 1937 Feb 5: Conference Committee vote on West Coast Hotel 1937 Feb 5: Judiciary Reorganization Bill of 1937 ("JRB37") announced. 1937 Mar 29: West Coast Hotel Co. v. Parrish (1937) Held, 5-4: State of WA minimum wage law constitutional 1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp. (1937) Held, 5-4: NLRA constitutional 1937 May 24: Steward Machine Company v. Davis (1937) Held, 5-4: Social Security tax constitutional 1937 Jun 2: "Horseman“ Willis Van Devanter resigns, Sen. Hugo Black appointed 1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions. 1938 Jan 18: "Horseman“ George Sutherland resigns, Stanley Forman Reed appointed

36. Congress: Commerce Clause Facts: The 1964 Civil Rights Act banned discrimination in places of public accommodation. The Heart of Atlanta Motel refused to rent rooms to black patrons violating the Act. The owner of the motel filed a civil suit arguing that the Act exceeded the authority given to Congress to regulate interstate commerce. The motel owner also argued that the Act violated his Fifth due process right and forced him into a condition of involuntary servitude, violating his Thirteenth Amendment right, by not allowing him to choose his customers. Question: Did Congress exceed its interstate commerce power by regulating local incidents of commerce and by depriving owners of their right to choose customers? Heart of Atlanta Motel Inc. v. U.S. 379 U.S. 241 (1964) Finding: No. The Court upheld Title II of the Civil Rights Act as constitutional on the grounds that Congress could regulate local incidents of commerce that had a significant effect on interstate commerce. Having observed that 75 percent of the Heart of Atlanta Motel's clientele came from out-of-state, and that it was located near two interstate highways, the Court found that the business clearly affected interstate commerce. The Court, therefore, upheld the permanent injunction issued by the District Court, and required the Heart of Atlanta Motel to receive business from clientele of all races. See also Katzenbach v. McClung (1964), concerning discrimination in restaurants.

37. Congress: Commerce Clause Garcia v. San Antonio Metropolitan Transit Authority 469 U.S. 528 (1985) Facts: The Fair Labor Standards Act FLSA (1938) initially did not allow the federal government to regulate the wages and hours of employees working for state and local governments, The Court in 1976 in National League of Cities found that only “traditional government functions” could be regulated via the Commerce Clause. The San Antonio Metropolitan Transit Authority (SAMTA) then refused to pay its workers overtime pay. In 1979 The Labor Dept. decided that SAMTA was not a traditional government function and thus subject to the FSLA. SAMTA then filed suit arguing that public transit was a traditional government function. Question: Are state and local government functions beyond the power of Congress to regulate under the Commerce Clause? Finding: No. The Court rejected the theoretical underpinnings of the National League of Cities decision—that the Constitution's recognition of the sovereignty of the states necessarily implies limits on the power of the federal government to regulate employment. The Commerce Clause invalidates state regulations that interfere with commerce, while the Supremacy Clause allows Congress to preempt state laws that conflict with federal law in this area. According to the majority, the Framers believed that state sovereignty could be maintained by the peculiar structure they adopted: a Senate in which each state was given equal representation, regardless of its population, an electoral college that gave the states the power to choose electors, and the indirect election of Senators by the legislature of each state prior to the adoption of the Seventeenth Amendment, which provided for popular election of Senators.

38. Congress: Commerce Clause Facts: Antonio Lopez, a student, carried a handgun and ammunition into a San Antonio High School. Lopez was initially charged under state law for a firearms violation, but was then charged under the 1990 Gun Free School Zones Act, a federal law. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release. Question: Is the Act a legitimate exercise of congressional power under the Commerce Clause? Finding: No. The Court found that possession of firearms in school zones does not have a substantial connection to interstate commerce. This case reverses the precedent, set since the late 1930s, allowing extensive use of congressional power via the Commerce Clause. See also U.S. v. Morrison (2000) in which the Court held that the Violence Against Women Act exceeded congressional power under the Commerce Clause. The protection against violence against women is not economic. Lopez and Morrison uphold what is called the “Empirical” or “Substantial Effects” theory of interstate commerce as contrasted with the “Direct and Indirect” or “Local or National” theory. U.S. v. Lopez 514 U.S. 549 (1995) C. Brzonkala

39. Gonzalez v. Raich 545 U.S. 1 (2005) Facts: In 1996, California passed Proposition 215 (The Compassionate Use Act), legalizing the medical use of marijuana. Angel Raich used marijuana grown by Diane Monson, which was legal under the California law but illegal under the Controlled Substances Act (CSA). The DEA raided Monson’s home and destroyed the plants. Raich and Monson sued arguing that the enforcement of the CSA violated their rights under the Commerce Clause, the 5 th , 9 th , and 10 th Amendments. The Ninth Circuit Court ruled, following the precedents of Lopez (1995) and Morrison (2000) that the cultivation and use of marijuana within the state did not affect interstate commerce. Question: Is the enforcement of the CSA, under the Commerce Clause, to regulate the intrastate cultivation and medical use of marijuana an overstretch of congressional power? Finding: No. The Court distinguished their decision from Lopez and Morrison by stating that marijuana cultivation and use was within a class of activities that affected interstate commerce. The cultivation and sale of marijuana within a state always has an affect on the national market for marijuana. Justice Thomas dissented stating, “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.” Congress: Commerce Clause

40. Congress: Enforcement Power Katzenbach v. Morgan 384 U.S. 641 (1966) Facts: Section 4e of the Voting Rights Act of 1965 provided that persons who had completed the sixth grade in Puerto Rican schools could not be denied the right to vote by way of literacy tests which required fluency in English. The district court ruled that Congress had exceeded its powers and violated the Tenth Amendment as voting regulations are governed by the states. Question: Can Congress enforce Section 4e of the Voting Rights Act through Section 5 of the Equal Protection Clause of the Fourteenth Amendment? Finding: Yes. Essentially, the Court used Section 5 of the Fourteenth Amendment like the Necessary and Proper Clause of Article I Section 8. “Section 5 of the Fourteenth Amendment is a positive grant of legislative power authorizing Congress to exercise its discretion in determining the need for and nature of legislation to secure Fourteenth Amendment guarantees. The test of McCulloch v. Maryland (1809) is to be applied to determine whether a congressional enactment is "appropriate legislation" under Section 5 of the Fourteenth Amendment” The Court came to a different conclusion in City of Boerne v. Flores (1997) when it ruled that Congress had exceeded its power in trying to enforce, through Section 5 of the Fourteenth Amendment, the 1993 Religious Freedom Restoration Act (RFRA).

41. Congress: Regulatory Taxation Bailey v. Drexel Furniture Corp . 259 U.S. 20 (1924 ) Facts: After the Court’s decision in Hammer v. Dagenhart (1918), Congress passed the Child Labor Tax Law, which imposed a federal tax on employers employing children under the age of fourteen. Drexel Co. was assessed a tax, at about ten percent of net profits, for employment of children in 1919. Question: Is this a legitimate exercise of congressional taxation power under Article I, section 8 of the Constitution? Finding: No. The Court’s interpretation is essentially the same as Dagenhart only this time applied to federal taxation. “The analogy of the Dagenhart Case is clear.. When Congress threatened to stop interstate commerce in ordinary and necessary commodities, unobjectionable as subjects of transportation, and to deny the same to the people of a state in order to coerce them into compliance with Congress' regulation of state concerns, the court said this was not in fact regulation of interstate commerce, but rather that of state concerns and was invalid. So here the so-called tax is a penalty to coerce a state to act as Congress wishes them to act in respect of a matter completely the business of the state government under the federal Constitution.... ” The Court reversed its decision on regulatory taxes in 1937 in Steward Machine .

42. Congress: Spending Power South Dakota v. Dole 438 U.S. 203 (1987 ) Facts: South Dakota allowed persons nineteen and over the right to purchase alcohol not exceeding 3.2 percent. In 1984, Congress enacted 23 U.S.C.158 allowing the Secretary of Transportation to withhold federal highway funds from states in violation. South Dakota was denied five percent of federal highway funds for violating the law. The State of South Dakota then sued the Secretary of Transportation Elizabeth Dole. Question: Does the law exceed the spending powers of Congress under Article I, section 2 and the Twenty First Amendment? Finding: No. “In United States v. Butler (1936) and Steward Machine Co. v. Davis (1937), the Court had addressed issues relating to the spending powers of Congress. Through such cases, it had developed a four-part test to limit the exercise of such power. First, such exercise "must be in pursuit of the general welfare," the latter a phrase directly from the Constitution; and in making this determination, Rehnquist wrote, "courts should defer substantially to the judgment of Congress." Second, if Congress wants to put conditions on the states' receipt of federal funds, it should do so in an unambiguous way that makes the states fully aware of their choices and the consequences. Third, these conditions should be related "to the federal interest in particular national projects or programs." And fourth, of course, the spending regulations could not violate the Constitution.” Justice O’Connor dissented making an argument in favor of states’ rights under the 10 th Amendment. See also Printz v. U.S. (1997).

43. Congress: Spending Power Sabri v. U.S. 541 U.S. 600 (2004 ) Facts: Basim Sabri, a developer, tried several times to bribe a Minneapolis City Council member and was charged under a federal law, U.S.C. 666. This law allowed federal prosecution for bribery of local officials in municipalities receiving more than $10,000 in federal funds. Question: Can Congress make the bribery of local officials a federal crime even if a direct relationship between the monies dispersed and the bribe generally cannot be established? Finding: Yes. Congress can act to prohibit bribery of organizations that use federal funds. The Spending Clause allows Congress to disperse these funds and the Necessary and Proper Clause of Article I section 8 allows Congress the power to regulate the misuse of funds. The requirement of proving a relationship between the bribe and the funds itself is impractical.

44. Congress: Investigatory Power Although it is not enumerated in the Constitution, Congress has significant implied investigatory powers which allow it to conduct inquisitions into, and oversight over, executive and judicial branch officials. The House of Commons, in the English Parliament, had investigatory power since the sixteenth century, and the colonial legislatures had this power as well. The first use of the investigatory power in U.S. government was the investigation of the massacre of U.S. troops, under the command of General Arthur St Claire, by Indians in the Northwest Territory. The House Representatives formed an ad-hoc, or select, investigatory committee. The primary area of investigation since the St Claire Investigation of 1792 has been military operations. “Every military operation, with the exception of the Spanish American War of 1898, has been the subject of congressional investigation” (Lehman 1992, 158). One of the most infamous was the 1861 Joint Committee on the Conduct of the War created to investigate, “past, present, and future defeats, the orders of the executive departments, the actions of generals in the field, and the questions of war policies.” This committee was set up in the aftermath of the disastrous defeat of the Union Army by the Army of Northern Virginia at the Battle of Bull Run in 1861. Even for Presidents to this day, it remains a political tool for those opposed to the President’s policies, it is considered an impediment for effective action in military operations. Robert E. Lee stated that the information gleamed from the Committee “was ultimately worth about two divisions of Confederate troops” ( Congressional Quarterly 1971, 251).

45. Congress: Investigatory Power Congressional investigatory power expanded enormously after World War II. The Legislative Reorganization Act of 1946 empowered Congress to vigilantly oversee the administrative agencies of the executive branch. The Act provided for a permanent budget and professional staff. “Compared with approximately five hundred investigations from 1792 to 1946, the Ninetieth Congress of 1946-1947, alone authorized 496 investigations” (1971, 248). The 1970s saw a shift towards Congressional investigation of intelligence matters as a result of the Watergate Scandal, the U.S. defeat in Vietnam, and the CIA assassination of Chilean President Salvador Allende, among others. President Ford tried to counter the strengthening of congressional investigatory powers under the Church and Pike Committees by executive orders requiring the Director of the CIA to report to the president as a de facto cabinet member. Despite the incorporation of most the Church and Pike Committee recommendations by President Ford, Congress strengthened its investigatory powers even more by forming the House and Senate Intelligence Committees. Both of these are standing (permanent) committees with significant powers to review budget appropriations and declassify secret information. Despite the institutionalization of congressional standing committees on intelligence, Presidents, regardless of their political party affiliation, continue to evade them as they find them an impediment to the secret information and actions considered to be an inherent part of the Presidency.

46. Congress: Investigatory Power An another, highly contentious, example of congressional investigatory power is the “special prosecutor”, a.k.a. “independent” or “special counsel.” The independent counsel was formalized in the Ethics in Government Act of 1978. In 1974, when the Watergate Scandal broke, President Nixon appointed a special prosecutor, Archibald Cox, to investigate. When Cox subpoenaed President Nixon for recordings made in the Oval Office, President Nixon tried to fire Cox. However, the Attorney General resigned before President Nixon could fire Cox. The interim Attorney General, Robert Bork, fired Cox and replaced him with Leon Jaworski whom was promised that he would not be fired. Jaworski then subpoenaed Nixon for the recordings, and Nixon’s refusal led to the Supreme Court ruling, in U.S. v Nixon (1974), that an inherent necessity to guard secrets, would not necessarily preclude congressional investigations, but that the prosecution of federal offenses is still a core executive function. The Ethics in Government Act of 1978 removed the president and attorney general’s power to appoint but not remove special prosecutors. The 1978 Act allowed the Attorney General to conduct a ninety day preliminary investigation of violations of federal law involving members of the executive branch as well as advisors and family members of some high officials. If a violation is found, then the D.C. Court of Appeals appoints an independent counsel. Since 1978, there have been ten independent counsels appointed. In 1979 and 1980, two separate independent counsels investigated accusations of cocaine use by President Carter’s Chief of Staff and Campaign Manager. The most significant of these independent counsel investigations, although not well publicized, involved the Environmental Protection Agency’s (EPA), by order of President Reagan, refusal to turn over documents to a congressional (Dingell) Committee, which resulted in a five year

47. Congress: Investigatory Power investigation of Assistant Attorney General Theodore Olson. See Morrison v. Olson (1988). A famous investigation was the 1988 Iran Contra Affair in which both congressional committees and a special counsel investigated the illicit sale of weapons, by members of President Reagan’s cabinet and the Defense Department, notably Lt. Colonel Oliver North, to Iran for money used to support Contras in Nicaragua, whom were denied funding under the Boland Amendments. In 1994, Kenneth Starr was appointed to investigate the financial affairs of Hillary Clinton while Clinton was governor of Arkansas. In a few years Starr’s initial investigation into the financial affairs of Hillary Clinton, called Whitewater, multiplied into several investigations including: the death of President Clinton’s personal counsel Vincent Foster, Travelgate, Filegate, and the Monica Lewinski affair. Of these various investigations, the Monica Lewinski affair showed the far-reaching powers of the independent counsel. Ironically, it was President Clinton who had signed the 1992 Law returning significant powers to the independent counsel. The Monica Lewinski investigation commenced following a civil suit filed against President Clinton by former Arkansas state employee Paula Corbin Jones (See Clinton v. Jones 1997). In a deposition concerning the case, President Clinton was asked whether he had sex with Monica Lewinski, a White House aide. This was done initially as part of the civil suit to show Clinton’s character as a womanizer and hence support Jones’ contention that he sexually harassed her. Special Counsel Starr decided that Clinton’s testimony in the Jones deposition was false and opened a new investigation based on a perjury charge. Clinton’s perjury in the Jones civil suit and his initial public denial eventually led to his impeachment by the House, but the Senate acquitted him.

48. Congress: Electoral – House of Representatives and Senate Surprisingly, the Constitution does not provide much detail concerning the election of representatives and senators. It only notes the qualifications required and a term of two and six years, respectively. The number of representatives per state is based on the population of the state, which is adjusted decennially. Two senators represent each state. Initially, states chose their own means of organizing congressional elections, as the Constitution specifically allows this. Eventually, the standard became the Single-Member Plurality District (SMPD), also called “Winner Takes All” and “First Past the Post.” The SMPD allows one member to represent a district; the winner is the candidate with the largest, but not necessarily a majority, of votes. This is a rare system among democratic countries found primarily in Anglo or former Anglo colonies such as the U.K., Canada, and India. The SMPD has serious malapportionment problems. Larger, more populated, districts may be underrepresented in comparison to smaller, less populated, districts. Thus, votes count more in smaller, less populated, districts. This is also a problem at the state level. See the cases of Baker v. Carr (1962) and Reynolds v. Sims (1964). The SMPD always produces a two party system, called Duverger’s Law. Dahl (2002, 57), in How Democratic is the American Constitution, states, “If voters were to cast their votes in the same proportion in every district, the party with most votes would win every seat. In practice, as the result of variation from district to district in support for candidates, a second party generally manages to gain some seats, although its percentage of seats will generally be smaller than its percentage of votes. But the representation of third parties usually diminishes to the vanishing point.”

49. Congress: Electoral – House of Representatives and Senate The Framers intention with the Senate is twofold: to provide a aristocratic institution that would check the more democratic House and to provide representation of smaller, less populated, states in Congress. Essentially, the House represents the people, or their districts, and the Senate the states. Initially, Senators were not elected but chosen by their state legislatures. The Seventeenth Amendment (1913) provided for popular election of Senators. There are inherent apportionment problems in the Senate. Dahl 2002, 47), in How Democratic is the American Constitution , argues that the Senate was designed to provide unequal representation; that is, “the representatives of small units cannot be readily outvoted by representatives of larger units.” This reflects the fear of majority tyranny as exemplified by Madison’s Federalist #10 and #51. This produces significant malapportionment. For example, Dahl (2002, 48-50) notes that the vote of a Nevada resident was worth seventeen times the vote of a California resident, and the vote of an Alaska resident was worth fifty-four times the vote of a California resident. The effectiveness of Senate representation is also disparate. In Connecticut, the two Senators represent about 3.4 million people; whereas, in New York, the two Senators represent about 19 million people: a ratio of about 5.6 to 1. The U.S. is at the bottom among bicameral systems in democratic countries, Wyoming to California is a ratio of 70 to 1. Austria’s ratio is 1.5 to 1 and Switzerland’s ratio is 40 to 1. Historically, the power of minority states has been very problematic. The southern states used their “privileged minority” position to block pre-Civil War slavery reforms, end Reconstruction, and block civil rights legislation.

50. Congress: Electoral – House of Representatives and Senate The essence of providing unequal representation was protection of less populated states, we can call them “geographic minorities,” from majority rule. Dahl (2002) questions whether this is really necessary given that such a conflict is inherent in democracy given that it is a majoritarian system. Dahl notes that the Bill of Rights provides protections, for individuals and minorities other than small states, that could be used to counter significant abuses of majority rule. Amending the Constitution is literally impossible given the requirements in Article V. First, Amendments can only be proposed by two-thirds vote in both the House and Senate or by approval of two-thirds of state legislatures in convention. Then ratification can be given by approval of both the House and Senate or three-fourths of state legislatures. In addition, Article V states, “No state, without its consent, shall be deprived of its equal suffrage in the Senate.” Dahl (2002, 161-162) notes that amendments could be blocked by: Thirty-four senators from the seventeen smallest states with 7.8 percent of the U.S. population. If it passed the Senate, then thirteen state legislatures in the smallest states, 3.9 percent of the U.S population, could block ratification. A law could be passed in the Senate by fifty-one senators from twenty-six states, 18 percent of the U.S. population. Dahl’s solution is that the Senate be abolished. Many western democratic countries have bicameral legislatures. However, in most of these countries, including the English Parliament, the upper house has been abolished or severely weakened.

51. Congress: Proportional Representation In contrast to the SMD system, seats are not allocated on the basis of a plurality or majority; instead seats are allocated proportionally according to the number of votes received by the party. This system allows for multiple representation in districts. However, proportional representation is not a panacea. It can be complicated and votes can be split in such a way as to ensure that no single party can achieve a plurality or a majority. This can lead to deadlock and instability. For example, Italy has had 58 governments since 1946. In these systems, a party that wins by a slim plurality often has to form a coalition in order to promote cohesion. Another advantage of a proportionally representative system is in countries with deep ethnic and or religious divisions. Some systems, mostly in Latin America, allow for dedicated representation of indigenous minorities. In 1994, Lanie Gunier, a law professor nominated to be the Assistant Attorney General for Civil Rights, lost the nomination on the grounds of her support for a proportional representation system. In a citywide election for five council seats, say, each voter would have five votes, which she could distribute among the five candidates any way she likes. If a fifth of the voters opted to "cumulate," or plump, all their votes for one candidate, they would be able to elect one of the five. Blacks could do this if they chose to, but so could any cohesive group of sufficient size. This system is emphatically not racially based: it allows voters to organize themselves on whatever basis they wish. It has actually been tried in a few jurisdictions -- including the proverbially American city of Peoria, Illinois -- and has had notable success in all of them. President Clinton said that she had seemed to advocate proportional representation, a position he called "antidemocratic and very difficult to defend." Antidemocratic? That will come as news to the good people of Germany, Spain, the Netherlands, and Sweden, among other countries. Indeed, most of the electorates of Continental Europe, including those of the liberated East, elect their legislatures under some form of proportional representation; so do the Irish, the Italians, and the Israelis; and so will the New Zealanders, who passed a referendum on the subject in 1993.

52. Congress – Structure Congress today spends little time in actual deliberation. The principal work of Congress is research, investigation, and constituency service. This is reflected in the committee structure of Congress. Both the House and the Senate have a number of specialized committees. These committees are further divided into many subcommittees. Some committees are permanent and others are formed for specific issues or jointly between the House and the Senate. The reliance on a committee structure has made Congresspersons specialists. The question that arises from this concerns the short length of terms and incumbency in relation to democracy. Democracy favors turnover; representatives come up for election every two years. However, to be an effective specialist requires a lengthy time in office. Standing Committees – Permanent committees with the power to propose and write legislation that covers a specific subject Select Committees – Temporary committees set up to address a particular issue Joint Committee – A committee formed of members from the House and Senate Conference Committee – A joint committee created to work out a compromise on the passage of legislation.

54. Article II: Presidency Why the Framers choose to have a president remains something of a mystery. The Federalist Papers shed little light on the reasons for a presidency. Federalist #70 , written by Alexander Hamilton, is the generally cited source. The President, according to Hamilton, would have “Energy in the Executive.” This energy is manifested in the assertiveness of the president, for whom an individual, not a council, is necessary in order to provide unity and quick decisions. Hamilton notes that the presidency is not a monarchy, where a concurring council, as in the case of England, is necessary but not always effective. Hamilton also notes the problems with state of New York’s executive branch, a council system. Dahl (2002, 68) notes that the Framer’s initially favored a more parliamentary system in which Congress elected the executive but feared that the executive would not be independent enough from Congress. The electoral college system was chosen because they thought the electors of the Electoral College, like the aristocratic Senate, would exercise prudent and independent judgment in their votes. The development of the party system in the early 1800s destroyed this idea, but the Framers did not have the benefit of hindsight. A Parliamentary system provides some distance between the executive and the people, but is more efficacious. The Jackson presidency helped develop the myth that only the President truly embodied the will of the people, by way of election by “all the people.” Whereas, the Framer’s intent seems to be that the legislature would embody the will of the people or it would diffused so that it did not was not concentrated in a single institution.

56. Article II – Presidency – War Powers The Prize Cases 67 U.S. 635 (1863) Facts President Lincoln, at the commencement of hostility by the Southern states, ordered a blockade of Southern ports without congressional approval in April 1861. A few months later, Congress retroactively approved President Lincoln’s orders. Four ships, registered in foreign countries, were captured running the blockade prior to Congress’ approval of the President’s orders. Question Was President Lincoln’s order, tantamount to a declaration of war? If so, is such a tacit declaration of war, without the initial approval of Congress, allowable? Findings: Yes. A de facto state of civil war existed prior to the issuance of President Lincoln’s order to blockade the Southern ports. “The present civil war between the United States and the so-called Confederate States has such character and magnitude as to give the United States the same rights and powers which they might exercise in the case of a national or foreign war, and they have, therefore, the right jure bello to institute a blockade of any ports in possession of the rebellious States.” See also Ex Parte Milligan (1866). The Court ruled that President Lincoln’s suspension of habeas corpus, during the Civil War, was constitutional only in areas where civilian courts were not operable.

57. Article II – Presidency – War Powers Korematsu v. U.S. 323 U.S. 214 (1944) Facts: President Roosevelt’s Executive Order 9066, Exclusion Order #34, created a zone of exclusion for Japanese residents and Japanese-American citizens. West Coast Japanese were moved to relocation camps in other parts of the U.S. Fred Korematsu refused to leave San Leandro, CA. and was arrested and imprisoned. Question: Does the President have the power to relocate citizens by ethnicity through his power as Commander in Chief? Finding: Yes. Such measures ordered by the President or Congress - even if they constitute de jure racial discrimination, normally subject to “strict scrutiny” - are acceptable during emergencies. Korematsu’s conviction was overturned in 1984, and he was awarded the Presidential Medal of Freedom by President Clinton in 1998. President George H.W. Bush apologized for the internment of Japanese-Americans during WWII and signed into law 1.2 billion in reparations and 400 million in benefits. Documents made available in 2005 prove that U.S. military intelligence, during World War II, decided that Japanese-Americans were not a security risk even as the Court heard Korematsu and related cases. Fred Korematsu

58. Article II: Presidency – War Powers Youngstown Sheet and Tube Co. v. Sawyer 343 U.S. 579 (1952) Fact: President Truman issued an executive order federalizing the operation of steel mills after a threatened strike by the United Steel Workers union. A strike would have severely affected the war in Korea. The Taft-Hartley Act, could have been used to suspend a strike, but the President refused to use it for political reasons. Question: Does the President have the power to seize private property, such as steel mills, through his power as Commander in Chief? Finding: No. The President’s power as Commander in Chief does not extend to the seizure of private property. Although Justice Black wrote the majority opinion, Justice Jackson’s concurring opinion is the most cited. Justice Jackson divided Presidential authority vis a vis Congress into three categories, ranked in descending order of legitimacy: (1) those cases in which the President was acting with express or implied authority from Congress, (2) cases in which Congress had thus far been silent, and (3) cases in which the President was defying congressional orders. He classified this case as falling within the third category. Justice Jackson’s decision is referred to as “functionalist.” “Presidential power might depend on practical considerations, including the gravity of the problem the President confronted” (Fallon 2004, 177).

61. Article II: Presidency – War Powers – “War on Terror” The events of September 11, 2001 formally initiated the “War on Terror”, although the U.S. had been engaged in counterterrorism against groups based in West Asian countries since the late 1970s. The capture of persons, primarily in Afghanistan, but not limited to that country, associated with the Taliban and al-Qaeda brought many questions. The resolution of these questions was complicated by the uncertainty and the public perception of the threat posed by such groups. Holding detainees in the U.S. would have caused problems namely a maelstrom of publicity by zealous attorneys eager to take on cases. The government was in dire need of human intelligence and very concerned about guarding secrets. Therefore, Guantanamo Bay, Cuba, where a U.S. naval base is located, was chosen as the location to hold and interrogate the detainees. The U.S. has a perpetual lease with the state of Cuba, but the lease agreement states that Cuba is the “ultimate sovereign.” The territorial ambiguity and proximity of Guatanamo Bay, Cuba to the U.S. made it an ideal place to hold the detainees. The first question raised is does the President have the authority to issue orders concerning how the detainees are to be treated? "In the Authorization for Use of Military Force (AUMF), Congress empowered the President “to use all necessary and appropriate force against those ... he determines planned, authorized, committed, or aided the terrorist attacks ... on September 11, 2001.” The AUMF is a de facto congressional declaration of war. And, no, this is not the first time that Congress has declared a de facto war against a non-state entity. Congress, in 1805, gave President Jefferson the power to pursue pirates, based in North Africa, raiding U.S. ships.

62. Article II: Presidency – War Powers – “War on Terror” The second question is whether Guantanamo Bay, Cuba, called “Gitmo” in Navy and Marine Corps lingo, falls under the jurisdiction of U.S. courts and whether the detainees have the right of habeas corpus. In Rasul v. Bush (2004), the Court said yes to both with limitations concerning habeas corpus. Returning to the first question, we know that the AUMF is a de facto congressional declaration of war, but the other question was did the President have the authority to determine the treatment of detainees, particularly their access to the U.S. justice system? “In Hamdi v. Rumsfeld (2004), five Justices recognized that detaining individuals captured while fighting against the United States in Afghanistan for the duration of that conflict was a fundamental and accepted incident to war. Thereafter, the Defense Department established Combatant Status Review Tribunals (CSRTs) to determine whether individuals detained at the U.S. Naval Station at Guantanamo Bay, Cuba, were “enemy combatants.” As a result of Hamdi , and in order to preclude appeals, Congress stepped in and passed the Detainee Treatment Act of 2005 (DTA) which amended 28 U.S.C. section 2241 to provide that “no court, justice, or judge shall have jurisdiction to ... consider ... an application for ... habeas corpus filed by or on behalf of an alien detained ... at Guantanamo,” and gave the D.C. Court of Appeals “exclusive” jurisdiction to review CSRT decisions.

63. Article II: Presidency – War Powers – “War on Terror” The Hamdi decision led to an all out pissing contest between Congress and the Court. The Court reacted to the DTA in Hamdan v. Rumsfeld (2006) by declaring the amended section 22 U.S.C. 2241 (e) (1) of the DTA unconstitutional. Congress reacted by passing the Military Commissions Act of 2006 (MCA), “which amended § 2241(e)(1) to deny jurisdiction with respect to habeas actions by detained aliens determined to be enemy combatants, while § 2241(e)(2) denies jurisdiction as to “any other action against the United States ... relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of a detained alien determined to be an enemy combatant. MCA § 7(b) provides that the 2241(e) amendments “shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after [that] date ... which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained ... since September 11, 2001.” “The D.C. Court of Appeals concluded that MCA § 7 must be read to strip from it, and all federal courts, jurisdiction to consider petitioners' habeas applications; that petitioners are not entitled to habeas or the protections of the Suspension Clause, U.S. Const., Art. I, § 9, cl. 2, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”; and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas."

64. Article II: Presidency – War Powers – “War on Terror” This led to the most recent case, Boumediene v. Bush (2008). First, the Court concluded that the MCA did in fact deny federal courts jurisdiction to hear habeas corpus actions . Then, the Court had to deal with the issue of whether Guantanamo Bay, Cuba was within the reach of the U.S. Constitution. It concluded it was. This means that the Suspension Clause has full effect at our naval base in Guantanamo Bay, Cuba . By the way, the Suspension Clause is Article 1, section 9, clause 2, and provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Next the Court turned to the rights possessed by the enemy combatants at Guantanamo Bay, Cuba. Aliens detained there as enemy combatants were entitled to the privilege of habeas corpus to challenge the legality of their detention . This is the significant holding of the case; the one correctly focused on by the media. In fact, most scholars now think that this part of the decision will eventually lead to the closure of the detention center in Guantanamo Bay, Cuba because the legal proceedings will so disrupt the operation of the place and perhaps show even further to the world some of the things that went on there that the U.S. wanted to keep quiet for the past six or so years. But the Court wasn't yet finished. It also concluded that the provision of the MCA denying federal courts jurisdiction to hear habeas corpus actions pending at the time of its enactment was an unconstitutional suspension of the Great Writ. Finally, in words that were no doubt motivated by a "majority of the majority's" sense that six years of detention without meaningful judicial review was just fundamentally wrong, the Court concluded that detainees were entitled to prompt habeas corpus hearings and could not be required to exhaust other review procedures.

65. Article II: Presidency – War Powers (Detention of Enemy Combatants) Hamdi v. Rumsfeld 542 U.S. 507 (2004) Facts: Yaser Hamdi was captured by the Northern Alliance in Afghanistan in December 2001 and turned over to the U.S. military. Hamdi was then transferred to the detention center, on the naval base, at Guantanamo Bay, Cuba and held as an “enemy combatant.” However, it was soon discovered that Hamdi was a U.S. citizen in addition to a Saudi citizen. Hamdi was then moved to U.S. Naval brigs in South Carolina and Virginia. As an enemy “unlawful” combatant, he was held indefinitely without access to counsel, filing of formal charges, or a trial. Hamdi’s father, as a “Next Friend” (legal custodian), argued that Yaser Hamdi was being held unconstitutionally in violation of his Fifth Amendment right to due process. The U.S. government stated that the President had the right, in wartime, to determine who could be held as an enemy combatant, thus, restricting access to the justice system. The district court ruled for Hamdi, telling the government to release him. On appeal, the Fourth Circuit Court of Appeals reversed, finding that the separation of powers required federal courts to practice restraint during wartime because "the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not." The Appeals Court therefore found that it should defer to the Executive Branch's "enemy combatant" determination. In October 2004, In lieu of a hearing and after renouncing his U.S. citizenship, Hamdi was freed from U.S. custody and returned to Saudi Arabia. Yaser Hamdi Yaser Hamdi

66. Article II: Presidency – War Powers Hamdi v. Rumsfeld 542 U.S. 507 (2004) Question: Did the government violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who fought against the United States? Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"? Finding: Yes and No. Justice O’Connor in a plurality opinion, found that as a U.S. citizen, although an enemy combatant, Hamdi is entitled to limited due process. The limitation of due process is to facilitate the President’s ability to conduct war while not rendering a U.S. citizen completely helpless. The designation enemy combatant has been rhetorically substituted by the Bush Administration for the correct term “unlawful combatant.” An unlawful combatant is a civilian who engages in armed actions against a state, as defined in the International Humanitarian Law (ILH), and is subject to prosecution under the law of the detaining state. Justice Scalia dissenting, quoted Federalist #8.: "The Founders well understood the difficult tradeoff between safety and freedom. "Safety from external danger," Hamilton declared, "is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free."

67. Article II: Presidency – War Powers (Military Commissions) Hamdan v. Rumsfeld 548 U.S. 557 (2006) Facts: Salim Hamdan, a Yemeni citizen and Osama bin Laden’s former bodyguard and chauffeur, was captured by the Northern Alliance in Afghanistan in late 2001 and transferred to U.S. military custody. Hamdan was then transferred to the detention center in Guantanamo Bay, Cuba. In July 2003, President Bush deemed Hamdan, and five others captured in Afghanistan, eligible for trial by military commission for unspecified terrorist related actions. In 2004, he was charged with “conspiracy to commit . . . offenses triable by military commission.” After the Hamdi (2004) decision, Hamdan received a review hearing before the Combatant Review Status Tribunal (CRST), which designated him an enemy combatant. Hamdan then filed habeas corpus and mandamus petitions arguing that: he was actually subject to trial by court-martial under the Uniform Code of Military Justice (UCMJ) rather than by the military tribunal authorized by President Bush. In 2004, the D.C. Federal District Court granted Hamdan request for habeas corpus, but the D.C. Court of Appeals reversed. Salim Hamdan

68. Article II: Presidency – War Powers Hamdan v. Rumsfeld 548 U.S. 557 (2006) Question: 1. Is the military commission established by the President to try Hamdan, and others captured under similar circumstances, for alleged war crimes in the “War on Terror” authorized under Congress's Authorization for the Use of Military Force (AUMF); the Uniform Code of Military Justice (UCMJ); or the inherent powers of the President? 2. Can Hamdan and others similarly situated obtain judicial enforcement from an Article III court of rights protected under the 1949 Geneva Convention in an action for a writ of habeas corpus challenging the legality of their detention by the Executive branch?

69. Article II: Presidency – War Powers Hamdan v. Rumsfeld 548 U.S. 557 (2006) Finding: No and Yes. Justice Stevens’ found that such military commissions are not an inherent power of the presidency nor authorized by congressional law. Thus, Hamdan, and others being detained under the same circumstances, were subject to trial under the UCMJ. The Court found that the Geneva Convention has been incorporated into the UCMJ. The military commission does not meet the requirements of the Uniform Code of Military Justice or of the Geneva Convention, it violates the laws of war and, therefore, cannot be used to try Hamdan. A military tribunal would have significantly reduced the petitioners rights by: excluding his counsel from documents deemed secret by the President or other members of the Executive Branch, allowing for evidence gathered by torture, hearsay, and unsworn statements, and precluding any judicial appeals. Justices Scalia, Thomas, and Alito dissented. Justice Thomas stated: “… it is clear that this Court lacks jurisdiction to entertain petitioner’s claims, see ante , at 1–11. The Court having concluded otherwise, it is appropriate to respond to the Court’s resolution of the merits of petitioner’s claims because its opinion openly flouts our well-established duty to respect the Executive’s judgment in matters of military operations and foreign affairs. The Court’s evident belief that it is qualified to pass on the “[m]ilitary necessity,” ante , at 48, of the Commander in Chief’s decision to employ a particular form of force against our enemies is so antithetical to our constitutional structure that it simply cannot go unanswered. I respectfully dissent.”

70. Article II: Presidency – Treaty Power U.S. v. Belmont 301 U.S. 324 (1937) Fact: In 1933, President Roosevelt reestablished diplomatic relations, by executive agreement and without the approval of the Senate, with the Soviet Union. The Soviet Union pressed claims to recover monies held by U.S. banks after the nationalization of Russian companies in 1918. One of these banks, August Belmont Co, held monies deposited by the now nationalized Petrograd Metal Works but refused to hand it over to the Soviet government after a state district ruling. Question: Can the president engage in treaty making by executive agreement without Senate approval? Do such agreements override valid state law? Finding: Yes. Some types of treaties can be made by executive agreement. Justice Sutherland stated, “the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution require the advice and consent of the Senate.” See also U.S v. Pink (1942), Dames & Moore v. Reagan (1981), and the Bricker Amendment.

71. Article II – Presidency – Treaty Powers Carter v. Goldwater 446 U.S. 996 (1979) Facts: President Carter terminated the Sino-American Mutual Defense Treaty with the Republic of China (R.O.C. or Taiwan). Senator Barry Goldwater and other Republican members of Congress filed a lawsuit against President Carter stating that the President required approval from Senate to break treaties. Question: While Article II, section 2 of the Constitution requires Senate approval of treaties it does not mention the necessity of Senate approval to terminate treaties. Is Senate approval required in order to terminate treaties? Findings: The Court granted Certiorari but did not proceed to oral arguments. The Court remanded the case to a federal district court with instructions to dismiss. Justice Rehnquist opined that the case was political and not judicial. Justice Powell opined that the case did not merit judicial review but would have had merit had Congress issued a resolution in opposition to President Carter’s termination of the treaty. The question of whether the President can terminate treaties without Senate approval thus remains open but leans towards Powell’s opinion concerning a tacit approval by way of not presenting an opposition by resolution.

72. Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Facts: “ Jose Medellin, a Mexican citizen, was convicted and sentenced to death for participating in the gang rape and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state had violated his rights under the Vienna Convention, a treaty to which the United States is a party. Article 36 of the Vienna Convention gives any foreign national detained for a crime the right to contact his consulate. After his petition was ultimately dismissed by the Supreme Court, Medellin's case returned to the Texas Court of Criminal Appeals. Medellin's argument rested on a ruling of the International Court of Justice (ICJ) holding that the U.S. had violated the Vienna Convention rights of fifty one Mexican nationals (including Medellin) and that their convictions must be reconsidered. Medellin argued that the Vienna Convention granted him an individual right that state courts must respect, a possibility left open by the Supreme Court's 2006 decision in Sanchez-Llamas v. Oregon . Medellin also cited a memorandum from the President of the United States that instructed state courts to comply with the ICJ's rulings by rehearing the cases . Medellin argued that the Constitution gives the President broad power to ensure that treaties are enforced, and that this power extends to the treatment of treaties in state court proceedings.”

73. Article II: Presidency – Treaty Powers Medellin v. Texas 552 U.S. ___ (2008) Facts Continued: “ The Texas Court of Criminal Appeals rejected each of Medellin's arguments and dismissed his petition. The court interpreted Sa