Separation of Powers and Foreign Policy
Why has the Supreme Court routinely declared foreign policy issues nonjusticiable?
They are political questions pertaining to matters of the executive and legislative branch to be resolved without judicial review.
What does the court feel are limits against official misconduct being abused by the President?
impeachment power, scrutiny of the press, oversight by Congress, the power of the polls, etc.
Explain the relationship between the Supremacy clause and Preemption?
If there is a conflict between federal and state laws, the federal law controls as the Supreme law of the land
What is conflicts preemption? Explain how this was not the case is Florida Lime & Avocado Growers.
Where a federal and state law are mutually exclusive, so that a person cannot comply with both. The Florida Lime & Avocado growers could have complied with both the federal regulations on avocados and the California regulations on avocados-there was no need to choose.
What are the two ways that a law can be discriminatory?
1. Facially discriminatory: on its face it specifically restricts out-of-staters or favors in-staters
2. Facially neutral, but discriminatory in purpose or effect: does not specifically state discrimination but has a disparate impact
Explain how foreign policy is both a Congressional constitutional power and an Executive constitutional power?
Article I: Grants Congress power to regulate commerce with foreign nations, declare war, and raise/support armies
Article II: Makes President Commander in Chief and the power to make treaties with advice and consent of the senate
Under Nixon, why is the President immune from civil liability for official actions taken in office?
The President is entrusted with both supervisory and policy responsibilities and immunity is functionally mandated incident to those functions. We do not want to divert the President's attention with law suits.
What are the two types of preemption?
1. Where a federal law expressly preempts state or local law
2. Where preemption is implied by a clear congressional intent to preempt state or local law
Explain preemption based on impeding a federal objective. Why was the California law is Pacific Gas & Electric not impeding the objective?
Impeding based on a federal objective is when the state law goes against the purpose of a federal act. In this case, California was regulating atomic energy based on the economic impact of too many inoperable nuclear power plants in the state, not regulating nuclear waste and the production of nuclear power.
How did Cooley justify as constitutional a law requiring boats porting in Philadelphia to use local pilots?
This was fit for local management because it was a "safety issue" which is up to the discretion of the locals who know it best
Explain the division of power between the Executive and the Legislative branches with regards to:
1. Treaties vs Executive Agreements
2. War Making Power
1. Treaties require the advice and consent of the senate; Executive Agreements can be handled by executive alone and never been ruled unconstitutional
2. Congress has the power to declare war and raise armies/navies but President is Commander in Chief--this is a blurry line
What information do we have regarding criminal prosecution of a sitting President?
There is nothing in the Constitution and there has never been an issue of this being raised or determined, however the Justice Department regulation prevents indicting a sitting President.
What are the two categories of challenges when Congress has not acted that may still result in preemption?
1. Dormant commerce clause
2. Privileges and Immunities clause
When do we use the Dormant Commerce Clause and was does it state?
Dormant Commerce Clause is used when Congress has not acted. State and local laws can still be found unconstitutional if they place an undue burden on interstate commerce.
In Tennessee Wine Spirits, why was the state of Tennessee not allowed to only give initial liquor licenses to those who had been in the state for 2 or more years? Be specific about the "test" that comes out of this case.
This was blatant favoritism of in-state individuals without a relationship to public health and safety. We don't allow states to be protectionist unless they should that the discrimination is narrowly tailored to advance a legitimate local purpose.
Explain why in Curtiss-Wright the Joint Resolution of Congress did not violate the non-delegation doctrine when Congress granted power to Congress to stop the sale of arms to the Chaco border.
This was completely about foreign relations and the states have never had these powers. The President is the sole representative of the nation in external relations so he has to have the necessary discretion to act as necessary as the sole organ of the nation in foreign policy.
Why is there not civil immunity for unofficial Presidential actions under Clinton?
There is no reason to believe this would lead to politically motivated frivolous litigation and there is no reason to believe this would require the President to reveal national security matters.
What are the three types of implied preemption?
1. Where there is a conflict between federal and state law
2. Where a state law impedes the achievement of a federal objective
3. Field preemption where the scheme of federal law and regulation is so pervasive as to make the reasonable inference Congress has left no room for the states to supplement.
Explain field preemption. Why was the Arizona immigration statute found to be largely preempted?
Even though a federal law does not expressly preempt state law, preemption will be found if there is clear congressional intent to preempt state law, even in the absence of preemptive language. This is true even if the state law complements the federal law.
It is clear that the US Government has reserved the entire field with regards to immigration policy. Since federal law occupied the field, it did not matter that AZ policies were complementary, they are preempted.
What is the test for upholding a law that discriminates against out-of-staters? What is the test for nondiscriminatory laws?
Discriminatory: Uphold only if it is narrowly tailored to achieve a legitimate local purpose, otherwise it is unconstitutional.
Non: Invalidate only if its burdens on interstate commerce outweigh its benefits to the purported local purpose.
Describe the role of the executive in formal recognition of a sovereign under Zivotofsky v Kerry?
There is no official recognition power in the Constitution, but the reception clause indicates the authority belongs to the President. Pragmatically the nation needs to speak with one voice and that can be done through the President, even if that is in contrast to Congress. Therefore the President has the sole power to recognize foreign nations as part of his role in receiving ambassadors.
What is the process for impeachment?
The House has the sole power to impeach. If the House impeaches, the Senate has the sole power to try and convict but they need 2/3 of the members.
When identifying "express" preemption, what should be proven?
Plain wording and clear meaning of the preemption clause in the legislation intending the preemption.
What is the purpose of the dormant commerce clause?
Congress should always have the authority under its commerce power to preempt state or local regulation of commerce that places an undue burden on interstate commerce, even if they have not expressly legislated to limit impediments and allow the free flow of commerce.
What mistakes did New Jersey make in its argument against City of Philadelphia regarding the waste laws that prevented it from being upheld.
2. They couldn't prove that the out-of-state waste was actually causing their environment and public health/safety problems