CONLAW CONCEPTS
Conlaw 340
Terms
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- Differences- Appeal v. Habeas Corpus
- Appeal: request to higher appellate court to review and reverse decision of a lower court. It is a mandatory appeal Habeas Corpus § Allows defendants to bring in evidence outside the record to establish error.writts of habeas corpus only given when defendant has no other remedy(i.e. appeal)* one difference is 'Habeas Corpus is not gaurenteed.
- Power of Judicial Review
- One issue of judicial review ( judicial can strike down acts of congre1. How does that effect the role of the judiciary. Is it dissenting opinion. Judicial review- throw off power of the branchesss)Raises a whole host of issues1. How does that effect the role of the judiciary. Is it dissenting opinion. Judicial review- throw off power of the branches:Justice Gibson- by giving the courts the power the acts to over congress. They are giving the courts the final word of the constitution. When courts have the power to judicial review. Through making rulings- that the right to privacy. Should the courts be empowered with that authority or should the legislatures be in charge. Who should be in charge of dictating policy.What is one of the questions asked before selecting judiciary: what do you believe is appropriate- judicial activism- the whole Idea that judges are the ones that should make policy. John Marshall's view- should be there to protect the constitution.... Coordinate construction theory- each branch of the government has the ability to rule on the constitutionality of a particular issue.f you have an issue that a law is passed the other branches should have a say.
- Doctrine of Independent and Adequate State Grounds
- ® Doctrine of Independent and adequate state grounds: which suggests that where the issue is soley held by state law. The federal courts cannot address the issue. ® This goes for the supreme courts as well: the US supreme court can only address a case if it only involves the federal law or federal constitution. ◊ 5th amendment violation- ambiguous. Can say it violated both- its done all the time went through the routes of appeal- state court into federal you drop off the state and go to the federal maybe 1% of the time you use the doctrine of independent and adequate state grounds it is very very rare. .
- Doctrines of Justiciability
- • Justiciabilty- whether courts can even hear cases- self imposed limits on a courts ability to review a case. They are common law- judge made doctrines that limit our courts ability to address issues. Doctrine of Adverseness: suggests that the only types of lawsuit that will allowed within our court system is where you have two parties that have a legitimate conflict. In other words the courts are not designed to dissolve friendly lawsuit. • Our court system is not there to dissolve false claims. They need resolution by a 3rd party. Two parties must have an adverse relationship to one another § The second part of adversness- is the prohibition against advisory opinions. □ The idea that courts are not designed to offer advice. Courts are not there to offer advice they are there to resolve. □ STANDINGS: the determination of whether a specific party is a proper party to a lawsuit. You must have injury in fact. The idea that you have a personal state in the lawsuit. You sustained a personal injury. Thus the injury is not some sort of speculation. There is infact injury infact. And this issue has spent a lot of time in the court.Ripness: 3rd dcotrin of justiciability. ( whether a case has matured or rippened into a worth controversy inorder for a court to allow intervension) in orther words the courts aren't designed to deal with hypotheticals. They are designed to deal with conflicts that are currently taking place. § Ripeness: can the court address the substantive issue based on ripeness?nd the hardship of the parties for not acting. ® Hardship on the parties: if the court chooses not to act using ripeness as a barrier will it. Mootness: where the matter in dispute has already been resolved and therefore there is nothing for the court to do. 3. The Political question's Doctrine: a matter in dispute that can be handled more appropriately by another branch of the government. • Separation of powers dictates says that the courts need to keep out of the issue and let the executive and legislative branch deal with it.The applicability of this particular doctrine is extremely susceptable to politics. □ i.e. electing president: politics can come into play which judicial branch shouldn't deal with.
- Doctrine of Comity
- each court system needs to respect the other, (jurisdiction) neither is supreme over the other except in a limited in a certain set of circumstances. Deference must be granted. • Only time you get out of this in the overlapping. Mostly it will be - article 6- Federal is Supreme- Supremacy clause. • Federal courts dominate
- Treaty Termination v. Reinterpretation by Presidents
- □ Congressional was proper. □ 3 other factors □ Reality is yes the sole organ. □ Anytime one was talking- dicta ? Or part of the reasoning. If it is dicta maybe don't have to listen to it. • Wasit within the presidents executive athority. Power over foreign affairs. • An argument could have been crafted whether it is one thing or another. • The US opted to say it was an issue of forgein policy. • Congres gave the president the authority - allowed the president to do what he did. The presidential prower must either come from either congress or the constitution itself.. • President acts with expressive or implied congressional authority. • Where the president acts in absence of Congressional ahtority. • Bottome line is: regard to the nullification of those attatchments . President is the sole organArticle 2 section 2: the president's power in terms of treaties. Treaty provision - president has the power with the power to make treaties with consent of the senate8 the president can negotiate treaties but with ambassadors he can only nominate them..
- Appointment of Inferior Officers
- Court is looking for the nature of the position. If it is otherwise - inferior the president doesn't have that descretion that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices; that Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate's consent; that the provisions of the second section of Article II, which blend action by the legislative branch, or by part of it, in the work of the executive, are limitations to be strictly construed and not to be extended by implication; that the President's power of removal is further established as an incident to his specifically enumerated function of appointment by and with the advice of the Senate, but that such incident does not by implication extend to removals the Senate's power of checking appointments; and finally that to hold otherwise would make it impossible for the President, in case of political or other differences with the Senate or Congress, to take care that the laws be faithfully executed."515
- Appointment of Primary ( Superior Officers)
- In terms of presidential authority- the president shall nominate and by and the senate shall The consitution must dictate that there must be a nomination of those individuals. If on the other hand we are talking about inferior officers that congress may delegate to the president or to the courts. You are able to bypass the nomination of advising consent or requirements when dealing with inferior officers Article 1 section 6: elligibility- no senator or representative can be appointed to any federal appointment. When the position was created or salary was increased during their term of office. No senator during their time of office. When they get out of office they are then appointed behind security.Incompatibility clasue- no member of the legilature or judiciary may serve on the executive cabinet simotaneously. □ To issue regulation that allowed executive officials to advice vice consols- properly considered a inferior officer. Court said it's a inferior officer because they have an immidiate supervisor. Position was only held for a limited period of time under temporary conditions. ◊ When talking about primary officers- can president can just get rid of. ► Independent counsel- they can be removed for cause *Limited tensure * Four cause removal clause* The independent counsel was infact an inferior position the delegation by congress was proper. "That article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed; that article II excludes the exercise of legislative power by Congress to provide for appointments and removals, except only as granted therein to Congress in the matter of inferior offices;
- Rights for Enemy Combatants
- article one section 8. legislative power. Legislative war making. : congress shall have the power to declare war. Letter of marqui. Rules land and water- navy- rules government regulation. • Congress is a player within the regards to war making • Article 2 section 2: says president will be the commander and army in chief. Congress has a minimum to declare war It tells us probably - we have another analgum of pwer. When it comes to declaring war.Under the consitution the president maynot declare war. But may use millitia by invasions by foreign language or supress surrection. Didn't have a foreign country coming in. what the prize court says. At least a limited sitution the president CAN act literallity to stop an invasion by foreign nations and ... • Power to protect must be within danger. Us. Surpe me court says that if we are at a time of war where there is a direct emergency and paril. The president can act. But the power to protect must be with threat of danger. When presidents issues are justified and when they are not. ... Approve and disapprove a proof... must notify within 45 hours of the invasion. - the president must notify congress and congress must notify .
- Judicial Philosophies
- Originalism ( AKA Interpretativism): Judges are limited to making Their decision making must be limited to the texts of the constitution or the intent of the framers of the constitution. Anything beyond that is beyond the judicial prerogativeModerate or abstract orginialism: the idea behind modern or abstract orginialism suggests that a judge can consider the text of the constitution in its decisions, the intent of the framers in its decision, and it can also consider the broader goals of those that created in the constitution.Tradition: we see more of this by the supreme court: Suggests that judges should be bounded by the text of the constitution by the intent of the framers or an intent and a clear and unbroken tradition over time in the courts. Process Based Modernism: suggests that the courts should take an originalist prospective with regard to substantive rights, but not with procedural rights. Aspirationalism: ( non interpretivism) is the idea that courts can interpret the consituion based upon the needs of society. Judges ee tbe constitution as a evolving, living document. To fit the needs to fit society. Complete opposite of orginalism. William Brenen.
- Presidential prerogative power
- the powers of the president mostly amount to getting people to do what they ought to do without him asking." Often it is the power to persuade, rather than the power to command, that defines the outer limits of presidential power. Any reader of Article II of the Constitution is immediately struck by how much attention is paid to the mechanics of presidential election, and how little is paid to the powers of the president once in office. Although the president is given "The Executive Power of the United States," nothing is specified about giving orders to department heads, controlling the departments of government, or removing officials from office. Although the president may make treaties by and with the advice and consent of the Senate, nothing is said about who has the power of abrogation. Although the president is named commander in chief, there is nothing further about his power to command the military, or about his relationships with the uniformed officer corps.
- Two Forms of Presidential Pardon Power
- *Presidential pardon power: president excuse an individual from the criminal acts that they commit by removing not just the conviction but also the sentence.It expressly speaks about the president's power to grant "reprieves." A reprieve differs from a pardon in that it establishes a temporary delay in the enforcement of the sentence imposed by the court, without changing the sentence or forgiving the crime. A reprieve might be issued for the execution of a prisoner to give the prisoner time to prove his or her innocence. A related power is the power to grant "amnesty," which is also implicit in the pardon power. Amnesty is applied to whole classes or communities, instead of individuals. The power to issue an amnesty and the effect of an amnesty are the same as those for a pardon.
- Executive Agreements
- An agreement between the united states and a forgien country that is signed- NO senate approval necessary- executive agreements.Lesser informal type of agreements.Where in article 2 can we find executive agreements? The consitution says nothing about executive agreements- it is created by.
- Ineligibility and incompatibility clauses
- The Ineligibility Clause sometimes also referred to as the Incompatibility Clause[1] or the Sinecure Clause,[2] located at Article 1, Section 6, Clause 2 of the United States Constitution, places limitations upon the employment of members of Congress and prohibits employees of the Executive Branch from serving in Congress during their terms in office." No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. " .