Monday, February 26, 2007

Con Law Quiz Review

Post your questions here and Hima and I will try to answer as many as possible throughout the day. Hima's review session will be in PUP 357 this afternoon at 5:00 p.m.

21 comments:

Anonymous said...

In McCulloch v. Maryland, what did the word "neccessary" mean to the justices? Did it mean convenient? (that it was convenient to establish a bank because of the growing economic hardships?) Or is the word used to broaden the powers of congress?

Anonymous said...

In the 1st hypothetical, does Krabaple have standing? I know Skinner does because he is directly impacted, but Krabaple could be as well if she is prevented from voting for Skinner because he not on the ballot.

Also, it would seem the case is moot since Skinner has received the 10,000 signatures but since they secretary of state refused to put him on the ballot until litigation ends. So is the case moot?

Anonymous said...

Could you please answer the hypotheticals specifically on the blog, because I will not be able to attend the review in the PUP building, as I will be in another class. Thanks

Professor Davis said...

Regarding McCulloch, the Court said that "necessary" meant a way of accomplishing an enumerated power. The law did not need to be absolutely necessary - in needed only be calculated to complete a power expressed in Art. I, Sec. 8. The bank helped or facilitated congress in accomplishing enumerated powers such as raising armies, spending, taxing etc. So yes, the necessary and proper clause expands the powers of congress beyond the express powers.

Professor Davis said...

Regarding the 1st hypo - your arguments about standing and mootness are right on point. There really isn't a clear cut answer. You explained the issues perfectly.

Propagandhi said...

Thanks for answering hypothetical 1. Here's a question for #2.

Issue 1: Is Hastert Protected by the Speech and Debate clause? I would say no, because he is not in session. But I'm not sure if that would be the ruling because in Gravel, Brennan stated, “From the earliest times in its history, the Congress has assiduously performed an “informing function” of this nature. In short there can be little doubt that the informing the electorate is generally done and so the informing function carries a far more persuasive claim to the protections of the Clause." Additionaly it would also matter whether or not the information he passed on could be considered an act of "treason, a felony or a breach of peace."

Issue 2: Can the House refuse to seat Hastert. No, because the House does not have the power to exclude the member from office if they fit Constitutional requirements. Although they do have the power to expel with a 2/3rds supermajority. See Powell.

Issue 3: Can the Illinois pass a law requiring drug tests and background checks? No, because GA tried to call for drug testing and the Supreme Court decided it was unconstitutional because it was an illegal search not because it violated the qualifications clause. Additionaly when consider this type of question you need to ask: Does the provision disqualify someone or is merely a hurdle or step you have to take? (If it is just a hurdle or step than it is just a ballot access and not an issue of qualification.)

In the end he would be charged with a felony for releasing state secrets, congress would be forced to expel via a 2/3 majority they could not simply refuse to seat him and the Illinois laws would be struck down as an invasion of privacy.

Propagandhi said...

Hypothetical #3

Issue 1: Does Congress have the right to limit sales of arms to foreign nations? Yes, it is an enumerated power in Article 1, Section 8. "To regulate commerce with foreign Nations"

Issue 2: Can Bush instate the goodwar/badwar curriculum.? Maybe. The enumerated power to promote the progess of science and art has been found to not involve schools but instead involve copy rights/musuems etc. so it can't be used to force the curriculum. But states might comply because while there is nothing in the constitution that says Bush can force a curriculum on a state; congress can withold federal funds if the states don't comply (i.e. No Child Left Behind).

Issue 3: Does Bombs, Inc. have standing to sue? The company is sufficiently effected by the law, so yes.

Issue 4: Is the law against the 10th Amendment? No, because the power to regulate commerce with foreign nations is not within the original powers of the states and therefore, is not reserved for the states. According to the court, “No state can say that it has reserved what it never possessed.”


So to sum it up. WIBA is legally allowed to regulate commerce with foreign nations. While Bombs, inc has standing to sue, the argument of the 10th Amendment will not stand. As for the change in curriculum there is not sufficient information to determine how Bush intends to coerce compliance. Congress is within their rights to withold funding to any state whose schools do not comply.

Propagandhi said...

The Last Hypothetical:

Issue 1: Does Congress have the right to compel testimony? Yes, Congress has the power to investigate because its inherent in its ability to write laws. But it must be in pursuit of a legitimate constitutional task. If they are investigating something completely out of the scope of their authority then they can’t pass a law on it and so they have no reason to call for an investigation.

Issue 2: Are the questions regarding the South American Tree Sloth pertinent to the objectives of the inquiry? Based on the broad scope of the resolution it would seem to be pertinent as its goals are to investigate "genetic and reproductive research".

Issue 3: Would it violate Kimpar's 1st Amendment rights to force him to answer questions regarding the Treesloth? No, if the court follows the ruling issue in Barenblatt where Justice Harlan noted that the First Amendment does not protect a witness from all lines of questioning. As long as the Congressional inquiry is pursued to "aid the legislative process" and to protect important government interests, then it is legitimate.

Issue 4:Does the inquiry violate McClowski's right to due process?

Maybe. Watkins and Barrenblatt brought different opinions to this question.

In Watkins it was stated that the scope of inquiry that a committee is authorized to pursue must be defined with sufficiently unambiguous clarity to safeguard a witness from the hazards of vagueness in the enforcement of the criminal process against which the Due Process Clause protects.

In Barenblatt it was stated that there can be no doubt that this petitioner was well aware of the subcommittee’s authority and the purpose to question him as it did. The scope of the day’s hearings had been announced and the pertinency of course was clear beyond doubt.

So it would seem that McClowski would have to be able to prove that he did not understand the laws or that they were not sufficiently clear and thus violated his right to due process.

Issue 5: Does the inquiry violate McClowski's right to self-incrimination? maybe. The 5th Amendment states that a citizen cannot be "compelled in any criminal case to be a witness against himself" but since this not a criminal hearing but instead a congressional inquiry, can he refuse?

Issue 6: Does the inquiry violate other members of CPG's right to free association?

Based on Warren's judgement in Watkins the answer would be yes. He said "the power of Congress is not unlimited in conducting investigations, and that there was no authority given to expose individual’s private affairs. This is especially true if the topic is unpopular."

But based on Barrenblat it would probably be no since according to Harlan, "As long as the Congressional inquiry is pursued to "aid the legislative process" and to protect important government interests, then it is legitimate."

In summary many of these issues seem impossible to judge on based on the lack of information regarding the guidelines and scope of the subcommittee on Science and Research. If the legislative intentions prove too vague then it would seem that issues 2, 3, 4 and 6 would rule in favor of the defendants. If the court judges that the intent was clearly spelled out and the need for the information is apparent then they will rule against the defendants on those issues.

Anonymous said...

Can someone list all the cases that will be on the quiz tomorrow?

Professor Davis said...

Propagandhi's responses to the hypotheticals are very good. Keep in mind these points though:
1. Hypo 2, the felony/treason condition does not apply to the speech and debate portion of the clause - just the arrest portion.
2. Hypo 3, Bush cannot impose a curriculum on the states. Education is a reserved power under the 10th Amend. Congress can encourage states to do things under its spending power and we will learn exactly how they do this later in the semester. So the education part of the law in the hypo does violate the 10th.

Professor Davis said...

Cases for the quiz:
Hamdan
Powell
Term Limits
Gravel
McCulloch
Watkins
Barenblatt

Propagandhi said...

to the first posters quesion about the necessary and proper clauses:

Don't forget to note that there are limits to the clause:

1. See if the power is expressly given in Congress in Article 1, Section 8? 2. If not is it helping them perform a law listed there? 3. If it is double check to make sure it doesn’t violate another part of the Constitution. i.e. executing tax cheaters.

Propagandhi said...

Hamdan v. Rumsfeld
Powell v. McCormack (1969)
U.S. Term Limits v. Thornton
Gravel v. U.S.
McCulloch v. Maryland
Watkins vs. United States
Barenblatt v. United States

plus don't forget to review the cases on the blog.

ghost said...

In the Powell case was the review of the House's disqualification of powell a non-justiciable political question?
I was thinking yes the case presents a political question because under Art. I Sec. 5, there has been a "textually demonstrable constitutional commitment" to the House of the "adjudicatory power" tp determine Powell's qualification.

Just wanted to know if i was on the right track with this answer?

Anonymous said...

In response to ghost
No i dont think it is a political question because the court says the only textual commitment to congress is the power to judge whether or not the person meets the age and residency requirement does not include an ability to define qualifications

Anonymous said...

I am having some trouble understanding what the difference in the watkins and barenblatt cases are? i dont really understand the issue of the barenblatt case

Professor Davis said...

Regarding the question on whether Powell presents a political question, Anonymous is correct, it does not. The constitution gives the House the power to judge whether members meet the basic age, citizenship and residency qualifications. It may not add other qualifications.

Professor Davis said...

Regarding the Watkins/Barenblatt question: these cases should raise some concerns. They present nearly identical facts and yet the Court comes up with different results. In Watkins it struck down the committee's power to compel Watkins' testimony and in Barenblatt it upheld it. The Barenblatt Court cited three reasons for the different result:
1. Legislative history shows the committee does have definite and limited power to investigate communism.
2. Factual differences such as Barenblatt's refusal to discuss his own involvement and the Chair's description of the scope of the investigation.
3. Barenblatt challenged based on the First Amendment (Speech and Association)whereas Watkins challenged on Due Process grounds.

You should seriously question the Court's judgement here. Consider the reasons for the drammatic reversal in two years - but this question won't be on the quiz.

Propagandhi said...

regarding Powell

Supreme Court says this isn’t a political question because it is not in violation of the separation of powers. Also it “requires no more than an interpretation of the Constitution.” Also, the text of the Constitution doesn’t allow the House to judge on any qualifications other than those spelled out in Article 1, Sec. 2 of the Constitution

Political Question: the determination by a court (particularly the Supreme Court) that an issue raised about the conduct of public business is a "political" issue to be determined by the legislature (including Congress) or the executive branch and not by the courts.

Hima Raviprakash said...

Regarding the question if Powell is a political questions. The Supreme Court argued that art.1 sec.5 is not textual committment, rather a textually demonstrable committment. Basically, the congress is only judging the qualifications set forth in the federal constitution.

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