Friday, April 6, 2007

Individual appointment and study session

The group study session will be monday 5:oo pm in the pre law office. The pre law office is on the third floor of the PUP.

The people that sent me an email expressing interest in the individual study session MUST send me another email by sunday to set up an appointment. I will be tutoring students from 11-1 and 6:30-7:30 in the library lobby, if you would like to stop by for help.



Anonymous said...

can someone list the cases for this quiz?

Anonymous said...

I don't understand what intelligible principle means, the justices use that term in some cases.

propagandhi said...

The intelligible-principle rule seeks to enforce the understanding that Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes.

propagandhi said...

hypothetical on in the outline:


1. Could Congress establish REPA?

2. Did Congress give clear guidelines?
a.Did the follow they intelligible principle?

3. Is the provision allowing the President to add penalties legal?
a.And as such are the additional penalties he added to #3 legal?

4. Is the congressional override legal?
a.And as such is their overturn of rule #4 legal?

5. Was the law which Nelson Muntz was arrested for legal?

6. Does the Sierra Club have standing to challenge the dissolution of the EPA and the voiding of #4?

1.The establishment of REPA seems no different than the establishment of the FTC or other regulatory bodies that have been created in the past. Under Mistretta, it was stated that so long as an intelligible principle existed that delegation could occur. “Congress cannot do its job absent an ability to delegate power under broad general directives.

2.Yes, it could be argued that they gave clear guidelines.
a.Did it follow intelligible principle? Did it answer why it was created? Yes it did. Did it spell out what REPA should do and how it should do it? Yes it did. Did it set out specific directives to govern certain situations? Yes it did. So it followed the intelligible principle by most counts would be considered legal.

****Note that Scalia would always argue that no right to delegation ever exists.

3.The provision allowing the President to add penalties is not legal. In 2005 sentencing rules were struck down based on the 6th amendment wherein it states that injuries should be judged by juries not judges and as such not Presidents either.

a.No, his additional rules for #3 are not legal. Note that in Loving, that the President did not establish the death penalty as a punishment, just the aggravating factors that would allow a military court to rule in favor of a death penalty. These factors were created to protect Loving’s right under the 8th Amendment.

4. Congressional override is not legal. In effect it is creating a law by way of its veto power and as such it must be not only be passed by both Houses as the act calls for but the presentment clause says that it must also be signed into law by the President.

*****Hmmm if all laws need to be established by the presentment clause then how can REPA or any other regulatory body establish any laws/rules at all? Don’t they automatically violate the presentment clause? Professor Davis?

5. No, it has no basis in the under the scope provided by Congress for REPA to regulate. It would be difficult for REPA to prove that speech has an adverse effect on the environment.
a. The same would go for law #2 regarding clothing.
b. Law #1 is probably fine under noise pollution laws. There are already current laws in place that limit the decibel level of music emanating from domiciles or vehicles.

6. The Sierra Club would probably have a hard time proving that they had been personally injured by the dissolution of the EPA and the voiding of law #4. In MA v. EPA, four judges thought the plaintiffs had not standing because it was impossible to show injury and even if injury was shown it would be impossible to show that the EPA was the cause of that injury or could do anything to resolve it. The main reason that MA was given standing was because it was proposed that states are a sovereign nation and do not have to be held to the same rigors as people in regard to standing.

propagandhi said...

Mistretta v. US

INS v. Chadha

Bowsher v. Synar

Loving v. United States*

The Prize Cases

Ex Parte Milligan

Korematsu v. US

Youngstown v. Sawyer

Dames & Moore v. Regan

Hamdi v. Rumsfeld*

and I can almost guarantee you there will be something regarding recent case of MA v. EPA on there.

Professor Davis said...

An "intelligible princple" is a specific guideline that congress gives an executive agency to tell them how to carry out rule making. For example, in Mistretta the Court allowed Congress to delegate legislative power to the sentencing commission because Congress included "intelligible principles" or guidelines. Remember, Congress told the commission to grade offenses, to punish violent crime harsher, to punish recidivism etc.

Anonymous said...

I'm confused about the Hamdi case. Did the courts rule his detention was unconstitutional? Because I thought that the court upheld the detention because the AUMF allowed detentions because they were part of necessary force. The detention was part of necessary force because it kept enemy combatants from going back into battle against the U.S. If the court overturned the detention, what was the reasoning?

Professor Davis said...

The Hamdi court ruled that Hamdi could not be detained without some due process - some ability to challenge his detention before a neutral judge.

Anonymous said...

Another Hamdi question:

On the top of the case it shows two separate rulings by the Court:

The first was a 5-4 decision "On the question of the validity of Hamdi's detention.

The second was an 8-1 decision "On the question of the Hamdis' access to courts and lawyers"

My question is what the overall holding was by the Court and what the Court's rationale was on both decisions.

Professor Davis said...

Five justices agreed that Bush could detain US citizens as enemy combatants - O'Connor, Rehnquist, Breyer, Kennedy, and Thomas. Four disagree - Souter, Ginsburg, Stevens and Scalia. Eight justices argued that Hamdi could not be held without some due process - O'Connor, Rehnquist, Breyer, Kennedy, Souter, Ginsburg, Stevens and Scalia. Thomas dissented on this point arguing that Bush has a compelling reason to detain citizens without due process.

propagandhi said...

Re: 8-1 "On the question of the Hamdis' access to courts and lawyers" Basically everyone but Thomas thought that he dserved to right to access to courts and lawyers. In the officail reasoning by O'Connor she states that the Fourth Circuit also erred by denying him immediate access to counsel upon his detention and by disposing of the case without permitting him to meet with an attorney. He unquestionably has the right to counsel but seeing as how he currently does have counsel there is no need to rule on this matter. It is moot.

As for the 5-4 ruling "On the question of the validity of Hamdi's detention."

The main opinion: U.S. citizens designated as enemy combatants by the Executive Branch have a right to challenge their detainment under the Due Process Clause. Habeas was not supsended at that time so there can be no authority to deny a citizen said right. It is a violation of due process. He is allowed to be detained though due to the AUMF. The issue whether or not the Executive branch had plenary powers under Article II to demand his detention was not addressed. His dentention should only last as long as conflict persists to prevent him from entering into battle against the government again.
But he still has right to challenge his detention, but in this opinion the onus of proof would be on the defendant and the government would be allowed to use hearsay evidence so as not to strain the government during a time of conflict. This opinion also claims that it upholds Milligan.

The next opinion (souter): Concurring on Hamdi's right to Habeas, dissenting on the government having authorization to detain.

The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims.
The Non-Detention Act [prohibiting the detention of citizens except pursuant to an Act of Congress] entitles Hamdi to be released….

Furthermore, he statesI do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi

Scalia: He cannot be detained in and tried in military courts. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime.

If the law of war cannot be applied to citizens where courts are open, then Hamdi’s imprisonment without criminal trial is no less unlawful than Milligan’s trial by military tribunal….

Thomas:Government has compelling interest to hold and try him w/o due process.

Anonymous said...

In the Chadha case, did the court consider the legislative veto unconstitutional just because it violated the presentment clause? How is letting Chadha remain in the US an executive function?

propagandhi said...

In Chadha Congress delegated authority to the executive via the attorney general suspend a deportation order. That is how it is an executive function because it was delegated to them by law from Congress.

As such the legislative veto is in effect creating a new law so it needs pass through both houses and be presented to the President to sign.

Congress actually delegated the authority it subsequently took away to the executive branch, specifically the Attorney General, of the authority to allow deportable aliens to remain the US should their case fit the hardship guidelines. Since Congress delegated such authority, the delegation of powers doctrine mandates that the action must be passed through both houses of Congress and then presented to the President as per Article 1, §7 of the Constitution. Congress must abide by that delegation unless it is legislatively altered or revoked.

Professor Davis said...

Exactly, be suspicious when the president (line item veto) or the congress (legislative veto) acts to change a law after it is passed. The Court is strict in requiring such changes to be passed by both houses and signed by the pres.

Anonymous said...

prof davis -
Do you have any hypos for the second half of cases (ie the war cases - Milligan, Prize, Hamdi, etc)

Professor Davis said...

President Bush orders troops into Mexico to conduct targeted attacks on "centers of drug trafficking." Bush claims illegal drugs present a threat to national security. He reminds the American people that we still haven’t won the war on "drugs." Corporal O'Reilly refuses to go and is charged with desertion. O'Reilly claims the war is illegal. Mexico responds by invading New Mexico. President Bush orders the military to arrest all Mexican Americans in California and Texas and send them to Guantanamo. The ACLU sues on behalf of thousands of Mexican Americans detained without any due process or right to counsel. The parents of a Mexican American detainee also sue. How would the Court handle all of these issues?

Anonymous said...

does anyone know what are the main points to take away from the iraq and 9/11 resolutions?

Professor Davis said...

You are only required to be familiar with the Iraq and Afghanistan resolutions to the extent they are related to Hamdi. We will talk about them a bit more in the next section.

Anonymous said...

Concerning Hamdi v. Rumsfeld

"Scalia: He cannot be detained in and tried in military courts. Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime."

I believe Scalia's argument was not habeas corpus should be granted at all times because it's our constitutional tradition, but rather there is no basis for suspending Hamdi's habeas corpus rights under AUMF. According to Scalia, the only legitimate way for the executive to do this is through the Suspension Clause in Article I section 9 of the Consitution, and of course only through power delegated by Congress under the Clause.

Since Congress did not suspend habeas corpus, then the executive has no legitimate reason to detain Hamdi.