STUDY QUESTIONS 3
Justiciability
1. Are the various doctrines of “justiciability” (standing, collusive suites, mootness, etc.) mentioned anywhere in the Constitution’s text? Which specific constitutional provisions have been identified as the sources of these restrictions?
Nowhere in the text of the Constitution are the doctrines of “justiciability” mentioned. The only constitutional provision identified is Article III, Section 2 which outlines the Court’s jurisdiction to hear cases and controversies.
2. How is the decision about whether a case is justiciable made? Who makes the decision?
Judicial discretion based on jurisdiction and threshold requirements. Justices make the decision
3. Does the requirement of justiciability create effective constraints on judicial power? Explain with examples how the justiciability doctrines can constrain judicial power.
The requirement of justiciability doesn’t create effective constraints on judicial power. They are often flexible (Roe v. Wade), subject to the interpretation of justices.
4. Explain the Court’s practices regarding advisory opinions, collusive suits, and mootness. What problems are these restrictive practices trying to avoid? Does the Court rigidly adhere to these restrictions at all times?
Advisory opinions- can’t tell other branches what to do, although dicta is sometimes used to point other branches’ behavior
Collusive suits- the court system of the US is based on a system of adversaries, and Art. III, Sect. 2 maintains that the Court only has jurisdiction in cases and controversies
Mootness- if a case is moot, is no longer a case or controversy
Court does not adhere to these restrictions all of the time, exceptions: use of dicta in rulings, INS v. Chadha, Defunis v. Odegaard
5. Is there less significance to the justiciability doctrines now that almost all cases come to the Supreme Court through the cert process?
The cert process reduces the number of cases that the Supreme Court can choose from, but the Court still uses the justiciability doctrines to choose the cases that they wish to rule on.
Flast v Cohen6. What reasons did the court give for refusing to hear the lawsuit in Frothingham v Mellon? Does Flast v Cohen overturn Frothingham? Explain.
Warren in the Opinion of the Court creates the Flast Doctrine/ Test that:
a. Taxpayer must establish a logical link between his/her status and the legislative (personal stake/injury)
b. Taxpayer must connect his/her status with “the precise nature of the Constitution infringement alleged”
Frothingham was refused because stake in the case was too small for it to be an adversarial case; while it succeeded in the first part of the Test, it failed in the second part. The Court concluded that as a taxpayer, Frothingham has a minimal effect
The Flast test:
a) direct expenditure of funds by Congress
b)contradicts constitutional PROHIBITION on
appropriation, not just overreaching beyond enumerated powers
7. According to Warren in Flast, what conditions must be met before a taxpayer has standing? Answer this question without using the word “nexus”.
Flast Doctrine/ Test:
a. Taxpayer must establish a logical link between his/her status and the legislative, direct expenditure of funds by Congress (financing for religious schools would take away from their child’s public education)
b. Taxpayer must connect his/her status with “the precise nature of the Constitution infringement alleged”, direct prohibition of Constitution (violation of the Establishment and Free Exercise Clause of the First Amendment)
Ex Parte McCardle
8. What is the “exceptions clause”?
Art. III, Section 2- “the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make”
Congress has the ability to rescind jurisdiction at any time
6. Congressional Control over Jurisdiction-
Rules expanding or restricting standing
e.g., Class Action Suits, attorney fees, pool the legal resources
Judicial Review of Administrative Decisions.- who can sue, where you can sue, what you can and cannot sue over. “the decision of the admistrator is final”
Exceptions Clause
9. What laws passed by Congress were relevant to this case? At what point in the case did Congress pass the law removing the Court’s jurisdiction? What motivated Congress to pass the law? What does the Court say about Congress’s motives?
Congress did not want the Court to decide on the constitutionality of the Reconstruction laws and military government in the South. After oral arguments and before the decision of the Court, Congress rescinded the Court’s jurisdiction. Congress did not want the Court to interfere in Reconstruction laws, also was a response to Ex Parte Milligan (1866), Congress is within their rights and the Court will not question the motives of Congress.
10. What are the implications of this case regarding judicial independence and judicial power?
Possible implications are that there is less power given to the Court and more to Congress (less independent), reliant on Congress for types of cases they can hear and the overall extent of their powers.
Separation of Powers and Constraints on Powers
11. Why might justices care about whether officials in other branches of government approve of their decisions? Answer this question by first listing specific constitutional provisions that allow other branches to reverse or punish the courts, or to otherwise influence judicial decisions. Then consider other less formal mechanisms or connections that would make justices responsive to the wishes of officials in other branches.
Exceptions Clause- Allows Congress to determine jurisdiction
Amendment 11- response to Chisholm v. Georgia (1793) which allowed that a state could be sued in federal court by a plaintiff by another state
Amendment 14- nullified Dredd Scott v. Sandford (1857) overturning decision that blacks as a class were not citizens, only ratified in 1868 after the Civil War
Amendment 16- overruled Pollock v. Farmers’ Loan and Trust Co. (1895) which struck down federal income tax, allowed tax to finance national expansion
Amendment 26- overturned Oregon v. Mitchell (1970) 18 year voting age
Constitutional and statutory amendments
12. What was the Court packing plan? How did Roosevelt justify the plan when he first presented it to the public and Congress? (p. 442)
Roosevelt’s plan to increase the size of the Supreme Court to 15, infuse younger blood and to make it more compliant to his policies (the Court was overworked, whenever someone turned 70, he could add someone new to assist in the workload)
13. Why didn’t Congress pass the court-packing plan?
The plan was needless, futile, and an abandonment of constitutional principle, the Court was argued to have the best record. The plan proposed to create sub committees in the Supreme Court to allow for greater efficiency in rulings; rebuttal was that the Constitution allowed for only one Supreme Court.
McCulloch v. Maryland
14. What argument did Maryland make before the Court regarding limitations on Congress’s power and the meaning of the “necessary and proper” clause. (If you take the time to figure out what Maryland argued and why, you will have a much easier time understanding Marshall’s argument.)
10th Amendment- powers not directly given to the federal government is given back to the states and the people
Necessary and Proper- limited Congress, necessary meant absolutely necessary, simple and direct means, Congress was limited to the enumerated powers, no implied powers (only strict construction).
15. What two meanings of the word “necessary” does Marshall consider? What are the arguments Marshall uses to support his reading of the clause?
16. What is the significance of Marshall’s claim that “we must never forget that it is a constitution we are expounding”? What is Marshall’s argument for giving a flexible reading to constitutional provisions? Is it a textual, framers’ intent, or some other type of argument?
17. What, according to Marshall, are the limits on Congress’s power under the “necessary and proper” clause? Can Congress do whatever it wants under Marshall’s reading of the clause?
18. Does Marshall’s willingness to read the Constitution flexibly undermine the very idea of constitutional governance? How can the need for flexibility and adaptation be reconciled with the idea of limited constitutional government?
19. Explain Marshall’s argument for ruling that Maryland cannot impose the tax? Is Marshall’s argument dependent on the claim that the “tax” in question might “destroy” the bank?
Gibbons v Ogden
20. What interpretation of the commerce clause did Ogden offer in this case? Does the Supreme Court agree completely with the interpretation offered by Gibbons?
Ogden- Congress can regulate buying and selling (commerce), but not navigation
Gibbons argues that Congress has complete control, but Marshall states that commerce is intercourse and that includes traffic, moves within the state to include actions that may affect interstate commerce
“ Few things were better known, than the immediate causes which led to the adoption of the present constitution . . . that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.
. . . The entire purpose for which the delegates assembled at Annapolis, was to devise means for the uniform regulation of trade. They found no means, but in a general government.” Marshall
Commerce is traffic, navigation. Commerce that is intermingled. Regulate it as a unit, US, for consistency.
Dormant commerce clause- when Congress is silent, states can do what they want.
21. What is a “plenary” power?
Gibbons argued that Congress had absolute power to regulate commerce
22. What limits on the federal commerce power does Marshall recognize in this case? What are the limits on the powers of the states to regulate commerce?
10th Amendment serves as a limit to Congress. Also, commerce has to be among the several states and intermingled. Recognition that without boundaries, Congress will be able to regulate all interactions in and out of the state. Art. I, Section 9, Clause 6, No preference to ports
United States v E.C. Knight Company (1895)
23. Does the Supreme Court rule that the Sherman Act is unconstitutional? What does the Court rule regarding the use of the statute in this case?
SC does not rule that the Sherman Act is unconstitutional, rules that manufacturing is not a part of interstate commerce, therefore the Sherman Act is not applicable to the case
24. Why did the federal government want to regulate the E.C. Knight Company? Why couldn’t state governments act to regulate the E.C. Knight Company?
The federal government wanted to regulate the E.C. Knight Company to prevent a monopoly. Their business of manufacturing, processing and distribution was carried out among the several states, therefore rendering individual state regulations useless to regulate and limit the company as a whole.
25. Given that the power to manufacture something typically carries with it the power to control whether that thing enters interstate commerce, how does the Court justify its decision to exclude manufacturing from the reach of the commerce clause? Does the question of whether the manufacturer intends to ship the goods out of state matter to the Court? Does it matter to the text of the Constitution?
Marshall- commerce is traffic/navigation, not manufacturing. Intent to distribute does not matter, the effects on commerce are secondary and Congress only allowed primary jurisdiction.
Indirect and direct are made up definitions/ justifications made by justices.
26. Is it possible that a corporation would attempt to monopolize the manufacture of an essential good without also monopolizing interstate commerce in that good? What does the Court say about this connection?
It is possible. If the monopoly was intrastate, it would be outside of Congress’ power
27. Harlan’s dissent claims that the federal government is the only one that can adequately deal with the problems at issue in this case. How does this claim support his conclusion that the law is constitutional? Is this a purely pragmatic argument, or is there an element of original intent to it as well?
The Constitution was formed with economic regulation in mind (to prevent economic warfare and unfair competition). Primary object of Constitution is to place interstate commerce under control of central authority. Constitution fails if you cannot bust trusts. Harlan recognizes that the national economy has becoming increasingly intertwined.
Champion v Ames (1903)
28. Explain the controversy over the reach of the commerce power in this case. Does the Court’s position in this case differ from the Court’s position in Gibbons v Ogden?
Trafficking of lottery tickets over interstate boundaries can be regulated by Congress. The controversy was:
a. whether or not the power to regulate was the power to prohibit
b. whether Congress could use police power (Congress’ motive is moral, not economic).
The overall theme in Champion v. Ames and Gibbons v. Ogden is that both involve traffic in and between states, Congress power is plenary in cases of interstate.
Hammer v Dagenhart (1918)
29. What strategy did Congress use to accommodate the Supreme Court’s commerce doctrines in its child labor law? Is there a sound basis in the text of the Constitution for the Court’s ruling in the case?
The strategy was to tie child labor to interstate commerce; federal ban on the interstate shipment of goods made with child labor. Court says that Congress is intruding into local state matters (production is purely local, does not matter that there is intention to carry interstate), and that states are protected under the 10th Amendment
Stafford v Wallace (1922)
30. How does Taft distinguish the commercial activity in this case from the activity at issue in E.C. Knight? Is Taft’s explanation convincing?
Stafford v. Wallace- stockyards are a throat of interstate commerce, any delay would affect the nation at large
E.C. Knight- manufacturing only
Not convincing, disregards the E.C. Knight ruling and only focuses on throat and stream of commerce
STUDY QUESTIONS 4
Carter v Carter Coal (1936).
1. In what way was this 5 to 4 ruling more devastating to the New Deal than the unanimous decision in the Schechter Poultry case?
Schechter Poultry- boards consisting of owners, creating laws (delegation issue), only Congress has the ability to create laws, stuck down part of NIRA. Court strikes down N.R.A. in Schechter Poultry (1935) and prevents FDR from firing FTC commissioners
More devastating because even though they circumvented the delegation issue, they were unable to pass any laws that protected employees under the NIRA
2. Explain Sutherland’s arguments about whether this case falls under the “stream of commerce” doctrine.
Manufacturing remains a local activity (E.C. Knight), wages and strikes have indirect effects on interstate commerce, coal mining is conducted in one state.
3. What, according to Sutherland, distinguishes direct from indirect effects on commerce?
Magnitude of the effect doesn’t matter, evils are all local evils, work conditions are all local
4. What provision of the constitution does Sutherland rely on in explaining the direct/indirect distinction? Does Sutherland claim to follow the intent of the framers when he argues that the commerce power does not extend to indirect effects on commerce?
Definition of commerce as intercourse, transportation, purchase and sale. Precedent and EC Knight.
National Labor Relations Board v. Jones and Laughlin Steel (1937)
5. How does the Court distinguish the federal statute in this case from the ones that the Court limited or struck down in E.C. Knight and Carter v. Carter Coal? Are the Court’s arguments persuasive? Is there something else going on that explains the outcome in this case?
National Labors Relation Act- ability of employees for organization and free representation, prohibited unfair labor practices. Hughes states that organization and representation is a fundamental right, which is different from other regulations of labor. If you don’t give them the right to organize, their actions can affect interstate commerce and this is a peaceful way to handle things. Pressure by Roosevelt to support New Deal legislation Use of obstruction language found in the Wagner Act and not the affect, skipped or indirect and direct crap.
National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937)[1], was a United States Supreme Court case that declared that the National Labor Relations Act of 1935 (commonly known as the Wagner Act) was constitutional. It effectively spelled the end to the Court's striking down of New Deal economic legislation, and greatly increased Congress's power under the Commerce Clause.
6. What does the Court say about earlier cases that claimed that manufacturing was beyond the reach of Congress’s commerce clause powers? Does the Court repudiate that line of decisions? Does the Court formally overrule any earlier decisions in this case?
Doesn’t repudiate decisions, avoids other definitions and decisions, selective reading of cases.
United States v Darby Lumber (1941)
7. What statute was challenged in this case? What Court precedent was the basis of the challenge? In what way does Congress appear to be exercising “police powers” in these cases? Does the Court formally overrule any precedents in this case?
Fair Labor Standards Act of 1938- prohibited shipment of goods that didn’t follow fair labor standards. Precedent- Hammer v. Dagenhart served as the basis. Police powers- using prohibition rather than regulation. Yes, formally overrules Hammer v. Dagenhart.
Court now much bolder and more direct in upholding expand United States v. Darby Lumber Co., 312 U.S. 100 (1941)[1], was a case in which the United States Supreme Court upheld the Fair Labor Standards Act of 1938, holding that the U.S. Congress had the power under the Commerce Clause to regulate employment conditions. The unanimous decision of the Court in this case overturned several long-standing precedents. ed Commerce Power, repudiating earlier cases.
Explicitly overturn Hammer v Dagenhart
Portray the case as restoration of Gibbons v Ogden
8. Explain Justice Stone’s claims about the 10th amendment in this case?
10th Amendment is just a statement, doesn’t say what has not been surrendered, conclusion is unaffected
Wickard v Filburn (1941)
9. If this case had come out differently, and Filburn had won, would Filburn have been left free to grow wheat without any possibility of government regulation? Is this a case in which Fillburn challenges regulation or a case where he challenges federal regulation?
Possibility of government regulation- Filburn was still selling wheat
Filburn, ok with the quota, but challenging any regulation on his ability to grow more wheat
10. Does the Court go further than it did in Darby Lumber in recognizing the reach of the commerce power? Is there any economic activity that is beyond Congress’s reach?
Goes into states, including indirect affects, cumulative affect
11. What effect does Filburn’s activity have on interstate commerce?
Cumulative effect, if he grows his own, he doesn’t have to purchase it from someone else (effects market price in aggregate)
United States v Lopez (1995)
12. What does the Court do in this case that it had not done since the New Deal?
Goes in favor of states rights, that the federal government has overreached using the commerce clause as justification
13. Does Rehnquist’s history of the Court’s commerce clause cases tell a balanced story about the way the Supreme Court has interpreted the clause? What new spin does Rehnquist give to the New Deal and post New Deal cases?
Not balanced, it’s selective. Rehnquist is drawing the line from post- New Deal decisions, always said that there were some limits somewhere but didn’t specify what they were
14. Do the dissenting justices disagree with the majority about the relevant facts? Or do they only disagree about what test the Court should apply?
They do agree on the relevant facts, but the dissenters believe that the test should have been a Rational Basis Test
United States v Morrison (2000)
15. Does this case go beyond what the Court had said in Lopez? (Note: The question is NOT: Does Rehnquist say that the Court goes beyond what it had said in Lopez?)
Does go beyond Lopez, states supported the law and there was four years of congressional hearings on the case. Goes beyond and states that the Court knows better in protecting individuals over Congress.
16. What had Congress done when passing this statute that Congress had not done when passing the Gun Free School Zones Act?
Tied the statute directly to interstate commerce, four years of hearings and researching the effects of abuse on the economy
17. What problems does Rehnquist find with the “method of reasoning” used by Congress to establish the link between gender related violence and the commerce power? Under what circumstances should unelected judges second guess the “method of reasoning” used by elected officials to reach policy conclusions? Is the standard of review that the Court applies here different from the standard announced in U.S. v Darby Lumber? Gibbons v Ogden?
“Method of reasoning”- there is no link between domestic violence and commerce, state concern, not commercial activities (indirect)
Standard- direct vs. indirect effect. Rational basis, did Congress have it.
18. Is the fact that Congress “might” use the commerce power to “obliterate” distinctions between state and federal government an appropriate concern for unelected judges in this case? Suppose the Supreme Court fired the President and took over executive functions because the President “might” become insane and use nuclear weapons to “obliterate” the city of Tuscaloosa? Would that be justified? What types of obliterations that “might” happen should the Court consider grounds for acting?
No, the courts are supposed to rule narrowly, and on the matter at hand. They shouldn’t act pre-emptily.
19. Souter’s opinion contains numerous factoids from congressional records suggesting a link between gender-related violence and interstate commerce. What argument is Souter trying to make? Is it an argument that such a link actually exists, or is it an argument about the appropriate role of the Supreme Court?
Domestic violence directly affects interstate commerce, Congress is better fit for fact finding and conducting research, therefore better fit to establish the link
20. Does the fact that the states sided with the federal government by 36 to 1 in this case undermine Rehnquist’s claim that states need the Supreme Court to protect them from obliteration?
Yes, states stated that they needed help and Congress was within their means to respond.
21. Is the Rehnquist Court’s economic/non-economic distinction any more workable or coherent than earlier failed attempts by judges to draw lines that limit the reach of the commerce clause?
No,
22. Do any of the study questions on Morrison and Lopez seem like “loaded” questions that the professor is using to prompt students to see things in a particular way, rather than efforts to get students to understand the cases? Can loaded questions help students to understand cases? Explain why or why not.
UNDERSTANDING CASES
STUDY QUESTIONS 5
Granholm v Heald (2005)
1. What form of discrimination did the state laws challenged in this case establish? What justification did the states use for passing these laws?
NY and Michigan wanted preferential treatment
Alcohol case- power of the state. 21st amendment is the repeal of prohibition. Power to control commerce within their boarders. Dominant commerce clause.
2. What part of the Constitution makes regulations of alcohol somewhat different from regulation of other commodities in interstate commerce? What does the opinion of the Court say about the application of that part of the Constitution in this case?
Police powers?- Health, welfare, safety and ( ) 21st amendment allows states full power to create uniform rules regulating (or even banning) alcohol.
If the state allows shipment, must be uniform, art 1 sect 8 “uniform across the US.”
3. What part of the Constitution is the basis for the Court’s claim that states cannot discriminate against out of state goods? Is that prohibition spelled out directly in the Constitution? Are there any precedents supporting the Court’s conclusions?
ASK in section.
There is protection of fair trade between the states. Where: …
Gonzales v Raich (2005)
4. What federal statute conflicted with California’s medical marijuana law?
Controlled Substance Act v. med marijuana
5. What commerce clause precedent did the Court rely upon most heavily in this case? Is regulation of marijuana constitutionally different from regulation of the price of wheat? No, like Filburn you can only grow so much. Relies heavily on Wickard v. Filburn.
Marijuana an interstate commodity and commerce in that commodity is affected by marijuana grown for home use.
6. What kind of standard does the dissenting opinion want Congress to meet in order to justify its asserted supremacy regarding the regulation of marijuana? Does the dissent advocate a higher standard than the one set in Lopez or Morrison? (Note- There may not be any clearly correct answer to this question.)
It is isn’t proven that the marijuana is going to move about. O’connor says that states should get to experiment. Congress has to show the effect on commerce.
Yes, it undercuts Lopez, 362
PRESIDENTIAL POWERS DURING WARTIME EMERGENCIES
The Prize Cases
7. Why was Lincoln’s decision to seize ships questionable as an exercise of wartime powers? In what sense does the Court’s ruling expand presidential powers? War was not declared, therefore, it wasn’t going to apply. He had warned them, though.
Exception, it was a civil war, did it for the public good, and emergency wartime powers. Expands it to insurrections and rebellions.
Ex Parte Milligan
7. What provisions of the Constitution seem relevant to the question of whether civil liberties can be suspended in time of war?
Suspension clause- 1.9.
Art 1 sect 9? Habeas corpus “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.”
Art 1 sect 8 declare war. Art 2 sect 2- president shall be commander and chief of the armies…
9. Is the Court correct to read significance into the fact that martial law had not been declared? Why does it matter that regular civilian courts were operating at the time Milligan was tried by a military commission?
Yes, have to declare Marshall law to suspend habeas corpus. Congress is the only one that can declare Marshall. Civil war, civilian courts could be sympathique, different standard of proof. Could
10. Do you remember Ex Part McCardle? How is that case connected to this one?
Yes, McCardle was a reaction to the Milligan case. Very similar issues. ART 3 SECT 2. appealate and congress…
11. Does this case seem relevant to the current controversies about civil liberties of suspected terrorists? Yes, suspension of h.c. due process 5th amend.
12. What Constitutional guarantees does the Court say were violated in this case?
Due process, 5th amend, Suspension clause.
Korematsu v United States
See Study Questions 2.
Youngstown Sheet and Tube Co. v Sawyer (1952)
13. Is it reasonable to expect Congressional approval for the “emergency” powers exercised by the President in this case? What special circumstances made the Court willing to limit the President’s emergency powers?
Given that the Koran War was going on, yes, but the degree of impact was debatable (Lovell). No in the constitution, Art 2 sect 2
14. What decisions (or non-decisions) by Congress were relevant to this case? The omission from the Taft-hartley Act of 1952 for gov’t to seize corp in times of labor disputes, would interfere with the process of collective bargaining.
15. Is Black’s position in this case consistent with the position he took in Korematsu v United States? Was the threat posed by Japanese Americans more serious than the threat of a halt in steel production during time of war? Are the property rights of persons who own large corporations more protected in time of war than the right of ordinary citizens to be free from concentration camps?
He thought so, and the issue of. Not, exactly consistent. Contradicts previous standing, opinion
16. Explain Justice Jackson’s three categories of Presidential actions in his concurring opinion. Explain how the categories are supposed to help judges resolve cases involving questionable exercises of presidential power. Do Justice Jackson’s categories help to reconcile Black’s opinion in Korematsu (allowing executive branch officials to exercise broad discretion during wartime) with Black’s opinion in Youngstown (reversing the President’s action during wartime)? Explain.
Congress had passed a law making it so there was a curfew.
258- Obviously ok; prohibited, and “twilight area” Presidential authority reaches its highest levels measures compatible with Congress, lowest, incompatible. Iffy- congress neither grants or denies authority. Youngston 1952. Political dialectic.
Note: A version of this question is almost certain to be on the exam.
17. What is the relevance of the earlier wartime cases to the war on terrorism today? Extent to which rights will be withheld, procedure, degree of gov’t authority to bend rule, national security issues.
18. How many times does the word “citizen” appear in the Bill of Rights? How many of the rights and immunities expressed in the Bill of Rights are limited to citizens? Should non-citizens living in the United States be given fewer rights than citizens? Should Americans living or traveling abroad be entitled to legal protections of the countries they are visiting?
Not at all, not made. Basic rights, such as hb and freedom of speech, should be allowed to all people. Human rights should remain.
New York Times Co. v United States Burger Court 1970-1
19. What is a Per Curiam opinion? Latin for "by the court." An opinion from an appellate court that does not identify any specific judge who may have written the opinion. Rendered by the court, most of the court anonymously, unsigned, majority.
20. How do the justices appear to differ with respect to their assessments of the risk that publication of the documents created for national security? Yes, some believe that the national security issue needs to be proven, 1 justice said that it would never be limited. Concurring justices thought there was no immediate threat,
21. What is the source of the “no prior restraint” rule? Is that rule expressed anywhere in the text of the Constitution? Implied in the 1st amendment rights, judges stated the constitution, and free speech, press had to up held in order to keep things transparent and accountable.
Hamdi v Rumsfeld (2004)
22. The government claimed two sources of authorization for the indefinite detention of Mr. Hamdi. What were they? Which one did the Court accept? What did the Court say about the other one?
1. Power of the executive- broad and crazy. Constitution.
Executive powers of pres, commander in chief.
2. Detention is allowed under AUMF 2001, Congressional Authorization.
"use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks”
It limited, it didn’t repeal the non detention act.
23. Why, according to the plurality opinion, was Hamdi’s case constitutionally different from Milligan’s case? Allowed due to a congressional act. Or technically war, though not declared. Both are citizens both happened in an undeclared time of war. Dissenting: (?) Milligan wasn’t an enemy combatant. 287- Milligan doesn’t go against enemy combatants His status as a military combatants. Milligian is criminal? And Hamdi as a war crime. ASK TA.
24. Does the plurality opinion state that the government must afford Hamdi all the procedural protections of ordinary criminal cases? Does it state that the government has to provide all the procedural protections for ordinary military court cases? No, allows for some rights. Hearsay is allowed. Guilty until proven innocent, No.
24. The plurality claims that the “circumstances may demand that” enemy combatant proceedings be tailored to “alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict”. Does this language provide a clear standard for courts and government attorneys to provide when evaluating procedures? What examples of “tailoring” does O’Connor provide? Do those examples help to illuminate what kinds of “burdens” on the Executive deserve to be alleviated?
No, changes the burden of proof alleviating the burden of proof. Suspicion. Guilty until innocent.
26. In his concurring opinion, what does Souter means when he says that he is “joining with the plurality to produce a judgment”?
He only concurred to say the AMUF doesn’t eliminate the non detention act.
27. What is 18 U.S.C. 4001? When did Congress pass that law? What is the AUMF? When did Congress pass that law?
Non detention act of 1971,
