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Constitutional Law

The Constitution

The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built. By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, the Constitution has created a system of government that has allowed every area of civil, criminal, and ADMINISTRATIVE LAW to evolve with the needs of society. The federal Constitution became binding on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for ratification.

The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten amendments to the U.S. Constitution, known as the BILL OF RIGHTS, enumerate certain individual liberties that must be protected against government infringement. The rest of the Constitution contains miscellaneous other provisions, many of which are intended to maintain a federalist system of government in which the federal Constitution is the supreme law of the land and the federal government shares sovereignty with the states.

Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress. Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a CONGRESS OF THE UNITED STATES, which shall consist of a Senate and a House of Representatives." Article I also requires that candidates running for the House of Representatives be elected directly by the residents of each state. Originally, Article I endowed the state legislatures with the power to choose members of the Senate. However, the SEVENTEENTH AMENDMENT now requires all senators to be elected directly by the people of their home state.

Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization, and BANKRUPTCY; and provide for the common defense and GENERAL WELFARE of the United States. Both the Senate and the House must approve all bills before they are submitted to the president. If the president vetoes a bill, Section 7 authorizes Congress to override the VETO by a two-thirds vote in both houses. Because Congress is a public body, this article requires the House and Senate to record and publish its proceedings, including the votes made by any of its members.

Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the performance of its legislative function. In MCCULLOCH V. MARYLAND, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Supreme Court broadly interpreted the NECESSARY AND PROPER CLAUSE to grant Congress the implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal responsibilities. THOMAS JEFFERSON had earlier argued that the Necessary and Proper Clause authorized Congress only to enact measures that are indispensable to the implementation of the enumerated powers.

Congress frequently relies on its authority to regulate commerce as a justification for the legislation it enacts. Section 8 gives Congress the "power to regulate commerce among the several states." In GIBBONS V. OGDEN, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional power to regulate commerce is plenary (complete in itself) and extends to all interstate commerce (commercial activity that concerns more than one state). The Court said that intrastate commerce (commercial activity that is conducted exclusively within one state) is beyond the reach of this congressional power.

Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that produces and consumes its own wheat. The Court said that "even if [a farm's] activity be local, and though it may not be regarded as commerce, it may still … be reached by Congress, if it exerts a substantial economic effect on interstate commerce … irrespective of whether such effect [is] direct or indirect."

This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near a school does not substantially affect interstate commerce and may not be regulated at the federal level. Although the interstate commerce power has been given an expansive reading in modern times, the Court said in Lopez, the scope of congressional authority in this area

must be considered in light of our dual system of [state and federal] government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.

Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take certain action. Section 9, for example, prohibits Congress from passing bills of attainder and EX POST FACTO LAWS. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit of a judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at the time it occurred.) Section 9 further prohibits Congress from suspending HABEAS CORPUS (a citizen's right to protection against illegal imprisonment) except as may be necessary to preserve national security in time of rebellion or invasion. Although the Constitution delegated this power to Congress, President ABRAHAM LINCOLN suspended habeas corpus during the Civil War without congressional assent. Article I also restricts the power of state legislatures, such as the power to make treaties, alliances, and confederations, are also prohibited by Article I.

Article II: The Executive Power Congressional power is not absolute. The Framers of the Constitution were familiar with the abuses of absolute power. In the century preceding the American Revolution, Parliament acquired unlimited sovereignty. This arrangement replaced an earlier system of government in which the English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to create a system of checks and balances in which the executive and legislative branches would share power with each other and with the judiciary. In this light, many of the powers delegated to the president must be viewed in conjunction with the powers delegated to the coordinate branches of government.

Article II provides that "[t]he executive Power shall be vested in a President of the United States … [who] shall hold … Office during the Term of four Years … together with the Vice President." The ELECTORAL COLLEGE, which provides the method by which the president and vice president are elected, derives its constitutional authority from Article II as well as from the Twelfth and Twenty-third Amendments. The TWENTY-SECOND AMENDMENT limits the president to two terms in office, and the Twentieth and Twenty-fifth Amendments set forth the order of succession for presidents who are unable to begin their term or continue in office.

Article II, Section 2, makes the president the commander in chief of the armed forces. Yet only Congress has the power to declare war. Between these two powers lies a gray area in which presidents have exercised the prerogative to commit U.S. troops to foreign military excursions without congressional approval. The U.S. involvement in the VIETNAM WAR resulted from one such exercise of power. In response to these executive maneuvers, Congress passed the War Powers Resolution (Pub. L. No. 93-148 [ codified at 50 U.S.C.A. §§ 1541 et seq.]), which restricts the president's authority to involve the United States in foreign hostilities for more than 60 days without the approval of Congress.

The president also shares power with Congress in other areas under Article II. Section 2 authorizes the president to make treaties with foreign governments, but only with the advice and consent of the Senate. The president must also seek senatorial approval when appointing ambassadors; federal judges, including Supreme Court justices; and other public ministers.

Section 4 states that the president may be removed from office only through IMPEACHMENT for "Treason, Bribery, or other High Crimes and Misdemeanors." The House is responsible for drafting ARTICLES OF IMPEACHMENT (accusations of misconduct), and the Senate is responsible for holding an impeachment trial. A two-thirds vote in the Senate is required for conviction.

The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the impeachment proceedings against President WILLIAM JEFFERSON CLINTON. In 1998 the U.S. House of Representatives approved two articles of impeachment against President Clinton, accusing the president of having committed the crimes of perjury and OBSTRUCTION OF JUSTICE to conceal his relationship with a White-House intern named Monica Lewinsky. The impeachment trial was then held before the Senate from January 7, 1999, through February 12, 1999.

Clinton supporters generally opposed impeachment on grounds that concealing a private, extramarital affair should not constitute an impeachable high crime or misdemeanor. Clinton detractors generally supported impeachment on grounds that perjury and obstruction of justice are felony-level offenses that render a chief executive who is guilty of such offenses incompetent to discharge the duties of his office. Clinton supporters contended that past presidents had concealed their extramarital affairs without it rising to the level of an impeachable offense, while Clinton detractors countered by arguing that the president was not being impeached for having an extramarital affair but for committing crimes to conceal it.

Scholars debated the merits of the Clinton impeachment proceedings as well. However, constitutional historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanors had no settled usage at the time the Constitution was ratified by the states, except that the Founding Fathers rejected proposals that would have allowed for impeachment in cases of maladministration, malpractice, or neglect of duty. The Founding Fathers favored a chief executive who was subject to constitutional checks and balances, but not one who was weak and easy to remove by political opponents. In the end, the Senate voted to acquit President Clinton. Neither article of impeachment was supported by even a majority of votes, far short of the 67 votes required to convict.

Although the president participates in the lawmaking process by preparing budgets for congressional review, recommending legislation on certain subjects, and signing and vetoing bills passed by both houses, no formal lawmaking powers are specifically delegated to the EXECUTIVE BRANCH. The president nonetheless "legislates" by issuing executive orders, decrees, and proclamations. No express provision of the Constitution delineates the parameters of this executive lawmaking power. However, in YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court set forth some guidelines. Known as the Steel Seizure case, Youngstown examined the issue of whether the president of the United States could order the government seizure of steel mills that were crippled by a labor strike during the KOREAN WAR. In holding the EXECUTIVE ORDER unconstitutional, the Supreme Court ruled that "the President's power to see that the laws are faithfully executed refutes the idea that [the president] is to be a lawmaker."

Justice ROBERT H. JACKSON, in a concurring opinion, set forth an analysis by which the Supreme Court has subsequently evaluated the constitutionality of presidential action. Jackson opined that PRESIDENTIAL POWERS are not fixed, but fluctuate according to "their disjunction or conjunction with those of Congress." When the president acts pursuant to congressional authorization, the action carries maximum authority. When the executive acts contrary to congressional will, presidential powers are at their lowest ebb. Between these positions, when a president faces an issue on which Congress is silent, the executive acts in "a zone of twilight in which [the president] and Congress may have concurrent authority, or in which the distribution is uncertain." In such instances, Jackson reasoned, courts must balance the interests of the parties and of society to determine if a particular executive action has violated the separation of powers.

Another area that has stirred debate over the appropriate separation of powers involves the delegation of legislative, executive, and judicial authority to federal administrative bodies. Since the mid-1930s, the United States has seen an enormous growth in the administrative state. Administrative agencies have been created to establish, evaluate, and apply rules and policies over a diverse area of law, including taxes, SECURITIES, transportation, antitrust, the environment, and employment relations. Federal administrative bodies are created by statute, and Congress has the authority to prescribe the qualifications for administrative officials who are appointed by the president, courts of law, and heads of government departments.

The NATIONAL LABOR RELATIONS BOARD (NLRB) demonstrates the overlapping powers that may be exercised by an administrative body. The NLRB is empowered by statute to issue regulations that govern union activities. Such regulations are virtually indistinguishable from legislative enactments and are considered no less authoritative. The NLRB also adjudicates disputes between unions and employers, with an administrative law judge presiding over such cases. Finally, the NLRB is endowed with the power to make prosecutorial decisions, a power traditionally exercised by the executive branch. Although successful challenges have been lodged against the delegation of certain powers to federal administrative bodies, by and large, the Supreme Court has permitted administrative officials and agencies to play all three government roles.

Article III: The Judicial Power Article III provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Pursuant to this constitutional authorization, Congress has created a federal judicial system comprising a lower tier of federal trial courts, known as the U.S. district courts, and an intermediate tier of federal appellate courts, known as the U.S. COURTS OF APPEALS. At least one federal district court is located in each of the 50 states.

The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District of Columbia and the Court of Appeals for the Federal Circuit. Each federal appellate court has jurisdiction over a certain geographic area and may only hear appeals from federal district courts within that jurisdiction. Specialized courts of appeals have been created to hear appeals concerning such disputes as international trade (the court of International Trade) and military matters (the Court of Military Appeals). Parties aggrieved by a decision made by any of these federal appellate courts may appeal their case to the Supreme Court, which has the ultimate judicial power. Cases that originate in state court and present a federal question may also be appealed to the U.S. Supreme Court.

The Supreme Court is not required to hear every case that is appealed to it; instead, the Court has broad discretion to accept or decline cases that are appealed by a lower court. Only four justices need to vote in favor of hearing an appeal before a writ of certiorari will be granted. Certiorari is a device that allows the Supreme Court to call up the records of a lower court and review them in order to identify important legal questions that need to be resolved. Granting "cert" has no bearing on the Court's subsequent resolution of a case. The Court is asked to review about 5,000 cases a year and grants certiorari in less than 250 of them.

Federal courts do not have jurisdiction to hear every kind of lawsuit. Article III lists certain types of cases that may be heard by the federal judiciary, including cases arising under the Constitution; under treaties with foreign nations; and under federal laws passed by Congress, the executive, or an administrative body. Federal courts also have jurisdiction to hear lawsuits between two or more states, between citizens of different states, and between a citizen or government of one state and a citizen or government of a foreign country.

The Supreme Court has original jurisdiction over cases involving ambassadors and other public ministers as well as cases in which a state government is a party. Original jurisdiction gives a court the power to hear a lawsuit from the beginning, rather than on appeal. This grant of original jurisdiction does not preclude Congress from giving original jurisdiction to other courts over the same matters. In fact, Congress has granted concurrent original jurisdiction to the federal district courts for all controversies except those between state governments.

Nowhere in Article III, or elsewhere in the Constitution, is the power of the federal judiciary defined. Historically, the role of English and U.S. courts was to interpret and apply the laws passed by the other two branches of government. At the close of the eighteenth century, it was unclear whether that role included the prerogative of JUDICIAL REVIEW, which is the authority of state and federal courts to review and invalidate laws passed by legislatures that violate a constitutional provision or principle.

In MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court clarified this AMBIGUITY by pronouncing that it "is emphatically the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the court must decide on the operation of each." Because the federal Constitution is the supreme law of the land, the Court reasoned, any laws that violate the Constitution must be declared void. It was the essence of judicial duty, the Court intimated, for judges to evaluate the constitutionality of a particular act, because judges are not elected and are therefore independent from the political considerations that may have motivated the popular branches of government to enact that law. The Court reasoned that the executive and legislative branches could not be impartial arbiters of their own laws.

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