Cases in Constitutional Law #4: separation of powers
Law ·Monday December 28, 2009 @ 08:58 EST (link)
Chapter 2, The Legislative Branch.
[✓] Ex Parte McCardle (1869): Congress passed an act limiting the appellate jurisdiction of the courts (which had been granted by an earlier act); although it was acknowledged that Congress could not entirely remove the appellate powers of the high courts, since they were given by the Constitution, the Constitution provided explicitly that the power is conferred "with such exceptions and under such regulation as Congress shall make." Not much to see here judicially, although the introductory analysis has a long discussion on conflicts between Congress and the courts. The particular case is interesting as it concerns McCardle, a Sergeant in the Confederate Army and a newspaper publisher who published articles against Reconstruction; he was jailed by the local military dictatorship and the appeal in question was for his habeas corpus request denied by the lower courts; Congress passed a law revoking the appellate jurisdiction of the Supreme Court over lower courts. It was a disgusting use of force and miscarriage of justice by the lower courts, but the jurisdiction issue was resolved correctly.
[✓] McGrain v. Daugherty (1927): Concerns the legislature's power to subpoena witnesses for its inquiries, compel testimony, and punish failure to appear. First, any such inquiry that can be carried out by judicial procedure of course should be, but in general inquiries attempt to gather information for possible prosecution later. There's also a worry that the legislature's power may extend to punishing merely answers that it does not like (by saying the witness is being evasive, etc., when it has no proof of that being the case), or it could abuse its power by summoning random people, without any check (exercising immunity for actions taken while in session). Fortunately, Killbourn v. Thompson (1881) found that 'neither house of Congress possesses a "general power of making inquiry into the private affairs of the citizen"', and exercised with discretion the powers may be necessary and useful for inquiries into how taxpayer affairs and monies are managed, which may even be necessary in a minarchy. Witnesses should be paid for their time and expenses, and any punishment for contempt should be over whenever the witness agrees to testify.
[✗] Barenblatt v. United States (1959): Concerns an inquiry by the House Un-American Activities Committee (HUAC) into Communist infiltration into education by questioning a professor. Despite an earlier case, Watkins v. United States (1957) which reversed a holding of contempt, the court found that the Watkins circumstances did not apply, that the questions were pertinent to the investigation, which had been clearly identified, the conviction was affirmed. The court's excuse was, "To think that because the Communist Party may also sponsor peaceable political reforms the constitutional issues before us should now be judged as if that Party were just an ordinary political party from the standpoint of national security, is to ask this Court to blind itself to world affairs…." Given the then-current Cold War with Russia, a nation that became Communist through violent revolution, Communist affiliation then was to stand for a violent destruction of Constitutional government that was actually considered possible (liberals loved Stalin), contrasted with today, where it's merely to stand with a few ignorant hippies whose political system has long since been soundly beaten both rationally and empirically. Nonetheless, this does not override the first amendment.
[✓] Schechter Poultry Corporation v. United States (1935): Preamble summarized past cases where "rule-making" as a limited legislative power was delegated by Congress to the President (e.g., determining if a foreign nation had enacted tariffs that would cause a conditional retaliatory tariff passed by the legislature to go into effect), established as principle and precedent by Chief Justice Taft (J. W. Hampton v. United States, 1928). Schechter allegedly violated a provision of the NRA—no, not the good guys that (sometimes) defend firearms rights but the National Recovery Administration, but a socialist price-fixing cabal. The "Live Poultry Code" of the NRA was put into effect by an executive order; hence the relevance to delegation of legislative power. The court rightly found that the "Codes of Fair Competition" authorized by Congress via the National Industrial Recovery Act overstepped the bounds of delegation, that "Congress cannot delegate legislative power to the President to exercise an unfettered discretion ot make whatever laws he thinks may be needed…." The abuse of executive orders and executive power has only grown since. (The book notes that the section of the Schechter case dealing with the commerce power is printed in the section on interstate commerce.)
[✗] United States v. Curtiss-Wright Export Corporation (1936): (In the preamble here the author is confused, believing we have a national rather than a federal government. I expected better from a professor of law.) Curtiss-Wright was an arms exporter charged with selling arms to Bolivia, against which the Congress had passed an embargo on the sale of munitions at the discretion of the President. The court erroneously concludes (from a fallacious argument about the need for supreme will and power passing from the British crown), however, that "It results that the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution." But the federal government has no powers except those enumerated in the Constitution!—mystical invocations notwithstanding. Special pleading ("in this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation") is again used to crown the President a king. Thus, the court allowed the conviction against Curtiss-Wright to stand—because the king's commands must be followed. But the United States does not have a king!
DVDs finished: Magnum Force.
