Expanding Presidential power usually erodes democracy, expands government, and facilitates the rise of an increasingly unaccountable “Imperial Presidency”.  Ironically, giving Presidents more power to control spending does just the opposite.

The struggle over government spending has been a fundamental point of contention since the earliest days of our Federal Government.  In the last twenty years, this issue has split the Democrats in Congress, frustrated Republican and Democratic Presidents, and generated numerous Supreme Court cases.  The 1974 effort to resolve the matter, once and for all, substantively contributed to the current explosion in federal spending.

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As introduced in the previous post, the 1952 Steel Seizure Case is a cornerstone of the Court’s separation of powers jurisprudence. The case arose out of President Harry Truman’s decision to seize the steel mills to prevent a labor strike that, he claimed, threatened steel production for the war effort in Korea. The Court was presented with the difficult problem of resolving, in a legal setting, the essentially political wrangling between Congress and the President, with the latter pressing his constitutional power claims to the maximum. At another level, the case exposed the fault lines between the American view of the Constitution as both the source and the basic formal law of government, and the classical view of constitutions as mere reflections of formal and informal political accommodations already made otherwise. Read more

Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government.  If you find the essay long-winded, you are correct in this assessment.  It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature.  The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman.  James Madison (and Thomas Jefferson) were no exceptions to this insight. Read more

Guest Essayist: Steven H. Aden, Senior Counsel and Vice President of the Center for Life at Alliance Defending Freedom

“It is emphatically the province and duty of the judicial department to say what the law is.” With those understated words, Supreme Court Chief Justice John Marshall ushered in the modern era of judicial review – the notion that it is up to judges, not legislators or presidents, to finally interpret and give meaning to the nation’s Constitution and laws.

During the founding era, Alexander Hamilton had written Federalist 78, to assure those wary of a strong federal judiciary that “[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution,” because it holds neither the power of the sword, as the Executive (Presidential) Branch does, nor the power of the purse strings, as the Legislative Branch (Congress) does. Read more

Thomas Jefferson’s election as president is often called the “Revolution of 1800,” because it marked the first peaceful transfer of power from one political party to another. Despite its uniquely pacific character, the election’s aftermath was marked by partisan rancor. The day before Jefferson took office, President John Adams commissioned fifty-eight Federalist judges. Read more

Guest Essayist: Frank M. Reilly, Esq., a partner at Potts & Reilly, L.L.P.

Amendment XX, Section 1:

The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Terms of the President and Congress

Prior to the 20th Amendment, the Constitution did not specify the beginning and ending dates of the terms of the President, Vice President, and Congress.  The Constitution defined the length of the terms of the various offices, and Congress ultimately enacted laws to set March 4 as the term starting date of all elected federal officeholders.   Our nation’s earliest federal elections were held prior to December of each even numbered year, and in 1845, Congress set the first Tuesday following the first Monday of November of each even numbered year as a uniform federal election date.  As a result, officeholders remained in office after the November elections for about four months until the 4th of March of the following year.  During the 18th century, such officeholders began to be called ̎lame ducks ̎.

From the late 18th century and into the 20th century, the lack of efficient and speedy transportation made the election process necessarily slow.  Today’s ability to almost instantaneously report election returns did not exist in the days without electricity, telephones, electronic voting devices and the Internet.  It could take days or weeks of horseback travel by electors from remote areas of the country to assemble to cast that state’s electoral votes for President and Vice President.  It could take as long for members of Congress and the elected executives to then travel to Washington to take office.  Thus, the four month ̎lame duck ̎ period between election day and the start of new terms of newly elected (or re-elected) officeholders was a practical necessity.

Sometimes either Congress or the President took actions during those ̎lame duck ̎ periods that the public, or incoming officeholders, felt were unfair and that should have waited until the newly elected representatives could take office.  For example, the famous case of Marbury vs. Madison, in which the U.S. Supreme Court claimed its authority to interpret the Constitution, was a dispute over a staff appointment made by President John Adams after President Thomas Jefferson was elected, but before Jefferson took office.

Transportation and technology advances ultimately reduced the need for a long transition period after an election.  Further, public concern about legislation enacted during ̎lame duck ̎ sessions of Congress, motivated Nebraska Senator George W. Norris to propose the 20th Amendment.  After over a decade of debate, and immediately preceding Franklin D. Roosevelt’s first election as the 32nd president, Congress passed the resolution proposing the amendment on March 2, 1932.  The states ratified the amendment by January 23, 1933, the shortest period of time between a congressional proposal of an amendment and its ratification by three-fourths of the states.

The amendment, rather than a change in the law by Congress, was necessary because it shortened the terms of incumbent officeholders, the length of whose terms the Constitution had been specifically set.  The amendment shortened the ̎lame duck ̎ period by half to about 2 months, with Congress taking office on January 3 and the President taking office on January 20 after each of their elections.  The first president affected by this change was Franklin D. Roosevelt following his second election in 1936.

Legislative history shows that the purpose of the 20th Amendment was to not only shorten the 4 month ̎lame duck ̎ period, but also to prevent  ̎lame duck ̎ sessions of Congress.  However, the 20th Amendment contains no specific language to prohibit ̎lame duck ̎ sessions, and Congress has met in many such sessions since after the states adopted the amendment.  Political debate about lame duck ̎ sessions, however, has been raised on several recent occasions.

On November 13, 1980, a ̎lame duck ̎ President Jimmy Carter nominated future Supreme Court Justice Stephen G. Breyer as a justice of the United States Court of Appeals for the 1st Circuit, and the ̎lame duck ̎ Senate confirmed the appointment in December, 1980.  In December 1998, the House of Representatives voted to impeach President William J. Clinton during a ̎lame duck ̎ session.  Some argued that these actions violated the spirit, if not the letter, of the 20th Amendment, but no one challenged the actions in court.

In 2000, some discussed the potential interplay between the 20th Amendment, and the 12th Amendment, which requires that the House of Representatives select the president if no candidate receives a majority of the electoral votes cast for president.  During the time in which the presidential election results between George W. Bush and Albert Gore, Jr. were still undetermined, some scholars questioned whether a ̎lame duck ̎ House of Representatives could select the president if neither Bush nor Gore received a majority of the electoral votes, or whether the issue would have to wait until the newly elected House of Representatives convened.

While the 20th Amendment’s original intent has been publicly debated, there are no reported court cases involving the amendment.

Frank M. Reilly, Esq., is a partner at Potts & Reilly, L.L.P., Attorneys & Counselors in Austin and Horseshoe Bay, Texas

May 21, 2012

Essay #66

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: