Constitutional Law—Section 4Week 1 and 2 (1/12/15 thru )I. Questions from the readinga. Does Congress have the power to subpoena anyone? Is demanding such testimony or information a “legislative power?”i. Art I Sec 8 enumerates the bulk of Congresses powers. ii. Clause 18: To make all laws which may be necessary and proper for carrying into execution the forgoing powers and all other powers vested by this Constitution in the Gov’t of the US, or any department or office thereof. iii. Some of their powers identified in Sec 8 may require subpoena’s to gain information for their enforcement. Congress would want the subpoena power togain information about any law that they want to make/enforce. The subpoena power could be considered necessary to exercise the powers enumerated above Clause 18, therefore the necessary and proper clause covers the subpoena power. iv. A legislative power? It is implicit in the power to conduct an impeachment/othertribunal. It could be considered a power in the way that the power to create laws is a legislative power (does that mean the power doesn’t exist if we don’t pass the law?). Or is it implicitly included in the “necessary and proper” clause? v. What does this line of questioning reveal about the constitution? It is flexible in interpretation and implementation, and it is broad in scope. Open texture: a textis often written in broad and unclear language that requires interpretation or that allows you to interpret/fit things in. b. If a person believes he has been wrongfully convicted by the Senate after impeachment, wrongfully declared the loser of an election by the House or Senate, or wrongfully expelled from the House or Senate after being elected, what sort of relief might that person seek? i. The power to charge someone, try them, and control the election process is given to Congress by Art 1 Sec 5ii. The court decides the qualifications of the house/senate. Appeals would go through the court system. It is their job to interpret the constitution and make sure that the other branches do not exceed their powers. c. Under the Federal Constitution, could a state legislature provide that the governor of thestate should appoint the state’s electors of the President without any state selection? i. i.e., the legislation is controlled by one party, the governor is a member of that party, and the losing (barely) presidential candidate is also a member of that party. Suppose the legislature passes a law stating that the governor chooses theelectors, without any basis on the popular vote? (how it usually works). ii. Art II Sec 1 Cl. 2: electors can be appointed in whatever manner the state legislature says it appoints its electors. So yes, hypothetically they can act out the above scenario. iii. Right now, all states (prof. Carlson believes) select electors according to the popular vote, and have a winner-takes-all scenario.d. May the president remove a Supreme Court Justice he believes is not acting in “good behavior?” i. Art. I Sec. 2 Cl. 2: gives the president the power to appoint several positions, does not say anything about his ability to remove people from these offices. ii. Congress could potentially remove the people of these offices from the impeachment power. Art III says justices get to serve during good behavior. Impeachment power suggests that impeachment is only allowed for high crimes and treasons. Bad behavior may be defined differently. iii.e. On what basis may the House or Senate expel a member? II. Judicial Review: the power to interpret the constitution and the laws and determine whether or not laws are constitutionally alloweda. Marbury v. Madisoni. Facts: Marbury (petitioner) was appointed to be Justice of the Peace by President Adams. Madison (respondent) was the Secretary of State for Jefferson,and he also went on to become president. He also was the chair of the committee of review that wrote the constitution. Before Marbury’s commission could be delivered, everything changed hands. Madison & Jefferson refused to deliver the commission, and Marbury went to SCOTUS, asking for a writ of mandamus ordering the Secretary to perform his duty and deliver the commission. John Marshall was the secretary of state under Adams (and now writing this opinion as the Chief Justice of the Supreme Court), and ran out of time to deliver the commission before the power was handed over to the democratic-republicans. This appointment was literally in the last hour before power changed hands. ii. Legal issues: whether the plaintiff has a right to the commission, whether there are any avenues for remedy, and if that remedy is mandamus from SCOTUS. iii. Held: he has a right to the commission, he is entitled to the remedy, but that remedy is not a mandamus from SCOTUS because they do not have original jurisdiction over that issue. AND SURPRISE: SCOTUS has the right to determine the constitutionality of laws and to interpret the constitution. 1. Validated commission: the commission is complete at the time the president fulfills his duties. This includes appointing someone, getting approval from congress, writing the commission, signing it, and getting itsealed by the secretary of state (the Great Seal confirms that it is the president’s signature). The complete commission gives him the vested legal right to have his job. Is this accurate? A lot of other areas of law require delivery (at least constructively) for it to be official (contracts, property). Marshall stated that physical possession seems silly, as if he could lose his power to carry out his duties if the piece of paper was destroyed. 2. Entitled to legal remedies: Yes. In any case where a right is violated, a remedy ought to exist. a. “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainlycease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” b. “It behooves us then to enquire whether there be in its composition any ingredient which shall exempt it from legal investigation, or exclude the injured party from legal redress.” The court is stating that some duties of the Secretary of State are assigned by law, and that when the law in precise terms directs the performance of the man, he is not liable to investigation for fulfilling his duty exactly. c. Therefore the court must decide whether the Secretary of State is acting lawfully in