2. Legal Ethics for Oral Arguments Secrecy: lawyers may not divulge or in any way hint at the actual historical outcome of the case at bar; others may not investigate the case; if you inadvertently come across some citation or reference to the case, forget you saw it. Forbidden Research: no use of actual briefs filed in the case or the transcripts or recordings of the actual oral arguments. Suspension of History: Cases must be argued and decided in their appropriate historical context. It follows that counsel and court alike must render themselves temporarily--but totally--ignorant of any decision or event subsequent to the day of the oral argument in the real case.

3. Three Rules to Avoid Embarrassment Do not misspell the word amendment Do not confuse the word precedence with the word precedents Learn when Supreme Court terms begin and end, and label the cover page of your brief accordingly.

5. Section 2, ¶ 2 In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, 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. Article III

6. Article I – Legislative Power How many sources or kinds are there? What are they?

7. Legislative Powers of Congress Enumerated Powers Implied Powers Inherent Powers Amendment-Enforcing Powers Treaty Powers

8. Enumerated Powers -- Article I, Section 8, etc. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

9. Enumerated Powers -- Article I, Section 8, etc. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings. 16 th Amendment: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.

10. Legislative Powers of Congress Enumerated Powers Implied Powers Inherent Powers Amendment-Enforcing Powers Treaty Powers

11. Implied Powers – Article I, Section 8 The Congress shall have power to... make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

12. Legislative Powers of Congress Enumerated Powers Implied Powers Inherent Powers Amendment-Enforcing Powers Treaty Powers

13. Inherent Powers – Preamble? “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Perhaps the preamble signals a desire to create a nation-state with all the sovereign powers of nation-states in the world at large. Note that “sovereignty and legislative power are said by Sir William Blackstone to be convertible terms.” --- Judge Gibson dissenting in Eakin v. Raub (1825) But see U.S. v. Curtiss-Wright – we don’t need no Constitution!

14. Inherent Powers – U.S. v. Curtiss-Wright (1936) The [sovereign with respect to external affairs] Union existed before the Constitution, which was ordained and established, among other things, to form "a more perfect Union...." 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. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality.... As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.

15. Legislative Powers of Congress Enumerated Powers Implied Powers Inherent Powers Amendment-Enforcing Powers Treaty Powers

16. Amendment-Enforcing Powers Congress shall have power to enforce this article by appropriate legislation. – 13 th Amendment Similar language found in Amendments 14, 15, 18, 19, 20, 23, 24 & 26.

17. Legislative Powers of Congress Enumerated Powers Implied Powers Inherent Powers Amendment-Enforcing Powers Treaty Powers

18. Treaty Powers – Article VI, ¶2 This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

19. Legislative Powers of States Reserved Powers – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Amend. #10 Police Powers – Inherent power of governments to impose upon private rights those restrictions that are reasonably related to promotion and maintenance of the health, safety, morals, and general welfare of the public.

20. LEGISLATIVE POWER  Article I – historical overview Structure and composition of Congress Powers of Congress  Congressional Authority over Internal Affairs Membership in Congress: seating and discipline (1) Powell v. McCormack (1969) (2) Term Limits, Inc. V. Thornton (1995) Speech or Debate Clause (3) Gravel v. U.S. (1972)  Sources and Scope of Legislative Power Enumerated and Implied Powers Necessary & proper clause (4) McCulloch v. Maryland (1819) Power to investigate (5) McGrain v. Daugherty (1927) (6) Watkins v. U.S. (1957) (7) Barenblatt v. U.S. (1959) Inherent Powers (8) U.S. v. Curtiss-Wright Export Corp. (1936) Amendment Enforcing Power (9) South Carolina v. Katzenbach (1966)

22. McCULLOCH V. MARYLAND 17 U.S. 316 (1819)

23. Facts McCulloch, cashier of national bank branch office in Maryland, refused to pay state tax on all banknotes not issued by a state-chartered bank. Convicted and conviction upheld in Maryland courts.

24. Questions 1.Do the Article I powers of Congress permit incorporation of a bank? [yes] 2.Do the powers of sovereignty residing in the State of Maryland permit the state to tax such a bank? [no]

25. Judgment For McCulloch by vote of 7-0 Argument: by Marshall, joined by Washington, Johnson, Livingston, Todd, Duvall, & Story.

26. Argument: Question #1 1.The constitution derives its powers from the people, not the states. 2.The national government is a government of enumerated powers, but it is supreme within its sphere of action. 3.The power to establish a bank is not expressly delegated, but the 10th Amendment does not say powers must be "expressly delegated" to be reserved to the states. It leaves open whether a power has or has not been delegated. 4.A government given great powers must be entrusted with "ample means," and a bank is a means most appropriate to the powers to lay taxes, regulate commerce, borrow money, etc. 5.Though the creation a corporation is a sovereign power (like war power or tax power), a corporation is always a means and not an end in itself. Thus, the power to create a corporation is logically incidental to the great powers actually enumerated.

27. Argument: Question #1 revisited 1.But we need not rely on general reasoning; this constitution is more specific… 2.The necessary and Proper Clause is one of congress's enumerated powers. 3."Necessary" is a matter of degree. Necessary "frequently imports no more than that one thing is convenient, or useful, or essential to another.” In fact the constitution actually says "absolutely necessary" in Article I, Section 10. 4."This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." It must not become a "splendid bauble.” 5."Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional."

28. Argument: Question #2 1.The power to tax is concurrently exercised by nation and states, but the federal constitution can limit the exercise of that power by the states as the prohibition on taxing imports and exports demonstrates. 2.The constitution and its laws are supreme, and any action incompatible with them must be void. 3."That the power of taxing by the states may be exercised so as to destroy it [the bank], is too obvious to be denied.” 4."No principle not declared, can be admissible, which would defeat the legitimate operations of a supreme government.” 5."The power to tax involves the power to destroy...the power to destroy may defeat...the power to create.” 6.Under the Supremacy Clause Maryland may not tax the national bank.

29. Law, Politics & John Marshall 1.He never attended law school, but became a successful lawyer. 2.He was a partisan Federalist, who dominated the work of the Supreme Court for 35 years. 3.In Marbury v. Madison (1803) he decided a case in which he had personally been involved. 4.In the McCulloch v. Maryland (1819) he wrote the opinion of the Court before the case had been argued. 5.John Marshall is almost universally revered as the “Great Chief Justice.” --- Activism pays off! 6.There is nothing new about politics trumping law.

30. U.S CONSTITUTION: FOREIGN POLICY POWERS Modern precedents —and presidents— notwithstanding, it’s not a presidential monopoly.

31. Foreign Policy Powers: Art. I, §8 [1] The Congress shall have Power To... provide for the common Defense [3] To regulate Commerce with foreign Nations [4] To establish an uniform Rule of Naturalization [5] To... regulate the Value... of foreign Coin [10] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations [11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water [12] To raise and support Armies [13] To provide and maintain a Navy [14] To make rules for the Government and Regulation of the land and naval Forces [15] To provide for calling forth the Militia to... repel Invasions [16] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress [18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

32. Foreign Policy Powers: Art. I, §10 [1] No State shall enter into any Treaty, Alliance, or Confederation [or] grant Letters of Marque and Reprisal. [2] No State shall without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports and Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of Congress. [3] No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact... with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

33. Foreign Policy Powers: Art. II Section 2. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States.... He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors.... Section 3. He... shall receive ambassadors and other public ministers... and shall commission all the officers of the United States.

34. Foreign Policy Powers: Art. III, §2 The judicial power shall extend to all cases, in law and equity, arising under... 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... a state, or the citizens thereof, and foreign states, citizens or subjects. In all cases affecting ambassadors, other public ministers and consuls... the Supreme Court shall have original jurisdiction.

35. Executive Power More Generally “The executive power shall be vested in a President of the United States of America.” Art. II, §1, ¶1 [¶2-6 deal with presidential selection] “The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II, §1, ¶7 “Before he enter on the execution of his office, he shall take the following oath or affirmation:--’I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.’" Art. II, §1, ¶8

36. Executive Power More Generally “The President... may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Art. II, §2, ¶1 “He... shall nominate, and by and with the advice and consent of the Senate, shall appoint... judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” Art. II, §2, ¶2 “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper;... he shall take care that the laws be faithfully executed....” Art. II, §3

37. President in the Legislative Process “Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law.... If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Art. I, §7.