Law School Discussion

ConLaw Hypos - any help/input appreciated!

ConLaw Hypos - any help/input appreciated!
« on: April 13, 2009, 09:51:42 PM »
So finals are coming up, and there are two hypos I'm a little confused about....if you have any input on this, it would be greatly appreciated.

1) Could Congress enact a statute which provides that federal judges may be removed upon conviction of bribery in federal court?

I'm thinking this is a delegation of power question. Pretty much, impeachment, at least in our history (last 206 years), has been the only way that's been used to remove judges from the court. By enacting the statute, they are pretty much delegating their legislative power to the judicial branch. Delegation of power is okay if there is an intelligible principle, which I don't see here. However, I can see a distinction between "may" and "will." With "may," it might not be really a delegation of might just mean that Congress will then go through the impeachment process after a conviction. If they definitely "will" be removed upon conviction of bribery, then I feel like it is an improper delegation. Not only are you delegating the legislative power w/o an intelligible principle, you're also giving it to 12 average joes on the court. Pretty much those 12 normal folks will have the power to remove a federal judge, and there might be issues of bias, politics, etc. Supposedly through impeachment members of Congress are better at discerning these kind of violations.

2) Can Congress and president give power to the Supreme Court to change the Federal Rules of Civil Procedure?

Would this violate bicameralism and presentment? I know right now the SC promulgates the FRCP and Congress approves them right now. But if it was changed to the hypo, would it be okay? Would it be like a line-item veto and pretty much be unconstitutional because it is giving the judicial branch blind discretion and letting them change legislation that has already gone through bicameralism and presentment? Also, is this an okay delegation of legislative power? For the intelligible principle I can see the point that the Supreme Court is best at making these kind of rules because of their experience, etc, but for them to change the FRCP?

I'd appreciate any input on this. We have an exam coming up and we have a bunch of hypos our prof posed to us in class I'm trying to study. My group met and we discussed them, but were unsure exactly. Thanks! (And I apologize ahead of time for bad grammar, etc....)


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Re: ConLaw Hypos - any help/input appreciated!
« Reply #1 on: April 17, 2009, 09:38:49 AM »
First Question.

I think you are right.  Depends on whether you look at it as (1) a modification to their own impeachment standards or (2) a complete delegation to the judicial branch. 

Under (2) you could point out that a problem with this is that judges would be interpreting a statute that affects their own self-interest. 

Maybe (1) is the better view though. If this statute was challenged it wouldn't be justiciable because of a political question (Nixon).  Therefore, maybe there really is no concern that judges would be dragged into impeachment proceedings.  The statute is thus just a practical guideline for their own impeachment process.


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Re: ConLaw Hypos - any help/input appreciated!
« Reply #2 on: April 17, 2009, 10:32:23 AM »
In my mind 1 would turn on how you interpret “good behavior” in Article III for fed courts. Congress can’t pass a law that abrogates the constitution unless its an amendment. Article II section 4 is what covers removal, and includes bribery, but covers P., V.P. and “all civil officers of the U.S.” So I don’t think you could add that to Article III unless you defined it as part of “good behavior.” Which I’m not sure you could do by just passing a law.