Write an essay in response to the statement below. Keep in mind that you are writing an argumentative essay,
not merely providing a descriptive account of Supreme Court decisions. Your main task is to do a critical
analysis of the cases within the context of your argument. You do not need to provide extensive background
information on the cases. I am mainly interested in how you compare and analyze the opposing views on the
Court in support of your argument. Please note that this is not a research paper. You are to consult only the
Chemerinsky casebook and course materials on Canvas – lectures, lecture outlines, Supreme Court cases, and
notes – but not outside or secondary sources which have not been assigned or posted on Canvas. I am only
interested in your analysis, not someone else’s.
Your essay should be 8-10 (double-spaced) pages in length (maximum 12). Please number the pages, use a size 12 font, and underline or italicize all cases. When quoting from the cases, indicate the page from which you ar quoting. Parenthetical cites are o.k.
• Papers are due via email (Word or PDF attachment) between 5:00 & 6:00 p.m. on Wednesday, May 17
• I will penalize unexcused late papers one full grade for every day they are late beginning at 12:00 AM
(midnight), May 19.
Writing Instructions (please read carefully)
• Take a position in response to the statement and clearly state your thesis in the first paragraph.
• Write an introduction that outlines your argument and a conclusion that summarizes what you have argued.
• Draw upon the relevant arguments in the cases and opinions as evidence for your position.
• Do not fully brief the cases (extensive factual background is not necessary & will take up too much space).
• Your analysis should focus mainly on the reasoning of the opinions as it relates to your argument.
• Be precise in addressing legal issues and the Court’s interpretation of those issues.
• The more in-depth your analysis of the legal reasoning in each case is, the better.
• Frame your argument so that it responds to, and attempts to refute, opposing arguments.
• Craft a well-written paper. Your argument is only as good as your composition.
• Do not turn in your first draft. Edit carefully. Spell check. Write complete, grammatical sentences.
• IMPORTANT: You must analyze ALL of the Cases and Opinions listed below the prompt.
“The Framers of the Constitution believed that the structural constraints of separation of powers and checks and
balances in the Constitution would prevent tyranny and thereby secure liberty. In the modern era of the
administrative state, a critical decision facing the Supreme Court in separation of powers cases is determining when,
if ever, to allow an adaptation of the original Constitution to accommodate the growth and responsibilities of the
federal government. This has also become an issue in foreign affairs with the inception of the war on global
terrorism following 9/11.
When justices decide that adaptation is necessary, they argue that the Constitution must be interpreted realistically
with an eye to practicalities and historical experience; whereas, when justices employ a strict textualist approach,
they argue that separation of powers and checks and balances must be interpreted literally, consistent with their
original, plain meaning, lest the intent and purpose of the Constitution be undermined or violated. Some justices
employ only one approach while others have employed either approach depending on the facts of the case. One
thing is clear however. When a strict textualist approach is employed, justices are mainly concerned with
maintaining the original balance of powers regardless of the policy consequences; whereas, when a realist approach
is employed, justices give greater consideration to policy consequences than to maintaining the original balance of
powers. For this reason, the textualist approach is usually superior because it limits the Court’s discretion and is more consistent with the original meaning of the Constitution.”
• Youngstown Sheet and Tube co. v. Sawyer (opinions by Black, Frankfurter, and Jackson)
• INS v. Chadha (majority opinion by Burger; dissenting opinion by White)
• Clinton v. City of New York (majority opinion by Stevens; concurrence by Kennedy; dissenting
opinion by Breyer)
• Morrison v. Olsen (pp.356-60 and pp. 377-78) (majority opinion by Rehnquist; dissenting opinion
by Scalia)
• NLRB v. Noel Canning (majority opinion by Breyer; concurrence by Scalia)
• Zivotofsky v. Kerry (majority opinion by Kennedy; dissenting opinions by Roberts and Scalia)
Additional Instructions and Tips (please read carefully)
(1) You must address the claim that the textualist approach is “usually superior because it limits the Court’s
discretion and is more consistent with the original meaning of the Constitution.” Take a position and defend
it. State your position clearly in the first paragraph of your essay.
(2) In making your argument, you must reconstruct the debates in the assigned opinions focusing on how
the justices interpret separation of powers issues either from a realist (workable government) approach or
a strict textualist approach. Each case must be analyzed individually but your overall position and
conclusion should combine the strongest arguments. You may include in your analysis other cases we
have read.
Studying the cases carefully, listening to the recorded lectures, and reading
the “Outlines for Lecture and Discussion” posted on Canvas for April 6 –
27 (weeks 10-13) is essential preparation for writing a persuasive essay.
As you go through the cases, consult the following on Canvas: “Study Tips