CONSTITUTIONAL LAW OUTLINE

Spring 2010. Lash. Current through: March 3, 2010 (except Justiciability)

Ancient History / A Brief Overview

Colonial charters Revolution Articles of Confederation Constitution, baby. - Colonial charters: governor (exec), colonial assemblies (legislative), rudimentary court systems.
o o Colonial assemblies could advise governor/courts, but had no actual legislative power. Assemblies outlawed by England after they agitate for representation, but they continue to meet as outlaw organizations, increasing their standing as the peoples assemblies.  Idea that peoples interest represented not within gov t pivotal.

Articles of Confederation: after the breakup of the states in 1776, the states had to coordinate activities under the Articles of Confederation in order to fight the war against England.
o o o o No real executive just a congress of states. No court systems (relied on state courts). Bills required unanimous consent; no power to bind states states compliance voluntary. States could pursue economic interests independently (e.g., tariffs) trade wars. States abandon Colonial charters, create all-powerful legislatures corruption.

o Constitution proposed in 1787 in Philadelphia

o o

Federalists: checks and balances will limit power, prevent corruption. Anti-Federalists: giving more power to corrupt legislators will lead to even bigger corruption.

The Early Years

The Federalists are elected (Washington, Adams as VP). Adams becomes President with a Democratic Republican VP (Jefferson). Federalists view these new parties as anti-American, pass the Alien and Seditions Act as a tool to undermine them, criminalizing criticism of the President (but not the VP) and set to expire immediately after the election. Jefferson is elected President. Adams seeks to preserve Federalist power within government: o Appoints John Marshall (Federalist) new Chief Justice of USSC, after convincing previous CJ to step down. o Judiciary Act: created new Federal judgeships in lower courts, filling them with Federalists. o Organic Act of the District of Columbia: new system of justices of the peace in city where incoming opposition party would live.  Not all of the commissions reach the justices in time, setting up MARBURY v. MADISON.

THE FEDERAL COURTS

CASES
MARBURY v. MADISON: Jefferson, incoming President, tells his new Secretary of State not to deliver commissions to various justices appointed by Adams. Marbury, one of those justices, seeks a writ of mandamus (judicial command to executive to perform an action). Does Marbury have a right to the Commission? Political systems can remove/appoint political actors, but not lowlevel non-political actors, as the statute does not provide for system of firing and is for a fixed term. Is there a legal remedy available to him? Yes the Writ of Mandamus. Can the USSC issue that Writ to Marbury? No. Judiciary Act unconstitutionally tried to expand the original jurisdiction of the USSC. Establishes power of judicial review. Marshall s brilliance: struck down Federalists law (rather than incoming Democratic-Republicans), asserting power without actually employing it against the current political forces in office, thereby avoiding a political showdown. EX PARTE MCCARDLE (p38): McCardle, newspaper editor during post-Civil War Reconstruction, criticizes the Union. Military authorities seize him. McCardle petitions for a writ of habeas corpus, which is argued before the USSC. Before the justices can issue a decision, Congress passes a statute removing such cases from USSC s appellate jurisdiction. USSC dismisses. U.S. v. KLEIN (p40): President grants pardon to Civil War rebels, who seek to recover land taken from them by state gov t because they were rebels. Congress, upset, directs courts to consider a presidential pardon as evidence of being a rebel, instructs courts to dismiss such cases. USSC overturns law: Congress can t control verdicts once rendered, infringe on Presidential veto. MARTIN v. HUNTER S LESSEE (p45): Virginia seizes British subject s land following Revolution, but a treaty between US and Great Britain granted these lands back to British subjects. USSC reverses Virginia court & remands. Virginia court thumbs nose, says USSC has no jurisdiction over state court decisions. USSC bitchslaps. (Story writes decision; Marshall recused). MICHIGAN v. LONG: Marijuana found in driver s car. Michigan Supreme Court tosses conviction, relying on USSC case Terry v. Ohio and the Michigan Constitution. USSC presumes that the state decision rested on federal grounds, upholds conviction.

SOURCE OF POWER: ARTICLE III

Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. [USSC is the only court actually created by the Constitution.] [Tenure and Compensation Clause: during good behaviour insulates judges from politics, Congress.] Section 2. [Clause 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 [law of the high seas] 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;--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. [Note: all appears before each of the cases , but does not appear before controversies. ] [Clause 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. [Cases: federal question jurisdiction. Controversies: diversity jurisdiction providing a neutral ground.]

POWERS
JUDICIAL REVIEW

o
o o o

The exercise of power by courts to strike down or invalidate laws of the government.
 In Parliamentary systems, the Parliament can strike down decisions of the courts. MARBURY v. MADISON: Struck down 13 of the Judiciary Act. It is emphatically the province and duty of the judicial department to say what the law is.

JURISDICTION OF THE FEDERAL COURTS

  Art. III 2 Cl. 1: Cases (Federal Question) and Controversies (Diversity Jurisdiction). Art. III 2 Cl. 2: USSC has original jurisdiction over cases involving Ambassadors, Public Ministers, and Consuls, cases to which a state is a party. y MARBURY v. MADISON: Congress may not expand original jurisdiction. The USSC has appellate jurisdiction over all other Cases and Controversies , with exceptions made by Congress.

JURISDICTION OF THE SUPREME COURT

REVIEW OF CASES ARISING OUT OF A STATE COURT

o MARTIN v. HUNTER S LESSEE: USSC has jurisdiction over cases arising out of state courts.  Art VI 2: Supremacy Clause: ensures that federal law is the law of the land.  At time of founding, there were no lower federal courts. Since so many cases/controversies could only be heard on appeal, Constitution was giving USSC jurisdiction over state courts.  25 of Judiciary Act (written by same drafters as Constitution) permitted USSC to order lower courts to send up cases. LIMITATION: Independent and adequate state grounds  Michigan v. Long: unless a state court explicitly notes that there are independent and adequate state grounds, USSC will presume the decision relied upon federal grounds and render a decision. State courts can then be clear if there were independent and adequate state grounds.  INDEPENDENT: relies entirely on state law.  ADEQUATE: doesn t conflict with US Constitution. States can grant more rights than the US Constitution provides, but they can t take them away or otherwise violate the Constitution.  Otherwise, USSC would be making a decision which changes nothing (advisory opinion).  HYPO: CA supreme court invalidates death penalty under both state and federal law. USSC can t touch because of independent and adequate state grounds. CA citizens amend constitution to permit death penalty, CA SC invalidates under federal law. USSC can now take (no state grounds). AGAINST STATE OFFICIALS  CAUSE OF ACTION: 1983: provides CoA against any person who, acting under color of state law, deprives a plaintiff of rights guaranteed under the US Constitution or by Federal statute, and provides for an award of damages and/or injunctive relief. y NB: SEE DISCUSSION OF 11th AMENDMENT, STRIPPING DOCTRINE OF EX PARTE YOUNG.  JURISDICTIONAL STATUTE: 1343(a)(3): Must have Congressional permission for the court to hear particular claims. Here, Congress has provided lower federal courts jurisdiction to hear claims based on 1983.  Could also file in state court using 1983 CoA, but would have to find state jurisdictional statute. AGAINST FEDERAL OFFICIALS  CAUSE OF ACTION: BIVINS: implied cause of action. y 1983 is specifically directed at state officials. There is no CoA to sue Federal officials in federal courts. BIVINS presumes there is a federal cause of action implied because Constitutional protections require the right to bring suit against Federal officials.  JURISDICTIONAL STATUTE: 1331 general Federal Question jurisdiction statute. JUSTICIABILITY: Federal Courts, under Article III, can only hear Cases and Controversies, a term of art expressing the idea that, under of separation of powers, courts may only say what the law is under particular circumstances. There must be a real, live controversy before the courts. Courts cannot issue advisory opinions. These doctrines determine whether the right person is bringing the right case.  STANDING: the right parties are involved. y INJURY IN FACT: true legal injury or threat of imminent legal injury. Cannot be unduly speculative. o Persons:

CASES INITIATED IN THE FEDERAL COURTS -- JUSTICIABILITY

o

LUJAN v. DEFENDERS OF WILDLIFE: Plaintiffs did not purchase tickets or make plans to study wildlife; unduly speculative whether they actually would. o States: Special solitude in standing analysis.  MASSACHUSETTS v. EPA (p75): Sovereign state had special solitude in our standing analysis, could raise rights of other states against EPA s failure to regulate greenhouse gasses. o Associations:  Injury to Association: may assert own or members rights.  Injury only to members (not the association): y Individual members would have standing independent of the association. y Relief must benefit the members. y No need for individual participation of the members. y WARTH v. SELDIN: METRO-ACT members would not have standing on their own because of lack of redressability. Builders association lacked standing because each was seeking past damages, requiring individualized participation. LUJAN v. DEFENDERS of WILDLIFE: challenge to y environmental protection statute enforcement. Plaintiff organization alleged some members wanted to visit countries where the protected animals lived. Members had no standing because injury was unduly speculative: no particular plans, didn t purchase tickets, etc. CAUSATION o But for causation: But for the defendant s acts, there would be no injury or threat of imminent injury. o Redressability: if the court provides the requested relief, it will either prevent the threatened injury or will adequately compensate the past injury.  MARBURY v. MADISON: courts don t inject selves into midst of political process, but are available for those who suffered an injury.  WARTH v. SELDIN: Suit challenging restrictive zoning requirement. Low-income residents of nearby Rochester wanted to move to Penfield. No redressability: no specific plan for low-income housing to be built. Completely speculative whether any housing would actually be built if zoning requirement struck down. ARLINGTON HEIGHTS: zoning act case, but builders had specific  plans and another plaintiff was qualified to live in the housing. Absolute certainty wasn t necessary, just substantial likelihood that the injury will be redressed. Ultimately lost on the merits. THIRD PARTY CLAIMS: generally not permitted. Plaintiff always needs their own injury. o WARTH v. SELDIN: METRO-ACT association members could not raise claim of discrimination against other people. o Exception: law itself permits plaintiff to raise own claims and also other parties claims. MASSACHUSETTS v. EPA: Could raise claims of other states.  o Exception: Challenged law requires plaintiffs to violate rights of third parties. CRAIG v. BOREN (p74): Sale of 3.2% beer prohibited to males,  allowed women. Vendors economically affected (own injury), could rd raise rights of 3 parties seeking access to their market or function.  E.g., law prohibiting abortions. Doctors (economic loss) can raise rights of women denied the abortions. GENERALIZED GRIEVANCES: no standing where injury to the taxpayer would be no different than every other taxpayer. Since almost everyone affected, courts leave to political branches. o Exception: Establishment Clause, Tax/Spend power nexus. Must have both. o LUJAN: Congress tried to give everyone power to sue. Court struck down. 

MOOTNESS: too late to bring the suit. Events subsequent to the filing of the case render the judgment without effect upon the rights/duties of the parties. No longer a live case or controversy y DEFUNIS v. ODEGARD: law student sued for discrimination in application, permitted to attend school. By the time the case reached the USSC, was in final semester and school stipulated that it would let him complete courses. Moot. y AVOIDING MOOTNESS: o Damages: Unresolved collateral issues (What?) o Class Action: Even if class representative s interests become moot, as long as some member of the class still has a live claim, case is not moot. o Capable of repetition, yet evading review: it can continue to arise in regard to this particular plaintiff, yet keep evading review because it will always end before litigation is complete. E.g., pregnancy in ROE v. WADE. RIPENESS: too early to bring the suit. Too early to know whether it s realistic that the plaintiff will suffer an injury. Tends to arise when plaintiff is seeking declaratory relief from future injury. y Threatened injury cannot be unduly speculative. Must be likely to occur. y THREAT OF PROSECUTION DOCTRINE: specialized ripeness doctrine. o Law/gov t action must be currently enforced (not old, disregarded law). o Plaintiff will be prosecuted if law is transgressed. (DA could stipulate to this.) o And either:  Substantial likelihood that plaintiff will violate the law; or  Law s presence has reasonably deterred plaintiff from acting. y RELATIONSHIP WITH STANDING INJURY-IN-FACT: If no ripeness, court will conclude that there is no injury-in-fact. POLITICAL QUESTIONS: issues which should be left to the coordinate political branches. Declining in application. Three main situations: y CONSTITUTIONAL TEXT COMMITS DECISION TO ANOTHER BRANCH o NIXON v. U.S.: impeachment of judge by Senate subcommittee not justiciable, as Constitution grants Senate ultimate authority to conduct impeachments. y LACK OF JUDICIALLY-DISCOVERABLE AND MANAGEABLE STANDARDS o Exceedingly rare situation: courts will find a way to measure (e.g., Reasonable Person standard is difficult, but courts use it anyway.) o COLEMAN v. MILLER: pending Constitutional amendment took a long time. No way for court to determine whether it has gone stale (expired). y NEED FOR A SINGLE VOICE IN MATTERS CONCERNING FOREIGN AFFAIRS o E.g., legality of Vietnam War. Inappropriate to leave troops in field awaiting judicial decision before they can return or open fire. o Rarely applied: courts will hear all sorts of claims (e.g., Guantanamo cases) where court determines status vis--vis the rest of the world. o Legality of warfare and sensitive diplomatic issues might be left to political branches.

LIMITATIONS ON POWER
CONGRESSIONAL OVERSIGHT OF FEDERAL COURTS o Power over the jurisdiction of the lower Federal Courts
  Art. III 1: Congress has power to establish inferior courts. USSC only court actually created by Constitution. Congress may establish lower courts (or none at all) and determine which cases they can hear. y E.g., Congress limits diversity claims to those which involve $75,000+ MARBURY v. MADISON: Congress cannot add to the original jurisdiction of the USSC, as original jurisdiction is explicitly spelled out in Art. III, Sec. 2, Clause 2. Congress had attempted to add writs of mandamus to USSC s original jurisdiction via Judiciary Act 13. y Only that which is absolutely necessary for a functioning national government was given original jurisdiction in the only court actually created by the Constitution (the USSC). EX PARTE McCARDLE: Congress can remove USSC s appellate jurisdiction. Congress repeals statute giving USSC appellate jurisdiction, so USSC must note lack of jurisdiction and dismiss case.

Power to make exceptions to the Appellate Jurisdiction of the USSC



LIMITATIONS ON THESE LIMITS

 

Congress cannot control or revise a decision by the courts

y y y y U.S. v. KLEIN: Congress unconstitutionally tried to direct/overturn the verdicts of courts. U.S. v. KLEIN: seems to imply that there must be some court which can hear the case. Art. III 2 Cl. 1 refers to all Cases (federal question), but not all controversies (parties). Unresolved area of law: Congress has threatened to remove cases from the court s purview entirely, but has never followed through on that threat. No apparent limit on Congress power to not create any federal courts, nor on power to make exceptions to USSC s appellate jurisdiction, but constitutional crisis if both at same time.

Simultaneous exercise of these powers

EXAM ANALYSIS
The powers and jurisdiction of the federal courts are established under Article III. Courts can hear cases which involve [x] etc. 1. Is the case properly before the federal courts? [Clause 1]
a. MARBURY v. MADISON: Marbury had right to commission under a federal statute, so he met the requirements of Art. III 2 Cl. 1: some federal court can hear his claim as an original matter. MARBURY v. MADISON: Marbury wasn t a public minister (ambassadors): case could only be heard on appeal. Congress couldn t expand USSC original jurisdiction. GTFO, Marbury. ASSUMPTION: Unless a statute says otherwise, there s a presumption that Congress did not authorize jurisdiction. 28 USC 1257: grants USSC jurisdiction to hear appeals from highest state courts. (Was Judiciary Act 25)

2. Is the case properly before this court? [Clause 2]

a.

3. Is there a statute granting jurisdiction?

a. b.

LEGISLATIVE BRANCH (CONGRESS)

SOURCES OF POWER
Primarily found in Art. I 8: 18 different clauses: The Congress shall have the power 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; The 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; To declare war, grant letters of marquee 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 [the District of Columbia] 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; and Final clause (X): 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. Amendments 13, 14, 15 Congress shall have power to enforce this article by appropriate legislation. Sources of Limitations: AMENDMENT IX: All powers not delegated or prohibited are reserved to the states or to the people. Art I 10: No state shall enter into any treaty, alliance, or confederation; grant letters of marquee and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post factor law, or law impairing the obligation of contracts, or grant any title of nobility. No state sall, 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 or 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 the Congress. 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 another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

POWERS
THEORY 1. EXPRESS POWERS a. Art. I 8:

i. Lay and collect taxes, pay debts, provide for general defense and common welfare. Taxes must be uniform across the states. ii. Borrow money. iii. CLAUSE 3: COMMERCE CLAUSE: regulate commerce with foreign nations, and among the several states, and with the Indian tribes; iv. Uniform system of naturalization. v. Coin money, regulate its value, punish counterfeiting, set weights & measurements vi. Establish post offices, post roads. vii. Create trademark and copyright. viii. Punish piracy and other violations of international law. ix. Raise and support armies (2-year funding limit), navy, regulate them. x. Call forth, organize, arm, and discipline the Militia. xi. Legislation over D.C., other property purchased from the states for needful buildings xii. X: NECESSARY AND PROPER CLAUSE: 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. b. Amendments 13, 14, 15: The Congress shall have power to enforce this article by appropriate legislation. i. 13: Slavery and involuntary servitude shall not exist within the United States. ii. 14: Privileges and Immunities. iii. 15: Right to vote shall not be abridged on account of race. c. Limitations: i. 10TH AMENDMENT 2. IMPLIED POWERS (Two theories)
a. MARSHALL S OPINION IN McCULLOCH: Constitution is a framework of government that must face a variety of circumstances, so gov t holds implied powers to use the means which are conducive, advantageous, or convenient to advancement of express powers. Even without the necessary and proper clause, Congress would have this power the clause is only there to make it absolutely clear. i. Lack of expressly in Articles of Confederation. HAMILTON:

b.

INTERSTATE COMMERCE CLAUSE 1. HISTORY a. THE MARSHALL COURT

i. Broad power with no limits beyond those in the Constitution, but Congress can t use these powers as a pretext to exercise power it doesn t have. ii. McCULLOCH v. MARYLAND (p136): Maryland tries to levy a tax against the national bank of the th US, argues that it s unconstitutional to create a bank. Marshall notes 10 Amendment left out word expressly (which was found in Articles of Confederation). Congress has implied powers to do that which is necessary and proper (a clause found in the powers of Congress, not its limitations). It is not required that the exercise of power be absolutely necessary to accomplish an enumerated goal/power. Congress need not prove that it s necessary. Critics charge the opinion means Congress can decide the scope of its own power. 1. Congress had power to create bank to advance express powers. 2. State could not tax the bank: the power to tax is the power to destroy. States can t place themselves above the federal government (supremacy clause). Could tax the property the bank was on, so long as that tax was uniform.

iii. GIBBONS v. OGDEN (p150): NY grants exclusive license to operate powered ferries on NY waterways (Ogden acquires by assignment). Gibbons ferry makes stops in NY until NY courts stop him. Congress had granted Gibbons a federal coasting license. Congress has an implied power to regulate even intra-state commerce if it has an effect. This power acknowledges no limitations th other than are prescribed in the Constitution. Completely ignores 9 Amendment. iv. WILSON v. BLACK-BIRD CREEK MARSH CO. (p157): Delaware authorizes a company owning marshes along a navigable creek to dam/bank the creek to promote health. A boat, licensed as in Gibbons, comes along and, finding their path blocked, knocks down the dam. USSC backs off of Marshall s Gibbons, says that federal law providing a license doesn t trump state s power to provide for health/safety/welfare of their citizens.

b. 19th CENTURY USSC (POST-MARSHALL)

i. Congress can t decide how broad its powers are. USSC limits commerce clause to vindicate the 10th Amendment. Congress can t touch factories, mining, etc. ii. HAMMER v. DAGENHART (Handout #1 - 1918): Congress prohibits transportation of goods manufactured by factories which had used child labor within the past 30 days. Attempted to avoid restriction that Congress couldn t ban child labor itself, instead trying to ban transportation of such goods across state lines. USSC says goods themselves aren t harmful, Congress using power as a pretext to exercise a power they don t have.

c. NEW DEAL ERA USSC: The change in time that saved 9.

i. Restores Marshall, but without the investigation for pretext. Uses the class of activities analysis (Darby, Wickard): if Congress could reasonably conclude that this activity, when viewed in the aggregate as a class, might have a substantial impact on interstate commerce, Congress may regulate the whole activity. Congress must act reasonably, but Courts won t examine whether Congress was right. ii. U.S. v. DARBY (Handout - 1941): Congress regulates labor (hours per week, minimum wages). USSC overrules Hammer v. Dagenhart: intra-state commercial activities will have an impact on interstate commerce (unfair competition as businesses seek better regulatory climates), can be th regulated. 10 Amendment but a truism, simply announcing that whatever isn t in the hands of the federal gov t remains with the states (but no indication of what power belongs to which structure). 1. Congress reasons for the regulation are irrelevant: all that matters is whether Congress had the power to regulate in the first place. iii. WICKARD v. FILLBURN (Handout - 1942): Congress rations growing of wheat. Farmer grows more than his mandated share so that he can use some of the wheat for his own non-commercial consumption. By not having to buy what off the market, farmer had a minute impact. USSC rules that as long as Congress can reasonably conclude that, as a class, in the aggregate, there is a substantial impact upon interstate commerce, Congress may regulate even intra-state commerce. iv. HEART OF ATLANTA MOTEL v. U.S. (1964): Civil Rights Act upheld as a constitutional use of the commerce clause because Congress found that segregation in a private hotel along an interstate would, in the aggregate, cause an impact upon interstate commerce because African Americans were deterred from travelling. 1. 14th Amendment did not apply: only applies to state governments, not private entities. v. KATZENBACH v. McCLUNG (1964): Ollie s BBQ had received over $70,000 of food moving in interstate commerce. Congress had a rational basis in passing the Civil Rights Act as applied to restaurants because of the burden imposed on the interstate commercial food markets. 1. As long as the class is drawn in such a way that Congress had a rational basis (a reasonable conclusion, even if it s wrong) in finding that it has an impact on interstate commerce in the aggregate, the USSC will defer to Congress judgment a la McCulloch.

d. DO THE REHNQUIST REVOLUTION

i. Congress ability to regulate local, non-commercial activity is restricted: findings of a direct impact on interstate commerce or a jurisdictional clause are required. ii. U.S. v. LOPEZ: law prohibiting possession of handguns within a particular distance of a school is struck down, as possession had nothing to do with commerce. Would have been upheld if there were a jurisdictional clause requiring proof that the gun had moved in interstate commerce. iii. U.S. v. MORRISON: Violence Against Women act struck down: Congress failed to demonstrate that the prohibited activity had a direct impact upon interstate commerce, even if that impact was substantial. Too attenuated. If directness not required, Congress power could reach anything.

The Constitution requires a distinction between what is truly national and what is truly local. If your theory destroys this distinction, then your theory is incorrect. iv. GONZALES v. RAICH: USSC holds that Congress could prohibit medicinal marijuana use in CA, even though the instant case involved no commercial transaction: the defendants grew the marijuana themselves. 1. Majority: throwback to Wickard: uses the local commercial activities classification, so there s no need for Congress to justify the law. Wickard was also about commercial activity, even though the farmer s violation involved personal (not commercial) use. Where a local non-commercial activity is undermining broader commercial activity, Congress may regulate the underlying non-commercial activity in its attempt to regulate the broader commercial market. 2. O Connor dissent: this should be a direct and substantial impact test, requiring Congress to prove a direct and substantial impact, as this involved no commercial transaction. 1.

2. MODERN COMMERCE CLAUSE LAW THE LOPEZ TEST

a. b. Congress has the power to regulate channels of ISC, instrumentalities of ISC, and activities having a substantial impact upon ISC (3 types). CHANNELS OF INTERSTATE COMMERCE: what can move in interstate commerce (e.g., dangerous things, lottery tickets, people for illicit purposes, etc.) i. Congress reasons are irrelevant there is no prohibition on pretext. INSTRUMENTALITIES OF INTERSTATE COMMERCE: protecting things as they move from state to state (e.g., preventing trucks from going too fast, making sure trains aren t dangerously long, pilots of boats have proper licensing, etc.) ACTIVITIES HAVING A SUBSTANTIAL IMPACT UPON INTERSTATE COMMERCE: i. LOCAL COMMERCIAL ACTIVITIES 1. Class of activities analysis (e.g., Darby, Wickard, Heart of Atlanta, Katzenbach): As long as Congress had a reasonable basis in finding that the activities, in the aggregate as a properly-drawn class, have a substantial impact on interstate commerce, Congress may regulate the whole class. A deferential test. a. Does not require any findings by Congress. b. RAICH (Stevens): Wickard still applies, allowing federal gov t to regulate not only commercial activity, but activity which undermines a broader commercial regulatory program. (E.g., consumption of home-grown wheat in Wickard, home-grown weed in Raich) i. DISSENT (O Connor): Creates a drafting guide for Congress: to regulate the small, create a broader regulatory program and incorporate it. ii. Can Raich be limited such that the non-commercial activities test (below) still applies? Not yet known. ii. LOCAL NON-COMMERCIAL ACTIVITIES 1. Congress can use a jurisdictional element (or hook ) in which the statute only applies in circumstances where a specific, proven link to interstate commerce can be shown. a. E.g., Lopez gun law might have been upheld with a jurisdictional element. 2. DIRECT and SUBSTANTIAL impact on interstate commerce: Congress must prove that there is a direct and substantial impact. The impact must be direct (no domino effect) and must maintain the line between national and local activities. a. If the essential result of upholding the law would be to erase the distinction between national and local activities, the theory fails. b. Non-deferential test: requires Congressional proof or findings. LIMITING RAICH i. Stevens Majority: Federalism isn t controlled by the structure of the Federal Constitution in a manner courts should be involved with. Congress should consider whether something should be left to the states to regulate, but the courts should defer to Congress judgment. ii. O Connor s Dissent: Limited federalism is a constitutional right of the people, helping to preserve liberty. Allow states to experiment, fail, and learn. Apply the Lopez test, talk about whether Lopez will swallow everything up. This is unresolved area of law.

c.

d.

e.

3. COMMERCE CLAUSE ON AN EXAM

a.

4. COMMERCE CLAUSE HYPOTHETICALS

a.

HEALTH INSURANCE: Does Congress have the power to require individuals to purchase health insurance? i. Congress has only certain powers. Congress might attempt to justify this legislation as part of its powers to regulate interstate commerce under the Interstate Commerce Clause. Congress has the power to regulate channels of interstate commerce, the instrumentalities of interstate commerce, local commercial activities, and local non-commercial activities where there is either a jurisdictional clause (or hook ) or where that activity has a direct and substantial impact on interstate commerce. 1. Doesn t fall under channels or instrumentalities. 2. Local commercial activity? a. Failure to participate in the pool would have an impact on the broader market. So it s a non-activity that s being regulated. Do Raich and Wickard extend to non-activity, as well? If so, does that essentially erase any distinction between matters local and national? ii. But is this an exercise of Congress power to tax and spend?

POWER TO TAX
Kind of a mirror doctrine with the Spending power. Congress can generally tax and spend as it pleases. Ordinarily unlimited power: Courts show great deference. o Except: if it s a so-called penal tax, it must be in furtherance or advance an enumerated responsibility or an enumerated power.  Penal tax: Not really an attempt to raise revenue at all (e.g., only applies when people break the law). Congress isn t really attempting to raise money; therefore it s not really a tax: it s an exercise of pure, regulatory power. Might still be Constitutional if it s in furtherance/advance another enumerated power. Won t be treated as a tax at all: treated as exercise of regulatory power. y SONZINSKY v. UNITED STATES: National Firearms Act taxed sales of specific firearms (sawed-off shotguns, machine guns, etc.), as well as annual tax on dealers. Congress wasn t interested in raising money: wanted to stop people from buying these guns. o Whether Congress is attempting to have a regulatory effect is irrelevant, so long as they re raising some money. o Sonzinsky didn t require the violation of any law in order to take effect: it taxed all of the targeted firearms. o Tax can be quite substantial/prohibitive: here, $200/gun was a lot in this era. Hypo: Congress passes a tax against sales of firearms to convicted felons. This is a penal tax: it s already illegal to sell to convicted felons, and the tax would only kick in when the law is broken. A tax which should never be paid isn t a tax at all. Must be justified by some other enumerated power.

POWER TO SPEND
Kind of a mirror doctrine with the Taxing power. Congress can generally tax and spend as it pleases. Ordinarily unlimited power. o Except: if it s coercive : not really an effort to spend money for the general welfare, but an attempt to regulate (force people to do things, prevent people from doing things, etc.). Like taxes, must then be in furtherance of or advance another enumerated responsibility or an enumerated power.  Coercive: undermines the voluntary nature of the program. One thing to provide an incentive; another altogether to make an offer someone can t refuse. y All taxes/spending have a so-called regulatory effect, but that doesn t make it coercive. y U.S. v. BUTLER: Agricultural Adjustment Act taxed agriculture to raise prices of farm products; Congress pays farmers to reduce their acreage. o Coercive because:  Farmers were vulnerable due to severe economic distress (Great Depression).  In order to get the money, farmers had to sign a contract that could be enforced in courts of law. Gov t used their economic distress to force them into a contract not exactly voluntary. o Would probably be upheld today as a valid exercise of regulation of ISC (this was pre-Wickard).

SOUTH DAKOTA v. DOLE: 5% of federal highway transportation funds withheld unless state raised drinking age to 21. Since the spending for highways was in pursuit of the general welfare (Congress gets considerable deference ), conditions were imposed unambiguously so that states were able to exercise their choice knowingly, cognizant of the consequences of their participation, and the condition was related to a federal interest (safe highways), wasn t coercive. HISTORICAL APPROACHES TO SPENDING (from Butler): o Madison s Theory: Congress could only spend in furtherance of an enumerated authority. o Hamilton s Theory (later espoused by Justice Story): no limitation on the subjects upon which Congress can spend its money up to Congress to decide what is in furtherance of providing for the General Welfare. y

WAR POWER
Congress has the power to declare war (hasn t happened since World War II). o President can be directed by Congress to take troops into harm s way, but Pres. cannot declare war. o Since WWII, ability to enter into military engagements has fallen more into Pres sole discretion.  Issue has never come before the court: dismissed as political question. o War Powers Act: creates a clock when Pres sends troops into harm s way: 30 days to notify Congress. If Congress doesn t authorize within statutory period, Pres. must bring troops home.  Every Pres since Jimmy Carter has insisted WPA unconstitutionally restricts CIC authority. o Where Congress does declare war, may enact all statutes necessary and proper to advancing its war power.  These powers continue to exist after war ends in order to ameliorate effects of war (e.g., providing housing for troops;) (Eventually, distance between war/regulation will be too far attenuated and Courts will put a stop to it. Not yet resolved.) Congress may terminate spending. All such spending must be authorized every two years. Congress may impeach the President.
U.S. v. CURTISS-WRIGHT: Congress authorized Presi to embargo arms sales to particular countries. Challenged as unconstitutional delegation of legislative power to executive. Court distinguishes foreign matters from domestic powers. Const carved out of powers then possessed by the states, but states never had int l powers. No Const affirmative grant of power necessary in foreign realm e.g., acquire territory, expel aliens, make int l agreements [not just treaties] inherently inseparable from concept of nationality.

WOODS v. CLOYD W. MILLER

TREATY POWER
SOURCE OF POWER: MISSOURI v. HOLLAND: Missouri attempts to regulate birds, in violation of a treaty. Pre-New Deal case, so birds, th agriculture, etc., are all local activities reserved to states under 10 Amendment. o Art II, 2: Pres has power to initiate or enter into treaties with advise & consent of two thirds of the Senate. o Once a treaty is entered into, Congress may enact statutes in furtherance of enforcement of that treaty.  So while Congress couldn t reach birds through ISC, could reach through the treaty.
HYPO: Pres initiates gun control treaty with Great Britian, ratified by 2/3rds of Senate. Congress then bans possession of any gun within 500 feet of a school. Constitutional? o Live controversy; unknown. o Argument NO: the states actually possess the schools (unlike birds). Requires a strict/limited reading of Holland, which involved activities that didn t really belong to the states at all. Comment [A1]: This needs more work.

POWER OVER FEDERAL PROPERTY

PROPERTY CLAUSE (ART IV): Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. Federal property can be regulated by Congress as if the federal government were a state: same property rights as any other owner. May make incidental rules and has power to protect federal property.

KLEPPE v. NEW MEXICO (p228): Right to regulate horses on federal land. Power over its own property analogous to the police power of the several States
HYPO: Large earthquake creates new land mass, which America quickly adopts as a territory. o It s a territory, not a state. Federal government can act as if it is the state within its territories: regulate schools, ban handguns, whatever. o Power over plants, wildlife, etc., as if they re the property owner.

LIMITATIONS ON POWER
INDIVIDUAL RIGHTS
Bill of Rights. E.g., Congress can regulate interstate commerce, but can t violate these rights. Article I, Section 9 (??)

FEDERAL POWER AND THE 10th AMENDMENT (CONGRESS) - 10th Amendment: 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.
Doesn t speak in terms of individual rights, like the Bill of Rights does, but talks in regard to power of states rights. Congress may pass generally applicable laws which impact even state organizations, so long as they treat all entities (public and private) the same (Garcia). However, they cannot target their efforts directly at states (New York) or place unique obligations on states or their actors (Printz). Congress may also prohibit state actors from taking actions (Reno). o Congress may not infringe upon states sovereignty, even where it has an enumerated power to regulate a particular area. o Congress may provide incentives to target the states, but cannot commandeer their operations (whether executive [Printz] or legislative [New York]).  States may voluntarily comply. o State courts do enforce federal law: they take an oath to uphold the same Constitution. GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY: mass transit (public authority) sought immunity under 10th Amendment from being forced to provide overtime to employees. Fed gov t had power to regulate wages, overtime (see, e.g.: Darby class of activities analysis) o 10th Amendment is left to the political process, doesn t recall for narrow restriction of power. States have an important role in the structure of the Constitution, but that role is adequately protected in representation in Senate, House, and Electoral College. Their sovereign rights can be heard in debates.  10th Amendment doesn t reserve particular rights for states: just reserves for them what is left over from the political process. It s a truism: power not granted to Congress is left to the states. th  DISSENT: makes 10 Amendment unenforceable. o Objects to the traditional government functions test (National League): unworkable standard. NEW YORK v. UNITED STATES: Congress attempts to regulate disposal of low-level radioactive waste. Two provisions provided monetary incentives and access incentives, third provision required states to develop waste disposal sites or take legal ownership and responsibility (liability) for the waste. th o 10 Amendment is enforced by the courts. Gov t can encourage/provide incentives to states, but cannot force them to enact Federal policy. Certain functions cannot be under direct control of the federal th government, and it is the role of the courts to invalidate efforts to take over the states. 10 Amendment, at a minimum, requires states , which means they must be independent.  Take Title provision didn t leave states an option: they either had to take legal ownership or legal responsibility.  Does New York overrule Garcia? No: in Garcia, states were being treated the same as private employers: generally-applicable law. All companies, regardless of their label (public or private), had to provide overtime protections. Congress had power to do this under ISC. New York involved a law specifically targeting states and only the states, placing particular responsibilities on governmental institutions responsibilities not placed on anyone else. o Very unstable area of law. One vote switch could turn this back into a Garcia game.  Garcia could have been utilized in Reno, but was not might indicate current court s unwillingness to embrace Garcia again.

NB: States couldn t give up their sovereignty even though they wanted to (e.g., Attorneys General supported legislation.) PRINTZ v. UNITED STATES: required Chief Law Enforcement Officers of municipalities/counties (state officials) to conduct background checks in purchases of firearms. o Simply an application of the New York principle that Congress cannot force states as states to enact or enforce federal law. Placed a unique obligation upon state actors. RENO v. CONDON: Driver s Privacy Protection Act restricted ability of state motor vehicle departments to disclose drivers personal information without consent. It had been previously disclosed and sold to private markets. o Law was drafted such that it applied to everyone but court didn t analyze under Garcia; analyzed under New York.  Didn t require the states to take action just forbid them from taking particular action. ANALYSIS ON AN EXAM: o 1. Does federal government have power to regulate this particular area? (See, e.g.: ISC).  Analyze whether Congress regulation is appropriate in its method (how Congress is regulating ISC). (???). E.g., Congress could regulate waste dumping in New York, but how they were regulating it violated 10th Amendment. o

FEDERAL POWER AND THE 11th AMENDMENT (COURTS) - 11th Amendment: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Where 10 Amendment prohibits Congress from commandeering the states, the 11 prohibits the courts from commandeering the states and forcing them to defend themselves in Federal court. o Does not constrain state courts: states may decide whether they consent to being sued in their own courts.
th th

THEORY
o HANS v. LOUISIANA: states may not be sued in Federal court without their consent (even by a citizen of that state). Court acknowledge text itself only prohibited suits by non-citizens of that state, but broader th principle behind 11 Amendment: States should be immune from individual suits brought against the state in federal court unless the state has actually consented to being sued in federal court.  National gov t is also immune from suits without consent (e.g., Federal Tort Claims Act).  Reaction to CHISHOLM v. GEORGIA (1790s): even though federal government immune, states not th immune. Congress proposes 11 Amendment as a result. SUITS AGAINST STATE OFFICIALS th  State officials can be sued without running afoul of the 11 Amendment where they violate Constitutional rights.  Stripping Doctrine of EX PARTE YOUNG: states cannot authorize their officials to violate supreme federal law. When an individual state actor violates rights under color of state law, they lose their th state sovereign immunity under the 11 Amendment. y States and state agencies do not lose their immunity, can t be sued. y DAMAGES: Plaintiffs can get an injunction by suing the state official in their official and personal capacity. Can be compensated for past damages out of the state official s bank account, not state treasury. y PENNHURST v. HALDERMAN: Suit against director of a Pennsylvania Hospital (by way of Stripping Doctrine of Ex Parte Young). However, Congress didn t authorize individuals to file these suits (so no cause of action). State law provided such a cause of action, so court issues the injunction under the state law. o Ex Parte Young doctrine allows stripping /injunction on basis of federal law, does not permit injunctions on basis of state law, even where there is supplemental jurisdiction (common nucleus of operative fact). SUITS AGAINST STATE SUBDIVISIONS: cities/counties have no 11th Amendment immunity, can be sued.  Damages: Can get monetary damages from subdivision s treasury where the prohibited action was the result of a city or county policy (written or unwritten). SUITS BY FEDERAL GOVERNMENT OR OTHER STATES TH CONGRESSIONAL STATUTE BASED ON A POST-11 GRAND OF POWER ( CLEAR STATEMENT )

EXCEPTIONS
o

o o

SEMINOLE TRIBE v. FLORIDA: Congress can remove all immunity, including ability to recover th damages from state treasuries, where Congress exercises a post-11 Amendment grant of power accompanied by a clear intent that Congress intends to abrogate 11th Amendment immunities. th th y In particular: Sec. 5 of 14 Amendment, which attaches to 11 Amendment and indicates The Peoples change of mind when it comes to state immunities. th o 14 Amendment: Due Process, Privileges & Immunities. Civil rights. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. y Seminole Tribe: Though Congress clearly intended to abrogate state sovereign th immunity, it was based on the Indian Commerce Clause, which predated the 11 Amendment.

HYPOS
o While giving a speech in a local park, locals say you re frightening children, so police come and (outrageously) injure you while placing you under arrest. You believe this violates your Federal Freedom of Speech rights and your right to freedom of speech under the California state Constitution. Can you sue in federal court?  Is there a cause of action? 1983 allows you to bring a claim against state officials for violating your federal rights under color of state law.  Is there jurisdiction? 1343(a)(3).  Does the 11 th Amendment pose a bar or barrier to a federal court from hearing this claim? y However, in Ex Parte Young, the court concluded that states cannot authorize their state officials to violate the federal constitution; therefore, under those circumstances, the state officials are stripped of their federal immunity and are subject to suit by individuals in federal court. The court in Pennhurst ruled that suits against state officials cannot go forward based on violations of state law the stripping doctrine of Ex Parte Young does not apply to suits against state level officials for violations of state law. However, this is not a suit against a state-level official: this is a suit against a city-level official. y The restrictions of the 11 th Amendment do not apply to state subdivisions: city and county governments. The suit can go forward not only on the federal claims, but supplemental state claims, as well. You are denied a job at the State DOT due to racial discrimination. You sue the California DOT and the Director of the CA DOT on the basis of a Title VII violation the Civil Rights Act of 1964, which forbids discrimination in employment based on race.  It can go forward against the Director because of the stripping doctrine of Ex Parte Young.  It can also go forward against the state-level department (including a suit for past damages against the department, from the state s treasuries) on the basis of the Fourteenth Amendment.  Title VII includes its own cause of action (you don t have to rely on 1983, which didn t clearly state Congress intent to abrogate the 11th Amendment). State runs a dump of radioactive waste. Congress passes a law based on the Commerce Clause providing a private cause of action in federal court against states, allowing for damages and injunctive relief. th  Statute unconstitutional: uses Article I, not a post-11 Amendment creation of power. No clear statement that Congress is abrogating states immunity.  1983 contains no clear statement of an intent to abrogate state immunity. Can only be used against state officials, not state themselves.

11th AMENDMENT ON AN EXAM SUING A STATE OR STATE OFFICIAL IN FEDERAL COURT:

o CAUSE OF ACTION: 1983, permits states to be sued in Federal Court.  NB: 1983 includes no clear statement of abrogation of state immunity can only be used against state officials! JURISDICTION: 1343(a)(3): DOES THE 11th AMENDMENT PROHIBIT THE SUIT? TH  IS THE POWER EXERCISED PRE- OR POST-11 AMENDMENT?  IS IT AGAINST A STATE OFFICIAL IN HIS PERSONAL AND OFFICIAL CAPACITY, FOR VIOLATION OF A FEDERAL RIGHT?  IS IT AGAINST A STATE SUBDIVISION (CITY/COUNTY)? IS THE ALLEGED VIOLATION A RESULT OF A POLICY (WRITTEN OR UNWRITTEN)?

o o

POWERS OF THE STATES

POWERS
General police power: States do not have to point to a particular power in the constitution or their own constitution. They are assumed to have power to enact anything for the health, welfare, or safety of the citizen.

LIMITATIONS ON POWER
State Constitutions, other limits imposed by the citizens of the state.

EXPRESS LIMITATIONS
Article I 10 o Art. I 10:  No treaties, alliances.  No coining money or emitting bills of credit.  Bills of attainder, ex post facto laws  Without consent of Congress enter into any agreement/compact with another state.  No impairment of contracts. Article IV (Privileges and Immunities) Bill of Rights by way of Incorporation (14th Amendment).

IMPLIED LIMITATIONS
INTERSTATE COMMERCE CLAUSE (DORMANT COMMERCE CLAUSE)
o Power to regulate interstate commerce suggests that when states do something which has a major impact on interstate commerce, they have moved into an area which belongs in the hands of the federal government, not the states. Determining when this occurs is difficult. Three areas of commerce:  EXCLUSIVE STATE REGULATION: Area the federal law can t touch. y E.g., banning possession of handguns within 500 feet of a school.  DISCRIMINATORY LAWS  CONCURRENT POWER THE DORMANT COMMERCE CLAUSE y Where Congress could regulate interstate commerce but, for whatever reason, hasn t. o Two theories:  Exclusive Federal Power: If a local matter has a substantial impact on ISC, states can t regulate it at all, nor can they do anything having substantial impact on ISC. Congress power is exclusive.  Concurrent State Power: until Congress regulates, states are free to regulate themselves. y E.g., taxes are a form of concurrent authority. States can tax, but not in conflict with a federal statute. y MARKET PARTICIPANT o Discriminatory taxes don t apply: court treats taxes as regulation per se if it s discriminatory, will be restricted. o Discriminatory subsidies do apply. y DISCRIMINATORY LAWS o Must satisfy two prongs:

Laws which discriminate against out-of-state commerce will be struck down unless the law furthers a legitimate state interest unrelated to economic protectionism.  The protected interest cannot be furthered through the use of a lessdiscriminatory law. o Or: Congress may authorize discriminatory regimes/agreements. o NEW ENERGY CO. of INDIANA v. LIMBACH: Ohio purports to protect health by granting a tax credit only to ethanol producers whose own states grant a reciprocal tax credit to Ohio ethanol producers.  Interest unrelated to protectionism? Ohio looks like they re only protecting health where it also benefits their businesses.  Less discriminatory alternative: give tax credit to everybody. It doesn t matter where the ethanol is produced. Universal tax credit would encourage wider ethanol use, better promoting the goal.  NB: Congress could establish a Federal Reciprocity Agreement statute permitting these types of agreements. Only Congress may authorize discriminatory treatment. See, e.g., New York. GENERALLY-APPLICABLE STATE LAWS o Two prongs:  Legitimate interest unrelated to economic protectionism. y If no discrimination, then use this test.  Burdens on ISC cannot clearly outweigh the benefits. y As long as safety benefits are more than trivial or illusory, Court will defer to the state s judgment. 
o [Discriminatory laws, above, will almost always be struck down: easy to find a less-discriminatory alternative.]

DCC HYPOS
o SUPERSCOOPER: state passes law requiring trucks to have a gigantic wind catcher on the top to keep them from flying off the road. This tool is banned everywhere else.  Legit intent unrelated to economic protectionism? y No protectionism: doesn t require only out-of-state trucks to have tool. As there s a burden on ISC (not discrimination), this is a generally-applicable law test.  Burden on interstate commerce clearly outweigh the benefit? y Financial burden of buying these things. y Studies show increase in gas milage, saves 10 lives/year. Not illusory/trivial, court defer to state s judgment. SCREAMING EAGLE: Small bird likes to nest in logging trucks, gets upset when logs are moved and dive-bombs people loading/unloading trucks. Washington requires truckers to install screaming eagle device, emits high-pitched tone to scare away birds. Banned in every other state.  Discriminatory? No. Applies equally to companies in state and out of state.  Legitimate interest unrelated to economic protectionism? Yes: safety interest is more than trivial/illusory.  Burden on ISC outweigh benefits? No. Easily uninstalled at border. SCREAMING EAGLE PROTECTIONISM: Turns out the screaming eagle device is only manufactured by a Washington company.  Unsurprising that a company in Washington (known for logging) would be behind new technology. Even if state were explicit in their recognition that it would benefit a Washington company, OK. State, however, cannot exclude devices made in other states. Might be temporary monopoly, but others could enter market. y State cannot structure in discrimination to the law. E.g., Only Screaming Eagle devices manufactured in Washington are permitted

PRE-EMPTION DOCTRINE - EXPRESS - IMPLIED o FIELD PRE-EMPTION o CONFLICT PRE-EMPTION  Physical conflict  Goals/purposes (Gade?)

Comment [A2]: what

EXECUTIVE BRANCH THE PRESIDENT

EXECUTIVE POWERS
ARTICLE II POWERS o COMMANDER IN CHIEF
 Congress has the power to declare war. y View that Congressional authorization is necessary to engage in combat is waning. War Powers Act requires notification, but all Presidents have disclaimed its Constitutionality, while complying generally with its requirements. y Congress has the power to fund wars, or to revoke funding. Must authorize spending every two years. y Nightmare scenario: Congress can impeach the President if need be. President has the power to direct troops. y Historically used to unilaterally introduce troops into hostilities. o Would likely be viewed as a power of the President, even if Congress disapproves. o Lives, property, and interests of the United States gray area. Does the President s power include the ability to defend the interests of the United States?  Presidents have traditionally asserted the authority. But by extending the power that far, it seems more like a declaration of war. Court has treated this as a political question not subject to judicial review left to the political branches to discuss amongst themselves. y Congress tools: if can t get a judicial decision, can end funding. y May defend against attack POWERS OF DETENTION y Unclear whether President can detain those caught fighting against US. In HAMDI, person detained long after actual battle. Can President use CIC powers to indefinitely detain combatants, including US citizens? o HAMDI did not address: there was Congressional authority in the AUMF, though citizens should have right to writ of Habeas Corpus to challenge legality of detention; federal courts should be available to review legality of the detention. o BOUMEDIENE expands approach to include non-citizens in areas qualitatively like Guantanamo: autonomous US control of territory. Detention process subject to requirements of Due Process, access to appeal to Federal courts with ability to overrule military tribunal findings, free the individual if court sees fit. y HAMDI v. RUMSFELD: Prisoner transferred from Guantanamo to US when it s discovered that he s a US citizen. o NON-DETENTION ACT: o President has power to detain anyone found on battlefield fighting US, prevent them from returning to battlefield. In the unconventional, endless War on Terror, possibility detainee could be held for his whole life. President does have power to hold for whole life if he s an unlawful enemy combatant: but must provide right to Writ of Habeas Corpus to non-citizens.  Does not address whether this power is inherent as commander in chief, as there was Congressional authorization in AUMF. o Lawful enemy combatants (wear uniform, carry weapons openly) protected by Geneva Conventions. o SCALIA S DISSENT: You can convict people of Treason, or Congress can suspend the Writ of Habeas Corpus. President can t do this unilaterally.
y y RASUL v. BUSH: Guantanamo counts as U.S. soil, so courts can hear petitions. Congress immediately repeals this power. HAMDAN v. RUMSFELD: While future jurisdiction was repealed, court still has jurisdiction over pending cases. Congress subsequently removes all power of courts to issue writs of Habeas Corpus to enemy combatants. This leads to BOUMEDIENE.

BOUMEDIENE v. BUSH: Right to Writ of Habeas Corpus (right to notice of charges, opportunity to rebut those charges) extends to non-citizens detained by US. Where federal gov t has substantial control over the territory and facility, those detained there should be able to challenge legality of their detention in a federal court empowered to overturn military findings and release the prisoner. Findings do not have to take place in a federal court, so long as that process is an adequate substitute for federal courts: neutral, impartial tribunal such that detainee has adequate ability to prove their detention is unlawful. o BOTTOM LINE: Congress/President cannot detain an individual without charge and opportunity to challenge their detention absent an official suspension of the Writ of Habeas Corpus by Congress.

POWERS DELEGATED BY CONGRESS o BY STATUTE

  e.g., HAMDI v. RUMSFELD: Question of whether Congress has the authority to pass the statute and whether Executive and Courts can subsequently enforce it. With advise and consent of 2/3 of the Senate. May Unilaterally revoke, breach, aggregate, erase treaties, even with Senate disapproval. GOLDWATER v. CARTER: Divided court, questions of whether this was a political issue. y Constitution speaks only of Congress involvement in ratification of a treaty, silent on cancellation. Because this involves matters entirely external to the US, falls under President s powers involving foreign affairs.

BY RATIFIED TREATY
 

Non-self-executing Treaties
y May not unilaterally transform a non-self-executing treaty into a self-executing treaty, particularly in circumstances that have a significant domestic impact. o MEDELLIN v. TEXAS (p409): Mexican national convicted of rape/murder, wasn t given notice that he was permitted to contact Mexican Consulate as per the Vienna Convention treaty. President issues memorandum saying he is enforcing the treaty, requires states to review cases in which they failed to allow foreign nationals to contact their consulates.  Vienna was non-self-executing treaty, which did not allow unilateral executive action. Therefore, no Constitutional nor Statutory power, no power at all.

 Self-executing Treaties EXECUTIVE AGREEMENTS

  Unresolved area of law. Involve agreements between heads of states. DAMES & MOORE and MEDELLIN give insight as to how Court might approach this issue. Generally no Congressional approval required. y DAMES & MOORE v. REGAN: agreement between U.S., Iran: President, in exchange for release of hostages, agrees US will shut down claims in US courts against the Iranian Revolutionary Guard, transfer dispute to international court/forum for arbitration. o Court did not uphold on the grounds that it was an executive agreement; instead looked for a degree of Congressional support. Whenever an executive agreement has a major impact domestically, the Court seems to want to find a degree of Congressional support o Due to its significant impact on domestic affairs (impact upon Americans in American courts), this is an issue traditionally in the hands of Congress, so courts will look for Congressional support of some type. y RECONCILING DAMES & MOORE WITH MEDELLIN?

INHERENT AUTHORITY AS CHIEF EXECUTIVE

o YOUNGSTOWN SHEET & TUBE CO. v. SAWYER: aka the Steel Seizure Case. Truman ordered seizure of steel mills when unions threatened to strike, out of fear that lack of steel would impact efforts in the Korean Police Action. Congress could have seized them (ISC), but had rejected such efforts. Truman s efforts rejected by USSC because they were undertaken domestically, not in the theater of war.

JUSTICE BLACK S FORMALISM: Pres has Article II powers, power to enforce statutes, nothing else. Separation of Powers protects individual liberty by limiting, splitting powers of fed gov t. y Unduly broad power if theater of war expanded to domestic soil. CIC powers insufficient. y Congress didn t delegate power (statute), on domestic soil (no CIC), couldn t seize the mills.  JUSTICE JACKSON S FUNCTIONALISM (TRI-PARTATE APPROACH) (from minority concurrence in YOUNGSTOWN): Constitution sets up separation of powers, generally defines functions of the powers, but there can be lots of power-sharing if the branches have no problem with others exercising their powers. y Congressional support: President can exercise legislative/executive power; power at zenith. o Could be express (statute) or implied: e.g., Congress passes subsidy laws for higher steel mill wages, mills don t use the money correctly. y Congressional silence: Congress could have met, taken a position, chose not to. Over time, acquiescence of Congress will lead to a de facto transfer of power to President. o Analysis suggests that Jackson assumed this could only happen during times of emergency. If Congress doesn t demand that President stop, seems to invite acquiescence and continued ability to exercise the power. y Congressional opposition: Court will only uphold exercise of powers belonging only to Pres. o Congress had opposed such seizures, so Truman couldn t seize. o Could also be express or implied.  HYPO: Pres. Obama issues Executive Order seizing control of health care industry, adopting same language Congress couldn t reach a decision on. y Black: No delegation of authority, no seizure. y Jackson: If no vote yet taken, is Congress still silent? SEE THEMES SECTION 

LIMITATIONS ON EXECUTIVE POWER

Separation of Powers
Executive cannot unilaterally repeal or amend legislative acts CLINTON v. NEW YORK: Line-item veto overruled. President does not have power to appeal or amend a law: only to sign, wait 10 days and let bill automatically become law, or veto, which may be overturned by 2/3 Congress. CHADHA?

Congressional Oversight of the Executive Branch

CONTROL OVER ADMINISTRATION
INS v. CHADHA: AG had power, by legislation, to cancel deportations due to extenuating circumstances. Congress reserves itself power to nullify cancelled deportations by act of one house of Congress. Can t engage in daily oversight of execution of the laws: execution lies solely in the hands of the President/Executive. Primary way to control administration: pass a specific law telling administration what they can t do. o Repeal the grant of power altogether. o Amend the law. o However, ALL LEGISLATIVE ACTS MUST MEET:  BICAMERALISM y INS v. CHADHA: Only House voted. Was not just a House Resolution because it had effect on the duties of persons outside the House, making it an exercise of legislative authority.  PRESENTMENT CLAUSE: Presentment to the President for signature or veto. Congress may override by 2/3rds vote. y CLINTON v. NEW YORK: Line-item veto overruled. Once a bill is signed, the whole bill is law. May only be altered through subsequent legislative action by Congress. Congress cannot try to engage in the oversight of daily execution of a law/bill (e.g., CHADHA, where they tried to change the decision of the Attorney General via one-House veto.)

CONTROL OVER EXECUTIVE OFFICIALS

APPOINTMENTS
o o Principal Officials: Generally Cabinet-level officials: nominated by the President with Senate advise/consent. Inferior Officials: Some control over who gets to name inferior members, but cannot name them themselves.  Can vest power to name either in President, principals (heads of Depts), or the courts. y MORRISON v. OLSON: Congress could vest power in Courts to name independent counsel.  Can reserve power of the Senate to confirm principal officials (heads of departments). Impeachment: Every single executive official subject to impeachment in House, conviction/removal by Senate. Restrictions over Executive Removal  Can t restrict if at will removal is essential. y These officials serve at the pleasure of the President, who can remove them for any reason whatsoever. Congress can t restrict Pres removal ability, even if they ve done nothing wrong.
y HYPO: Congress wants to protect Hillary, says Pres needs Senate advise and consent before removal. Court would strike down this law (which is like one upheld in MORRISON): important office, would impede President s ability to executive his duties if he couldn t fire.

REMOVAL
o o

MYERS v. UNITED STATES: HUMPHREY S EXECUTOR v. UNITED STATES: Pres. Roosevelt removes Commissioner of FTC. Quasi-legislative or quasi-judicial officers couldn t be removed without following procedures established by Congress. y BOWSHER v. SYNAR: Congress attempts to fire Comptroller General. Congress cannot control the execution of its laws or reserve for itself a method of removal other than impeachment, which is only method Congress may use to remove an executive official. Otherwise allowed if no undue influence. y MORRISON v. OLSON: Independent counsel case. They re going to be pissing off the Pres anyway. For cause restriction allowed them to be removed if they weren t doing their jobs. o Split case, fear of violation of Separation of Powers y Can place restrictions so long as they do not unduly interfere with Pres ability to faithfully execute the laws of the United States. o E.g., Congress could not say President couldn t remove an official even if that official were breaking the law. y y

Judicial Oversight of the Executive Branch

President is subjected to judicial process.
o MARBURY v. MADISON: asserted the power of the courts to force the executive branch to take an action, but did not exercise the power in that instance. Belongs to the president alone. No other member of the executive branch can assert that power and may be subjected to subpoena. U.S. v. NIXON: Prosecutor issues subpoena duces tecum to Pres. Nixon to turn over tapes. Court recognizes executive privilege, but limited. Presumptive protection of private communications. Applies a balancing test: balance need for information with need for privacy.  National security, diplomatic negotiations, informant anonymity (e.g., spies) all very weighty.  Need for candid advice (e.g., purely political advice) not given much weight. Outweighed in Nixon by need for criminal process. Later, even need for history outweighed need for privacy. Only the president has immunity from being prosecuted. All other members of the executive branch, including VP, subject to being prosecuted. (E.g., Spiro Agnew indicted while in office, for tax fraud. Good job, Nixon.)  Otherwise, would rival impeachment, as President could presumably be sent to jail. Must first be impeached, then prosecuted. (E.g., Ken Starr refusal to indict Clinton instead, referred to Congress.)  (E.g., Nixon an unindicted co-conspirator in case leading to US v. Nixon). NIXON v. FITZGERALD: USSC, in dicta, notes that Pres is not immune from criminal charges stemming  from his official acts. INJUNCTIONS: NO member of the executive branch, including President, immune from injunction. Judiciary can require every member of executive branch to conform their actions to the law. DAMAGES: With exception of Pres., all executive branch members enjoy qualified immunity from civil damages.

EXECUTIVE PRIVILEGE
o o

CRIMINAL IMMUNITY
o

CIVIL IMMUNITY
o o

QUALIFIED IMMUNITY: cannot be subjected to civil damages for reasonable actions in the execution of their official duties. y Reasonable Official standard: If a reasonable official would not have known that their acts were violating someone s legal rights, cannot be subjected to damages. Injunction possible. However, if acting in bad faith, subject to civil damages and injunction. PRESIDENTIAL IMMUNITY y Actions while in office: ABSOLUTE immunity, not qualified, from civil damages for actions taken in execution of his duties, even if in bad faith or flagrant violation of someone s legal rights. Possible that actions taken outside scope of office wouldn t enjoy immunity, but this has never been found. o NIXON v. FITZGERALD: Air force contractor loses job after testifying before Congress, sues former President Nixon. Nixon immune, even after leaving office. y Actions taken prior to entering office: no immunity, but court must show sensitivity in scheduling. o CLINTON v. JONES (Stevens opinion): Danger of distraction not enough to make Pres. immune. Pres constantly meets with lawyers anyway. Might become an undue distraction, but court won t deal with that here. Courts must be sensitive to Pres schedule.  Distortion theory: where judicial interference will distort the Pres official decision-making (making him more cautious while in office, distorting outcomes of his decisions).  Distraction theory: used in Clinton v. Jones, Pres might become distracted from undertaking duties of office.

Odds and Ends

Due Process, 2nd Amendment, and the 14th Amendment, oh my!
McDONALD v. CHICAGO: Incorporation of the 2 Amendment. Bill of Rights was not directed at the states, only federal th government. 14 Amendment has been used, under the (selective) incorporation doctrine, to expand rights one-by-one against the states. Sec. 1 deals with due process and privileges and immunities. 2nd Amendment wasn t incorporated against the states, or even the federal gov t: US. v. MILLER: no individual right to bear arms. Since no individual right, not incorporated against the states. D.C. v. HELLER: court finds an individual right, overruling MILLER. th McDONALD v. CHICAGO: issue here is whether this newly-recognized right should be incorporated by way of 14 Amendment. If so, should it be incorporated under Due Process Clause ( nor shall any State deprive any person of life, liberty, or property, without due process of law ) or the Privileges and Immunities clause ( No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ): o DUE PROCESS CLAUSE: States can deny citizens life, liberty, and property, so long as there is process. Says nothing about rights whatsoever. This has been ignored by the court, subject of withering criticism. o PRIVILEGES AND IMMUNITIES CLAUSE: Does say there are rights government can never violate ( make or enforce any law ). Court appears to continue to reject using this clause to incorporate rights against the states.
nd

THEMES
FORMALISM and FUNCTIONALISM
JUSTICE BLACK s FORMALISM:
Constitution lays out Separation of Powers not as an exercise of functionalism, but as an individual right itself: separating the powers preserves liberty by limiting the power of government. President has Constitutionally-granted Article II powers and authority to enforce statutory laws, but nothing else.

CLINTON v. NEW YORK: Line Item Veto Act. A very formalistic approach: Congress could not delegate its legislative powers to the President.

JUSTICE JACKSON s FUNCTIONALISM - Presidential power ebbs and flows, depending on whether Congress is silent, supportive, or in opposition. o Where Congress approves, Presidential power is at its xenith: power of Executive and Legislative combined. o Where Congress is silent, President may aggregate legislative power into his own hands because Congress
acquiescence invites it. Were Congress opposes, Presidential power is at its lowest and he can only exercise those powers granted to him by the Constitution. CLINTON v. NEW YORK: Line Item Veto Act. Nothing wrong with President using legislative power if Congress gives it to him, even though Constitution grants this power exclusively to Congress. This was not a case of Congressional silence: Congress explicitly gave the power to the President. However, Jacksonian analysis is absent from his concurrence here. Why?

Don t bring Formalism/Functionalism into all your answers just to flaunt it, you clever hipster.

Constitution: Super-super majority

Courts: Countermajoritarian?: it s not that the courts will simply use the Constitution as a tool to do the right thing,
the courts will strike down laws that violate the Constitution because that document was created by an even larger majority (and by the hand of the people) than the law in question was. Use judicial review to protect what a supermajority has declared to be justice. Article V: not even a majority of either house of Congress can even propose an amendment. The Constitution represents the views of the people. o Under a Parliamentary system, the government itself is the people. Political insulation: The tenure and compensation clause of Article III insulates judges against political influence during good behaviour. o Should the courts be politically unaccountable? Are they blocking the majority of the people in favor of the minority, or blocking a large majority against a supermajority?

EXAM TIPS
Prioritize your answers. Can discuss them in any order. Give deeper analysis to issues requiring deeper analysis. Other issues raise and dismiss. Don t regurgitate the outline. Analyze. Know the case names. NAMES OF JUSTICES WE SHOULD KNOW: - John Marshall - Black - Jackson - Rehnquist - Scalia

Winston Churchill Justice E. Ability

CLAUSES WE SHOULD KNOW: - ARTICLE I: CONGRESS

o Vesting Clause: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

8, Clause 18: Necessary and Proper Clause

 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.

ARTICLE II ARTICLE III 10th Amendment 11th Amendment 14th Amendment

CASE NAMES (67):

Marbury v. Madison: Power of judicial review Ex Parte McCardle: U.S. v. Klein: Martin v. Hunter s Lessee Michigan v. Long McCulloch v. Maryland Gibbons v. Ogden Willson v. Black-Bird Creek Marsh Hammer v. Dagenhart U.S. v. Darby Wickard v. Filburn Heart of Atlanta Motel, Inc. v. United States Katzenbach v. McClung (Ollie s BBQ) Lopez Bivins Defunis v. Odegard Roe v. Wade Nixon v. U.S. (Judge) Coleman v. Miller Warth v. Seldin Arlington Heights Craig v. Boren Massachusetts v. EPA: Lujan v. Defenders of Wildlife Raines v. Byrd U.S. Term Limits, Inc. v. Thornton United States v. Morrison Gonzales v. Raich Sozinsky v. United States U.S. v. Butler South Dakota v. Dole U.S. v. Curtiss-Wright Woods v. Cloyd W. Miller Missouri v. Holland Kleppe v. New Mexico Garcia v. San Antonio Metropolitan Transit Authority New York v. United States Printz v. United States

Reno v. Condon Pennhurst State School and Hospital v. Halderman Hans v. Louisiana Ex Parte Young Adelman? Chisholm v. Georgia New Energy Co. of Indiana v. Limbach White v. Massachusetts Council of Construction Employers, Inc. South-Central Timber Development v. Wunnicke C&A Carbone v. Town of Clarkstowne (p323 not assigned) Camps Newfound/Owatonna, Inc. v. Town of Harrison Gade v. National Solid Wastes Management Association (was assigned) Youngstown Sheet & Tube Co. v. Sawyer Dames & Moore v. Regan Medellin v. Texas Goldwater v. Carter Hamdi v. Rumsfeld Raoul Hamdan Boumediene v. Bush INS v. Chadha United States v. Nixon (President) Morrison v. Olson Fitzgerald v. Nixon Jones v. Clinton Seminole Tribe of Florida v. Florida Citizens United McDonald v. City of Chicago U.S. v. Miller D.C. v. Heller

Joe v. The Volcano is the greatest Tom Hanks movie ever made.