Constitutional Law I OUTLINE Part I: The role of judicial review in a constitutional democracy; the special place of the Supreme

Court Basic tension between the notion that elected representatives make laws, while unelected judges can strike them down in the name of the Constitution. Particular role of the Supreme Court Concepts of the courts as guardians of official legality

Working definition of a constitution: an agreed apon set of basic rules that establishes the structure of an entity and to which the parts of the entity are expected to adhere. Cases: Marbury v. Madison (1803) Marbury: so quotable! o Majority: Marshall, Chief Justice It is emphatically the province and duty of o Facts giving rise to case: John Adams signed judicial the judicial department to say what the law is commissions, but not all were delivered before Thomas Government of laws, not of men. Jeffersons inauguration. Jefferson instructed his Secretary Even in Great Britain, the king himself never of State, James Madison, to withhold the undelivered fails to comply with the judgment of his court commissions. Marbury filed suit in the United States The very essence of civil liberty certainly Supreme Court seeking a writ of mandamus to compel consists in the right of every individual to Madison, as Secretary of State, to deliver the commission. claim the protection of the laws, whenever o Holding: SCOTUS could not constitutionally hear the case he receives an injury [no matter who it is who as a matter of original jurisdiction; although the Judiciary inflicted the injury] Act of 1789 authorized such jurisdiction, this provision of the statute was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the Constitution. (Marbury lost) o Issues addressed in opinion:
2. If so, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. No personnot even the presidentis above the law. The judiciary can provide remedies against the executive when there is a specific duty to a particular person, but not when it is a political matter left to executive discretion. 3. If so, can SCOTUS issue this remedy (writ of mandamus)? Where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy, including a writ of mandamus (Some matterssuch as whether to veto a bill or who to appoint for an officeare entirely within the presidents discretion and cannot be judicially reviewed) Section 13 of the Judiciary Act of 1789 granted SCOTUS original jurisdiction over requests for mandamus, BUT Art III enumerates ceiling of federal jurisdiction; holds Congress cannot increase SCOTUSs original jurisdiction. Therefore 13 unconstitutional

1. does Marbury have a right to the commission? Marbury had a right to the commission because all appropriate procedures were followed It is...decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the Secretary of State.

Constitutional Law I OUTLINE Marshall reasoned that SCOTUS did not have to follow the unconstitutional provision of Congressional act, but instead could declare it unconstitutional. Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement. (quoting Alexander Hamiltons Federalist No. 78 which assumed there would be judicial review, a democratic value because the people have declared their will in the Constitution; judicial review will protect the majority) It is inherent to the judicial role, and consistent with checks and balances structure, for the court to decide the constitutionality of the laws that it applies. The Courts authority to decide cases arising under the Constitution implies the power to declare unconstitutional laws conflicting with the basic legal charter. Bickel favors this argument in The Least Dangerous Branch Judges take an oath of office and they would violate this oath if they enforced unconstitutional laws. Article VI makes the Constitution the supreme law of the land, and specific provisions in Constitution can be used a guide to the courts in constitutionally difficult cases (e.g. how many witnesses are needed to commit someone of treason). o Biggest lesson of Marbury v. Madison: regardless of status, Bickel: judicial review as a counter-majoritarian difficulty: a public official is required to obey the law, and courts will enforce government legality. Difficulty is that after drafting, deliberating, o What Marbury v. Madison leaves open: how is judicial revising, votes by hundreds of elected officials review to be conducted when application of constitution to in House and Senate, reconciliation in conference, final approval in House and statute/executive action isnt so clear? Senate, and signature by elected President, 5 Martin v. Hunters Lessee (1816) people with lifetime appointments can strike o Majority: Story down a bill. o Facts giving rise to case: two conflicting claims to land in How do we deal with c-m difficulty? o Trust judges to be impartial: the art of Fairfax, VA; Martin based on inheritance from Lord Fairfax, constitutional interpretation is sufficiently protected by treaties between US and England; Hunter devoid of personal judgment; claimed Martin didnt have valid claim because VA took o Originalism: the way for courts to go about property before treaties were signed. VA court decided for interpreting the constitution is to have recourse to the original intent; Hunter. SCOTUS reversed (holding federal treaty was o Precedent: SCOTUS will generally limit itself controlling). VA declared that the Supreme Court lacked through stare decisis (but often finds ways the authority to review state court decisions because US to distinguish cases from precedent, and and VA are co-equal sovereigns. SCOTUS granted review. sometimes chooses to overrule itself) o Prevailing social morality and conceptions of o Holding: when addressing a federal/constitutional issue, justice guide SCOTUS SCOTUS has authority to review state court judgments. o Its not a difficulty. Its fine to have judges o Reasoning: exercising interpretation. We have a better Structure: Constitution creates SCOTUS and gives country by virtue of having a strong SCOTUS. We dont have a fully democratic Congress discretion whether to create lower system anyways; democracy is not an federal courts. If Congress had chosen not to unalloyed form of government, and it is establish such tribunals, then SCOTUS would be good that we have some people who arent continuously re-elected so that they can powerless to hear any cases, except for the few check elected branches in check fitting within its original jurisdiction, unless it could o External limits on judges: review state court rulings. Impeachment: Congress has authority SCOTUS should have authority to review state Constitutional amendments o Passive virtues: it is a virtue for the court to court judgments because state attachments, state show restraint when it can (through prejudices, state jealousies, and state interests
standing/PQs)

Constitutional Law I OUTLINE might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice Jurisprudence: SCOTUS review is essential to ensure uniformity in the interpretation of federal law. If question is sufficiently important to be federal in the first place, then it is of interest to all people and there should only be one answer. Federal questions should have one answer, and supremacy clause says states are bound by it. We dont want states playing around with federal law need tribunal to bind them. People: lack of uniformity could lead to equal protection issues. o Biggest lesson learned in Hunter v. Martins Lessee: SCOTUS has power to review state court decisions o Difficulty in SCOTUS review of state decisions: unlike judicial review of exec/leg, SCOTUS has a vested interest regarding authority over state courts. But, if we can trust SCOTUS to stay neutral, this can be overcome (and indeed weve seen states rights rise and fall over time) Cooper v. Aaron (1958) o Notable fact: each justice signed opinion individually o Facts giving rise to case: A federal district court ordered the desegregation of the Little Rock, Arkansas, public schools. The state disobeyed this order, in part, based on a professed concern that compliance would lead to violence, and, in part, based on a claim that it was not bound to comply with judicial desegregation decrees. o Holding: federal judiciary is supreme in the exposition of the law of the Constitution Every state legislator and executive and judicial officer is solemnly committed by oath to support this Constitution o Question regarding Cooper: has it gone beyond Marbury v. Madison? Seems to say that not only can courts enforce the Constitution, but that the court has a distinctive role as ultimate guardians of the meaning of the Constitution and that other government official must not interpret the Constitution for themselves but instead must look to the courts interpretation and take it as authoritative. o Generally, we think that all branches of government have a proactive role in interpreting and applying the Constitution, and that court is final arbiter. McCullock: so quotable! McCulloch v. Maryland (1819) o Majority: Marshall, Chief Justice the power to tax involves the power to o Seminal case defining the scope of the federal legislative destroy the power to destroy may defeat power and its relationship to state government authority. and render useless the power to create.... Power of Congress: broad we must never forget that it is a constitution Authority of states to impede federal: narrow we are expounding o Issue: whether the State of Maryland could collect a tax government of the Union...is, emphatically, from the Bank of the United States and truly, a government of the people Let the end be legitimate, let it be within the o Facts: Maryland pass law taxing all non-MD chartered scope of the constitution, and all means which bank, including the newly formed Bank of United States nd are appropriate, which are plainly adapted to (well, the 2 time it was chartered, the first was very that end, which are not prohibited, but consist controversial, second was pretty much accepted, even by with the letter and spirit of the constitution, dissenters 30 years earlier). US Bank refused to pay taxes are constitutional and John James sued for himself and the State of Maryland in the County Court of Baltimore to recover the money owed under the tax. Trial court rendered judgment for Maryland; MD Ct. App. affd. o Outcome: reversed judgment o Holding: Congress had the authority to create the Bank of the United States; the state may not tax the Bank of the United States because such exactions could greatly impede its operation and potentially even tax it out of existence.

Constitutional Law I OUTLINE o Issues addressed in opinion:

1. Does Congress have the authority to create the Bank of the United States? Historical practice established the power of Congress to create the bank (1st bank as authority for Constitutionality of 2nd bank)* It was the people who ratified the Constitution, and thus the people are sovereign, not the states. This refutates "compact federalism," the argument that states retain ultimate sovereignty because they ratified the Constitution. Also, states bound themselves to Constitution through ratification. Scope of congressional powers under Article I: Congress is not limited only to those acts specified in the Constitution; Congress may choose any means, not prohibited by the Constitution, to carry out its lawful authority. Marshall gets there by saying Constitution is different from a statute and therefore should be interpreted differently. Art I 8 gives Congress the power [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. Congress may choose any means, not prohibited by the Constitution, to carry out its express authority.

2. If so, is the state tax on the bank constitutional? Powers to create and destroy: The power to create the bank includes a power to preserve its existence. [T]he power to tax involves the power to destroy; [and] that the power to destroy may defeat and render useless the power to create" Thus, state may not tax the Bank of US because such exactions could greatly impede its operation and potentially even tax it out of existence (b/c Supremacy Cl.) Taxation without Representation Court noted that a state tax on the Bank of US essentially was a state tax on those in other states. Those who were being taxed therefore were not represented in the state imposing the tax, and the tax was thus illegitimate Note: Court could have allowed state taxation up to the point of its interfering with or endangering the bank, but Marshall rejected this argument, in part, because Court did not want to embark on assessing the impact of each and every tax.

Looking back: affirmation of Marbury v. Madison [s]hould congress adopt measures which are prohibited by the constitution it would become the painful duty of this tribunal...to say, that such an act was not the law of the land. *Looking forward: legacy of historical practice establishing power for Congress: Youngstown Sheet & Tube Co. v. Sawyer, Frankfurter expressed the view that a systematic, unbroken executive practice, long pursued to the knowledge of Congress and never before questioned...may be treated as a gloss on executive power vested in the President. Dames & Moore v. Regan, the Court approvingly invoked Justice Frankfurters words in upholding an executive agreement to lift a freeze on Iranian assets in the United States as a part of a deal to have American hostages there released. Necessary and proper clause: Marshall reads it to expand Congress power, not restrict it. How? Necessary here means useful or desirable, not indispensable or essential Clause part of Art I 8 which expands Congressional powers, not 9 which limits them. Biggest lessons learned in McCulloch v. Maryland: Federal government is supreme over the states and that the states have no authority to negate federal actions (rejection of compact federalism) Scope of Congress powers defined expansively through structure of Constitution. Structural interpretation of Constitution is still controversial SCOTUS can limit the ability of states to interfere with federal activities, such as by imposing taxes or regulations on the federal government.

Part II: Constitutional limits on the federal courts

Constitutional Law I OUTLINE Limits flow from Art. III of the Constitution Correspondence of the Justices: o Court is limited to case adjudication (Art. III 2) Jefferson asked SCOTUS about legality of Court cannot issue advisory opinions to actions to maintain good relations with Executor/Legislator before a bill is passed. Why? England while having treaty with France. Efficiency would come at the cost of a Justice Jays response: chipping away of separation of powers; o SCOTUS cant answer these questions If court says an action is Constitutional, because they have not come before the but then litigation exposes constitutional court through a case. flaws, court would need to be careful in o Art. II foresaw this kind of problem and said either distinguishing cases from previous that the President shall have the power to ask the heads of departments for opinions opinion or overturning recent opinion; (e.g. Office of Legal Counsel). Advisory opinions come too early. Courts have advantage, through cases, to come into bill later when we know more about the effect of bills.. Limits flow from broader notions of separation of powers o Only parties with standing can bring cases. Courts role is not to be some amorphous general supervision of the operations of government. U.S. v. Richardson (see below). By limiting itself from taking on plaintiffs asking court to big brother other government branches, Court navigates the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. o Political questions doctrine: subject matter that the Court deems to be inappropriate for judicial review. Although there is an allegation that the Constitution has been violated, the federal courts refuse to rule and instead dismiss the case, leaving the constitutional question to be resolved in the political process Why do we have political questions doctrine? It accords the federal judiciary the ability to avoid controversial constitutional questions and limits the courts role in a democratic society. (Bickel) It allocates decisions to the branches of government that have superior expertise in particular areas. Federal courts self-interest disqualifies SCOTUS from ruling on certain matters, e.g. reviewing the process for ratifying constitutional amendments. It minimizes judicial intrusion into the operations of the other branches of government.
Standing requirements:

STANDING Cases:

Lujan v. Defenders of Wildlife (1992) 1. Harm: o Plurality: Scalia a. Harm to a legally protected interest b. Concrete and particularized, and o Claim: challenge to a revision of a federal regulation that c. Actual or imminent provided that the Endangered Species Act does not apply 2. Causation: to United States government activities outside the United a. Harm traceable to challenged action of States or the high seas. defendant o Alleged harm: failure to comply with the Act with respect 3. Redress: to certain funded activities abroad increases the rate of a. Favorable decision must fix/solve/make up extinction of endangered and threatened species such as for harm the Nile crocodile, the elephant, and the leopard. o Novel standing theories asserted by s: Ecosystem anyone using ecosystem adversely affected by regulation Animal nexus anyone who studies/sees animal has standing when that animal is threatened

Constitutional Law I OUTLINE Vocational nexus anyone whose job would be threatened o Holding: plaintiffs lacked standing because they could not show a sufficient likelihood that they would be injured in the future by a destruction of the endangered species abroad. o Reasoning: The fact that the women had visited the areas in the past proves nothing, and their desire to return in the futuresomedayis insufficient for standing without any description of concrete plans or indeed any specification of when the someday will be. Redress: harmful projects would not cease, even with injunction, because of actions of 3rd parties; if decision doesnt redress harm, then it is just an advisory opinion. Separation of powers (Marbury!): Judiciary overseeing other organs if issued advisory opinion. Purpose of the court is to decide on the right of individuals, not to entertain grievances about how government does its business. o Kennedy and Souter concurrences: Not convinced that buying an airline ticket would be enough to have standing Kennedy worries that governments ability to make interests has been infringed, but concludes that that hasnt happened here. o Blackmun and OConnor dissent: Agrees with vocational nexus and conclude that plaintiffs should have standing. Challenges majority assumption that a person is harmed by the destruction of the environment only if the individual has concrete plans to visit the harmed place. The requirement that a plaintiff have specific plans to return to a foreign country creates only a silly formality that a plaintiff must purchase a plane ticket in order to sue. Massachusetts v. EPA (2007) Irony of Mass v. EPA: why did Scalia/Thomas o Majority: Stevens dissent in case that strengthened states rights? o Facts: Two possible explanations: Clean Air Act: EPA shall prescribe standards o Cynical: dont believe in global warning applicable to the emission of any air pollutant o Benign: value states rights and quasifrom new motor vehicles which may be sovereignty, but value more a restrictive anticipated to endanger public health or welfare. view of the federal courts. In order to Global sea levels are rising and have begun to constrain the federal court, choose to limit swallow Massachusetts coastal land; because standing and apply it with a vengeance. Mass owns a substantial portion of the states coastal property, it alleges particularized injury in its capacity as a landowner. o Issue: whether Massachusetts has standing to sue EPA for allegedly abdicating its responsibilities to regulate emissions of 4 greenhouse gases under the Clean Air Act o Holding: (5-4) Massachusetts had standing to challenge EPAs denial of their rulemaking petition. o Reasoning: broad reading of Article III and standing in general. The fact that climate-change risks are widely shared does not minimize Massachusetts interest in the outcome of the litigation. Harm: in its capacity as a landowner, Massachusetts is losing coastal land by rising sea levels. Cause: global warming that is resulting in rising sea levels. Redress: if EPA makes changes to come into compliance with statute, global warming will slow. o Dissent: Roberts Standing cases. Compare: Harm: we require imminence of harm. Global Sierra Club v. Morton (1972): standing denied warming is a slow process harm imminent?
b/c of requirement that the party seeking review must himself suffered an injury. In this case, no plaintiffs had visited site in question.

Constitutional Law I OUTLINE Cause: questions how Massachusetts can trace its alleged injuries back through complex web to the fractional amount of global emissions that might have been limited with EPA standards. Redress: any change that US makes wont make a difference; we cant know what other nations will do in the future. City of Los Angeles v. Lyons (1983) o Facts: Adolph Lyons, a 24-year-old black man, was stopped by the police for having a burnt-out taillight on his car. Police proceeded to apply a chokehold technique until he passed out; then was issued a traffic citation and released. Lyons sued City alleging that it was the official policy of the Los Angeles Police Department to use the chokeholds in situations where officers were not faced with a threat of bodily injury or death. o Decision (5-4): Lyons did not have standing to seek injunctive relief (this did not affect his damages suit) o Holding: Lyons did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he, personally, would be choked again in the future. o Take-home: a plaintiff seeking injunctive or declaratory relief must allege a substantial likelihood of future harm caused by alleged illegal policy. Schlesinger v. Reservists to Stop the War (1974) Standing: which case is which? o Synopsis: claim by assoc. of Reserves members that INJUNCTION Reserve membership of certain of Congressmen violated o Lyons (chokehold) must demonstrate a incompatibility clause. Court denied standing. o Take-homes: substantial likelihood that litigant will be You cant go to court for abstract injuries. harmed in the future If enough people are hurt, you cant go to court GENERALIZED INJURIES about it. o Schlesinger (Reservists) you cant go to Federal Election Commission v. Akins (1998) court for generalized abstract injuries o Issue: whether interested citizens had standing under. o FEC v. Akins (PACs) have standing when o Holding: granted standing because 1) existence of statute statute grants interest and there is a seeking to protect individuals from the kind of harm Akins generalized concrete injury. suffered and 2) harm was concrete though widely TAYPAYER STANDING shared o Flast (establishment clause) 2 part Flast Flast v. Cohen (1968) nexus test for taxpayer standing o Issue: whether taxpayer had standing to challenge aid to o Richardson (CIA) courts role is not to be a religious schools. general supervisor of government o 2 part test for taxpayer standing: o Valley Forge (property transfer) limited st 1 , taxpayer must establish a logical link between Flast to expenditure of funds status and the type of legislative enactment o Hein (Bushs faith-based initiative) limited attacked (spending measures); nd Flast to Congressional expenditures 2 , taxpayer must establish a nexus b/w that O PPORTUNITY STANDING status and the precise nature of the constitutional o Simon (indigent health care) rules infringement alleged (unconstitutional direct encouraging denial of services to indigents giving of money). not sufficient for standing. o Holding: taxpayer standing satisfied when taxpayer o Jacksonville (general contractors) granted challenged an expenditure of public finds as violative of the establishment clause standing where injury was the denial of o Note: a rare example of court recognizing taxpayer equal opportunity standing o Gratz (U.Mich.) granted standing even United States v. Richardson (1974) though plaintiff hadnt even applied o Synopsis: taxpayer challenge that CIA Act of 1949 (keeping PRUDENTIAL STANDING CIA expenditures classified) violated Art. I 9 clause 7 of o Elk Grove (Pledge of Allegiance) denied Constitution providing that a regular statement of standing b/c of state-court custody order Account of all public Money shall be published from time to time.

Constitutional Law I OUTLINE Holding: claim was only a generalized grievance, common to all members of the public, and therefore should be committed to the surveillance of Congress, and ultimately to the political process. o Powell concurrence: cites Marbury, the courts role is to protect rights of individual citizens and minority groups. Court should embrace this limited role, not some amorphous general supervision of the operations of government. Valley Forge Christian College v. Americans United (1982) o Issue: whether taxpayer had standing to challenge (under establishment clause) a conveyance of property to religious school. o Holding: limited Flast to dollars given; when it comes to property transfer, taxpayer does not have standing. Hein v. Freedom from Religion Foundation (2007) o Issue: whether taxpayer had standing to challenge President Bushs Faith-Based and Community Initiatives Program. o Holding: taxpayers can only challenge Congressional spending; do not have standing to challenge Executive spending o Effect: essentially limits Flast to its facts. DaimlerChrysler Corp. v. Cuno Simon v. Eastern Kentucky Welfare Rights Organization (1976) o Facts: hospitals denying medical care to indigents in order to get IRS tax break; tax breaks offered to charitable organizations, but by denying coverage, plaintiffs challenged that hospitals were no longer acting as charitable organizations. o Issue: whether plaintiffs can have standing when harm is the loss of an opportunity. o Holding: alleged injury due to new rule encouraging denial of health services to indigents was inadequate for purposes of standing. Plaintiffs needed to show that the IRS tax breaks were the cause of reduced services and that a change in the tax scheme would provide relief. Court said both assertions were too speculative to get standing. Northeastern Florida Chapter of Associated General Contractors v. Jacksonville (1993) o Facts: local ordinace setting aside 10% of city contracts for minority business enterprises. o Claim: set-aside violated equal protection clause. o Holding: the injury in fact is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit; specifically for this case, the injury in fact is the inability to compete on an equal footing in the bidding process, not the loss of a contract. To establish standing, therefore, a party need only demonstrate that it is able and ready to bid on contracts and that a discriminatory policy prevents it from doing so on an equal basis Regents of the University of California v. Bakke Gratz v. Bollinger (2003) o Plaintiff granted standing even though he hadnt even submitted an application to U. Michigan because he intended to apply if school stopped using race in undergraduate admissions process. Elk Grove Unified School District v. Newdow (2004) o Majority: Stevens o Claim: father sues on behalf of daughter claiming daily group recitation of Pledge of Allegiance in school constituted religious indoctrination in violation of the 1st Amendment, but state-court custody order provided that mother make final decisions when parents disagree. o Holding: Court standing jurisprudence has 2 strands (Art. III (case) and prudential standing). Prudential standing embodying judicially self-imposed limits on the exercise of federal jurisdiction. One realm in which Court has declined to intervene is domestic Examples of political questions: relations, chooses to leave delicate matters of domestic relations to state court. Discretionary acts of government officials: Baker v. Carr (1962) o whether to veto a bill o who to appoint for an office o Majority: Brennan
Foreign affairs it would be up to the

Secretary of State to decide who, among contested governments, is the legitimate government of another country Constitutional amendments Gerrymandering (see Baker, Bandemer, Veith)

Constitutional Law I OUTLINE Facts: since 1901, Tennessee had voted under one re-apportionment scheme, which over time became disproportional. o Holding: challenge to apportionment of state legislatures is NOT a nonjusticiable political question o Lists 6 criteria to identify when cases involve political questions and therefore nonjusticiable: textually demonstrable commitment of the issue to a coordinate political department; constitution gives it to another branch lack of judicially discoverable and manageable standards for resolving it; we cant figure out a test that works impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; someone else should make the policy call impossibility of a courts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; it would be disrespectful unusual need for unquestioning adherence to a political decision already made; deference potentiality of embarrassment from multifarious pronouncements by various departments on one question no contradictory answers o Take-away: political questions doctrine does not apply to issues of federalism. 6 criteria. o Dissent: Frankfurter PQ Doctrine over time: Courts authority rests on sustained public Marbury v. Madison: NARROW. Included only confidence in its moral sanction. Such feeling must were matters where the president had be nourished by the Courts complete detachment unlimited discretion, and there was thus no from political entanglements allegation of a constitutional violation. [T]here is nothing judicially more unseemly nor Today: more BROAD. Includes instances where more self-defeating than for this Court to make in individuals allege that specific constitutional terrorem pronouncements, to indulge in merely provisions have been violated and that they empty rhetoric have suffered a concrete injury. Nixon v. United States (1993) o Majority: Rehnquist applies the Baker v. Carr test o Facts: former district court judge convicted at criminal trial of making false statements before a federal grand jury. He sought judicial review over his subsequent impeachment procedures by Senate committee (not full body of Senate) o Holding: the word try in the Art. I 3 impeachment clause lacks sufficient precision to afford any judicially manageable standard of review Given that the impeachment clause accords the Senate sole power to try impeachments, court concluded that Nixons request was nonjusticiable. Powell v. McCormack (1969) o Facts: House resolution preventing Powell from taking his seat in House b/c of finding that he had wrongfully diverted House funds, made false reports on expenditures, etc. o Issue: whether court should find Powells claim nonjusticiable because of Art I 5 (each house shall be the judge of the qualifications of its own members) o Holding: Not a political question and Congress power to judge the qualifications of its members stops at the three qualities enumerated in the constitution (age, citizenship of US, resident in district). o Reasoning: none of the Baker v. Carr criteria are issues for this case, so not a PQ. o

Constitutional Law I OUTLINE Note: It seems that Powell v. McCormack was as political as a case could be, but the court went ahead and heard it. Perhaps because of civil rights undertones in debate? Goldwater v. Carter (1979) o Plurality: Rehnquist o Facts: President Carter announced that US would recognize the PRC as the sole government of China and would terminate the mutual defense treaty with Taiwan. o Issue: whether President terminate a treaty without the advice and consent of the Senate or the approval of both houses of Congress. o Holding: the basic question presented is political and therefore nonjusticiable because it involves the authority of the President in the conduct of our countrys foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President. o Powell concurrence: says that this is the sort of case we take on but would dismiss the complaint as not ripe for judicial review until each branch has taken action asserting its constitutional authority. o Brennan dissent: would have affd ct. app. decision on the merits. Says PQ doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decision making power. Pacific Telephone Co. v. Oregon (1912) o Facts: state permitted rather free access to the initiative procedure as a way of making law (referendum), circumventing the carefully crafted procedure of having bills go through both cameras of legislature and signed by governor. o Issue: whether Oregon initiative procedure destroyed republican form of government. o Holding: this is a political questiona Guaranty Clause issue that court would not look at. Davis v. Bandemer (1986) Davis v. o Majority: White Bandemer o Holding: Claims of partisan gerrymandering are 1986 justiciable; standard looks to influence of claims of gerrymandering on the political process as a Justiciable whole, establishing consistent degradation test Political question question (hard to meet!) 6 judges 3 judges o Reasoning: not a matter more properly decided by another branch of government; no risk of foreign/domestic disturbance; available judicially Consistent Plaintiff-friendly degredation standard discernible and manageable standards by which to 3 judges 2 judges decide this sort of case. Dissent: OConnor Would have held claims of unconstitutional political gerrymandering nonjusticiable. o Concurrence: Powell/Stevens Would adopt a more plaintiff-friendly standard looking at factors like nature of procedures and intent behind redistricting; shape of districts; nonpartisan explanation for district boundaries Veith v. Jubelirer (2004) o Plurality: Scalia o Facts: alleged political gerrymandering of Pennsylvania congressional districts following 2000 census o Issue: not whether severe partisan gerrymanders violate the Constitution, but whether it is for the courts to say when a violation has occurred, and to design a remedy. o Holding: gerrymandering presents a PQ because expression of standard by which court should decide gerrymandering cases is not clear. When there are no general standards, the court should stay out. o o

Constitutional Law I OUTLINE Instead, there appear to be 5 competing standards 2 from Bandemer, 3 from Vieth, and also fairness standard (which is too vague/more an aspiration than a standard) Consistent degradation test (Bandemer: White) Plaintiff-friends standard (Bandemer: Powell/Stevens) Democratic principles (Vieth: Stevens) New 5-part test (Vieth: Souter/Ginsburg) Set of circumstances out of which to identify violations and from which courts could devise a workable test (Vieth: Breyer) o Kennedy concurrence: that no such standard has emerged in this case should not be taken to prove that none will emerge in the future. Where important rights are involved, the impossibility of full analytical satisfaction is reason to err on the side of caution. Schneider v. Kissinger (U.S.App.D.C. 2005) o Opinion: Sentelle o Facts: Children of Chilean general and his estate brought suit against United States and former national security advisor for their role in general's death during course of his kidnapping by plotters of 1970 Chilean government coup. o Holding: you cannot disaggregate actions from their greater policy. In doing this, Sentelle uses the PQ doctrine to potentially exclude a whole chunk of claims. o Reasoning: run into problem with get to Baker criteria about judicially discoverable and manageable standards. Schnieder Plaintiffs were suing for wrongful death of general during covert operations in Chile. Court reasoned that judiciary doesnt have standards through which to review covert operations o Opposing interpretations of Marbury v. Madison: Sentelle says courts dont have a role in these political questions (you cant disaggregate a policy into its parts). Schneider plaintiffs (with their traditional common law complaints) are asking court to do what it does best, take on messy issues on behalf of individuals whose rights have been violated by a government acting illegally.

Constitutional Law I OUTLINE US v. Richardson (1974) Flast v. Cohen (1968)

US v. Richardson (1974)

LA v. Lyons (1983)

STANDING TIMELINE NE FL GCs v. Jacksonville (1993)

Gratz v. Bollinger (2003) Hein v. (2007)

US v. Richardson (1974)

Simon v. E. KY (1976)
US v. Richardson (1974)

1965

1970

1975

1980

1985

1990

1995

2000

2005

2010

Valley Forge (1982) Schlesinger v. Reservists (1974) Lujan v. Defenders of Wildlife (1992)

FEC v. Akins (1998) Elk Grove (1974)

Mass. v. EPA (2007)

Pac. Telephone v. Oregon (1912)

POLITICAL QUESTIONS TIMELINE Baker v. Carr (1968)

Nixon v. US (1993) Veith v. Jubelirer (2004)

Goldwater v. Carter (1979)

1910

1920

1930

1940

1950

1960

1970

1980

1990

2000

Davis v. Bandemer (1986) Powell v. McCormack (1969) Schneider v. Kissinger (2005)

Constitutional Law I OUTLINE Part III: Federalism and National Power Two different ways to chart the organization of the United States: we see each chart type in government

Federal Government

Federal Government
State Government
Where do we get concept of federalism in Constitution?

State Government

It is perhaps enshrined in 10th amendment. We also see it in structure of document: US Constitution assumes that states possess the mass of governmental powers (police power), and out of that mass of powers is carved/specifically enumerated a set of powers given to the national government.

Commerce clause is the focal point of most of the great debates about American federalism because it is the only possible ingredient for a general federal police power, a direct regulatory power of a general nature to control. Whose job is it to decide when Congress has gone too far using commerce clause? It is the province of the courts to say what the law is (Marbury). This must include the construction of constitutional provisions. But how much deference should court pay to Congress? Might be subject-matter dependent (like Political Questions).

Cases: Gibbons v. Ogden (1824) o Majority: Marshall o Facts: steamboat company (Gibbons) given exclusivity by New York sued other steamboat company (licensed under federal statute) for violating grant to Gibbons o Legal question: what is commerce? Among means both between states (e.g. on line between states) as well as within states. Power to regulate is to prescribe the rule by which something is governed. What this means: if you find that something is commerce, and if you find that there is an interstate component to it, or national purpose, then Congress can govern it; there are things incidental to commerce that Congress has authority to govern. What are limits to commerce power? If something is solely internal to a state, then only state can regulate it. o Take-home: courts will take a broad read on what is commerce, regulation, and interstate. Hammer v. Dagenhart (The Child Labor Case) (1918) Commerce clauseinternal & external limits: o Overruled by Darby Internal: limitations coming from words of o Majority: Day (5-4 decision) commerce clause itself. o Facts: Congress passed federal statute prohibiting External: other things in Constitution that on interstate commerce of good produced by factories their face have nothing to do with commerce employing child labor. but act as independent limits to power. o Issue: is this act was beyond reach of commerce clause?

Constitutional Law I OUTLINE Holding: Act is 2-fold unconstitutional: beyond reach of commerce clause and exerts power of purely local matter. o Reasoning: This is not about transportation of goods. Instead, this is about employment law for factories within individual states, and interstate commerce doesnt happen as early as when goods are being produced in factories. Federal government cannot ask states to exercise their police power so as to prevent possible unfair competition. o Holmes dissent: Analogy: if oleomargarine statute (so much taxing product when it was colored to resemble butter to prohibit manufacture/sale) could be upheld, then child labor statute should be upheld. Implies that states can be immoral so long as what they are doing is completely internal. Wickard v. Fillburn (1942) o Majority: Jackson o Facts: Through statute, Congress wants to raise price of wheat. In order to do this, need to limit supply. Fillburn (wheat grower) penalized $117 for growing too much wheat. o Holding: o Reasoning: by allowing Fillburn to produce his own wheat, he takes himself out of wheat market. By not engaging in commerce of wheat (e.g. buying wheat from market), Fillburn affects commerce. Fillburn might just be one citizen, but if all citizens were to act like him, regulation of interstate commerce would be completely undermined. Fillburn exerts a substantial effect on interstate commerce as one of an aggregate of individuals in a class. Because we can regulate classes, we can regulate individuals in class. o Take-home: interstate commerce clause gives Congress the authority to regulate subjects which are neither interstate in nature nor commerce in nature. o Note: Looks like court has amended Art. 1 8 to cleverly substitute commerce with economy or economic management Garcia v. San Antonio Metropolitan Transit Authority (1985) SEE Wechsler: States have their chance in Congress! PAGE 25 for discussion of Garcia in context of federalism litigation States have power through rep. in Congress; o Majority: Blackmun Congressional structure protects stateswe o Facts: Federal government passed laws structuring rules have a built in protection of states interests; for state workforce. If there is doubt about something that o Holding: application of federal wage and hour laws to Congress has done, and a state challenges it, state and local employees is constitutional. judiciary should take deferential approach to o Reasoning: State sovereign interests [are] more properly Congress b/c state had chance in leg. process; protected by procedural safeguards inherent in the Instead, courts should save their capital and structure of the federal system than by judicially created reserve it for cases to do with individual rights. limitations on federal power. This view is supported by Madisons Federalist Papers 45 & 46. o Take-home: Wechsler at work. o Powell dissent: We cant trust residents of a state to watch out for states rights once they become members of federal government. Result of holding is inconsistent with Marbury v. Madison which held it is courts role to say what the law is with respect to the constitutionality of acts of Congress. Troubling that Congress will be the sole judges of the limits of their own power for federalism matters. United States v. E.C. Knight Co. (1895) o Majority: Fuller o Facts: Congress invoked the Sherman Antitrust Act to set aside the acquisition by the American Sugar Refining Company of four competing refineries. o

Constitutional Law I OUTLINE Holding: Sherman Act did not reach this monopoly b/c the Constitution did not allow Congress to regulate manufacturing through the Commerce Clause. o Reasoning: temporal view of commerce. Commerce follows manufacturing but is not a part of it. Until a good begins traveling interstate, Congress cannot regulate it. o Harland dissent: Congress can reach manufacturing of articles because Congress has authority to regulate anything that is restraining buying and selling. Time at which regulation happens is irrelevant. Houston, East & West Texas Railway v. United States (The Shreveport Rate Case) (1914) o Facts: Interstate Commerce Commission set a max. rate for rail shipments from Shreveport, LA to Texas, ordering that R.R. eliminate price discrimination compared with intrastate Dallas-to-Marshall route. o Holding: upheld ICC actions; constitutional to set rates for the intrastate Dallas-to-Marshall route. o Reasoning: Congresss authority necessary embraces all matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate [wherever] the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, and not the State, that is entitled to prescribe the final and dominant rule[.] o Note: this is an example of the court trying to attach some meaning to commerce in a way that is faithful to Marshalls broad approach in Gibbons and yet contains some limit such that Congress cannot regulate everything. Stream of commerce enough to solve riddle of when something is commerce. Champion v. Ames (The Lottery Case) (1903) o Majority: Harlan o Facts: the Federal Lottery Act of 1895 prohibited the interstate transportation of foreign lottery tickets. Champion was indicted for shipping a box of Paraguayan lottery tickets from TX to CA. o Holding: transporting lottery tickets from one state to another constitutes interstate commerce and therefore can be regulated (even forbidden) by Congress. o Beneath the surface: Federal Lottery Act gets at the immoral activity of lotteries to the extent that Congress can. Statute gets at lotteries through happenstance of interstate transportation. Harlan gives game away: guarding the people of the United States against the widespread pestilence of lotteries o 4 dissenters: Majority definition that commerce includes all things that move in transportation across states too is too broad; creates too much of a general police power. A.L.A. Schechter Poultry Corp. v. United States (1935) o Majority: Hughes o Facts: National Industrial Recovery Act authorized President to approve codes of fair competition for various industries. Roosevelt approves a Live Poultry Code establishing a 40-hour work week and minimum wage ($.50 per hour) for metro NY area. Schechters, a Brooklyn slaughterhouse were convicted of violating wage and hour provisions of the code. o Holding: NIRA unconstitutional (on commerce clause and non-delegation doctrine) o Reasoning: 10th amendment is background guide when we look at incursions of national government regulations into things that arent obviously interstate commerce. Rejects stream of commerce reasoning for this case (where chickens were imported from out of state but are now will be used locally); says decisions which deal with goods come to rest within a state temporarily and are later to go forward in interstate commerce arent applicable. o

Constitutional Law I OUTLINE Concedes transactions that affect interstate commerce directly can be regulated by Congress but where the effect of intrastate transactions is merely indirect, such transactions remain within the domain of state power. o Cardozo concurrence: echoes of tort background at some point, if you can find directness and immediacy here (direct/proximate), you can find it anywhere an end to our federal system. Carter v. Carter Coal Co. (1936) o Majority: Sutherland o Facts: Congress passed Bituminous Coal Conservation Act in 1935, which included both labor and pricefixing provision, with intent of stabilizing coal industry for the purpose of fixing national economy. o Holding: labor provisions of act invalid; Congress does not have power through commerce clause. o Reasoning: [T]o a constitutional end many ways are open; but to an end not within the terms of the Constitution, all ways are closed. The word commerce means intercourse for the purposes of trade; the incidents leading up to and culminating in the mining of coal are intercourse for purpose of production, not trade. As for the distinction between direct and indirect effects: The distinction turns, not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. o Cardozo/Brandeis/Stone dissent: would have upheld price-fixing privisions of statute Perez v. United States (1971) o Majority: Douglas o Holding: upheld a federal criminal statute prohibiting extortionate credit transactions loansharking enforced by threats of violence. o Reasoning: where a class of activities is regulated and that class is within the reach of federal power, the courts can hear cases regarding individual instances of the class. o Stewart dissent: cannot discern any rational distinction between loan sharking and other local crime. Heart of Atlanta Motel v. United States (1964) o Majority: Clark o Facts: Heart of Atlanta Motel (which advertised in national magazine and on billboards, and whose guests were about 75% from out of state) challenged constitutionality of Title II of 1964 Civil Rights Act prohibiting discrimination for all places of public accommodation (definition of places of public accommodation: those whose operations affect commerce) o Holding: upheld statute as valid exercise of the power to regulate interstate commerce. Test: uphold based on reasonableness o Reasoning: Congressional testimony about the burdens that discrimination places on interstate commerce. Discrimination has a qualitative as well as quantitative effect on interstate travel by Negroes The fact that Congress was dealing with a moral problem in drafting Title II does not detract from the effect that racial discrimination has had on commercial intercourse. The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof which might have a substantial and harmful effect [on commerce] Katzenbach v. McClung (1964) o Majority: Clark o Facts: Family owned Ollies Barbeque challenged constitutionality of applying Title II to the restaurant. o Holding: upheld statute as valid exercise of the power to regulate interstate commerce. Test: uphold statutes with rational basis

Constitutional Law I OUTLINE Reasoning: Find commerce in moving of people and industry Discrimination deters people from moving; makes industry reluctant to establish there Find commerce in the food traveling interstate to get to the restaurant (food industry) By restricting some people from eating at restaurants engaging in multi-state food industry, obstruct the interstate food industry Find commerce in the diners traveling from out of state (travel industry) Once you buy premise of Heart of Atlanta that congress can remove obstruction in travel by regulating access to hotels/motels then hitch Katzenback to Heart of Atlanta by saying that dining is also a part of tourism industry which Congress can regulate o Black concurrence: analytical value of looking at restaurants in aggregate; single actions of local events, when added to many others of a similar nature, may impose a burden on interstate commerce by reducing its volume or distorting its flow. United States v. Lopez (1995) (5-4 decision) o Majority: Rehnquist o Facts: Guns Free School Zones Act of 1990 makes it a federal offense to possess firearms in school zones. o Holding: Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. The Act exceeds the authority of Congress to regulate Commerce among the several States. o Reasoning: Starts with first principles: that Constitution gives few and defined powers to federal government, and remainder stays with the states. 3 broad categories of activity that Congress may regulate under its commerce power Use of the channels of interstate commerce Instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities Activities having a substantial relation to interstate commerce Wickard illustrates the limit to the reach of the commerce clause; Guns in School Zones act is beyond boundary defined in Wickard. If the court agreed with Governments arguments, there would be big implications: Congress could begin to regulate economic productivity of individual citizens, including family law. Once we look at all those things which threaten the learning environment and therefore our future workforce, we could go so far to have national curriculum in schools. Marbury v. Madison cite: just as statutory rights were at stake in Marbury, so here Lopez has a right not to be prosecuted under an unconstitutional Congressional law o Kennedy and OConnor concurrence: Emphasizes importance that our commerce clause jurisprudence remains stable. Asserts the majority decision isnt revolutionary, but instead says decision shows limit of commerce clause while not letting it be seen as a foot in the door to move backwards. Focuses on Lopez more as a federalism case and less as a commerce clause case Education as traditional realm of the states, and it should be for states are laboratories Test: does the statute upset the federal balance to a degree that renders it an unconstitutional assertion of the commerce power? o Thomas concurrence: Asserts large body of commerce clause jurisprudence has no validity. o

Constitutional Law I OUTLINE Would limit reach of commerce clause to that anticipated at time Constitution ratified: commerce = selling, buying, and bartering, as well as transporting for these purposes. Says commerce was used in contradistinction to production (e.g. manufacturing and agriculture) Rejects aggregation principle embodied in class of activities statutes Argues aggregation principle has not stopping point: one can always draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce. o Souter dissent: Would exercise judicial restraint in deference to Congress because Congress is better suited to answer this type of question: judicial and leg. branches have different institutional competences Concern that test used by majority, gradation according to commercial and non-commercial nature of the thing being regulated, is untenable jurisprudence, like going back to stream of commerce/direct versus indirect, which didnt work. o Breyer dissent: Invokes rational basis test: the determination requires an empirical judgment of a kind that a legislature is more likely than a court to make with accuracy. Uses 3 categories described by Rehnquist to support the constitutionality of the statute (e.g. people are deterred from moving to towns where kids are at risk through guns in schools) Describes questions of fact that legislature can explore (e.g. numbers of students carrying guns, how guns around schools affect education, how education affects the economic health of the nation) and sees links between guns and school and health of national economy. Explicit in noting that he doesnt want commerce clause to reach limits of what Rehnquist calls parade of horribles, but says that Guns in Schools is a special situation for commerce, which situations like marriage/divorce are not. United States v. Morrison (2000) (5-4 decision) o Majority: Rehnquist o Facts: civil provisions of the Violence Against Women Act gave victims a procedure to seek recovery for compensatory/punitive damages and injunctive relief unaccompanied by criminal proceeding. o Holding: statute unconstitutional. Rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect on interstate commerce o Reasoning: Congress knew how to use channels of commerce technique in statute (it used it in criminal portion), but chose to write civil portion differently (to cast wider net) Court says that Congress lacks general police power, and cannot use commerce clause to regulate people in attacking social problems that do not have an economic dimension. Citation to Marbury v. Madison: what we do in cases like Lopez and Morrison can be fit into a direct, linear progression as a modern application of Marbury. Judicial review: it is the job of court to say what the law is and when Congress has overstepped its constitutional authority o Souter dissent: Congress is the better institution to be deciding on this sort of question than are the courts. Questions of law are best left to court, but questions of fact are best left to Congress. Majority is starting from wrong premise; these are mixed questions of L&F. Court should apply the rational basis test (even though its hard to fail). Economic link is debatable, but that is all you need. We dont need overwhelming evidence of economic effect; what is here is enough given that it is a question of fact.

Constitutional Law I OUTLINE Assertion that court is about to repeat the biggest mistake theyve ever made, when court tried to enforce laissez-fair economics under federalism doctrine (leading to Great Depression and Roosevelts court packing scheme) Breyer dissent: Two centuries of economic development has changed us from the federalist system that made sense during the time of founding fathers. Those changes, taken together, mean that virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State-at least when considered in the aggregate.
Lopez Morrison Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress power to regulate interstate commerce.

Question Is crime an economic activity? Is there a jurisdictional element would lend support to the argument that statute is sufficiently tied to interstate commerce? Are there congressional findings that enable us to evaluate the legislative judgment that the activity in question substantially affects interstate commerce? Asserted link between regulated activity and interstate commerce

922(q) contains no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce Neither 922(q) nor its legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone

Concern of court

1. the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. 2. violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe 3. presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive work force, which will negatively affect national productivity and thus interstate commerce. Congress might use the Commerce Clause to completely obliterate the Constitutions distinction between national and local authority

1. deterring potential victims from traveling interstate, from engaging in employment in interstate business, and from transacting with business, and in places involved in interstate commerce; 2. diminishing national productivity, increasing medical and other costs, and decreasing the supply of and the demand for interstate products

Holding

Additional reasoning

Congress might use the Commerce Clause to completely obliterate the Constitutions distinction between national and local authority If accepted, petitioners reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conducts aggregate effect on interstate commerce we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims

Constitutional Law I OUTLINE

What states can do:

Crosby v. National Foreign Trade Council (2000) Although Constitution clearly contemplates o Majority: Souter existence of States, it is not clear about what o Facts: Massachusetts statute: if a company was doing states can do. business (as defined by the Commonwealth) with Burma, Why we want states to do things: Massachusetts put them on a blacklist and prohibited Commonwealth agencies/entities from buying goods States as laboratories, figuring out what works and/or services from those companies. 3 months later, Just because federal government hasnt made federal government passed similar statute 3 months later something a priority, doesnt mean that states shouldnt be able to take the initiative: morals o Posture: of citizens of states taking action to express District court: Statute unconstitutionally themselves through their state government impinge[d] on the federal governments States can get the ball rolling and bring exclusive authority to regulate foreign affairs something to national attention Circuit court: Affirmed on 3 grounds Interference with foreign affairs power What states cant do: of federal government Supercede federal law Violates dormant For. Commerce Clause Dormant powers. Constitution gives powers to Preemption by Congressional Burma Act Congress that imply limits on powers of states o Holding: Massachusetts law was invalid under the (e.g. enter into foreign treaties) Supremacy Clause (decided on pre-emption grounds). th Infringe apon the rights (14 Amendment) Note: This is a narrow statutory holding, and Why we want to limit state powers: court does not deal with broader issues. o Reasoning: We dont want states to force the hand of the Massachusetts Burma law is in conflict with federal government federal statute: an obstacle to delegation of We dont want states to act in a way that authority to President to deal with Burma. impedes our national economy It is simply implausible that Congress would have gone to such lengths to Field pre-emption & conflict pre-emption: empower the President if it had been willing to compromise his effectiveness Field pre-emption: Federal government has by deference to every provision of state paid so much attention to area of law that any statute or local ordinance that might, if state law would undermine, and therefore enforced, blunt the consequences of conflict with federal law discretionary Presidential action. Conflict pre-emption: When we put two laws Congressional direction gives President the next to each other, we see state law undermining federal law to such an extent authority of both the executive and legislative that we see a conflict. branches. Cites Youngstown. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. Strongly implies that federal government has exclusive power over foreign affairs This clear mandate and invocation of exclusively national power Presidents maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics

Constitutional Law I OUTLINE EU amicus brief says it is important to know what the US policy is; EU cant conduct efficient business with US if 50 states can change what EU had thought was US policy o Scalia dissent: we shouldnt bring in text from Congressional Record when the text of the statute is so clear in its purpose. If you do this in the easy cases, youll want to do it in the hard cases as well, when the statute is ambiguous or when there is conflicting language in the congressional record. Gonzalez v. Raich (2005) o Majority: Stevens o Facts: California developing process for regulating intrastate marijuana production/sale/use. o Holding: comprehensive federal ban on the private cultivation and use of marijuana through Controlled Substances Act is constitutional. o Reasoning: Not a supremacy clause case because first court has to demonstrate that Congress has power to pass conflicting statute; that is what makes this a commerce clause case. Drawn from Wickard Congress can regulate purely intrastate activity that is not itself commercial, in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. o Note: majority uses Wickard to cast doubt on Lopez and Morrison o Note: after this case, executive department stepped in to say they wouldnt prosecute growers in circumstances like Raich o Scalia concurrence: [t]he regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself substantially effect interstate commerce. o OConnor dissent: simply no evidence that homegrown medical marijuana users constitute, in the aggregate, [an]impact on [the regulatory] regime. to draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic.
Dormancy by itself, the mere conferral of a power to Congress in Constitution keeps a state from having that power too. The dormant commerce clause is the principle that state and local laws are unconstitutional if they place an undue burden on interstate commerce. There is no constitutional provision that expressly declares that states may not burden interstate commerce. Rather, the Supreme Court has inferred this from the grant of power to Congress in Art. I 8 to regulate commerce among the states Is a state statute protectionist? 1. Ask, does the state law discriminate against out-of-staters or does it treats in-staters and out-of-staters alike? 2. If facially discriminating: per se invalid 3. If burden applies evenly: presumed constitutional, unless burdens unduly outweigh benefits

Part IV: The State Role Cases: City of Philadelphia v. New Jersey (1978) o Majority: Stewart o Facts: New Jersey law that effectively kept landfills in the state exclusively for New Jerseys use by preventing the importation of any wastes from out of state. o Issue: Whether New Jersey statute violates the commerce clause of the Constitution. o Holding: law unconstitutional as an impermissible protectionist action. o Reasoning: Expansive reading of dormant commerce clause [A]ll objects of interstate trade merit Commerce Clause protection. Initial question is whether the state law discriminates against out-of-staters or whether it treats in-staters and out-of-staters alike.

Constitutional Law I OUTLINE Key: is there some out of state interest that can claim it is being treated differently. If there is an interest, thats enough to set off dormant commerce clause. Statute invalidated because NJ didnt identify a valid purpose that couldnt be achieved in a less discriminatory way. Note: To do this in a non-protectionist way, NJ would need to do something like tax entire waste industry, including in-state producers.

Part V: Other Powers Spending Power: Art I 8 gives Congress the power to tax and Common federal grants: spend for the common defense and general welfare of United Block grants: recipient is given range of uses States. Categorical grants: limited in scope o This is not a general police power, however federal In both cases, federal government establishes government can regulate those to whom it disperses guidelines for states use of grants and grants. When an organization takes government money, it reporting procedures. often comes with strings attached/conditions. o Risk that Spending Power could be used to purchase regulation leads to periodic reminders from Court that Congress needs to limit its use of the Spending Power, however spending power has not generated anywhere near the volume of litigation that the commerce clause has generated, especially since New Deal era. War Power: war power in the constitution is shared: Congress can declare war; President commander and chief of army and navy o Can see times when president and congress will be at odds and when theyll be completely in accord Many (most?) military decisions will be non-judiciable But there are some appropriate spin-off cases that make their way through civil courts

Cases: United States v. Butler (1936) Founding fathers on Spending Power: o Majority: Roberts Madison: federal government power to spend o Facts: Agricultural Adjustment Act of 1933 taxed limited to enumerated legislative fields. processors of agricultural commodities and used o But, we dont need the spending power proceeds to subsidize farmers who agreed to restrict clause for this because we already have the their production. necessary and proper clause. o Holding: federal government can spend for the general Hamilton: federal government power to spend welfare, but cannot regulate for the general welfare. The on any legislative field for the general welfare AAA regulated production, and the regulation of of the United States. production was left to the states. o Reasoning: The phrase to provide for the general welfare qualifies the power to lay and collect taxes As such, the general welfare clause is subject to limitations The fact that AAA is voluntary doesnt change nature of program, and coercive effect. If you dont buy into program, those who do will have competitive advantage over you The grower who says no thanks will feel pressure to join: purchased regulation. Difference between regulation and condition If you cant regulate conduct directly, then you shouldnt be able to regulate it through back door by using spending power.

Constitutional Law I OUTLINE Stone dissent: Threat of loss, not hope of gain. As long as you are giving them something, that is not coercive. It is only when you threaten to take something away that it is coercion. Looks for definable contour of general welfare that courts can enforce Purpose must be truly national May not be used to coerce action left to state control Conscience and patriotism of Congress and the Executive will also help limit power Steward Machine Co. v. Davis (1937) What we know about limits to spending power: o Majority: Cardozo 1. Conditions on grants okay so long as o Facts: federal unemployment compensation system a. Purpose is truly national; and organized such that states setting up their own b. Limits are related to the purposes of the unemployment system are somewhat advantaged in that program (or alternatively related to national employers receive a credit on federal taxes by purpose) participating in state fund. 2. Congress cant act to coerce states or people o Holding: the system did not involve the coercion of the within state into doing things that would be th States in contravention of the 10 Amendment or of within realm of states. restrictions implicit in our federal form of government. Constitutional. o Reasoning: Relatedness: whatever conditions are put on program must be related to the operation of the program itself, or to any other legitimately national end. We must let Congress put conditions on programs so we know where money is going. South Dakota v. Dole (1987) Preventing a race to the bottom o Majority: Rehnquist A state might get away with as little as o Facts: Condition that future federal highways funds be possible in order to satisfy a particular interest given only to states with drinking age 21+. group in the state. o Holding: Condition on grant looks like it is coercive, but Federal government doesnt want this to its not a lot of coercion (only 5% of federal highways happen, so offers funds to states so long as funds) so its okay. they meet minimum standards. o Reasoning: Risk inherent in federal carrot (Baker): 4-part test for if grant and conditions are within limits of Spending Power: Diversity: different states can be different in 1. Exercise of spending power must be in the goods and services provided to its citizens pursuit of the general welfare Value of federalism is that states can choose In considering whether a the package they want and live in that state particular expenditure is Diversity in state governments, an element of intended to serve general public national welfare, risks homogenization if spending clause influence is too strong. purposes, courts should defer substantially to the judgment of Congress. 2. Any conditions must be unambiguous 3. Conditions must be related to the federal interest in national projects/programs 4. Cant violate other constitutional provisions 5. We add a fifth element: Cant be coercive Test seems to favor federal govt, with only relatedness, and maybe coercion being real limits o

Constitutional Law I OUTLINE OConnor dissent: minimum drinking age is not sufficiently related to interstate highway construction to justify the condition placed on funds appropriated for that purpose. Woods v. Cloyd W. Miller Co. (1948) Ways court punts war powers cases: o Facts: Housing and Rent Act of 1947 froze rents at their Calls case a political questions wartime level. Gives great deference to political branches of o Holding: legislation sustained by war power of Congress government (Exec. and Leg.) o Reasoning: Relationship between war and rent-freeze clear (avoid crippling returning veterans with inflation, which was a direct & immediate result of war) Just as with the general welfare, where we give Congress broad latitude as for what fits within it; so with the war power, we give a lot of discretion to Congress to what fits within it, both during war and for a period surrounding declared war. the war power does not necessarily end with the cessation of hostilities. Korematsu v. United States (1944) o Majority: Black o Facts: Executive Order 9066 authorized military commander to prescribe military areas from which any or all persons could be excluded subject to the restrictions the commanders imposed at their discretion. About 2 weeks later, Congress enacted legislations making it a crime to violate an order of a military commander. About 2 weeks later, military commander issued exclusion orders on west coast requiring persons of Japanese descent to leave their homes. Korematsu, a U.S. citizen of unchallenged loyalty, but of Japanese descent was tried and convicted for refusing to leave his home. o Issue: who/what wins when Executive is acting at zenith of his powers in conflict with individual rights o Holding: upheld the constitutionality of the relocation of Japanese-Americans during World War II because it was wartime and hardships are part of war. o Reasoning: Choice of Tests: Test: strict scrutiny. [A]ll legal restrictions which curtail the civil rights of a single racial group are immediately Strict scrutiny suspect. That is not to say that all such restrictions are o Burden is on the government to unconstitutional. It is to say that courts must subject them satisfy the most rigid scrutiny to the most rigid scrutiny. Pressing public necessity may (government rarely wins) sometimes justify the existence of such restrictions; racial Rational basis antagonism never can. Intermediate scrutiny Power of President: Jackson 3 (from Youngstown: power Measure must be reasonably related to danger of Pres. at its zenith when he exercises his authority with assent of Congress) Court deferred to military judgment in ancillary decision regarding conduct of war. Accepted governments claim that there was a serious risk to national security from JapaneseAmericans who were disloyal and there was no way of screening to identify individuals. Court could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal sustained the validity of the temporary exclusion of the entire group. (emphasis added) o Note: Court couldnt avoid this case because it was a defense in a criminal case with Korematsu as defendant (as opposed to Korematsu bringing up case and court wiggling out under PQ doctrine) o Note: Korematsu is still good law but Constitutional lawyers are embarrassed by the decision because the government used race alone as the basis for predicting who was a threat to national security and o

Constitutional Law I OUTLINE who would remain free. In every judicial decision regarding the war on terror, the shadow of Korematsu looms large. Dissent: Murphy Marbury: of course we must pay respect to military authority, but this is the kind of issue on which a vigorous judicial role should be brought to bear so we can enforce government legality Test should be whether measure is reasonably related to danger Dissent: Jackson Unconstitutional military orders last only as long as emergency lasts. Once supreme court stretches constitution to condone otherwise unconstitutional military action, it is forevermore validated. Refuses to do this; would have reversed.

Part VI: Federalism Reconsidered: the Anticommandeering Principle Cases: National League of Cities v. Usery (1976) o Holding: commerce clause did not empower Congress to enforce the minimum wage and overtime provisions of the Fair Labor Standards Act against the states in areas of traditional government functions. o Test: traditional governmental functions o Reasoning: An external limit to the commerce clause (like free speech, equal protection) is federalism (through the 10th amendment) States are sovereign/co-equals with federal government One thing a sovereign gets to do is decide how to run itself When it comes to traditional government functions, federal government must not interfere with state autonomy in making choices Garcia v. San Antonio Metropolitan Transit Authority (1985) SEE PAGE 14 for discussion of Garcia in context of Commerce Clause litigation. o Majority: Blackmun o Facts: Federal government passed laws structuring rules for state workforce. o Holding: Overruled National League of Cities, held statute constitutional When Congress has power over substance, the fact that regulations include states and subdivisions doesnt make a difference. States retain sovereign authority to the extent that the Constitution has not transferred power to the federal government. o Reasoning: National League of Cities holding was unworkable because it invited an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes in a system where states must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary State sovereign interests are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. o Take-home: Wechsler at work. o OConnor dissent:

Constitutional Law I OUTLINE [E]ssence of federalism is that the States as States have legitimate interests which the National Government is bound to respect even though its laws are supreme. Court cant abdicate its responsibility to oversee the federal governments obligation to comply with its duty to respect the states. By protecting federalism, you protect individual rights, and prevent a tyrannical federal government. This is an extension of Marbury. o Note: Garcia (a 5-4 decision) is an example of an issue that has mostly been resolved: the federal government can regulate the states when they engage in commercial activities in essentially the same way it can regulate private parties. Definition of commerce clause is that from Wickard. New York v. United States (1992) Options under the Low-Level Radioactive Waste o Majority: OConnor Policy Amendments of 1985: o Facts: by 1979, there was only one state left with a low Cite a facility in-state, taking care of in-state level radioactive nuclear waste facility, and then SC waste and charge gradually increasing rates to decided to reduce its admission of waste by 50%. other states to accept their waste. Congress sees the problem (disparity among states) Join a compact: a group of states agreeing to enacts low-level radioactive waste act amendments in solution among compact states, and excluding 1985 which created a statutory duty for states to provide non-compact states. for the safe disposal of radioactive wastes. Take title to waste from private entities and o Issue: whether the 10th amendment carves out an then then be liable for all damages directly or exception for regulation of states with regard to a indirectly incurred. substance over which Congress admittedly has power. Effect: statute gave choices to states, but o Holding: ultimately they had to pass legislation to meet Congress, under the commerce clause, can fed. standards, couldnt choose to do nothing. regulate the disposal of radioactive wastes. BUT, Congress cannot directly compel state legislative or regulatory action (the anti-commandeering principle). o Reasoning: Starts with presumption that States are reserved certain powers, including the power to make laws for their State, and Congress cant invade that power by telling them which laws to make. A compelling government interest is not sufficient Answering is Congress w/in its authority? to permit a law that otherwise would violate the 10th Amendment Option 1: 2-step process o Does Congress have the power to regulate Major difference between Articles of this substantive area? Confederation and Constitution is power of o In this particular exercise of power, has it Congress to exercise legislative authority directly violated an external Constitutional limit? over individuals and not states (cites Fedist 15). OConnors approach in NY v. US Policy: allowing Congress to commandeer state o Is core of sovereignty retained by the States governments would undermine government th under the 10 Amendment violated? accountability because Congress could make a decision, but the states would take the political heat and be held responsible for a decision that was not theirs. Congress is not powerless under 10th Amendment: May set standards that state and local governments must meet and thereby preempt state and local actions, May attach strings on grants to state and local governments and through these conditions induce state and local actions that it cannot directly compel.

Constitutional Law I OUTLINE Printz v. United States (1997) Anti-commandeering & the 3 branches of state o Majority: Scalia government: o Facts: Congress was compelling Exec branch of states to Congress cant force legislatures to enact laws; conduct background checks under Brady Act. Congress cannot compel state executives to o Issue: whether Congress can pass a statute that says do work of national bill; executive officials of a state must to X. BUT, SCOTUS can require state courts to hear o Holding: Brady Law unconstitutional because conscripts lawsuits under a Congressional statute state governments in violates the 10th Amendment. o Madisonian compromise allowing but not Extends anti-commandeering to executive officials demanding a robust federal court system; (Congress cannot compel state executives to do work of o Federal laws are binding on every state; fed. national bill). claims might well be heard in state court; So o Reasoning: state courts need to hear and apply federal law when it comes before them Structure of Constitution: Power of federal government would be augmented immeasurably if it could impress the police of the 50 states into its service. Cites to Article II: Constitution vests all executive power in the president; in Brady Act, Congress impermissibly gave the executive authority to implement the law to state and local law enforcement personnel. Re-states accountability arguments from NY case o Stevens dissent: citation Hamilton to support proposition that the federal government was to have the power to demand that local officials implement national policy programs. o Breyer dissent: we can learn something from how other Anti-commandeering & the War on Terror: systems have reached different solutions. We are Althouse: Anti-commandeering principle interpreting our own constitution, but we can learn from should remain in place, in full force, not the consequences of different systems around the world modified by any emergency measures Testa v. Katt (1947) o If theres a real emergency, States will get o State courts must hear federal question cases on board with fed. govt o Madisonian compromise o If a small group that resists, then fed. govt Gonzales v. Oregon (2006) can supplement directly o Majority: Kennedy o If states think fed. govt is overreaching in approach to dealing with terrorists, then o Facts: Oregon passed Death with Dignity Act, exempting they refuse to lend state and local police physicians from civil or criminal liability for prescribing force to enforce federal measures to lethal doses of various drug to terminally ill patients combat war on terror under defined circumstances. Attorney General issued o And, states might exert pressure on fed. Interpretive Rule declaring that using controlled govt to modify policies or recognize substances to assist suicide was unlawful under federal individual rights Controlled Substances Act. o Holding AGs interpretation of the CSA was an impermissible interpretation of the Act. o Reasoning: Traditional role of the states in regulating medical practice. CSA presupposes state regulation of medical practice. It is silent on the practice of medicine, generally, and recognizes state regulation of the medical profession. Pre-emption provision in CSA says that none of its provisions should be construed to indicate intent for Congress to occupy the field to the exclusion of State law on the same subject matter when field would otherwise be within the authority of the State.

Constitutional Law I OUTLINE o Because state medical regime permits conduct, Attorney Generals bar on conduct not okay. Scalia dissent: Court should not defer to State in this case because to do so would go against long jurisprudence of commerce clause. [what the heck!?! Cant square this with Morrison/Lopez except to look at the subject matter of case].

Part VII: Separation of Powers (a bulwark against tyranny) We dont have and dont want a pure separation of powers. Instead, Constitution let branches play a role in powers assigned to the others to perform the important checking function. Cases: Youngstown Sheet & Tube Co. v. Sawyer (1952) Views on the scope of Presidential power: o Majority: Black There is no inherent presidential power; the o Facts: In early 1952, the United Steelworkers Union president may act only if there is express announced a planned nationwide strike as a result of a constitutional or statutory authority. [Black] labor-management dispute. A few hours before the strike The president has inherent authority unless the president interferes with the functioning was to begin, President Harry Truman issued Executive of another branch of government or usurps Order 10340 which directed the secretary of commerce to the powers of another branch. take possession of the steel mills and to keep them The president may exercise powers not running. Truman believed that the steel strike could mentioned in the Constitution so long as the president does not violate a statute or the endanger the national defense and the war effort in Korea Constitution. [Frankfurter; Jackson] because steel was indispensable for all weapons. The The president has inherent powers that may secretary of commerce, Charles Sawyer, issued the order, not be restricted by Congress and may act and the president reported this action to Congress. unless the Constitution is violated Congress took no action in response to the seizure. o Issue: what is the scope of inherent presidential powerthe ability of the president to act without express constitutional or statutory authority? o Holding: EO10340 was unconstitutional because neither statute nor the Constitution authorizes the President to take possession of property as he did here. Black line test. o Reasoning: Constitution grants all legislative powers to Congress; taking property is a legislative power, and Constitution is crystal clear that President does not have that power. Inherent powers is repugnant to a Constitution with enumerated powers. o Frankfurter concurrence: Congress clearly and Use of Intl comparisons in SCOTUS opinions: emphatically made policy choice and withheld authority Breyer (Printz dissent): some other countries, from government to seize industrial companies when facing the same basic problem, have found passing Taft-Hartley Act of 1947 Jackson (Youngstown concurrence): o Jackson concurrence: contemporary foreign experience may Two reasons why a President couldnt do suggest that something: 1) Constitution does not authorize it, Kennedy (Roper v. Simmons): it does not or 2) Congress passes legislation that explicitly lessen our fidelity to the Constitution to denies President authorization acknowledge other nations and peoples 3 practical situations in which Presidents powers Rejection of Ints comparisons: may be challenged & their legal consequences (see below).
Scalia (Printz majority): we are interpreting our own Constitution, not those of other nations

Constitutional Law I OUTLINE Jackson says in this case Truman was acting in 3rd category and defeats argument that he is authorized to do this as Commander and Chief by saying that Commander in Chief of the army is not equivalent to Commander in Chief of the country, its industries and its inhabitants Addresses Emergency Power argument by noting that emergency powers would tend to kindle emergencies. The founding fathers knew what emergency situations looked like, knew the pressures they engender for authoritative action, and yet didnt write in express authority for President to declare an emergency and then deal with it. Invokes international comparisons to inform and persuade.
J2 President acts in congressional silence Might have concurrent authority with Congress or distribution of authority is uncertain Fact specific, flexible test Depends on the imperatives of events and not on abstract theories of law. Look for Look to congressional inertia, indifference, or quiescences [that] enable, if not invite, measures on independent presidential responsibility. J3 President takes measures incompatible with the express or implied will of Congress Presidential power at its lowest ebb (authority comes from Presidents own power minus any constitutional powers of Congress over the matter) Scrutinize with caution, severe test In order to grant President power, need to disable Congress from acting on the subject.

Situation

Level of power

J1 President acts pursuant to an express or implied authorization of Congress Presidential authority at its zenith

Legal consequences

If action held unconstitutional, probably b/c govt as an undivided whole lack power Presumption for Pres. Power Widest latitude of judicial interpretation Burden of persuasion high on person challenging authority

Douglas concurrence: President is passing law, and we know it because it involves steps in which government takes property, and the only branch which can fund initiative (compensate propertyowners) is Congress. Suing the government & government officials: o Dissent: President is best equipped to deal with emergencies and has inherent executive authority through 42 U.S.C. 1983: government shall be liable to Art. II. We have left the Pres. powerless in time when we the party injured in an action at law, suit in equity, or other proper proceeding for redress need immediate action. President has to be able to act to Local government: save the legislative powers until Congress can take action. o Can sue either the local government or United States v. Curtiss-Wright Corp. (1936) officials for equitable relief or damages o Majority: Sutherland State government, can only sue govt officials o Facts: Congress adopted a law that empowered the depends on who will pay damages. President to issue a proclamation making illegal further o Cant sue state: immunity from damages sales of arms to the warring nations. Defendants indicted suits (but sometimes they will waive this) for type of gun-running in Chako region, a crime created o Can sue govt officials for equitable relief by the President under authority this resolution. o Can sue govt official for damages, but only o Issue: whether it is constitutional for Congress to delegate when official pays in capacity as individual No 1983 corollary for fed. govt, but in legislative power to President general, it works out to be the same as states o Holding: upheld broad delegation of power to the o Habeas corpus claims seek equitable relief President area of foreign policy. o Fed. govt has waived immunity through o Reasoning: Federal Tort Claims Act The two classes of powers [domestic and foreign] o Bivens claims against government officials are different, both in respect of their origin and States can sue other states; Fed. govt can sue their nature. The broad statement that the federal states; states can sue fed. govt. government can exercise no powers except those

Constitutional Law I OUTLINE specifically enumerated in the Constitution...is categorically true only in respect of our internal affairs States had power in domestic affairs before Constitution. By approving the Constitution, States bestowed power on the national government. In contrast, foreign power passed directly from Britain to federal government. President as the sole organ of the federal government in the field of international relations a power which does not require as a basis for its existence an act of Congress. o Take-away: rules of the game are different for foreign issues than domestic issues (controversial case!). But THINK! Conflict of interest with President creating and then enforcing laws. o Note: we read Curtiss-Wright as the broadest statement the court has ever made to the power of the President in foreign affairs. Cited consistently by Bush administration. Dames & Moore v. Regan (1981) o Majority: Rehnquist o Facts: Carter froze Iranian assets so nobody could take possession of them during Iranian hostage crisis. 2 years later, Reagan issued Executive Agreement moving all claims involving Iranian nationals from US courts to the Iran-United State Claims Tribunal. Dames & Moore had a $3.5M contracts suit pending. o Holding: Executive Agreement constitutional because a series of federal statutes authorized the presidents actions. o Reasoning: President was acting in a classic J1 situation for freezing assets. Standing act of Congress (IEEPA) that gives President quite a bit of power, including freezing assets of foreign countries (International Emergency Economic Powers Act) President was acting in J2 situation for suspending lawsuits IEEPA does not talk about suspending lawsuits Neither does Hostage Act give President authority to suspend lawsuits But, there was a history of acquiescence in executive claims settlements (International Claims Settlement Act) from which court inferred that President was authorized to suspend pending claims o Take-away: in the international affairs area, the President can do quite a bit, especially if theres been no Congressional disapproval. Medellin v. Texas (2008) Executive power in foreign affairs over time: o Majority: Roberts Curtiss-Wright: Pres. won with Congressional o Facts: Mexican national appealed homicide conviction on authorization grounds that he was not given notice of the Vienna Dames & Young: Pres. won with Congressional Convention protocol that foreign nationals have the right something to request assistance from their consul. Medellin: President lost o Issue: whether US was bound to enforce the Vienna Convention protocol pursuant to Bush Presidential Memorandum stating pursuant to the authority vested in me as President U.S. will discharge its international obligations under the decision of the ICJ by having State courts give effect to the decision. o Holding: Presidents actions were unconstitutional o Reasoning: Application of Blacks analysis from Youngstown: ask, is President making a law? Vienna Convention was not a self-executing treaty Congress hadnt passed legislation ratifying treaty So President was making a law, which he cant do.

Constitutional Law I OUTLINE Also see Jackson analysis: this situation belongs in J3 category Unprecedented action, so dont have historic acquiescence Treaty not self-executing, and since Senate knew that only Congress can make law, it impliedly forbade the President from doing this Hamdi v. Rumsfeld (2004) Congressional resolutions re: War on Terror: o Plurality: OConnor September 18, 2001 joint resolution of o Facts: Yaser Hamdi was an American citizen who was Congress the Constitutional (AUMF) apprehended in Afghanistan and brought to Guantanamo authorizing President to use all necessary and Bay. There it was discovered that he was an American appropriate force against those who citizen and he was taken to a military prison in South perpetrated attacks on 9/11 Carolina. He was been held as an enemy combatant and October 16, 2002 resolution: more narrow never was charged with any crime. than AUMF b/c confined to one country (Iraq). o Issue: whether the Executive has the authority to detain citizens who qualify as enemy combatants. o Holding: Federal government has the authority to hold an American citizen apprehended in a foreign country as an enemy combatant. Hamdi must be accorded due process before status as enemy an combatant can indefinitely be announced o Reasoning: looks to the text of the Authorization for Use Where does Pres. fall in Jacksons categories? of Military Force (and not Presidents ridiculous' assertion Maybe J1: Pres. authority buttressed by AUMF that power to detain enemy combatants is inherent in Maybe J2: AUMF says nothing explicit about role as Commander in Chief) detaining people AUMF is sufficient congressional authorization to Souter says J3: argues holding Hamdi conflicts meet requirements of the Non-Detention Act w/ Non-Detention Act (AUMF does not include (AUMF supercedes because it comes later and is language superseding Non-Detention Act) more broad). Although court will defer to military officials, just because we are in a war, it does not infringe on the courts own core role of resolving individual rights claims. Hamdi is entitled to have his habeas petition heard in federal court and imprisoning a person is obviously the most basic form of deprivation of liberty. Thus, due process is required and the procedures required are to be determined by applying the three-part balancing test under Mathews v. Eldridge. o Thomas concurrence: President has inherent authority, pursuant to Article II of the Constitution to hold Hamdi as an enemy combatant. o Souter/Ginsburg concurring in the judgment in part and dissenting in part: it violates the NonDetention Act to hold an American citizen as an enemy combatant; Congress must expressly authorize such detentions and AUMF says nothing about detention so has not done so. o Scalia/Stevens dissent: there is no authority to hold an American citizen in the US as an enemy combatant without charges or trial, unless Congress expressly suspends the writ of habeas corpus. o What Hamdi left open: What should due process look like for Hamdi? Hamdan v. Rumsfeld (2006) o Majority: Stevens o President Bush, by military order, had created a series of military commissions to try people for acts of war. Hamdan was in the process of being tried by a military commission and he sought habeas corpus.

Constitutional Law I OUTLINE Court held that Bushs military commissions were invalid because they conflict with statutes on how military tribunals are to be set up: specifically with Uniform Code of Military Justice. Inference that Bush could have set military commissions up if hed done them right. Boumediene v. Bush (2008) o Majority: Kennedy o Facts: President created Combat Status Review Tribunal, but a body that reviews a detainees challenged status to determine if he is an enemy combatant. Mechanism includes challenge to CSRT and opportunity to appeal to DC Circuit. Bars any other court from hearing habeas corpus cases o Issue: whether Congress can extinguish jurisdiction of federal courts over habeas corpus cases. o Holding: No, cant strip jurisdiction from district courts. Detainees at Guantanamo Bay are constitutionally "entitled to the privilege [and fundamental procedural protections] of habeas corpus to challenge the legality of their detention. A detainee must be provided with the opportunity to challenge "the sufficiency of the Government's evidence" and to "supplement the record on review" with additional "exculpatory evidence." o Reasoning: Distinguishing Boumediene from Eisentrager: Distinguishes case from Johnson v. Eisentrager on o For Eisentrager, US shared control of prison factual and policy grounds with Allied forces 3 factors relevant in determining reach of o Court in Eisentrager didnt want to interfere suspension clause. with massive military effort in post-war Citizenship and status of the detainee Europe, a very different situation than at and the adequacy of the process through Guantanamo Bay which that status determination was o DBs favorite line: [t]here is no indication, made. furthermore, that adjudicating a habeas Nature of the sites where apprehension corpus petition would cause friction with the host government. and then detention took place. o Petitions in Eisentrager werent challenging The practical obstacles inherent in their status as enemy combatants. resolving the prisoners entitlement to the writ. Determines that it is permissible for writ of HC to extend to Guantanamo Bay. Government could have suspended writ at Guantanamo Bay through act of Congress in order to remove habeas corpus in all or in part. In lieu of suspending habeas corpus, Congress could grant an adequate substitute procedure which give appellants the same quality and quantity of inquiry into their detention that they would get if they were allowed to seek true habeas corpus in a federal court. Key to courts reasoning: if court with original jurisdiction does not provide adequate process, cant expect detainee to be responsible for all inadequacies in the record on appeal. Statute stripping jurisdiction from district courts to issue writs of habeas corpus does not avoid the Suspension Clause mandate because Congress has not provided adequate substitute procedures for habeas corpus. o Note: before SCOTUS decided Boumediene, it seemed to many that government would win this case because the facts of Eisentrager were close enough. o What Boumediene left open: what would an adequate substitute to habeas corpus proceeding look like? A lot like habeas corpus? Habeas court must have power to release. Detainee must have meaningful rebuttal. Judicial review. o Wittis analysis: the proper way to read cases like Hamdi and Boumediene, is not judicial as triumphalism, but rather that the court is carving itself a seat at the table believing it has a role to play.

Constitutional Law I OUTLINE Scalia dissent: disagrees with majority opinion because more plaintiff-friendly process will lead to Americans being killed; will hurt detainees because more will end up being detained abroad. The nation will live to regret the decision the Court has made today. o Roberts dissent: due process clause should serve as the War Powers Resolution: Constitutional standard for making decisions regarding Congressional response to Vietnam and detainment of enemy combatants; CSRTs meets the Watergate, perception of executive overreach standards laid out in Hamdi; it does not make sense to Example provisions: afford non-citizen petitioners more due process than o Congressional notification w/in 48 hours if American citizens like Hamdi; non-American citizens Pres introduced troops w/out dec. of war should only have rights to adequate process, and CSRTs o Prior consultation with Congress b/f provide this. introducing troops unless emery situation Holder v. Humanitarian Law Project (2010) o Removing troops w/in 60 days unless o Majority: Roberts Congress declares war o Can extend by 30 days if Pres declares nec. o Facts: It is a federal crime to knowingly provid[e] material for safety of troops in process of removal support or resources to a foreign terrorist organization. Plaintiffs brought pre-enforcement action (1998) to OLC Memo on Libya: prevent being prosecuted when they provided support to designated foreign terrorist organizations. What we are doing is outside of WPR. All we had to do to justify going into Libya was o Issue: argue that we are providing military support 1) Whether statute is impermissibly vague under for regional stability and to protect the UN due process. Security Councils reputation. 2) Whether statute violates plaintiffs rights to Really, global oil security speak and associate But is what we are doing, war? Is what we are o Holding: doing not sustained? Does that mean we can 1) Statute is totally unlike vague nightwalking bomb anyone at any time? and common vagrant municipal statutes because here, a person of reasonable intelligence as a general matter can know what these terms mean (service, personnel, expert advice) and structure their conduct accordingly. 2) Meets standard of strict scrutiny because Court shows deference to Executive (interesting b/c usually court shows deference to Congress) because its an issue of national security and court doesnt have expertise. State interest outweighs speech issue. o Reasoning: Plaintiffs have standing because theyve claimed/showed an imminent threat of prosecution. In dealing with terrorist groups, we should give deference to Executive (not a big stretch to see how this would fit into cases where weve given deference to Exec for matters of foreign affairs). Congress and the Exec are uniquely positioned to make principled distinctions b/w activities that will further terrorist conduct and undermine US foreign policy, and those that will not. Relative competence of branches: there is a lack of competence on part of judicial branch to make these assessments. Cites Boumediene: [w]e have noted that neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people. Proposition that it is desirable and constitutionally appropriate to forbid supporting multipurpose groups Material support is not just monetary, but any assistance to legitimacy. o

Constitutional Law I OUTLINE o Can join one/become a card-carrying member, but cant give support. Breyer dissent: Future of court in War on Terror? Would have applied strict scrutiny standard to In Hamdi, we saw SCOTUS give a robust rethis case. 1st Amendment offers highest level of affirmance of judicial role. protection; even advocacy of unlawful action so Iqbal Plaintiff, purported to be victim of long as action is does not contribute to inciting government excess in treatment of terrorist imminent lawless action. acts, thrown out of court with new heightened Argues that statute is an anti-terrorism statute pleading standard. that wont help the goal of defeating terrorism. Holder case that NY Times waxed violent On the ground, applying it to these people that about. Benign people making benign speech, wont help defeat terrorism. but though not a criminal case, the holding of Rebuts fungibility argument: hard to see how the court is that they can be prosecuted. Third case in system right now is Ashcroft having this group come in and lecture about immune from a damages suit by Al-Qied (in a international law could translate itself into Bivens suit)? This case will test the extent material support of some other kind. court is willing to take into consideration the Statutes like this chills independent advocacy war on terror and deference to elected govt (like during red scare). in circumstances of natl security. Argues [o]nce one accepts this argument, there is no natural stopping place. Suggests we should require individuals must know that their activities will advance the illegal terrorist activities of FTO in order to prosecute. Significance of Holder: closes the loop that began with Marbury; SCOTUS as guardians of legality.