Downloaded From OutlineDepot.com I. I.

Constitutional History

Articles of Confederation v. Constitution (1) A. Articles of Confederation adopted as a means for unified action in Revolutionary War 1. Timeline a. 1776 Declaration of Independence b. 1777 Articles drafted c. 1781 Articles ratified - effective d. 1783 Treaty of Paris ends Revolutionary War 2. Government 13 sovereign states coming together for common purpose Congress unicameral Legislature who appointed Executive civil officers and could appoint maritime and prize Courts at discretion. Did not set up any ct but gave Congress the power to do so 3. Legislation Bills had to be passed by a 9 out of 13 State super-majority (easier than under the Const. Because you only have to deal with one branch of government). (maj. vote would be 7 out of 13) a. Election of Officers delegates to Congress selected by state legislatures b. Representation each state is equal 1 vote c. Powers power kept with States with only limited, enumerated power to Congress 4. Amendments could not be amended unless by unanimous consent (making it very difficult) 5. Offices Secretary of War => Secretary of Defense Secretary of Foreign affairs => Secretary of State Department of Finance =? Treasury Dept B. Constitution a more organized system of federal government 1. Timeline a. 1786 - Congress called for a constitutional convention to fix defects and embarrassments made by Articles of Confederation b. September 17, 1787 Adopted by constitutional convention c. 1788 ratified by 9 states to become effective 2. Government 3 co-equal branches created separation of powers which gives rise to internal restraint (as opposed to the articles more concentration of powers) a. Legislature Bicameral with House and Senate according to Art. I b. Executive governed by Art. II i. President and Vice President ii. Those civil officers acting under President c. Judiciary governed by Article III i. The judicial power of the US shall reside in one Supreme Court and ii. Any other inferior courts Congress shall ordain and establish 3. Legislation bills must pass both houses by simple majority and be signed off on by the President. Congress can defeat presidential veto by 2/3 super majority a. Judiciary may pass on the Constitutionality of legislation (if brought to them) b. Provides more institutions through which legislation passes than Articles of Confed. but simple majority (as opposed to super-majority) c. Election of Officers i. Originally, Senators were chose by state legislatures and House by popular election (Amend XVII changed Senate to popular vote) ii. Thus people have more say popular election in House iii. Important in situations in which state legislatures may have different opinions than the people Articles catered to State interests, Const to the People d. Representation favors large states because of popular election in House (so populous states like VI will get more votes whereas under art.of con, each state only gets one vote regardless of the size of its population); so equal voice in Senate e. Powers retained Articles power (e.g. power to borrow money) but added new powers ex. Tax, regulate interstate commerce, patents i. Delegates some powers, but allows creation of new ones under the necessary and proper clause in Article I 8 (unlike limitations of Articles of Confed. Which had no such provision) ii. Enumeration of powers under the 10th Amendment the powers not expressly delegated to the US by Constitution, nor prohibited to it by the States, are reserved to the States or to the people. (similar to the provision in the Art. Of Confed. Except for the addition of expressly which gives Congress more wiggle room and the ability to invoke the necessary and proper clause for expansion of powers. It implies that there are some powers that are impliedly delegated per art 1, sec 8). 4. Amendments can be amended in two ways under Article V a. 2/3rds of both houses propose and ratify, or 1

Downloaded From OutlineDepot.com 2/3rd state legislatures propose and state legislatures ratify (Unanimous consent now needed only to change equal representation in the Senate) Constitutional History A. Federalist Papers Madison, Hamilton, and Jay wrote these papers to convince NY to ratify constitution. Therefore they are a good source for clarification of intent of the framers and aid interpretation. B. Problems and embarrassments in US which illustrated the art. Of Confeds weaknesses and thus led to Constitution. 1. Foreign Affairs 1786? a. Britain UK had detained several Northwest forts because pre-war debts werent paid until 1795 (because Congress had no means by which to raise money) b. Britain West Indies ports were closed to US and nation couldnt do anything about it bc Congress didnt have any power. c. Spain Denied US the use of Mississippi river until Louisiana Purchase from France in 1803 2. Domestic Affairs a. Interstate Commerce Articles didnt say that Congress could regulate interstate commerce (although it could regulate trade with the Indians) so it was left to individual states (Reason VA proposed conferences to discuss new Constitution) i. Lack of uniform commercial rules ii. In-state merchants were favored Tariffs imposed between the States iii. Dealt with in Constitution by giving regulatory power over interstate and foreign Commerce to Congress in Article I 8 clause 3 b. Shays Rebellion farmers owed debts and taxes and needed coin to pay them i. Rebellion shut down court system ii. Eventually ended by militia of collectors iii. Dealt with in Constitution by allowing legislature and executive to guarantee against domestic violence in Article IV 4 simply by asking for help. c. National Debt Congress had borrowed 100s of millions of dollars i. Articles left Congress to collect money from states based on value of land but gave no way to enforce payment of levies which essentially made payment voluntary ii. Constitution gives Congress power to lay and collect taxes, duties, imposts, and excises in Article I 8 so Congress could directly raise revenue from individuals, not just states C. Why a new Document? instead of amending the Articles 1. Articles could only be changed by unanimous state consent difficult with 13 sovereign states there were attempts and proposals made in 1781 and 83, RI by itself said no. 2. Constitution in Article VII says that only 9 states needed to ratify in order to make the constitution valid. NOTE: if only 9 of 13 states ratified the constitution, this would be illegal under the articles. The states would have simply ignored this. In the end though, all 13 states ratified the constitution also amending the constitution itself only needs a supermajority (2/3s) in art 5 instead of complete unanimity. Only provision of the con that needs unanimity is in art 5 => no state shall be deprived of equal representartion D. Opposition 1. Constitution grew out of lack of strong central government under Articles 2. Anti-Federalist opposed to large, central government 3. Solution was to create far-flung government with checks and balances so that factions could not take over II. I. Nature and Sources of Supreme Courts Authority (The Judiciary) b.

II.

Judicial Review A. General Rule of Judicial review: 1. the Const does not expressly provide whether legislation is unconstitutional, but Marshall says it is implicit in the structure of the Const. Itself. However Judicial review is consistent with the intent of the constitution only if judges do not exercise their own will in a case. 2. the USSC has the power to hold that legislation and the acts of other branches of government unconstitutional [Marbury v. Madison] 3. USSC has the power to review judgments of state courts in cases that arise under the const. Or other federal law [Martin v. Hunters Lessee] 4. USSC has the power to hold state statutes unconstitutional [Fletcher v. Peck] 5. judicial power extends to all cases arising under the Const., even state criminal cases [Cohens v. Virginia] B. Marbury v. Madison (Marshall) Marbury named at last minute by Adams to be DC Justice of the Peace, was confirmed by Senate, and signed by Secretary of State Marshall. New Secretary of State under Prez Jefferson was Madison (agent of the Executive), did not give Marbury his commission. Commission signed, sealed, but not delivered. 2

Downloaded From OutlineDepot.com Marbury went directly to SC seeking a writ of mandamus against Madison. Writ of Mandamus Court orders State official to carry out an order of his office (here to deliver commission) 2. Relevant Constitution Provisions a. Article I 1 all legislative powers granted shall be vested in a Congress => includes Senate and House of Rep b. Article II 1 executive power shall be vested in President of the US => unitary executive c. Article II 3 take care that the laws be faithfully executed legislature can create legal duty on executive d. Article II 2 executive with Advice and Consent of Senate shall have power to appoint all Officers of the US e. Article III 1 judicial power shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish. => Congress is not required to establish lower cts but if it does, the power of the judiciary will be invested in them. 3. Judiciary Act of 1789 Marbury bring suit under act => SC shall have power to issue writs of mandamus to persons holding office a. Article III 2 SC shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls and those in which a state shall be a party. In all other cases, SC shall have appellate jurisdiction b. Act now attempts to create original jurisdiction to SC to issue writs of mandamus on executive officers 4. Questions Decided by the Court a. Does SC have rights to review acts of Congress (the Act) and void it if repugnant to the constitution? Yes b. Does Marbury have vested legal right to commission? yes. Unlike other legal documents which require delivery to be effective, upon signing and sealing this document became effective and thus a legal duty to deliver was created (it was no longer discretionary) c. Is there a remedy? yes. If you have a valid legal right which is denied then you have a remedy i. Court may not review political (see political question doctrine) or discretionary acts of executive (e.g., veto power, sending in of troops, signing treaties, nominating officials) ii. Court may review executive decisions when those decisions are required by law. Refusing to give someone their commission is not up to ur discretion. iii. Court can decide on the rights of individuals c. Can SC issue a writ of mandamus against an executive official? i. first off a definition: a writ of mandamus is an order commanding someone to do something that is issued by the courts (think: mandamus = mandate) ii. as a statutory matter, the Judiciary Act of 1789 does allow the court to issue the writ iii. Generally the court may issue such a remedy if the court has constitutional jurisdiction which consists of (a) original jurisdiction in matters affecting Ambassadors, other public ministers and consuls, and those in which a state shall be a party (b) appellate jurisdiction in all other types of cases listed in Art. III, 2, or any Congress sees fit to make. (c) Marshall will argue that this is not interfering with the executive bc the SC would not be asking why the exec is not issueing the writ, it will simply be ordering it to carry out a duty it already has. i. Here, however, Marshall found that the Judiciary Act creates original jurisdiction when the Constitution states expressly that it should be appellate, so Judiciary Act of 1789 is invalidated and found unconstitutional 5. Other Possible Bases for Decision (that would not have conflicted with art 3) a. Marshall could have recused himself he was the issuing secretary of state and intricately involved in the facts of the case. b. Required delivery per property law said document like any other document c. Appointment matters are political question thus out of reach of judiciary d. Construed Act and Article III so they didnt conflict i. Act doesnt explicitly declare original jurisdiction. Could have found Act grants only appellate jurisdiction so no jurisdiction here. ii. Read Article III as original jurisdiction and appellate not mutually exclusive could say they overlap in jurisdiction (and actually Marshalls view of mutual exclusivity of original and appellate jurisdiction has not prevailed) C. Why Judiciary can declare Congressional Act Unconstitutional 1. Without Judicial Review to uphold Constitution, the written Constitution would be worthless the Supreme Law of the land (Art. VI 2) 2. Factors implying that Ct has power of review Marshall argued that the whole point of writing down the const would be defeated if the Ct could not review the legislation that is in conflict with the const. The Const gives the SC the power to examine all cases arising under the constitution. It makes sense that this power includes the power to review the conts The const provides certain prohibitions like ex post facto laws or bill of attainder law. If the congress passes a ex post facto bill, surely the Ct has the power to review it and strike it down if a case is brought under the law? 3 1.

Downloaded From OutlineDepot.com The const gives affirmative instructions to the ct (need 2 witnesses to convict for treason => rule of evidence). If Congress passes law requiring only one witness, the ct can strike it down. Judges take an oath do perform according to the const so they must have power to examine the conts Art 6, the Supremacy Cl says the Const and all laws made in pursuance of it are higher than any other general law of the land. So under this ranking, any law repugnant to the const is void. 3. Other solutions for enforcing the Const. In absence of Judicial Review: a. self-restraint by all branches Congress and President could limit their actions according to constitution. Everyone says they will uphold constitution in oath b. Judicial Review not Required because Constitution written some countries have this: powers are limited by written constitution so we dont need to have judicial review however, it does fit in well with checks and balances D. How the doctrine of Judicial Review reflects notions of checks and balances 1. the legislative-judicial relationship a. the legislature has power over the judiciary in that defines the courts jurisdiction and approves appointees. b. the judiciary has a power over Congress in that it can review laws passed by Congress 2. the executive-judicial relationship a. the executive has appointment power b. the courts can issue a writ of mandamus to the executive E. Standards of Review in determining Constitutionality of a Congressional Law 1. Rational Basis a. easiest to pass b. Court will uphold the law if it has i. legitimate state objective (anything related to the health, safety, general welfare, etc.) ii. rational relation between the state objective and the means of action chosen (i.e., just about anything that is not arbitrary or irrational) c. the individual challenging the statute has the burden of persuasion d. common places where the standard is usually applied i. dormant commerce clause (although there are others too, see DCC ) ii. substantive due process (so long as no fundamental right is being impaired) iii. equal protection (no fundamental right at issue) 2. Strict Scrutiny a. hardest to satisfy b. the statute will only be upheld if it can show i. a compelling objective (but I think Beck uses legitimate sometimes in Dormant CC cases) ii. the means chosen to effect the objective must be necessary (i.e., there are no less restrictive means of achieving the objective) c. government will have the burden of persuasion d. common places where the standard is applied i. substantive due process (if a fundamental right is being impaired) ii. equal protection (if fundamental right at stake) 3. Middle Level a. as the name suggests, between strict and rational in terms of ease of satisfaction b. statute must show i. important objective (halfway between legitimate and compelling) ii. substantial relation between the means and objective c. the burden of persuasion can vary from plaintiff and government Judicial Supremacy/Legitimacy of Judicial Review A. Role of Judicial Review it allows judiciary to review the executive and legislative acts and overturn them if they are unconstitutional B. Can Other Branches Act even if Unconstitutional 1. Several Presidents have tried to get around rulings i. Jefferson thought SC decisions can simply be ignored if another branch thinks it is unconst. lest the SC become a despotic branch. He think he also has the power to interpret the const. dnd his interpretation conflicts with the cts. ii. Jackson: he thinks all 3 branches have equal power to interpret the const. So he vetoes a legislation by Congress that the SC has already deemed to be constitutional. iii. Lincoln questioned supremacy of SC. He does not think the SCs decision is binding on any voter who was not a party to the litigation. Ppl do not resign their resign their rights to the SC just bc some folks litigated the issue (?) iv. Roosevelt urged Congress to pass legislation even if likely to be found Unconstitutional. He wrote a speech in contemplation of the legislation being overruled basically taking the position of saving the country from the SC 4

II.

Downloaded From OutlineDepot.com 2. Depends upon where you see the role of the SC C. Two Views on SC Supremacy 1. the narrow interpretation of Marshalls Opinion - USSC decisions only binding on the rest of the judiciary (supreme within its own branch)not widely accepted. The cts job is to interpret cases and it can use the Conts in doing so but its interpretation is not binding on other branches. 2. the broad interpretation of Marshalls Opinion - SC rulings are supreme law of land the court is the ultimate interpreter of the constitution => the generally accepted approach, although it too comes with its own set of dangers a. Cooper v. Aaron -the federal judiciary is supreme in the exposition of the Constitution. Interpretation by the Court is the supreme law of the law and Art. VI (Supremacy Clause) gives the decision binding effect on the States. [from the aftermath of Brown v. Board of Ed. . Here a governor of Arkansas says since his state was not a party to the litigation, they are not bound. Ct. held that was not true via the Supremacy Clause. The basic rationale: the const is supreme and we interpret the const, so our decisions are supreme] b. SC Decisions = Constitution c. This is bad because SC may err in ruling which creates powerful precedent d. Also justices may abuse the power => what if Roberts or someone got 4 other justices to agree and declare his president. e. Further, life term justices are insulated from Congress Art 3: Justice get life tenure during good behavior and their salaries may not be reduced. D. Is Judicial Review consistent with Democracy 1. SC- not elected by the ppl - reviews acts by Congress, elected by democratic process do they frustrate the will of the People? 2. Federalist 78 Hamilton says SC does not frustrate will of majority, but gives force to Constitution, adopted by the People, so the Court enforces the Constitution as a representative of the People. 3. SC is the least dangerous branch bc it has neither force nor will but simply judgment. a. Has no Force bc SC cannot enforce their decisions agencies of power are in the Executive b. SC does not exercise its Will it exercises Judgment on consistency with Constitution, can not create law by its own power c. Justices do use own values and political preferences when making decision not pure judgment D. Marshalls Machiavellian Plot: some argue that Marshall lost the battle but won the war in Marbury bc he seemingly gave victory to the Rep. by saying they didnt have to hand over the commission as the ct has no jurisdiction over the case but at the same time he inserted the cts power of judicial review without anyone noticing. E. Judicial Review of State Judgments 1. Martin v. Hunters Lessee (Marshall) SC has power to review State court a. Text of Article III 2 doesnt expressly say this => but says ct has appellate jurisdiction, but language does not confine itself to federal courts so SC may have appellate jxd over states cts too. b. SCs power to review ensures uniformity of the Law and federal supremacy c. It is the case, not the court that gives jurisdiction if the case is governed then it is vain to search for text on qualifications onto location of tribunal. 2. Cohens v. Virginia (Marshall) SC has power to review State criminal cases the judicial power extends to all cases arising under the const. or a law of the United States, whoever may be the parties Political Restraints on the Judiciary (11) A. Exceptions to Supreme Court Jurisdiction (ct stripping) Article III 2 says that SC shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make 1. Exceptions Clause Power a. Ex Parte McCardle McCardle brought habeus corpus for imprisonment under Reconstruction Act he believed unconstitutional i. Act granted SC appellate jurisdiction over this habeus corpus proceeding, but act was repealed while the case was sub judice ii. Held - no jurisdiction Congress can restrict SC jurisdiction under Exceptions Clause iii. Congress can remove jurisdiction by repealing Act that granted appellate jurisdiction even while case is sub judice iv. However this doesnt mean that Congress has removed the jurisdiction of the ct to hear cases that didnt come to it under this particular act there are more than one roads to the SC 2. Congress cannot take away subject-matter jurisdiction a. Yakus v. US It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with the Constitution b. Ex Parte Yerger Held Court has original jurisdiction for habeus corpus writ brought under Act not repealed d. US v. Klein Congress removed jurisdiction for appeals from property indemnification actions brought by rebels pardoned by Pres. for property seized during Civil War i. Held Invalid restriction of jurisdiction unconstitutional on 2 grounds 5

III.

Downloaded From OutlineDepot.com (a) Interferes with judicial autonomy Congress cant give rules of decision in pending cases (b) Interferes with effect of pardon separation of powers should give President ability to give intended effect to pardon ii. Cannot bind court to decide case by law that is inconsistent with Constitution e. Plaut v. Spendthrift Farms Congress amended statute and directed Art. III courts to reopen cases decided under old Securities Exchange Act of 1934 i. Impermissible intrusion upon judicial role, you can amend applicable law of pending cases, but you cant reopen finalized cases ii. a judgment conclusively resolves the case because a judicial power is one to render dispositive judgments f. Prof Hart the exceptions power of Congress cannot be exercised in a way that would interfere with the essential or core role/functions of the Court g. Amar there are internal and external limits on exceptions i. Internal limits found in Article III itself (a) shall be vested core and essential powers (b) all cant except these ii. External other constitutional provisions outside of Article III, such as the Bill of Rights, further limit exceptions iii. So for instance, Congress couldnt use the exception cl to say no libertarian could file to the SC this would conflict with the equal protection clause C. Congressional restraints on the courts 1. Can Congress overrule a USSC decision by statute? Yes, if the decision was not one based on the const. (e.g., Dickerson v. US where the Miranda decision was at issue constitutional decision] 2. Appointments Article III 2 Pres. nominates Federal Judges with the advice and consent of Senate a. Grounds for a denial of an appointment i. Incompetence ii. Ideology modern development evidenced by denial of Bork appointment b. Limited check on Judicial power c. Appointers havent been good predictors - Judges keep their ideology hidden 3. Size of Court Constitution doesnt specify number of judges on Supreme Court - can add but u cant remove a justice a. Congress may decide this b. FDR Court packing plan denied. It was too blatant an interference with the ct 4. Amendments to Constitution Article 5 provides this power 5. limiting jurisdiction (within constitutional constraints) 6. Impeachment of Judges 7. setting the budget of the courts 8. setting the terms of the court sessions - this will control when and where the ct sits 9. Petty Annoyance Strategy a. Appropriations Power b. Control when Court is in session c. Resume process of riding circuit 10. Is it Appropriate for Branches to Try to Influence SC a. Pro-democracy for Congress to limit SC b. Can be overreached so that there isnt a neutral judiciary c. Must strike a balance IV. Constitutional and Prudential Limits - The Courts Limitation on its Own Power A. Non-Justiciability of Political Questions 1. Political Question Doctrine inappropriate for judicial resolution, and therefore, non-justicable. a. Marbury v. Madison determined not to be a political question, a secret of the Cabinet or within Pres. Discretion. It was a clear legal duty b. Distinction of Limitations on Court by Political Question Doctrine i. Constitutional mandatory limit imposed by text of Constitution (e.g., issues the const gives to another branch of govt based on separation of powers principles). ii. Prudential court has power, but not prudent to exercise it for policy reasons (this is the court limiting its own power because it is prudent)issues the courts are inherently incapable of resolving c. Identifiers of Non-justiciable Political Questions Baker v. Carr (see page 8 of notes for the cts application) (unless on of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political questions presenceso nonjusticiability is hard to get apparently). i. Textually demonstrable constl commitment of the issue to a coordinate political dept (const limitation) ii. Lack of judicially discoverable and manageable standard for resolving it (const limitation) iii. Impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion 6

Downloaded From OutlineDepot.com iv. Impossibility of independent court resolution without expressing lack of respect due coordinate branches of government (prudential limitation) v. Unusual need for unquestioning adherence to a political decision already made vi. Potentiality of embarrassment from multifarious pronouncements by various departments on one question (prudential limitation) 2. Luther v. Borden (Taney) Trespass suit a. D admits otherwise unlawful breaking and entering but sought to justify acts because acting as agents of Rhode Island government, which was under martial law b. Rhode Island still under charter from King of England and not the conts and P argues that the RI charter government illegitimate because it violates Guaranty Clause Art. IV 4 - US shall guarantee for every State in the Union a Republican form of government c. Ct held this question was non-justiciable bc the Ct cant be the one to decide if this is a Rep. gov or not. d. Non-justiciable because: i. Guaranty Clause enforced by Congressional determination when representatives admitted When states show up to become members of Congress, it can then be decided if the state is a Rep gov or not. ii. Both executive and legislature textually authorized to stop domestic violence by Art.IV4 so this implies some form of recognition of RI on the part of those branches iii. Guaranty Clause is not a repository for judicially manageable standards to identify Republican form of government (a) Decision by SC would create chaos (contrary to Cooper v. Aaron where Court held that rights must be protected regardless of social upheaval) bc no one would recognize all the acts (such as statutes, loans etc) entered into by the Charter Gov (b) Need for finality in executive and legislative decisions (c) Lack of judicial standard to determine on merits Ct has no standard to determine what a Rep gov is. Better left to Congress. 3. Baker v. Carr (Brennan) question if TNs method of apportionment in State legislature is unconstitutional because some citizens not adequately represented, the legislation was malapportioned. Court held that it was not a political question because of the Guaranty Clause decision of Luther v. Borden and thus it was Justiciable based on Equal Protection Clause of 14th Amendment. Basically, the case arose under a different cl of the const equal protection, not the guarantee cl. Standards of review are more established for Equal Protection Clause than Guaranty Clause 4. Bush v. Gore reviewability of electoral college findings. Arguably a political question under the 12 th amdmt, textually Congress should decide. Judicially manageable standards under Baker? 5. Powell v. McCormick (Warren) Powell refused seat in House for embezzling funds a. Congress argues non-justiciable because Article I 5 cl. 1 Each House shall be the Judge of the Qualifications of its own Members - Powell had met the formal requirements of Art. I 2 cl 2 (age, citizenship, residence) b. Held Justiciable Art. I 5 is at most a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in Constitution, not to create new ones. Basically, the constitution sets out such criteria as age, residency and citizenship but it says nothing about being a fraudster is a criteria. The house cannot be coming up with its own criteria. 6. Other Areas that are common Non-Justicable Political Questions a. Foreign Affai rs Prudential limit i. Textually demonstrable commitment of Treaty Power to Executive and Legislative branches ii. Lack of judicial standards very discretionary for Executive iii. Lack of respect for coordinate branch avoid embarrassment of multifarious pronouncements iv. However, it is error to say all foreign relation issues are non-justiciable (Brennan in Baker v. Carr) v. Goldwater v. Carter (1979)(Rehnquist plurality) President abrogated treaty without advice and consent of Senate (a) No textual standard for termination of a Treaty (b) Held Non-justiciable the question must surely be controlled by political standards a dispute between coequal branches of government with resources to protect and assert interests outside judicial forum (c) Rehnquists solution to the stalemate is political war the President and Congress have to stare each other down till someone gives in. b. Impeachment Nixon v. US (1993)(Rehnquist) Senate Rule IX allows a special committee to hear impeachment evidence and federal judge says that rule is unconstitutional bc the case was not heard by all Senate i. Impeachment Trial Clause Article I 3 cl. 6 Senate shall have sole power to try all Impeachments ii. Held to be a political questions and non-justiciable Senate shall have sole power to try (a) Majority says text of Constitution sole means only the Senate not judiciary (b) Concurring said sole just keeps out House (c) Majority says try has broad meanings not limited to judicial proceeding. (d) Concurring - this try standard makes flipping a coin constitutional 7

Downloaded From OutlineDepot.com iii. Majority -constitution also contemplates a criminal trial under SC jurisdiction could be conflict if impeachment is also justiciable iv. Majority - would disturb separation of powers textually demonstrable commitment. The only conts mechanism that provides a check on judges should not be reviewed by the court. v. Majority - would lead to chaos if impeachment reviewable vi. The court has no judicial relief for Powell. It cannot command the Senate to act. vii. Congress cannot impeach someone based on ideology (a) Only can impeach for treason, bribery, or other high crimes and misdemeanors Article II (b) SC may be able to interpret Constitution to define such offenses c. regulating the military it is a political questions committed to Congress under Art. 1 8, cl. 16 d. Constitutional amendmentscommitted to Congress under Art 5 and there are no judicially manageable standards. e. republican form of govt issues under the Guaranty Clausebecause of no judicially manageable standards [Luther v. Borden] f. disputes over war powers g. congressional membership [see Powell v. McCormick] Standing deals with who, when, and what is justifiable A. Limits to Standing 1. Constitutional - Article III 2 limits the scope of judicial power to cases and controversies 2. Prudential Limits standing derives from prudential reasons as well, imposed by the court on itself 3. if limit is const, neither the ct nor congress can ignore the limit. If prudential, the ct has discretion plus Congress can override B. How Does Standing Affect Balance of Powers 1. Affects which cases reach Supreme Court 2. Could make Court a watchdog in some cases C. Constitutional Minimum Requirements for Art. III Standing (Elements) 1. injury-in-fact - invasion of a legally-protected interest which is (a) concrete and particularized Iparticurized means something that injured the individual, not the public) , and (b) actual or imminent, (c) not conjectural or hypothetical. 2. causal connection - injury has to be fairly traceable to the challenged action of the D, and not the result of the independent action of some third party not before the court. 3. redressibility - relief requested must be designed to alleviate the injury caused by Ds conduct. You need to show that a favorable ruling will redress injury 4. Connection btw Causal Connection and Redressability If D did not cause injury, he likely cannot offer relief D. limitations on standing 1. prohibition against generalized grievances a. precludes Art. III courts from entertaining citizen or taxpayer lawsuits in which the only injury claimed by P is the shared harm experienced by all citizens and taxpayers when the govt. fails to comply w/ the Constitution or laws of the US b. exception - if P can show that the challenged govt. action caused him or her to suffer a particularized injury c. grievance not generalized merely b/c the harm generated by challenged govt. action is widely shared d. rule is triggered only if Ps sole claim of injury is a share of the undifferentiated and conceptual harm suffered by all citizens when the govt. does not conform its actions to the law e. taxpayer standing - (limited exception to rule against generalized grievances) i. a taxpayer will be granted standing to challenge government action if that taxpayer can est. a nexus b/w his or her status as a taxpayer and the challenged govt. action as well as a nexus b/w that status and the precise nature of the constitutional infringement claimed ( double-nexus test) ii. in practice, this means that a taxpayer can challenge taxing and spending measures alleged to violate the Establishment Clause iii. in order to come w/in this exception, P-taxpayer must challenge a taxing or spending measure and not a governmental expenditure that is incidental to the exercise of some other power 2. rule against 3rd Party standing a. a party may not raise the rights of absent or hypothetical parties in challenging the legality of govt. action b. policy - designed to ensure that Art. III courts will not become immersed in unnecessary or abstract disputes c. presumption that absent party is fully capable of representing his or her own interests, and that those interests will be best represented in a case brought by that party d. is a prudential limitation, so it is not required by Art. III 8

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e. it applies in addition to the Art. III requirements for standing E. zone of interests test 1. prudential standing requirement that most often comes into play when a P challenges governmental action under a fed. regulatory scheme that does not directly regulate the Ps own conduct. 2. resolution of this question depends on the intent of Congress as reflected in the language of the statute under which the P sues. 2. P must present at least a plausible basis for concluding that the interest he or she asserts falls w/in the zone protected by the statute or regulation upon which P relies a. Bennett v. Spears (45): Ranchers bring suit under Endangered Species Act that classification of some animals as endangered will harm the ranchers economic interests. The Gov argued they were outside of the zone of interest of the ESA, that the ESA was concerned only with environmental harm, not economic. i. Held - Standing Congress drafted the ESA broadly so as to allow citizens to bring suit. There can be no zone of interest limitation on the intention of Congress. F. associational standing - 2 ways an assn./org. can est. standing 1. an assn. can sue on its own behalf if it can satisfy the same Art. III and prudential requirements for standing an individual must satisfy 2. assn. can sue on behalf of its members if: a. members themselves have standing; b. the interests it seeks to protect are germane to the ass.s purpose; and c. neither the claim asserted nor the relief requested requires members participate in the suit G. legislative standing - legislators may have standing to challenge the constitutionality of govt. action if they have a sufficient personal stake in the dispute and suffer sufficient concrete injury 1. Ex. - Coleman v. Miller - a states lieutenant governor cast the deciding vote to break a tie in the state senate. Held: Legislators who had voted against the prevailing position had standing to challenge the right of the L.G. to vote b/c that vote completely nullified the legislators vote and caused a specific legislative enactment to go into effect 2. Compare - Raines v. Byrd a. Members of Congress had no standing to challenge the Line Item Veto Act. b. rationale - rather than causing a personal and concrete injury, the challenged statute caused only a type of institutional injury to all members of Congress equally, i.e., rather than losing something to which they are personally entitled, the legislators claim was based on a loss of political power. c. in Courts view, this abstract dilution of institutional legislative power was insufficient to satisfy the case or controversy requirement d. legislators who cannot est. a personal injury will not having standing to challenge govt. conduct that allegedly undermines the legislative function unless they allege what is tantamount to a complete nullification of their legislative prerogatives e. Members votes not nullified here, they just voted against Act that passed f. May have standing if injury to a subset of institution, not only an abstract and dispersed injury to the institution of Congress as whole g. Distinguish from Powell who was denied his seat. H. congressionally created standing - Congress does have the ability to create legal rights which give rise to standing I. Policies behind Standing Rules 1. Limits role of courts- courts were meant to rule on controversies, not to issue general opinions of law. However, this may not really be a limit wide range of cases brought 2. Promote better decision making with real adversaries and facts, the court may see how the laws work 3. Promote vigorous advocacy sharpens the issues a. Real stake in the outcome b. Some vigorous parties without standing may be excluded (Environmental organization in Lujan) c. Standing rules do not promote this policy perfectly 4. Reduce number of cases decided before federal courts a. Saves resources good for efficiency and spending b. However, do need to decide issues 5. Prevents claims by officious intermediaries a. There must be a an effect on partys legal rights b. There are ways around this (Organization can recruit injured member) 6. Prevent undue decisions on constitutional issues Court avoids deciding cases interpreting constitution unless strictly necessary Rescue Army v. Court of LA (Rutledge)
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Downloaded From OutlineDepot.com It is difficult to change decisions on constitutional issues once they are decided due to stare decisis and the rigorous amendment process b. Promotes democracy court is the least democratic institution in government, so rulings by it treads on the other more democratic branches 7. serve separation of powers function J. strict necessity principle - ordinarily, the Court will decide only those constitutional issues that are actually raised in the case before it, and will not decide them in broader terms than are required by the precise facts to which the ruling is to be applied K. Case law on standing 1. Lujan v. Defenders of Wildlife (Scalia) environmental organization suing Secretary of Interior to change policy under Endangered Species Act of 1973 a. Dept of Interior changed position so that actions taken in foreign nations no longer require consultation on impact to endangered species b. Organization argues members were injured because they will not be able to see animals on next trip overseas c. Held - no injury in fact the injury is not imminent; no definite plans to go overseas and no evidence would not see animals. Maybe the member should have just bought plane tickets d. Organization argues also procedural injury citizen suit provision in Act gives right to sue and that right is being denied e. Held procedural injury is too generalized not concrete and particularized; a general grievance that affects the organization the same as the general public. Congress cannot confer a gen. right of action on everyone in the public f. Even if court found that foreign agencies had to consult with Secretary, agencies dont have to follow recommendations of Secretary of Interior g. US only providing portion of funding to foreign actions so likely to continue even if funding by US cut h. Furthermore, not clear that change in regulation would be binding on other branches i. Held Speculative Redressability 1. Mass. v. EPA (2007): Mass sues the EPA for not regulating automobile carbon dioxide emissions. Injury = loss of coastline from rising sea levels due to global warming, causation = is the EPA not regulating emissions. Conduct does not need to be the sole causation, so long as it contributes. Redressability: EPA argues that regulating emissions will only minimal effect bc the other countries will continue to emit. Ct said redressability is satisfied so long as the risk of global warming is reduced to some extent. Redressability here dos not solve the problem but it does contribute a little. Reconciling Lujan and Mass: In Lujan, ct did not find redressability bc even if favorable ruling where the dept changes the ESA, (1) it is not certain other agencies will apply, (2) even if the agency does cut funding, others might still provide funding. But in Mass, ct find redressability although regulation will provide only minimal relief o Lujan was a plurality opinion, Mass is a maj o P in Mass is a state so the ct gave greater deference to their claim of redressability o Injury in Mass has already happened (lose of coastline) while the injury in Lujan is speculative. Generalized Grievances 2. Frothingham v. Mellon Court refused to entertain taxpayer suit to enjoin Treasury from expenditures under Maternity Act of 1921;injury too widespread and minute and indeterminable; it is a generalized grievance. You pay taxes, so does everyone else; unclear redressibility; Court relies on a mixture of constitutional and prudential grounds US v. Richardson Court refuses to entertain taxpayer suit to compel CIA to disclose expenditures under Statement of Account clause (Art. I 9 cl. 7) because generalized grievance gives no standing Schlesinger v. Reservists Committee to Stop the War -taxpayer challenged reservist members of Congress under Incompatibility Clause (Art. I 6 cl.2). Court found no standing because generalized grievance and no concrete injury a.

3. 4.

FEC v. Atkins - Fed Electoral Committe decided AIPAC was not a political committee and did not require it to make disclosure. P (voter) wanted to know what AIPAC was doing and feels they have been denied the right to know so they can vote. Court does find standing because the injury was concrete/specific and not abstract If voters dont have info, it affects their voting 3rd Party Standing bringing a suit on based on another persons standing. Generally the court will not hear claims brought on 3rd party standing but couple of exceptions.

5.

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Downloaded From OutlineDepot.com Vermont Agency relator in qui tam action is permitted to sue individuals defrauding the Gov under False Claims Act. Held to have standing bc in a qui tam action, the relator gets part of the award hence the govs standing is all that needs to be shown. 7. Craig v. Boren beer seller challenges discriminatory state law that has lower age for female beer buyers that male buyers. Held to have standing bc buyer and seller have interchangeable economic interest. If buyer cant buy, seller will be injured cuz he cant sell. 8. ZONE OF INTEREST: Litigant must be party who was intended to enforce the statute, not just a statutory beneficiary. Bennett v. Spear: ranchers say they have undue economic impact b/c of Endangered Species Act. Court finds standing: Congress can alter zone of interest, since its a prudential matter. Here, they allowed civil suit for violation 7. Warth v. Seldin (Powell) Organization, Citizens in neighboring Rochester and Individuals each brought suit alleging zoning ordinances keep low and middle incomes out of city of Penfield Organization bringing claim as representative of members. Neighboring towns people saying injured by zoning ordinance because higher tax burden if their town has to provide more low income housing i. Tax increase in local jurisdiction could be injury in fact ii. Held No standing because no direct causation injury not caused directly by zoning ordinance of Penfield, but by tax increase by Rochester Town Council iii. low income families say injured because cant move into town Did not demonstrate concrete injury; Could just be housing market that prevented building of low income houses iv. Individuals did not demonstrate denied ability to purchase house in Penfield V. Timing of Case or Controversy Problems (another way the ct limits its power) A. Mootness an actual controversy must be extant at all stages of review not merely at the time the complaint is filed 1. a case is moot when circumstances have changed after the initiation of a lawsuit, effectively ending the controversy so the court is no longer confronting a live controversy. 2. Example: Defunis v. Obengaard preferential minority admissions case a. Originally brought case because denied admission b. Held - Moot b/c Plaintiff admitted because of lower court decision; Entering final year and University of Washington would allow him to register 3. Exception - Roe v. Wade -Suit to allow abortion a. Plaintiff had baby before case reached Court b. Held - not moot this is an issue that is Capable of Repetition Yet Evading Review due to short duration of actual controversy (judicial decision not likely to happen in a 9 month pregnancy) B. Ripeness prevents premature adjudication of an issue 1. when all events necessary to give rise to an injury have not yet happened. 2. Example: United Public Workers v. Mitchell federal employees challenge Hatch Act as violation of their constitutional rights to participate in political campaigns. Held not Ripe there has been no concrete injury or violation of a statute 3. Exception: Not always necessary to violate Statute to challenge constitutionality certain to be prosecuted or substantial hardship creates a ripe controversy C. Advisory Opinions Court will not issue an opinion in absence of a case or controversy 1. an opinion issued outside the context of a justiciable case or controversy this is not allowed by the Constitution since Art III 2 limits USSC jurisdiction to cases or controversies. 2. Court will not issue a non-binding decision in the abstract 3. Example Congress or President want ruling on Constitutionality of treaty or proposed statute. The court wont do it. 4. Collusive suits Court will not issue opinion unless parties are actual adversaries in controversy or case See illustrative summary of Standing in your notes! III. The Structure of Government: Nation and States in the Federal System I. National Powers and Local Activities A. McCulloch v. Maryland (Marshall) Congress chartered 2nd Bank of US and Maryland attempted to tax the operations of all banks not chartered by MD legislature (including 2 nd Bank of US) Action brought by private citizen under qui tam statute to get penalties from Banks cashier for not paying taxes 1. 1st Bank had previously been chartered a. Debate on constitutionality of Congressional Charter of a Bank i. Congress vigorously debated decided it was constitutional (question on why Congress should debate constitutionality at allthats a judicial role) ii. Presidential cabinet of Washington debated it (a) Jefferson said it was unconstitutional because it was not necessary for congress to fulfill its raise money obligation under the Necessary and Proper Clause (b) Hamilton constitutional 11 6.

Downloaded From OutlineDepot.com b. Ultimately, it was found to be constitutional 2. Maryland attempting to tax bank because its not state-chartered a. State court found for state b. SC reviews State court judgment (Martin v. Hunters Lessee ) 3. Issue #1 - it is constitutional for Congress to incorporate a bank 4. Historical Arguments a. Constitution created by the People States do not have power over the Constitution i. Article VII States ratified it, but in Conventions of the People ii. Preamble says We the People iii. Debatable point b. Deference to historical debate by legislature and executive i. Inconsistent with Marbury it said judicial decision supreme ii. Inconsistent with view that judiciary is the reviewer of constitution iii. Marshall decides deference to other branches view of Constitution if they have actually debated it for a while 5. Structural Arguments a. Constitution implies power to create bank i. It is not express power in enumerated powers of Congress ii. Under Articles, if not expressly delegated to US it is a State power iii. 10th Amendment omits the word expressly from delegation of powers to the US allows implied powers iv. Expressly left out purposely to avoid embarrassments of Articles b. Marshall said We must never forget it is a constitution we are expounding i. Frankfurter most important utterance in federal law ii. Marshal meant that constitution is a broad outline of government. A narrower approach (like you use in interpreting a legal statute/code) would limit effectiveness of document (a) Details will be deduced and worked out later (b) Elasticity necessary to adapt to change over time (a statute can be easily changed, the const is permanent). c. Framers intended Congress to have a choice of means to accomplish enumerated powers i. Article I 8 sets out enumerated powers ii. Article I 9 puts limits on powers iii. Wouldnt need specific limits unless you had a choice of means iv. Goals of powers broad enough that need a choice of means. Cant specify important things congress must do w/o intending for them to some leeway as to how to do it. 6. Textual Arguments a. Necessary and Proper Clause Article 1 8 says Congress can do other things that are necessary and proper if not an express power but in order to carry out other expressed functions. i. Maryland argues limited interpretation necessary means indispensable (a) Restrictive reading of term as strict necessity (b) Congress would have very limited power. They could not pass a law unless they could show it was indispensable in the carrying out of an express power. ii. Marshall Held necessary is relative - means useful anything convenient, useful, or essential (a) Much broader interpretation (b) Framers placed the cl within the enumerating art 8 instead of the power limiting art 9 (c) Article I 10 says absolutely necessary shows textual variations on meaning of necessary, look at context of term within entire document. If art 1, must mean the framers contemplated a range of necessity necessary with absolutely, it must mean the word (d) Proper would not need qualification if strict necessity, look at context of term within immediate clause (implies that there would be multiple means of carrying out that power and that Congress should pick the proper one). No need to place an additional limitation on necessary is it only means one thing. (e) Without broader interpretation Congress would be unable to act b. Rule of Congressional Constitutional Limitation => Ends Means Test i. As long as Congress seeking an end that is: (a) Legitimate and (b) within the scope of Constitution ii. And the means are: Appropriate Plainly adapted to that end iii. Not prohibited (by Art. I 9bill of attainder, ex post facto, etc.) And consistent with spirit and letter of Constitution iv. It is a Constitutionally allowed means to an end (Here the end is Art. I 8 cl 1 Lay taxes, pay debts) and Congress is acting w the scope of its authority. Issue #2 State cannot tax a Federally created Bank 12

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Downloaded From OutlineDepot.com a. Nothing expressly addresses this in Constitution b. Marshal the power to tax is power to destroy i. State could tax bank out of existence ii. Allowing tax interferes with Congresss duty to carry out powers iii. MD We will not abuse power; trust us. (a) Court - US People do not have to trust states (b) States can tax own people there is a structural political check on abuse because state residents have representation and will simply vote them out (c) No check for US people outside of MD if allowed to tax federal bank c. Decided on the structural argument of the Supremacy Clause Article VI 2 i. Not necessary to have express restriction in Constitution ii. There is an implied restriction it is a structural inference from relationship between federal and state government implied by Supremacy Clause iii. State can still impose other taxes that is not on the operation of a bank bc these kinda of taxes apply to all, MD and Fed citizens alike property, interest on funds iv. Allowed because protected by political check of state voters whereas the rest of the country/federal bank has no vote/representation in their being taxed by Maryland. v. Cannot just target tax at Bank itself II. Interpreting the Constitution can be difficult when looking at issue not expressly given (31) A. Sources of Original Intent (in mcculough Marshall was trying to determine the Framers intent, see notes if necc) 1. Text look at words 2. History post-ratification debate, Articles v. Constitution 3. Purposes of document or particular clauses 4. Structure of Constitution 5. Constitutional debate a. the Federalist Papers b. notes from the Constitutional Convention c. debates from state ratification conventions 6. but not letters of the framers B. Textualists Constitutional law has to be based on the written word of the constitution or clear implication from the text 1. Originalists to determine the meaning of the constitution, you must look to the Framers intent and give meaning to words a. Give force to meaning of word at time Constitution adopted b. Arguments for i. Democratic legitimacy ii. Judges constrained iii. Authors intent iv. If infinitely flexible what meaning is prevented c. Argument against: what do you do when you encounter a situation which the framers never thought of? i. Example: in construing the 4th amendment of unlawful searches and seizures, they were concerned with raiding of private homes. What about building a privacy fence but not knowing eventually there would be an ability to fly over property and above the fence. As long as everyone has equal access and can see it, it is legal ii. Expansion of that theory. In the last term of the USSC they heard a case on the use of thermal imaging to determine if people were growing marijuana in their homes. Court determined it was an unlawful procedure because the technology was not one available to the general public (but it is just a matter of time, isnt it?). Technology availability sounds to me like a very slippery slope/distinction on which to base a case. Why not just prohibit seeing things which are not seen to the naked eye? 2. Non-Originalists to determine the meaning, you must look to the intent of the people of the US a. Dont look at meaning of 1789 b. Look at precedent, treatises, evolution of language, moral philosophy, personal preference, natural law, tradition, societal norms c. Phrases in constitution give a lot of room for maneuvering d. Original intent doesnt govern C. Non-Textualists can have valid constitutional principles even if not in document or contrary to Constitution 1. Arguments for a. Times change b. Incomplete document c. White male property holders who wrote constitution not representative of today d. Shouldnt be controlled by dead hand 2. Arguments against a. Amendment process b. Constitution does not do everything and not intended to 13

Downloaded From OutlineDepot.com c. If not white male property holders, still judge making law - rules by judges undemocratic d. Result oriented is backwards D. US Term Limits v. Thornton (Stevens) state amendment set term limit on congressional reps, so it refused to put the names of those who had served more than 3 terms. 1. Not a total limit just removed candidate from ballot. Ct tried to search for Framers intent in art 1, sec 2 2. Qualifications Clause Article 1 2 No person shall be a Representative who shall not have attained the age of 25, been US citizen for 7 years, and who is not, when elected, an inhabitant of that state in which he is chosen 3. Held - unconstitutional Limit on Power of Congress a. Textual Arguments i. Article 1 2 (the Qualifications Clause) congressional qualifications is an exhaustive list and noone else may add new criterion (a) Powell v. McCormick Congress cannot add qualifications (although that is for somewhat different policy reasons. Dont want Congress-people making rules to facilitate their staying in power) (b) State cannot add qualifications either (1) Possible that framers viewed state qualifications differently because no conflict of interest. (2) There is COI where senators can decide other senators need to be disqualified whereas in the state, there isnt a COI when the question is who will rep the state. (3) Can add qualifications if same as most numerous state house; check on abuse (4) There are limits to states power to govern federal elections ii. Article 1 4 States can set time, place and manner of elections, but congress can go back and change later. The state wants to say that the term limits provision is just an expansion of their Art. I 4 power, but the majority does not buy into that. iii. Salaries federal government pays congressional salaries (a) States cannot pull strings (b) Dissent says just insulation after election, has nothing to do with before election (c) Dissent also says just here to insure competence I dont understand the Salaries of Art. I 5 arguments iv. Article 1 5 vests power to judge qualifications to House (a) Strange to say Congress judge but apply State rule (b) Dissent says that must look at state law already regarding elections (c) Dissent says congress could look at congressional qualifications and states look at theirs b. Historical Arguments i. Ratification Debates majority says that because ratifiers debated term limits and no one said states could do it, then they did not intend for them to have them (a) Dissent says that silence could imply lack of intent but also could mean that they could do it (b) Dissent says surely would have said something if taking state power away ii. State Practice Post Ratification states did make district residency requirements after ratification and one said must own property (a) Majority says examples few and not substantive (b) Dissent says that because added, framers intended to have state qualifications iii. McCreery Case representative required to live in certain area to be elected and not allowed seat was debated (a) Majority says congressional committee says unconstitutional to have state qualifications in this case (b) Dissent says that later report on decision to congress deleted constitutional references iv. Statements of Framers Federalist 52 or 53? (Madison) says that you need uniformity in qualifications for congress (a) Majority says state qualifications disrupts uniformity (b) Dissent says framers only wanted uniformity in minimum requirements 4. Case decided on Default Rules a. Majority tried to decide on what framers intended, they relied on default rules b. Dissent relied on 10th amendment default rule unless power given to congress or prohibited to states, it is reserved to them i. Dissent says because no power given to congress or prohibited reserved for states to make qualifications ii. Majority says power didnt exist before constitution, there was no Congress hence no power to add qualifications so cannot reserve (you can only reserve that which you already have and the constitution had not taken awaybut that rationale ignores that EVERYTHING was implied to go to the states, unless expressly otherwise under the Art. Of Confed.) If rationale is rght, Marshalls opinion in McChulough could have been much shorter since the states did not have a power to tax the fed gov historically Questons: In both McCullough and term limits, the ct said that the touchstone of interpretation was intent but was it possible the framers never even thought about this question of term limits? So then how can we determine their intent? Plus who are the framers and whose intent are we looking for? 14

Downloaded From OutlineDepot.com When a lawyer drafts a K, is it the lawyers intent we look for? No. So if we analogize here whose intents? The state reps? the state congress that ratified it? The people? Does a group of ppl have a single mind? So how can we say we are trying to determine their intent? A Matter of Interpretation Its the letter of the law that matters, not the intent of legislatures. Intent isnt wholly irrelevant however. Proper mode of statutory interpretation: look for an objectified intent: the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris. Scalia looks for original meaning of constitutional text, just as he does when he interprets a statute. Writings of intelligent people of the time, Framers or not, can display how a reasonable person would understand the text when it was written. o Writing is not press and its not speech, but Scalia knows that written words are protected under 1 st amend. Original meaning was to include other forms as well as those listed. Strict constructionalism is bastard form of textualism. Ex: use of gun in drug deal. Dwarkin: o Distinction b/t semantic and expectation originalism: Semantic: clauses should be read to say what they intended to say. Expectation: looking at what the expected consequences would be. Semantic originalist might be able to violate the expectations of a provision by resorting to the plain language. o Scalia is a semantic originalist, but he would call semantic intention IMPORT. Focuses more on meaning of the language. o Approach: look at how society viewed idea at the time. Judge is to respect history and determine how we understand a phrase today. Judge reaches modern understanding. Scalia: apply original understanding to modern times. Tribe: o Have to acknowledge that you are CONSTRUCTING an interpretation, not discovering a new one. o Tribe supports aspirational view. o Stare decisis is not part of Scalias originalist philosophy. Its a pragmatic exception to it. Scalias originalism will have primary significance going forward, when new issues are decided. IV. The Commerce Power I. Commerce Clause Article 1 8 cl. 3 To regulate commerce with foreign nations, and among the several states and with Indian tribes A. Want to give congress power to regulate things that affect commerce, not just power to regulate commerce itself B. Could make an argument that it is necessary and proper under that clause C. designed to promote a national market and prevent Balkanization of the economy D. Clause the gov relies on the most when attempting to regulate conduct E. Two Roles of Clause 1. Enumerated power to congress 2. Limit on state power II. Development of Commerce Power from 1824-1936 A. Gibbons v. Ogden NY law gave monopoly to steamboat operators in NY waters, but there is also license from federal government allowing operation in coastal waters. Gibbons actually wins on the Supremacy Clause, but Marshall takes the opportunity to talk about the Commerce Clause. 1. P sought an injunction on another operator said commerce did not include navigation 2. Marshall says it is commerce and out of reach of states a. Commerce included commercial intercourse between nations and parts of the nation including navigation b. Among the States means intermingled with and this includes power to regulate activity occurring within the state c. The state only has power to regulate commerce solely within state 3. Broad View of Commerce Power it includes all commercial intercourse affecting or concerning other states a. Federal government cannot pass laws affecting solely one state completely internal commerce b. But can regulate matters occurring within state if there is some connection with other states B. The Affecting Commerce Approach 1. US v. E.C. Knight (1895) government sues on Sherman Act because acquisition by sugar company created a monopoly over 96% of US sugar production (direct v. indirect approach) a. SC says interstate commerce does not include manufacturing. It is a pre-commerce activity 15

Downloaded From OutlineDepot.com i. Narrow construction of commerce clause ii. Interstate commerce under this interpretation does not include acts which occur within a state before interstate commerce takes place (a) Manufacturing (b) Contracts (c) Agriculture (d) Mining b. SC says affects of monopoly on interstate commerce is too indirect i. Formalistic reasoning distinguishing between direct and indirect affects on interstate commerce When engaging in formalistic reasoning, you create a framework and fit ur cases into this framework without trying to evaluate the reasons behind the FM. ii. SC concerned with federal government getting involved in areas states have a right to regulate local activities iii. SC did not want to adversely affect state sovereignty 2. Addyston Pipe v. US (1899) iron pipe makers made agreement in restraint of competition a. much the same fact pattern as in Knight but SC says affected interstate commerce directly because here there was malicious intent b. Court maintained the direct/indirect distinction from Knight 3. Shreveport Rate Case (1914) government said interstate shipping rates by railroad needed to be more in line with intrastate shipping rates a. SC said cheap intrastate rates affected interstate commerce because shippers would choose intrastate railroads b. SC says rate had a substantial economic effect on interstate commerce i. Commerce power includes right to regulate matters that have such a close and substantial relation to interstate commerce ii. It does not matter if the activity regulated is intrastate as long as ultimate object is protection of interstate commerce iii. SC says stockyard is entry way into stream of commerce C. Stream of Commerce Theory 1. Swift and Stafford (1922) regulations in cases dealing with action in state before shipment out of state a. SC said because in stream of commerce, part of interstate commerce i. Can regulate activity that does not affect interstate commerce, but is in or in the current of commerce ii. Some local activities are in stream of commerce D. Commerce Prohibiting Technique prohibiting transportation of certain items or persons as an exercise of police power, moral regulation 1. Lottery Case [Champion v. Ames] (1903) law prohibited shipping lottery tickets over state lines a. SC says within power of interstate commerce i. Prohibiting because crossing borders formalistic ii. Doesnt keep with purpose of commerce free flow b. Can regulate interstate commerce for moral purposes i. Doesnt matter what motive is ii. If regulating interstate commerce, it is o.k. 2. Hipolite Egg v. US (1911) without label of eggs the regulation doesnt allow shipment across state lines a. D says products were out of commerce when seized, it had already reached the state b. SC used McCullough rz - says necessary and proper power of congress to regulate interstate commerce permits the seizure doesnt matter where seized (an appropriate means to that end, which we have seen is legitimate, are the seizure and condemnation of the articles at their point of destination) 3. Hoke v. US act prohibited transporting women when for immoral purposes a. SC says clause extends to transportation of people b. Can regulate this as interstate commerce even if people non-commercial c. and as in the Lottery Case, moral intent is ok. 4. Hammer v. Dagenhardt (1918) government prohibiting transportation in interstate commerce goods made by child labor a. SC says not a constitutional regulation of interstate commerce i. Court distinguishes other cases (Lottery, Hoke) where harmful act trying to stop an actually harmful item from crossing state lines ii. Here, harmful act performed before crossed state lines, in the manufacturing process. There is nothing wrong w the product itself, Congress is trying to regulate preconditions of commerce b. Dissent echoes Lottery Case to say as long as regulation of crossing state lines, doesnt matter what the motive is (Holmes) E. New Deal Legislation largely limited power over interstate commerce 1. Railroad Board v. Alton (1935) act requires railroad to establish retirement and pension plans 16

Downloaded From OutlineDepot.com SC says not in interstate commerce even though railroad travel in interstate commerce, the regulation largely societal b. SC rejected Affecting Commerce doctrine i. In Shreveport rate case court found direct affect ii. Here, societal affects are deemed too indirect 2. Schecter Poultry v. US (1935) (Sick chicken) act permits industry to make codes of conduct a. P was an intrastate dealer in chickens and charged for violating hours, wage, and trade rules b. SC says unconstituional i. Unconstitutional delegation of legislative power to the President industry rules took congress out of loop ii. Act violated commerce power c. Court Reject Commerce Power Arguments i. SC rejects stream of commerce theory (a) Upheld in Swift and Stafford (b) Here, stream brought chickens in state, but ended there. Congress is attempting to regulate what happens after ii. SC reject affects commerce doctrine i. Court says breaking these rules may affect commerce ii. But, too indirect of an affect iii. Uphold direct/indirect distinction SC is concerned w eroding state area if Congress can regulate wages and hours, there will be no limit to what they can regulate. 3. Carter v. Carter Coal labor regulations adopted by industry a. SC says if not in commerce clause unconstitutional i. No provision in conts gives congress power to deal with national problems/general welfare ii. Government is one of enumerated powers b. SC says not within commerce clause i. Court draws Knights production/commerce distinction ii. Also doesnt affect commerce (a) Made the indirect/direct distinction (b) labor unrest is indirect (c) Says either indirect or direct no room for degrees c. Cardozos Dissent says direct/indirect distinction no good i. He says pigeon holing no good ii. Must look at degree of affect substantiality. Intimate or remote? 4. FDRs response he is mad because new deal legislation shot down a. Court packing plan but it was shot down by his own party b. Urged congress to pass legislation and not worry about constitutionality i. Congress should worry take oath to uphold constitution ii. He is trying to get county out of economic crisis III. Decline of Limits on Commerce Power began in 1937 (Roberts shifted his vote and Court turnover). Remember to analyze pre and post 1937. A. NLRB v. Jones & Laughlin Steel (1937) court testing constitutionality of NLRB finding that steel company engaged in unfair labor practices 1. Court says for statute to be constitutional the labor practices must affect interstate commerce 2. SC says labor practices are part of interstate commerce a. Throws out production/commerce distinction b. Court says not required to be in stream of commerce enough if acts affect interstate commerce 3. SC says acts affect interstate commerce a. says must look at degree of affect b. Says here it could be a catastrophic affect, even though it is indirect c. Adopts Cardozos language of dissent in Carter to get rid of indirect/direct distinction in favor of look at degrees, intimacy, and remoteness 4. Court does not overrule prior cases just change in emphasis B. Wickard v. Filburn (1942) home wheat producer challenging quotas on wheat production. My least favorite case of all con lawit just makes me so mad. 1. P relies on cases prior to NLRB production not commerce, indirect affect, not in the stream of commerce. But none of that matters anymore. 2. Court adopts Substantial Effect Theory a. Disregards indirect/direct distinction b. Disregards production/commerce distinction c. Court says even if activity is local and does not constitute commerce, Congress can regulate the activity if it has a substantial effect on interstate commerce 17 a.

Downloaded From OutlineDepot.com Court adopts Aggregate effect theory a. when counted alone, his 239 bushels do not substantially affect commerce, BUT b. Supply of wheat could affect prices. His absence in the market affects supply/demand c. Demand may be affected by his home use. d. If lots of people doing this, it would affect interstate commerce so Congress can regulate it C. US v. Darby (1941) FLSA which prohibits shipment of lumber if producers of lumber do not do not follow wage and labor regulations 1. Court upholds Commerce Prohibiting Technique a. In McCulloch the court said statutes regulating activity Congress is prohibited from dealing with by constitution will be stuck down b. Court says congress can regulate labor in order to regulate shipment c. Court says motive doesnt matter as long as prohibition deals with interstate commerce d. this case overrules Hammer v. Dagenhart which didnt allow regulation of child labor through the Commerce power 2. Bootstrapping problem it appears after this decision that Congress can regulate any activity as long as good is shipped in interstate commerce. The end justifies the means a. also known as the substantial effects test b. very similar to McCullochs means to an end reasoning c. court says congress can regulate here because it is unfair competition. Son (1) end => ban on shipment, (2) means => regulations of wages and hours. d. Could regulate schools, usually a state power, by saying goods produced by people cannot be shipped unless they follow education regulations e. Would go somn like => end = ban of shipment of good made by uneducated ppl. Means = the regulation of sch curriculums f. Could regulate marriage no product may be shipped unless produced by people divorced according to federal regulations 3. Unfair Competition: goods produced cheaply in substandard conditions will compete unfairly with goods from other states that are not as cheap, thus congress may regulate validly bc it unfair competition has an effect on other states. The 10th amd. does not affect this reasoning bc it only states a truism that powers not delegated are retained by the state. 10th is not enforceable here bc to see what is retained by the state, u need to look at what powers have been given to congress. D. Perez v. US (1971) federal law prohibited loan shark transactions 1. Court upholds Substantially Affects Theory a. Loan sharking is a tool of org. crime. Organized crime could substantially affect interstate commerce b. Similar to Wickard in that court says if lots of loan sharking in the aggregate could have substantial affect on interstate commerce 2. Court pays a lot of deference to Congresss judgment court allows their intrusion into criminal activity because of substantial affects theory E. Heart of Atlanta v. US (1964) civil rights statute regulating restaurants, hotels, etc. suit brought based on the Civil Rights Act of 1964, Title II. says that if you hold yourself as doing business with travelers, cannot discriminate against African Americans 1. Court drafts opinion on 14th Amendment Equal Protection Clause a. Court said not allowing blacks to stay or eat violates equal protection b. But 14th amendment only regulates state action, not individual action 2. Court says also substantially affects interstate commerce in the aggregate a. Commerce clause allows government to regulate private individuals b. Discrimination in motel affects interstate commerce because it makes it difficult for black people to travel. Discouraging black ppl from traveling has an effect on commerce F. Katzenbach v. McClung (Ollies b-b-q) suit based on same civil rights legislation 1. Court said affects in the aggregate substantially affects commerce not allowing blacks to eat at restaurant a. Causes travel problem b. Less money will be spent on food in areas where discrimination is practiced c. Businesses will not likely locate near restaurant d. Restaurant got 40% of its supply from interstate commerce. 2. Court did not rely on 14th amendment here IV. Modern Commerce Clause Cases put restraint back on Congress A. US v. Lopez (1995) Gun Free School Zone Act prohibited having a gun in school zone. 1. Court Says 3 Categories of Interstate Commerce Capable of Regulation a. Channels of Interstate Commerce congress can regulate these i. Heart of Atlanta hotels, restaurants in travel channels ii. Darby shipping channels 18 3.

Downloaded From OutlineDepot.com Instrumentalities, Persons, Things in Interstate Commerce congress can protect and regulate these things even if threat comes only from intrastate commerce i. Shreveport Rate Case can regulate intrastate rates on trains to protect interstate rates ii. A statute prohibiting travel on trains, airplanes with guns would fall under this category. c. Substantial Relation/Effect on Interstate Commerce congress can regulate commercial activity having such a substantial effect i. Perez loan sharking ii. Katzenburg restaurants iii. Heart of Atlanta hotels, restaurants iv. Wickard wheat production 2. Court draws Distinction Between Commercial and Non-Commercial Acts a. Commercial congress can regulate these acts in interstate commerce b. Non-commercial usually cannot be regulated unless i. If part of larger regulatory scheme directed at regulating commercial activity may be o.k. ii. Jurisdictional element in the language of the statute may be o.k. 3. Court says possession of firearms at school non-commercial a. Court strikes down statute shock to Ls. first time in 60 years statute struck down for violating commerce clause b. If you regulate this can regulate all of school which is province of states c. This non-commercial act does not affect interstate commerce 4. Thomass Concurrence a. Uses originalism and looks to intent of Framers b. He says that substantially affects test moves away from enumerated powers and grants congress general police power c. disagrees with Wickards aggregation principle he thinks it is a made up principle of the 20 th century. The approach would make sections of the constitution surplusage (?) d. Beck thinks Scalia would argue that even if the substantial effect doctrine is a made up rule, and not what the Framers intended, interpretation should still be tempered by Stare Decisis. You shouldnt just overrule 60 years of cases in one fell swoop. Maybe Thomas is not arguing for a return to the Framers intent, maybe it is more of a from here on out argument 5. Breyers Dissent a. Says the ct applied the wrong review standard. It should have deference for congressional decisions and use rational basis test. Real question should be whether Congress had a rational basis in drafting statute and not whether they were right. are they rational that this substantially affect interstate commerce NOT whether congress is right about their conclusion b. Goes on to say such a rational basis exists here i. Many guns in schools ii. Guns undermine education iii. Education substantially affects interstate commerce via quality of the work force c. Says that congressional findings and legislative history important d. critique of Breyers decision: NOTHING would be out of interstate commerce under that rationale. Under Breyers reasoning, congress would be super police regulating crime which is traditionally a state power. Even if there was legislative history showing effect of the guns in school on interstate commerce, ct probably would say no 6. Significance of Decision Stevens calls it radical a. Didnt overrule prior cases b. Just found clause had reached its limit B. U.S. v. Morrison 1. Violence against women act challenged. 2. doesnt fit first 2 Lopez categories 3. doesnt fit 3d either b/c its not a commercial activity (going back to that distinction?) 4. here, as opposed to Lopez, Congress makes findings of the affect on interstate commerce gender motivated violance has. 5. but court finds the link too attenuated and finds it unconstitutional 6. Souters dissent, gender motivated violence has the same affect on commerce as civil rights cases such as Heart of Atlanta. But the distinction is made that here we arent talking about economic transactions that are being regulated as in Heart of Atlanta Ct seems to have gone back to a formalistic approach using economic/non-economic framework. There is difficulty figuring out whether some action is economic or not. Ct says whether you get to use Wickard aggregation effect - will depend on whether the conduct itself is economic or not. Dissent raises a hypo: street corner mugger - is that economic conduct or not? It could be - he's improving his own economic circumstances and taking money from state. C. The Limits of Lopez and Morrison 19 b.

Downloaded From OutlineDepot.com The Rehnquist court's revolution - after Lopez and Morrison many declared return of federalism. Neither case had allowed the use of the aggregate theory bc the ct limited it application to economic and non-economic, but the aggregate theory was crucial in Gonzales 1. Gonzales v. Raich (2005): CA Statute: cant produce or manufacture or distribute marijuana but you can grow marijuana for medical purposes a. Economic v. noneconomic activity - Rauch extended econ/non-econ distinction emphasized in Morrison. Majority opinion allowed fed government to aggregate the effects on home grown marijuana on broader scheme of CSA even though home grown cultivation of marijuana for personal consumption is a non economic activity because activities regulated by CSA as a whole are "quintessentially economic" [production, distribution, consumption] i. The court considered marijuana regulation generally - not merely regulation of home grown marijuana. ii. Does commerce clause analysis now turn on level of generality? General v. Specific congressional schemes - the Raich majority distinguished the "comprehensive" drugs regulation congress enacted through CSA from the "single subject" legislation struck down in Lopez. 2. Lopez and Morrison may not have been any kind of revolution no big deal a. Not really hard to get around if all Congress has to do is add a jurisdictional element to the statute. So in Lopez, Congress could have simply added an element like the gun must have traveled in interstate (all guns probably have traveled in commerce at some point) b. Plus Cong can still to use Darbys bootstrapping technique. So Lopez and Morrison probably dont matter c. Hypo: Supposed a technique has been developed for cloning animals - could congress regulate that? Yes, what's the argument? Ban interstate transactions in cloning - then ban cloning as means to preventing transfer to commerce. V. Federalism Limits on Commerce Power (The Effect of state Autonomy) state autonomy and sovereignty concerns reflected in 10th , 14th, 11th amendments and commerce clause A. Recognition of State Autonomy: historically, it has been recognized that some areas are controlled by the state and that there are some outer limits to fed. Power to interfere. Coyle v. OK (1911): Ct invalidated fed act specifying where state capital must be located. Ct said state has the power to set up its own seat During new deal era, many such arguments were struck down. US v. CA: ct upheld fed. penalty imposed on state owned railroad. Ignored the arg that operating a RR was a traditional state function and is a public function. Ct argued that this placed no limit on fed power NY v. US: Fed tax levied against bottled water co. owned by state. i. Frankfurter: fed can tax anything that anyone is capable of owning, regardless of it it happens to be owned by the state. If it only capable of being owned by the state then no ii. Stone: its all good to say general nondiscrimination tax is ok, but there may be instances where such taxing will interfere with state public duties. Land tax cant be applied to an individual the same as say public parks or schs iii. So fine, fed can tax state but some things should be exempt income tax, some state property B. Advantages of Federal System keeping states separate and sovereign from federal 1. Local Conditions May Vary makes sense for local governments to regulate them 2. Votes count more in state and local elections 3. Separates Powers prohibits tyranny by concentration of power 4. Allows escape from oppressive conditions can move. So it protects individuality (say u like guns, u move to gun state) 5. Protects localized minorities may have more significant affect in local affairs than national 6. Easier to gather information and make wishes known at local level 7. Will make more people happy by allowing for state legislation 8. Laboratories for experimentation (ex: HOPE scholarship) 9. Prevents states from ganging up on each other. E.g. during civil rights movements, some states hurdled together and would have never passed certain legislation but for fed gov. B. Disadvantages of Federal System why local control not so good 1. Demesetz can decrease externalities and transaction costs (dumping in rivers that affect others downstream) 2. Uniformity of laws 3. Federalist 10 more likely for factions to take control of state rather than federal government 4. Competition among states may lead to fewer regulations at expense of people race to the bottom 5. National government can more easily spread risks 6. no redistribution of wealth 7. really oppressive states can be harder on minorities if no federal oversight 8. some issues are better regulated in centralized system - terrorism C. 14th Amendment 5 congress shall have the power to enforce, by appropriate legislation, the provisions of this article 20

Downloaded From OutlineDepot.com City of Boerne v. Flores (1997) Free Exercise of Religion cl. of 1 st Amdmt applied to states with adoption of 14th amdmt a. P said denial of building permit substantially burdened them and there was no compelling government interest b. Tests i. Pre-1990 => Sherbert v. Verner court applied balancing test to determine if free exercise is impaired by law (a) substantial burden on religious practice, IF (b) Sustained by compelling government interest (c) Plus there is no alternative ii. Employment Division v. Smith (native Indians fired for using peyote) court did not apply balancing test (overruling Schubert bc the law is a gen. applicable law, not discriminatory) (a) Court said if a law targets a specific religious practice apply balancing test (b) If law only neutral and general in application apply it without balancing test iii. Here, Congressional Act attempted to bring balancing test back (a) P must show substantial burden (b) D must show compelling government interest + this is least restrictive means of furthering that interest c. SC says Act unconstitutional b/c exceeds power of 14th 5 i. 5 only gives remedial power of enforcement to congress ii. Here, trying to change the scope of constitutional protection of 14th amendment substantive. Congress can enforce con but cannot change (make sure understand) d. How can congress enforce i. Provide legislation to remedy state legislation in violation of 14th amendment ii. Can pass preventative legislation to prevent violations iii. Cannot give substantive scope to 14th amendment e. Only Judiciary can decide substantive content of constitution i. SC decided scope of 14th amendment in Smith ii. Congress cannot change that scope 2. Katzenbach v. Morgan (1966) Congress passes law remedying NY laws passed preventing voting unless literate a. SC says not unconstitutional expression of scope of 14th amendment b. Congress only enforcing preventing state from possibility of breaking equal protection clause under 14th amendment. There are a lot of non-English speakers in NY who may end up being discriminated against The discriminatory effect argument would not have woked in the peyote case => ct said there had been no direct evidence of religious discrimination in 40 years, there is a congruence/proportionality issue to the means/end analysis. Small problem, big statute D. 10th Amendment powers not delegated to US by constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people 1. National League of Cities (1976) Congress trying to regulate state wage and labor rules through commerce clause power. Congress overstepped its authority in interfering w state a. How does Act interfere with State and Local Power i. Significantly affects their ability to act in traditional areas ii. Wouldnt be able to regulate state labor performing state functions - it may need to pull resources from other state function in order to comply w act b. 10th Amendment gives non delegated power to states i. Commerce clause is delegated power ii. McCulloch said structurally, you can imply powers and limits due to separation of power c. SC said unconstitutional federal government not intended to be in charge of state and local government 2. United Transportation Union v. Long Island RR railroad challenging railroad labor act a. RR is owned by state said federal cant regulate b. SC said only unconstitutional to interfere with traditional state power i. Here, nontraditional area, so constitutional ii. Thus, not under National League of Cities c. Why Put Limit on Regulation of Traditional Areas i. Framers may not have contemplated state involvement in nontraditional government functions ii. Would give court too much discretion iii. Cant say can regulate all functions too much power 5. Garcia v. San Antonio Transit Congress applied Fair Labor Standards act to state transit employees a. SC overruled National League of Cities distinguishing between traditional/nontraditional government functions too speculative and gives too much discretion to judges. Not workable b. Is it too Subjective i. Could look to history of traditional government functions is this a service the state historically provides ii. But, not the courts job. They werent elected c. SC says look to political process to protect states i. States have advocates in Congress to protect it from the fed gov 21 1.

Downloaded From OutlineDepot.com ii. States have access to congressional members However, Courts may intervene if political process has broken down i. If legislation adopted that targets a state drawing distinction between laws passed of general application and those targeting states ii. States reps. Not present for some reason or bribed or somn iii. SC v. Baker: SC objects to fed statute saying the political process had broken down bc Congress did not act on an informed basis. Ct didnt buy this, SC participated in the process and was not singled out in any way, it is not the job of the judiciary to 2d guess congress. NY v. US Congress passes Act to regulate state handling of radioactive waste a. SC says Congress cannot command state to adopt regulations (commandeering of the state legislature by Congress) i. Was suggested in dicta in Hodel and FERC (I dont think we discussed these cases. Ask) ii. Ratification history VA plan adopted says congress has authority over individuals, not states as in NJ plan iii. Probably conflicts with Garcia because it relies on political process, b. Court says congress may use sticks and carrots cant commandeer i. Stick if you dont adopt, we will preempt you by directly regulating individuals in state ii. Carrot can offer incentives and conditions to states c. Why is encouragement allowed, compulsion not i. If federal compels it looks like state doing it ii. Voters may take out adopted commands on state officials iii. Encouragement provides state with choice state may adopt or not according to what people want iv. Compulsion blurs line of political accountability d. Regulations at Issue here i. Monetary Incentives (a) Commerce clause allows taxation of interstate commerce (b) Thus, congress can collect money from states (c) Congress may also attach conditions when it gives money out to states (d) a state cant tax radioactive waste coming from another state without taxing that within their state; but by statute a state could discriminate in accepting waste from other states. ii. Access Incentives (a) Also an allowable encouragement (b) Hopefully, states will adopt their own sites and rules iii. Take Title Incentives adopt this program or you must take title to waste (a) Congress cannot order state to adopt federal regulations this is form of commandeering state legislature (b) Congress cannot order taking title this is like commanding the state to held the fed gov out. (c) Congress cannot give option between two options e. Can Congress Commandeer other Areas since cant command legislature i. Congress can commandeer state judges they must apply federal law ii. Congress cannot commandeer state executives they dont have to enforce federal laws f. What is the Distinction Article 6 Supremacy Clause i. State judges are bound by federal law ii. State legislators not bound iii. State executives are also not bound to apply federal law g. Can state officials consent to federal commandeering i. Here, state congressional members voted for Act ii. But cannot consent at federal level because division of power between federal and state is for the people iii. State legislators, however, can adopt h. Whites Dissent i. Could condition take title on money or other conditions through spending clause ii. Can also regulate private production of wastes and regulate under commerce clause thereby preempting state and so they may adopt federal regulations Printz v. US (1997) interim provision of Brady Act implements waiting period to buy handguns in which time state officials are to perform background checks attempt to commandeer state officials a. SC says unconstitutional regulation of state executive i. NY v. US said cant command state legislators and then said in dicta cant command state executive ii. Here, made dicta on state executives law b. Dissent says Framers intended federal to act through state officials relied on Federalist papers i. Said that state federal government may act through state officials ii. Majority answers that fine to act through state officials but only by consent, not forced c. Majority says legislative history indicates no direct control i. Early congress acted through state judges ii. Did not act through state executive or legislature 22 d.

6.

7.

Downloaded From OutlineDepot.com Blurs Federal and State Separation of Powers i. Law passed by federal legislature ii. Enforced by state executive officials iii. May blur line of political accountability congress ought to take heat for law e. Blurs Separation of Powers in Federal Government i. Article 3 3 says laws passed by congress shall be enforced by executive ii. Congress forcing state executive to enforce steps on power of executive branch of federal government Also blurs lines of political accountability. 8. Hypo after Printz and NY, could states no longer withhold federal taxes from state employee paychecks as in a. Different from Printz this is law of general application, not one targeting one state or state officials b. More like Garcia this is law of general application, so it is probably better overruled by political process 9. Reno v. Condon (2000) DPPA prohibited states from selling DMV database info a. court found it constitutional b. falls into 2d lopez category (things in commerce) c. distinguishes from Printz and NY bc it is a statute of general applicability, does not target state only database owners. d. Make sure u understand! E. 11th Amendment judicial power of US shall not be construed to extend to any suit commenced or prosecuted against a state by citizens of another state or by foreign citizens 1. Pre-11th Amendment Chisholm v. Georgia (1793) action by citizen of SC against state of GA to collect money in Supreme Court a. Article 3 2 confers scope of US judiciary power i. Controversies between a state and citizens of another state ii. Under this language, federal court would have jurisdiction b. SC held it had jurisdiction under Article 3 2 i. Caused an uproar, lots of folks were upset states concerned with liability ii. Historically, states were immune to such suits by sovereign immunity iii. Framers also believed states had sovereign immunity so that cant be dragged into court unless they consent 2. 11th Amendment Adopted in Response a. limited federal jurisdiction to not include suits between states and citizens of another state b. Hans v. LA (1890) SC broadly read 11th amendment to bar not only suits between citizens of another state and states in diversity but also suits of federal question c. Ct has also read 11th amd broadly to ban suits in admiralty (although the amd only says suits in law & equity d. Principality of Monaco v. MI: 11th amd bars foreign national from suing state 3. Exceptions/limitations on the 11 th Amendment a. Ex Parte Young (1908) federal court can issue injunctions against state officials enforcing unconstitutional state laws i. Can sue state official not state ii. Relief, however, is limited to prospective injunctive relief, not retrospective damages b. Fitzpatrick v. Bitzer (1976) SC allowed states to be sued directly for retrospective damages if through 14th Amendment, sec 5 power i. SC allowed 11th amendment immunity to be abrogated but Congress must explicitly make clear that it intends to abrogate state immunity. o This is the plain statement rule => allows for political accountability and gives the state notice that its power about to be abrogated and that its interests are at stake in the legislation. This protects the states ii. SC believed congress abrogated 11th amendment immunity in these cases because 14th amendment passed after 11th c. Seminole Tribe v. FL (1996) SC said that congress cannot abrogate 11th amendment immunity based on Commerce Clause (Art. I, sec 8) i. Court distinguished Fitzpatrick Commerce Clause comes from Article 1 which was passed before immunity passed in 11th amd. ii. Timing is Key because 14th amendment passed after 11th amendment, congress abrogated immunity in that context iii. 14th amendment is exception to immunity Article 1 delegated powers are not an exception iv. Plus, the language of 14th amendment is explicitly designed to limit state power. 4. What happens when state violate laws applicable to them under commerce clause? Can u bring a fed question suit against state in state court? a. Alden v. Maine (1999) Probation officers sue state under FLSA. federal government may not create a private cause of action in state court without state consent i. Deduce from structure of constitution. The text of 11 th does not talk about sovereign immunity in this context but 11th amendment just affirms background structural limits in constitution. Sov im already existed b4 11 th amd 23 d.

Downloaded From OutlineDepot.com i. But, State judge must apply federal law B. Florida Prepaid (decided on same day as Alden v. Maine) the Patent and Plant VPRC Act expressly abrogated state sovereign immunity from patent infringement claims. Protects citizens from state infringement w/o compenstn i. Court ruled the was unconstitutional for violating 5 of the 14 th amendment ii. used the City of Boerne congruence of proportionality test which says for Congress to invoke 5 of the 14 th amendment, it must (a) identify conduct transgressing the 14 th amendments substantive provisions, and (b) tailor its legislative scheme to remedying or preventing such conduct (c) You cant purport to rectify a problem that u havent shown exists yet no pattern on infringement by states. In addition, in the violence against women case the gov argued that it was providing equal protection for woman against violence but the statute vested the right of action against private parties, not the states. Perhaps if the act was directed towards state maybe a statute that is directed against those who may violate due process such as judges and prosecutors. c. Kimel v. Florida Board of Regents (2000 ) Age Discrimination Act allowed state employees to sue states for damages for violations of the act i. Court held this was not proper under the 14th amendment ( 1 & 5 bc the equal protection clause doesnt cover age discrimination ii. failed Boernes congruence and proportionality test iii. there may be some unconstitutional conduct, but Congress has not specified enough

iv. 5. What can People do cannot sue states in federal or state court a. Federal government may bring suit against states sovereign immunity only applies to private individuals b. Can try to base a case on 14th amendment c. Can sue state official although you will be limited to injunctive relief according to Ex Parte Young F. What do Federal Limiting Cases have in Common 1. All limit federal power 2. Courts have recognized the need to protect role of states 3. Anti-federalist revival Get note from 9/25 and finish V. I. The Taxing, Spending, War, Treaty and Foreign Affairs Powers

The Taxing and Spending Power first power given to the gov in art 8 A. Article I 8 Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay debts and provide for the common defense and general welfare of US 1. US v. Butler act gave money to farmers who did not plant on land [we did not have to read this case, but Beck did mention that it resolved the scope of the spending power] see highlight on p. 156 a. Court says framers debated meaning of general welfare i. Madison it refers to the enumerated powers of congress ii. Hamilton clause confers a separate power to provide for general welfare b. Court applied Hamilton congress has free standing power to tax and spend for general welfare, not limited by enumerated powers c. Cannot regulate an area merely on ground of general welfare under taxing and spending power B. Taxing Power 1. Limits on Taxing Power in Constitution Article I 9 a. No capitulation or other direct tax shall be laid unless in proportion to the census or enumeration herein before to be taken i. This made first income tax invalid ii. 16th amendment allows taxing in this way b. No tax or duty shall be laid on articles exported from any state 2. Child Labor Case Congress put 10% tax on revenue of violators of child labor regulations after SC struck down direct regulations in Hammer. But court doesnt allow it here either. a. Court distinguished between Penalty and Tax i. Can tax for revenue, but not for penalty ii. Almost all taxes make people change behavior not a good distinction between penalty and tax iii. Distinction between tax and penalty comes from constitution iv. Here, scienter element with tax most tax doesnt have such an element v. Here, congress trying to regulate behavior not raise revenue b. Problem with Regulating Taxes i. Will break down limits on congresss power and destroy state sovereignty 24

Downloaded From OutlineDepot.com ii. Power to tax is power to destroy (Marshall in McCulloch) c. Primary motive must be revenue raising 3. US v. Kahriger (1953) tax was on bookies and required following regulations a. No real revenue raising motive congress adopted tax to stop gambling b. a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is negligible. c. Court held tax constitutional i. Breaking from Child Labor that motive must be revenue raising ii. Court said motive doesnt matter as long as regulation is only a side effect of taxation iii. unless there are penalty provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power. C. Spending Power 1. Who decides general welfare discretion belongs to congress unless their choice is clearly wrong, a display of arbitrary power, not just an exercise of judgment 2. South Dakota v. Dole (1987) act said if state didnt have 21 year drinking age, would w/draw 5% of highway budget a. Conditional spending is constitutional as in NY b. Limits to Conditional Spending i. Must be for General Welfare under the Hamilton view (a) Congress has discretion to decide (b) Here, majority believes congress could reach general welfare judgment because of problems with drinking and driving (c) Not a hard requirement but Congress probably couldnt decide to go build a bridge for 3m in a village in alaska where 50 ppl live ii. Condition must be Unambiguous the statute must be clear in what the conditions are iii. Must be Relation between Condition and Federal Interest this is a germaneness requirement (a) Majority says sufficient relation purpose is safe travel and raising drinking age keeps drunk drivers off road (b) Hypo: in Printz, congress couldnt offer for schools in exchange for the state to do gun bkground checks. It wouldnt be germane (c) Dissent says not close enough of a relation (1) Overbroad regulates all drinking by people under 21, even if cant drive (2) Underbroad doesnt cover all drunk drivers iv. Cannot be some Other Constitutional Bar another provision of constitution cant bar action to be taken by state. Basically congress cant use spending power to get state to violate const (a) 21st amendment says drinking/alcohol is a state concern (b) State says 21st amendment provides constitutional bar (giving authority to regulate alcohol consumption to the states) they are trying to get in state concern indirectly through spending power, but they couldnt get involved directly (c) Majority doesnt buy states argument and upholds the constitutionality of the statute, saying that Congress CAN do indirectly what it could not do directly. c. Further Limit on Condition if the condition becomes too onerous or coercive, the encouragement passes into compulsion which is not allowed d. this may be a different case if it withheld ALL federal highway funds instead of just 5%, then it may be more coercive e. Dissent says congress has power to spend for general welfare, and it has power to legislate only for delegated purposes i. Congress can only tell how money is to be spent ii. Cannot go beyond II. War Power A. Article I 8 many enumerated powers relate to this 1. Woods v. Cloyd Miller act provided rent control due to shortage after WWII a. Rent control due to housing shortage in war i. Hostilities were over but troops still on foreign soil ii. The war was technically still going on, found constitutional iii. court says the power to regulate under the war powers includes: (a) to remedy evils which have arisen from its rise and progress (b) continues for the duration of that emergencythe war powers do not necessarily end when the hostilities end. b. Court said war power allows congress to remedy evil effect of war i. Even though hostilities over, still evil effects ii. Dissent says war power is most dangerous one of government want to limit it Bc it is not well defined and limited 25

Downloaded From OutlineDepot.com Ppl, including congress and the cts, tend to act rashly in time of war iii. But it does include power to clean up effects after hostilities 2. How does Power Effect States a. Should be limited because it is dangerously enacted in haste b. It may impair state sovereignty by swallowing up 10th amendment c. Must trust congress III. Treaty Power A. Authority 1. Article II 2 President shall have the power, with the advice and consent of the senate, to make treaties 2. Article VI All treaties made under the authority of the US shall be the supreme law of the land (once ratified by 2/3 of the Congress) 3. no limits to subject matter of treaties B. Missouri v. Holland (1920) state suing federal game warden challenging a statute enforcing terms of a migration bird treaty 1. Congress couldnt have adopted statute but for treaty a. Previously statute had been ruled unconstitutional b. Thus, if not for treaty, it would be unconstitutional 2. State says violates 10th Amendment a. Court says 10th doesnt limit congress power to make a treaty or statute enforcing it b. 10th doesnt make it unconstitutional 3. Court says treaties different than laws a. Statutes only supreme law of the land if it is made in pursuance of constitution b. Treaties are supreme law of land if under authority of US (prez + senate) c. This made a lot of ppl nervous it appears court saying treaties are not limited d. But, cannot make a treaty which is barred by something in constitution i. Cant really limit subject matter ii. Court says some things not properly subject of negotiation C. Restatements says that treaty must relate to external affairs of US, not internal D. Bricker Amendments attempted to make constitutional amendment to disallow expansion of congressional power through treaties 1. Said that treaties couldnt conflict with constitution 2. Couldnt be self executing would have to be effectuated by constitutional statutes 3. Was never added E. Reid v. Covert (1957) treaty provided that US military courts had power over civilians on foreign bases 1. Plurality opinion said treaty limited by constitution a. Backing away a bit from Missouri b. Treaty does not create power in congress that is prohibited by constitution c. Court said Missouri only stands for fact that 10th does not limit treaty power, i.e., to the extent that the US can validly make treaties, the people and the states have delegated their power to the National Government and the 10 th amendment is no barrier. 2. Put limit on treaty power and statutes enforcing it IV. Foreign Affairs A. No real grant of power to congress to regulate foreign affairs 1. Congress has express authority to regulate commerce and treaties 2. But, courts nonetheless say congress has power to regulate foreign affairs through the war power, commerce power and the necessary and proper clause. B. Perez v. Browell SC says that you must assume national power over foreign affairs when the sovereign nation was created C. Zscherrig v. Miller SC said state law could not regulate foreign affairs because that is power that belongs to congress and the executive

VI. I.

Federal Limits on State Power to Protect Federal Interests

Dormant Commerce Clause -- the mere existence of the federal commerce power restricts the states from discriminating against or unduly burdening interstate commerce. So this deals with judicial review of the Constitutionality of state laws as they impact the effectiveness of the Commerce Clause. Regulation of interstate commerce is an exclusive federal powerIts not actually expressed in the Constitution, but an inference from the CC. A. Courts Limit State Action rather than by congressional enactment 1. This is not case where congress has explicitly acted under commerce clause 2. Court decision pursuant to DCC can always be overturned by congress under CC 3. Causes controversy because not express power to courts like power to congress under CC 26

Downloaded From OutlineDepot.com B. Validity of Dormant Commerce Clause Action due to history prior to constitution 1. Primary problem leading to constitution was interstate trade problems 2. Thus, it needs wide protection 3. Legitimates interests that cannot be left to political process a. State electorate will support protectionism legislation b. People who are hurt have no voice in that legislature 4. Could be Reading into Constitution something Framers didnt intend a. Textualist argument b. 10th amendment says powers not granted to federal or prohibited to states is reserve to states Some old cases 5. Ogden v Gibbons (above): P was granted right to exclusive navigation of NY river, D got his license from federal statute. Court held that it federal law trumps state 6. Cooley v. Board of Wardens : state law required hiring a Delaware pilot in DE river fed law also regulated pilots but mandanted conformity with any subsequently enacted state law. Issue can Congress permit states to regulate issues that are local in nature? yes Although regulating pilots is commerce it is best to look at the nature/subject matter of the regulation to see if fed law should rule exclusively. Here the subject is local in nature with local peculiarities Look see if subject matter is local and state has rational basis. Old case C. Economic Theory 1. Implicates notion of free trade among the states 2. Rejects protectionism by states D. Other Ways to Address State Protectionism (i.e., do we need the DCC?) 1. States could protect their own interests trade wars 2. Could allow congress to step in through commerce power and make a preemptive regulation E. 3 Types of Cases 1. Strict Scrutiny Test all of these cases fall under a. Applies to (make sure u understand difference) i. Facially discriminatory laws (i.e., if a state law is facially discriminatory against out of state goods, it is presumptively invalid) ii. Discriminatory in purpose or effect to out of state businesses (not facially discriminatory) iii. State laws that have a protectionist purpose b. Otherwise apply Pike Balancing Test (burden on IC v. local benefit) (or rational basis standard?) 2. Facial Discrimination by States laws that overtly block the flow of interstate commerce at the boarder of the state a. Philly v. NJ (1978) NJ had legislation that said out-of-state waste couldnt come into state landfills i. Why do they have Legislation (a) State says for environmental concerns waste brought in fills up landfills too quickly tried to analogy to quarantine. Ct didnt buy it, waste is waste, NJ also produces waste and doesnt endanger health. (b) Opponents say wrong to discriminate against out of state waste (c) Opponents say motivation was to suppress competition for land fill space protectionism ii. Court says facially discriminatory, thus unconstitutional even if for purely environment concerns (doesnt even get to address statutory purpose concerns if it is facially discriminatory) (a) Invalid even if motive is good (b) Presumption is that facially discriminatory is invalid iii. Virtually Per Se Presumption (a) Once you have facial discrimination, the statute will almost certainly be unconstitutional (b) Sometimes, it can be overcome (c) Quarantine laws upheld (1) because it is a compelling interest [health] and a necessary means (2) quarantine laws limited to noxious items that must be destroyed immediately (not the case here, says the majority, although the dissent disagrees) iv. What options for State (a) Adopt non-discriminatory statutes (b) Dont distinguish between in state and out of state and treat differently b. Overcoming the Virtually Per Se Presumption Maine v. Taylor(1986) state law banned importation of out-ofstate bait based on health and safety i. Facially Discriminatory Laws may be upheld if (a) There is an legitimate local purpose [banning the harmful bait from contaminating the pretty fishes] (b) That there is no alternative nondiscriminatory means of serving the purpose [there wasnt any tech to discover parasites] --just no alternative mean (not an alternative reasonable means) ii An alternative must be truly available state not expected to go out of its way to find one 27

Downloaded From OutlineDepot.com Hughes v. Oklahoma Protection of natural resources - OK prevents export of local minnows to conserve local supply Held unconstitutional under SS analysis bc there is an alternative ban fishing locally too, this way no one is discriminated against. Facially Discriminatory Taxes and Fees - just as prohibited as statutes that dont allow products into the state under the DCC jurisprudence i. Oregon Waste Systems (1994) fee for disposal of out-of-state waste was more than fee for in-state waste (a) Court said facially discriminatory (b) Discriminatory fee invalid ii. Chemical Waste Management (1992) tax on out-of-state made waste and not on in-state waste is facially discriminatory iii. West Lynn Creamery (1994) tax on both in-state and out-of-state creameries but in-state farmers get rebate (a) Court says invalid because discriminatory (b) It is fine to have tax and find to give in-state rebate but combination in one scheme makes a net discrimination (c) what was important here is that the rebate was paid out of the tax revenue from this particular tax. The court would have had no problem with the rebate if it was paid out of a general fund. iv. Camps Newfoundland (1997) tax exemption not available for charities whose services do not principally go to Maine residents (a) found facially discriminatory (b) state tries to invoke the market participation exception (see more later) by claiming theyre purchasing services but the Court does not buy it, saying the argument is too broad and the exception would swallow the rule if allowed here. (c) Scalia would favor a general charitable exception to the DCC iv. local/home processing requirements (the law req parts of the processing to be don w the state) are consistently found to be facially discriminatory because it discriminates against our of state processors Facial Discrimination by Localities i. Dean Milk v. Madison (1951) local city ordinance said milk sold in the city had to be processed within 5 miles of city so Madison milk inspectors can inspect conveniently (a) Difference between Discriminating Locally rather than State (1) Line around city discriminates against both in-state and out-of-state equally, right? (2) if it was a statewide ban then unquestionably it would unquestionably affect interstate commerce, but what happens since this is just restricting within a state? (3) But in-state producers can complain to state legislature [a] Out-of-state cannot [b] But they are arguably represented by in-state (b) Court treats it like a state law says facially discriminatory and invalid (1) Poses undue burden on interstate commerce (2) Plus, there is a non-discriminating alternative in inspecting the milk by sending inspectors or relying on out of state inspections ii. C & A Carbone Inc v. Clarkstown: town passed ordinance that all waste generate w the city be processed there. Processing w the state would increase Ps cost, he sued. Ct invalidated Law is discriminatory bc it will increase cost to out of state sources of waste that is sent to P. Plus it deprives out of state biz of local market. Protects from out of state competition. Although city passed ordinance to raise revenue, it did not show lack of alternative means city could raise taxes or somn iii. United Haulers Assn (2007): same facts as C & A except here the waste must be delivered to be processed at a particular state owned disposal facility. Ok to treat private and state owned facilities differently bc trash disposal has been a traditional state function no need to worry about protectionism Beyond that, ordinance does not treat in state or outta state differently. Dissent thinks the maj. is nave. The legislation benefits local employees. So this is discriminating against outta state employees of processing facilities If city were to set up a restaurant? not a trad. state function and likely not upheld reasoning in Natl league . this logic fits in better here than in Natl league bc Natl was to what extent can congress reg state whereas here it is to what extent is state prevented from regulating commerce. It fits better here bc in this context, it is harder to view it as protectionist measure bc the cost will fall on the citizens of that state.

c.

d.

3.

Discriminatory Purpose or Effect ( facially neutral law w discriminatory effect?) a. State Barriers to Out-of-state Sellers i. Baldwin v. GAF Seelig (1935) statute setting minimum price to be paid to in-state milk dealers 28

Downloaded From OutlineDepot.com (a) Court said invalid protectionism (1) Price protection protects local interests local milk dealers are protected from outta staters with cheaper milk. (2) Thus, invalid even if not facially discriminatory (b) Pricing may negate competitive advantage of other states (c) State argue this is a health measure to ensure citizens drink wholesome milk o Ct said there a lots of economic reasoning to health justification pssh earning a living could affect your health. This justification is not good enough as a health reason ii. Henneford v. Silas (1937) tax put 2% tax on retail sales within state and on goods bought outside of state and used in state (a) Court says valid (1) Put local retailers on same ground as out-of-state (2) Not facially discriminatory (3) Equality is theme of statute (b) Court distinguishes Baldwin (1) There, seller lost competitive advantage (2) Here, only losing tax advantage iii. Bacchus v. Dias (1984) statute exempted from state tax wine produced from local shrub (a) Court said invalid (1) Not facially discriminatory (2) Intent was to help in-state and not out of state (b) Had a protectionist motive iv. Hunt v. Washington Apples (1997) law made seller place USDA grade labels on apples and no others (a) it is facially neutral , but (b) Court says invalid because of discriminatory effect allowing it to still use strict scrutiny (c) Court weighed state v. national interests (1) Great burden on interstate commerce (increases the cost of doing business in NC for WA growers) (2) deprived WA growers of competitive advantage of using their own labels (3) leveling effect benefiting local growers (4) No real state health concerns (5) There are reasonable alternatives v. Breard v. Alexandria requires permission to conduct door-to-door sales (a) not facially discriminatory (b) it does affect out of state dealers more since in state ones will more likely just set up shops. Yet that is not enough to count as discriminatory affect (c) court found that the statute protects local homes (not local business), so the statute was not protectionist in nature (d) therefore, you get out from under strict scrutiny and into rational basis and protecting local homes is a legitimate state interest b. State Barriers to Out-of-state Buyers i. Milk Control Board (1939) law set minimum price for out of state milk dealer shipping out of state (a) Different than Baldwin where it was a NY law affecting VT prices. Here, its a PA law affecting PA prices. (b) Court says law valid (1) Effects on interstate commerce incidental (2) statute designed to deal with a local problem ii. HP Hood v. DuMond (1949) state will not issue license to out of state distributor to build new station because they want some local milk to remain in state for local consumers (a) Court says invalid, even though facially neutral (1) Can have legitimate local interest in health, safety, fraud (2) Cant just be concerned with competition (3) Cannot erect barrier to interstate commerce allows destructive competition (b) State really seeking an economic advantage for in-state people (c) a state cannot take its police powers which are designed to protect the health, safety and general welfare of the people and use it as a basis for suppressing competition iii. New England Power v. New Hampshire state regulating sale of electric power out-of-state (a) Court says invalid cannot hoard resources (embargo cases) (b) Commerce clause prevents hoarding of resources from out of state people Favoring Local Interest By States a. Pike v. Bruce Church (1970) state requires labeling of where cantaloupes grown i. Court applied strict scrutiny test says purpose simply protectionist ii. Balancing Test applied when not facially discriminatory or a protectionist purpose or effect 29

4.

Downloaded From OutlineDepot.com (a) Extent furthering state interest (b) Burden on interstate commerce (is there a less restrictive means that can be used?) iii. When does Test Apply (a) Legitimate local interest presumed valid (b) Evenhanded regulation (c) Significant effect on interstate commerce (i.e., more than incidental effects) Kassel v. Consolidated Freightways (1981) act prohibited double tractor trailers from using Iowas in-state highway i. Court does not apply strict scrutiny test ii. Court applies Balancing Test (a) Burden on Interstate commerce to comply, P will have to take extra, expensive steps to ship across state (1) Significant because Iowa major piece of interstate transportation can look at importance to interstate commerce (2) Other states havent burdened interstate commerce as much can look at geography (3) State dont have to conform laws to surrounding states (b) Local Interest state says roads will be safer (1) Court says shorter trucks not really safer and restriction causes more miles traveled (2) Majority says no real safety interest bases decision on state court record (3) If there is a real safety interest court gives presumption that it is valid iii. Is Balancing Test Good (a) Cant really measure state interest and interstate burden (b) Bendix v. Medeusco Scalia says balancing no good because interests on either side are immeasurable (its like asking whether a particular line is as long as a particular rock is heavy) (c) Making a policy statement - Really just asking if burden too much iv. Courts give deference to Legislators (a) They have made the safety judgments they should know since they have better access to data (b) Here, though, evidence is that intent really to restrict interstate commerce. It disproportionately affects outta staters. (1) Governor had said earlier legislation hurt in-state people he vetoed it (2) Plus, there are exemptions for border cities and some classes of vehicles. IO wants to have its cake and eat too (3) Seems to permit unsafe vehicles when advantageous to in-state residents. IO isnt really concerned about safety. v. Brennan dissents: Ct should not be looking at factual findings, the ct is focusing on the after the facts arguments of lawyers rather than real reason the legislation was made. In legislative history, no one mentioned safety. v. Who is Better to Make these Decisions legislators or judges (a) Research legislators better fact finders (b) Legislators represent the people (c) Legislators better able to make big decisions (d) Judges, however, more closely aligned with federal concerns than state legislators (e) Rehnquist - Judges shouldnt be trying to determine whether a 65 foot truck is safer than a 55 foot truck. Even if the court finds that it is, what about the next litigation on whether 70 foot truck is ok? State Burdens on Trade i. Exxon v. Maryland (1978) act prohibited producers of petroleum from operating gas stations in-state, but does allow out of state retailers to operate (a) Effect felt mostly out of state bc MD didnt even have any instate producers (b) Court says valid- although it favors in-state interests, no undue burden on interstate commerce (1) Will still be interstate flow of gas (2) Just restricts some sellers (3) No need to apply balancing test because no burden ii. Minnesota v. Clover Leaf (1981) act prohibited plastic milk containers but not pulpwood (a) Mainly effects out of state sellers (b) Court says valid (1) State interest is environmental (2) Burden on interstate commerce is minor (3) No need to apply balancing test State Burdens on Business Entry i. Lewis v. BT Investment (1980) law prohibits owning of investment advisory biznezes by out of state banks. (a) Court says invalid (1) Is facially discriminatory singles out of state owners (2) Also an undue burden fails balancing test 30

b.

c.

d.

Downloaded From OutlineDepot.com ii. Edgar v. MITE (1982) act requires 20 day waiting period for acquirers to communicate with shareholders of the target company in tender offers applied only to businesses that have certain contacts with IL. (a) Court says invalid (b) It unduly burdens interstate commerce by hindering takeovers iii. CTS v. Dynamics (1987) law said acquirer of controlling shares restricted on acquisition of voting shares (a) Court says valid it regulates takeovers of in-state companies (b) Distinguished from Edgar that state attempted to apply laws to out of state companies that have contacts in-state F. Market Participant Exception to Dormant Commerce Clause 1. Doctrine if a state gets involved in a market as a participant rather than a regulator even if it burdens interstate commerce, it may get an exception to dormant commerce clause 2. South Central v. Wunnicke (1984) Alaska selling timber and specified in contract that timber must be processed instate after sale a. If regulation saying all in-state timber required in-state processing would be a facially discriminatory home processing case b. State says acting as a participant here exception to DCC c. Court looks to other Market Participant cases i. Hughes v. Alexander Scrap state paid money for processing of state licensed junk cars (a) Placed more documentation requirements on out of state processors (b) Court said valid because state participating as a buyer, it can discriminate who it buys from ii. Reeves v. State state producing cement only sold to in-state buyers (a) Not selling to out of state buyers (b) Court says valid because state participating as a seller, it can discriminate who it sells to iii. White v. Massachusettes city only hiring contractor who hire Boston subcontractors (a) Discriminating against out of state subcontractors (b) Court says valid city participating by buying services in market iv. Distinguish South Central: state went beyond mkt participation and tried to control the relationship with purchasers after the sale d. Court says Alaska not in processing market i. Can discriminate in market in which state participates ii. Cannot discriminate in some downstream market iii. Can only regulate in the specific market you are participating in (a state cannot use its economic weight to produce effects in downstream markets) iv. Trying to control what happens after sale is going beyond participation. 3. Policy when state isnt regulating, we should not worry about its activities a. States can discriminate if they are participating i. Those engaged in business should be able to select their trading partners everyone else in the mkt gets to discriminate. ii. State is allowed to help its own people, subject to limits if regulating b. Limit cannot discriminate in market in which you are not participating c. Subsidies should we be concerned about the effect on the market competition? Should we treat it like taxes? II. Privileges and Immunities Clause A. Article IV 2 the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states 1. Difference from 14th Amendment Equal Protection Clause that amendment protects citizens of the US, whereas P&I clause protects members of state 2. Similarity to Commerce Clause serves as a restraint on state efforts to bar out of state residents from access to resources 3. Difference from Commerce Clause a. Does not apply to corporations it only protects individuals b. Is an express rights provision given to the people cannot be waived or overridden by congress c. Also not implied like dormant commerce clause d. Extends only to fundamental rights not all commercial activity e. No market participation exception f. Stricter standard of review than balancing test in dormant commerce clause analysis 4. Purpose it protects citizens from discrimination based on their fundamental rights a. Cant tell someone where they can work based on residency b. Cant tell someone they cannot bring their business in another state c. Can tell someone they cannot elk hunt in a state d. cant prevent someone from practicing law in a state because its important to the nation. B. United Building & Construction v. Camden (1984) ordinance requires a certain percent of workers for the city to be Camden residents 31

Downloaded From OutlineDepot.com Clause applies to state subparts as well as state even though phrased in terms of protection of state citizens, a state cannot violate clause indirectly by empowering a municipality to do it. So applies to municipalities too bc they derive their power from the state. 2. Court denies state representation distinction city argues that law should be upheld because both in-state and out-ofstate residents are discriminated against i.e. in state ppl who live outside of Camden are discriminated against as well a. Court says out of state residents have no voice in legislature b. Dissent says in-state citizens can represent out of state interests c. Majority says they are poor representatives. Plus ordinance is part of state wide program, other residents will not protest bc they can simply pass their own similar ordinance. d. Still discriminating against out of state people even if also discriminating against in state people 3. Court says 2 step analysis under P&I when law discriminates against out of staters a. Does law burden one of the privileges and immunities protected by clause? i. Must look to see if burdens a fundamental right to interstate harmony ii. Only those privileges and immunities bearing upon the vitality of the nation as a single entity require the state to treat residents and non-residents equally iii. Pursuit of a job with a private contractor for the city is a fundamental right b. Does state have a legitimate interest it is trying to protect/is there a substantial reason for discrimination? i. the out of staters who are discriminated against must be a peculiar source of evil at which the statute is aimed ii. State must have a substantial interest iii. There must also be a close relation between degree of discrimination and interests o In the case one can argue that a cause of the current economic ill is the flight of mid class workers who live in the city but have to go outside the city to work. The ct doesnt rule on if this is sufficient or not C. New Hampshire v. Piper: State rule limits bar admission to in state residents. Suit brought by woman who lived 400 yards from the border of NH. o Held invalid under P&I Occupation is a fundamental right. Ability to practice law is right. o Second step states rz i.e. wanting Ls that are familiar with state bar (legit objective) is not justified by the rule no close relation . There are other alternatives like CLE, bar exam. o What is not a fundamental right? Beck: You probably cant sue for being denied a hunting licence in a state hunting is not a fundamental right like an occupation. D. Right of Personal Mobility nothing in constitution expressly grants this right, but SC has recognized this right 1. Various rationales for upholding right a. Privileges and immunities clause b. 14th amendment c. Commerce clause d. Inference from structure of constitution 2. Freedom of travel throughout US long recognized right under constitution III. Preemption and Consent A. Based on Article VI Supremacy Clause when congress exercises a granted power, the federal law may supersede laws and preempt state authority B. Pacific Gas & Electric v. State (1983) state law says that a nuclear power plant cannot be built unless disposal plan found and developed by US 1. Issue is if it is preempted by Atomic Energy Act federal law that is designed to promote private sector development of nuclear power plants but leaving to states to generate and sell electricity 2. Three Types of Federal Preemption a. Express congress may preempt via express statement in statute i. Still may be hard because you have to interpret act that is subject to preemption ii. Still limited by Congressional enumerated powers b. Implied - Occupation of the regulatory field i. what is it? (a) if congressional intent to supersede law may be implied from a scheme of federal regulation so pervasive then it is a reasonable inference that congress left no room to supplant it (b) because the act of congress may touch a field in which the federal interest is so dominate that the federal system will be assumed to preclude enforcement of state laws on the same subject (c) because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose i. Important to determine what field you are talking about ii. Federal interest is just too dominant to let state law stand iii. Hines Test whether the matter in which the state asserts the right to act is any way regulated by the federal government stands as an obstacle (a) Cannot stand as an obstacle to the accomplishment of the full purposes and objectives of congress 32 1.

Downloaded From OutlineDepot.com (b) Rice v. Santa Fe Elevator : Field preemption, what to look for? o How comprehensive is the fed regulatory scheme in the area o Where Fed interests are dominant, that is in favor of preemption. E.g. if area fed has trad regulated (c) To get around look for state rationale that is not regulated by field o The court in this case held the state valid bc regulation was for economic rz and not for safety (which is why congress is regulating) . Even if you follow fed law, there is still a cost to all this. o Arg. that state regulation is inhibiting fed goal State regulation is not an obstacle bc Congress objectives is not as expansive as all that - fed goal doesnt have to be accomplished at all costs. c. Implied- Preclusion by direct conflict state law is preempted to the extent it actually conflicts with federal law i. Compliance with both would be a physical impossibility ii. Cannot stand in way of congressional purposes and objectives d. Florida Lime v. Paul (1963) avocados certified as mature under fed law but have less than minimum oil content mandated by CA law i. court says no conflict preemption because there was not a physical impossibility to comply with both standards ii. fed regs were a minimum standard e. Crosby v. National Foreign Trade (2000) MA law barring state entries from buying goods or services from companies doing business with Burma while fed law also imposes economic sanctions on companies doing business with Burma i. state argues that there is no conflict, a business can comply with both state and fed have common goals ii. Court says state law is preempted (field preemption) because it is an obstacle to the accomplishment of Congresss full objectives under the fed act in at least three provisions (a) delegation of discretion to President to control economic sanction against Burma he must be able to speak with one voice. He will not be able to negotiate with Burma (b) its limitation of sanctions solely to US persons and new investment fed wants to punish Burma to an extent but not beyond that and additional state sanctions will undermine this. C. Congress may also consent to state laws otherwise violating dormant commerce clause 1. Areas where this has been done- allowed state to regulate out of state corporations a. Insurance: McCarran Act: limited the applicability of antitrust laws to the insurance business and sought to assure continued state authority over insurance. Even though states would otherwise be barred by DCC from regulating insurance 2. Limit cannot consent to violation of equal protection clause of 14th amendment (see Metro Life, below) D. Other Devices for Congressional Ordering Federal-State Relationship ( besides congressional consent and preemption) 1. Federal incorporation/adoption of state law e.g. Fed law specifying that individual state laws apply 2. State administration of Fed law e.g. fed law allows states to admin. social security. Cant commandeer but can offer carrot E. Other Aspects of Federal-State Relationship 1. State Tax on Interstate Business: States are permitted to tax but commerce clause places limits on the form certain taxes on interstate business can take. o The Court has a difficult time w the issue bc state taxes in all the states vary o Problems here: think use v. sales (the buyer vs. the seller impositions - could be a double taxation issue) o Ct uses a four part test o When the tax is applied to an activity with a substantial nexus with the taxing state o Is fairly apportioned o Does not discriminate against interstate commerce o Is fairly related to the services provided by the state o Complete Auto Transit: state tax on car shipper for the privilege of doing business in AL is upheld 2. Intergovernmental Tax Immunities : The ct recognizes significant state immunity from fed tax but now the ct permits more and more taxation of states. Then there is the view of state taxation of the fed (think McCulloch) o Rule: when is a state tax invalid as applied to fed entities? o When a tax is laid directly on the US or is so closely connected that it is viewed as one in the same 3. Intergovernmental Regulatory Immunities: fed immunity may at times be claimed by those is close relationship w gov but this is based mostly on congressional Policy. The ct though is most alert to state legislation based on hostility towards fed law e.g. enacting state law to slow down federal acquisition of easement pursuant to fed law o To what extent can a state bar regulate the activity of a federal lawyer ? o State regulation of contact with opposing parties could be an issue 4. Mutual Obligation Between States: state often have obligations towards other states. o Eg: The rendition/ extradition clause of Article 4: A state can compel another state to return a fugitive who has fled into another state jurisdiction so he tried. So e.g. state could not refuse to extradite bc other state has death penalty 33

Downloaded From OutlineDepot.com State agreements: Article I 10: the state compact clause, you must get congressional consent to form an agreement with another state if it impairs the supremacy of the US - hasnt been applied to any agreement or compact o Ex: Think a joint defense agreement Quik over lap here IV. Equal Protection Clause A. Article IV 1 nor deny to any person within its jurisdiction the equal protection of the laws B. Metro Life v. Ward (1985) state tax discriminated against foreign insurance companies 1. State wants to protect in-state business a. Strictly protectionist b. Purposely discriminates c. so why not strike down under DCC? d. because Congress had exempted the state from any DCC restrictions 2. Court said invalid under equal protection act a. Congress had consented to state regulation of insurance - exempted state from dormant commerce clause b. P&I does not apply because it is corporation c. So court relied on equal protection clause 3. Test for Equal Protection Challenge is the act rationally related to state purpose? a. This is an easier burden than the commerce clause and P&I challenges b. Court says protectionism cannot be a valid state purpose c. Dissent says majority wrong because it is intent of congress that states regulate insurance C. Northeast Bancorp v. Board of Governors (1985) court upheld regional limitation on banks 1. Denied equal protection violation 2. Distinguished between discrimination against all out of state corporations (Metro Life) and discrimination against only some out of state corps (regional discrimination is ok?) V. Other Aspects of Federalism A. Intergovernmental Tax Immunities tax immunity is appropriate only when it falls on US or agency or instrumentality so closely connected to government that the 2 cannot rationally be viewed as separate entities US v. New Mexico 1. federal immunity from state taxation [McCulloch] 2. state activities immune from federal taxation [Collector v. Day] 3. salaries of employees of one govt are not immune from income taxes imposed by the other [Graves] B. Interstate Relationships 1. Rendition and Extradition Clause Article IV 2 a fugitive from justice shall be delivered up on demand of the executive authority of the state from which he fled a. All state executive has to do is ask b. Failure to comply can be remedied by mandamus or injunction from federal court 2. Compact Clause Article I 10 no state shall, without the consent of congress, enter any agreement or compact with another state a. Shows concern about groups of states getting together to form regional associations b. Only involves compacts that may impair supremacy of US o

Substantive Due Process

VII.

Due Process

-ECONOMIC BEGINNINGS: Calder v. Bull: ex post facto only applies to criminal legislation. Court begins disagreement over natural law. Dred Scott: African Americans are not US citizens: cant bring suit seeking freedom in federal court. o First sentence of 14th amend: said to overrule Dred Scott ruling that blacks arent citizens. Allegeyer: liberty not only right to be free of physical restraint, but also the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts therefor. Lochner v. New York o NY law prohibited bakers from working more than 10 hours a day or 60 hours a week. VIOLATION OF 14 th DUE PROCESS. Liberty interest here: right to make contracts, set hours, wages, etc. o Court utilizes MEANS/ENDS analysis: The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in person and in right to contract. 34

Downloaded From OutlineDepot.com Court seems to treat POLICE POWERS as the enumerated ends of the states. So, the means must relate to those ends. Law is not sustainable as a labor law b/c its not w/n police power. Contrast Holden v. Hardy: labor reg in mining. That work is dangerous as shit. Miners are vulnerable to constraint by employees, bakers are not. o Harlan dissent: health of bakers is legitimate end. Its reasonable for people of NY to think that hours worked by them is reasonably related to their safety. o Holmes dissent: CONSTITUTION WASNT DESIGNED TO EMBODY A PARTICULAR ECONOMIC THEORY. o Muller v. Oregon: court sustained max hour law for women. Woman are weak and need their safety protected. HOWEVER, in Adkins, the court proscribed min wages for women: 19 th amend made men and women equal. o New State Ice Co: Court invalidated restraint on competition that curtailed entry into particular line of business. o Weaver v. Palmer : Law said you couldnt use shoddy in mattresses. Rule was too drastic: blanket prohibition on shoddy, but only some shoddy would present real health risk. Movement away from Lochner Nebbia v. New York o NY set min milk price. State is concerned that if producers arent getting enough for milk, they wont make milk as safe. o Lochner had said that price regulation was only valid if business affected public interest. Court says that affected by public interest means that its within states police powers. o Economic policy is the states business. Courts arent authorized to deal with the wisdom of the policy the state adopts. o DISSENT argues that this is direct interference with guaranteed rights: reg affects retailer and consumer, but state says it wants to protect farmers. West Coast Hotel v. Parrish o UPHELD state min wage law for women. Overruled Adkins. o More paternalistic approach: women as class are being paid less and have less bargaining power. US v. Carolene Products o Rational basis: there is presumption of Constitutionality. Well uphold state law as long as we can find some rational basis for it. Purpose doesnt have to be articulated by Legislature. o Footnote 4: Categories where Court can depart from Rational Basis: When reg facially interferes with Bill of Rights When reg would hinder political process Where political process is ineffective to protect DISCRETE and INSULAR minorities (easily identified and separated from publicAmish). o New rational basis test in action: Williamson v. Lee Optical: law prevented optician from fitting glasses or replacing lens w/o prescription from optometrist or ophthalmologist. Court finds rational basis. Another reg banned advertising frames for glasses: upheld. Legislature could rationally believe that advertising should be controlled to ensure that people are getting prescriptions. o Ferguson v. Skrupa : Court is extremely deferential to state legislature. Upheld KS law preventing anyone from adjusting debt except as incidental to practice of law. Two areas in which court has attempted to revise substantive due process with regard to economic regulation: o Punitive damages: due process sets limit on disproportionate punitive damages. o Retroactive legislation: Eastern Enterprises overturned retroactive health benefits forced on coal company. Might also be taking.

CONTRACTS CLAUSE: Art. I, 10: Prohibits any state law impairing the obligations of contracts. Clause was historically aimed at debtor relief laws. Prior to C, some states had passed laws making it hard to enforce creditor actions. o Fletcher v. Peck: GA law annulled a fraudulent land grant. Court held law invalid. o Dartmouth College: NH wanted to increase size of Board of Trustees, in violation of charter. Nope. o Sturges v. Crowninshield : NY law would have discharged debtors if they surrendered property. Nope. Early limitations on contracts clause: o Odgen v. Sanders : OK to impair contracts as long as it impairs them in the future, not retroactively o Bronson: state can make remedial changes, as long as no substantial rights are impaired. o Charles River Bridge: states cant contract away its powers. Home Building & Loan Assoc. v. Blaisdell 35

Downloaded From OutlineDepot.com During Depression, state tried to slow down foreclosure process to give people more time to pay. UPHELD, even though this seems to be the type of law the clause was aimed at preventing. o Contracts clause is not a rule. It can be balanced against the needs of the state in certain situations. Have to look at it in relation to police power. Here, this is an emergency, the law is only temporary, and interest is still accruing. Its OK to temporarily affect contractual rights. Law impairing states own contractual obligations is entitled to less deference than law interfering with private contracts. Heightened standard of review: law impairing state obligations must be reasonable and necessary to serve an important public purpose. o Allied Structural Steel: state required employer to contribute to pension benefits for persons who wouldnt otherwise qualify. INVALID. Dissent: requiring something additional is not an impairment of employer/employee contract. Partial return to greater deference: o Energy Resources v. KS Power and Light : Contract allowed ERG to raise price of gas to match fed prices. Fed raised prices. KS law limits the extent to which ERG can raise prices. UPHELD: ERG should have realized that K didnt allow it to raise prices if fed or state was keeping it from doing so. No substantial impairment of contract obligations. Three step analysis: Has law operated as substantial impairment of contract obligations? If so, is there significant and legit public purpose? Is adjustment of rights of contracting parties based on reasonable conditions and related to public purpose? o General regulation that has effect on contracts but doesnt target them directly is OK. Exxon v. Eagerton: tax on oil and gas. AL law prohibits producer from passing costs onto purchasers. Law isnt targeted at the end contract. Effect on contract is incidental. o

-The Revival of Substantive Due Process: Meyer v. Nebraska: state law prohibited schools from teaching foreign languages to children. INVALID. o Liberty: right to contract, to engage in occupation, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God, and to enjoy privileges long recognized as essential to orderly pursuit of happiness. o MEANS/END: state end was to foster homogeneous people. No adequate justification for restraint on liberty in peace time. Pierce v. Society of Sisters : Oregon required children to attend public schools. INVALID: no legitimate state end. Skinner v. Oklahoma: State law provided for sterilization after 3 rd felony conviction for moral turpitude. INVALID. o Court applied strict scrutiny under EP clause b/c fundamental right was involved: procreation. You cant distinguish b/t those who commit different types of crimes. CONTRACEPTION: Griswold v. Connecticut: o CT made it criminal to use contraceptives to prevent conception and to assist another in committing offense under the law. INVALID. o Douglas majority: Calls Meyer and Pierce 1st amendment cases. Doesnt want to rely on Lochner, so looks for some textual basis for overturning the law. Specific guarantees in the Bill of Rights have penumbras. More protection than language presents. Unenumerated right of privacy found from 1 st, 3rd, 4th, 5th, and 9th amends. Husband and wife union is entitled to privacy. o Goldbergs opinion: Relies heavily on 9th amend: the enumeration in the C of certain rights shall not be construed to deny or disparage others retained by the people. 9 th isnt a source of rights, but 9th recognizes fact that there are other rights that arent listed in C. Courts must look to traditions and collective conscience of people to determine if right is fundamental. If right is fundamental, state can only infringe upon it by a showing of subordinating interest that is compelling. Discouraging extra-marital affairs is legitimate state end, but the means are over-inclusive: applies to married couples as well. o Harlans opinion:

36

Downloaded From OutlineDepot.com Balance must be struck b/t needs of society and liberty of individual. History teaches us the traditions from which it developed and from which it broke. Look to values grounded in legal and historical tradition. Society has long struck a balance that permits state regulation of sexual morality (homosexuality, adultery), but here regulation of sexual morality is in context of marital relationship. Right invaded: privacy of home in context of marital relationship . He thinks state might be able to regulate in face of privacy of the home with regard to homosexuality. Right to privacy is not absolute. Poe v. Ullman : liberty interest includes freedom from substantial arbitrary impositions and purposeless restraints and certain interests require particularly careful scrutiny of state needs asserted to justify their abridgement. o Blacks dissent: Doesnt like the state regulating in this area, but doesnt think justices have power to do what theyre doing here. C wasnt made to reach everything. Appropriate resort is to amendment process. o Stewarts dissent: 9th amend simply made clear that the Bill of Rights did not alter the plan that the fed govt was to be govt of express and limited powers. Eisenstadt v. Baird o Law regulated distribution of contraceptives to UNMARRIED persons. INVALID. o This case doesnt involve sacred marital relationship, like Griswold. This law deals with distribution of contraceptives, not use of them. o Right of privacy is right of individual: fundamental right in deciding whether or not to beget a child. Carey v. Pop. Services Intl o NY law prohibited sale or distribution of contraceptives to minors under 16. INVALID.

ABORTION: Roe v. Wade o TX statute made it criminal to procure abortion except by medical advice for purpose of saving mothers life. o Blackmuns majority: Finds right to privacy in 14th amends concept of personal liberty: broad enough to encompass womans decision to terminate pregnancy. Compelling state interests that might permit regulation of abortion at certain points: Interest in protecting health of mother . o During 1st trimester, state cant regulate at all, even to protect health of mother. Decision is left entirely to medical judgment of womans doctor. o After 1st trimester, state can regulate abortion in ways reasonably related to maternal health. Interest in potentiality of life . o Other constl provisions seem to focus on someone who has already been born. o Court says state has legitimate interest in protecting life starting at VIABILITY (usually around start of 3rd trimester, around 24-28 weeks, 6-7 months). o After viability, state can regulate and even proscribe abortion, except when necessary for preservation of life or health of mother. o Douglas concurs: Another point at which court might recognize state interest in life: QUICKENING: when baby moves independently of the mother. This occurs before viability. o No textual basis for treating abortion as a fundamental right. Also, not grounded in our legal and historical tradition. o White dissent: wrongful exercise of court power. o Rehnquist dissent: Brings up Holmes dissent in Lochner. C isnt designed to accommodate a particular theory, rather it is designed to accommodate people with fundamentally different views. Court is enacting a particular social theory. Danforth : state cant give father say as to whether wife can have abortion. Bellotti II: state cant require parental consent for minor abortion unless there is judicial bypass. Akron : state cant require physician to give patient info aimed at dissuading her choice. State cant require waiting period. State cant require abortion to be performed in hospital. After Roe, government can still favor childbirth over abortions in deciding how to hand out money. Deferential rationality review employed when dealing with allocation of public funds. 37

Downloaded From OutlineDepot.com Planned Parenthood v. Casey o 5 justices vote to uphold Roe: OConnor, Kennedy, Souter, Stevens, Blackmun o 4 dissenters: Rehnquist, Scalia, Thomas, and White say that majority isnt really even upholding it. o Reservations the court might have in upholding Roe are outweighed by stare decisis. o Plurality opinion: Liberty: the right to define ones own concept of existence, of meaning, of the universe, and of the mystery of human life. State cant compel people to think a certain way on these matters. Stare decisis: Roe not unworkable People rely on it No subsequent developments to justify overruling it. Changes in facts (time of viability has gotten earlier) are not sufficient to overrule it. ****Note that this application of stare decisis to Dred Scott would have upheld it. Two areas where court has overruled long-standing precedent: Lochner: West Coast Hotels overruled Adkins. Depression showed court that laisez-faire economics wont satisfy human needs. Brown v. Board of Educ. overruled Plessy. Court learned that segregation was stigmatizing. Courts legitimacy: If court overrules Roe, its legitimacy would come into question. Court is dependent on public perception of its authority. Plurality upholds the viability standard, but it scraps the trimester framework. New test: UNDUE BURDEN: law that imposes undue burden on womans decision before viability is unconstitutional. Dicta: after viability, state can prohibit abortion, as long as there is provision for mothers health and life. Court upholds the following provisions of the PA law: Informed consent requirement. PA can require facility to give info to woman to consider during 24 hour waiting period. Overrules Thornburgh and Akron I. Parental consent by minors, since there is judicial bypass. Reporting requirements from abortions centers. Name not required to be reported. Court finds spousal consent requirement to be undue burden. Would prevent substantial number of women from getting abortion. o 4 member dissent: Roe was wrong, abortion not a fundamental right. Distinguish contraceptive case: abortion involves destruction of fetus. o White dissent: This opinion is politics, nothing more. Makes things less clear than Roe. Effect of Roe and Casey has been to make abortion bigger controversy than it was otherwise. Stenberg v. Carhart o Court struck down ban on partial birth abortion (D & X only) that didnt have exceptions to preserve mothers health. Principle means of abortion after 13 weeks is dilation and evacuation (D & E). Small percentage are dilation and extraction. o Majority: struck down ban b/c law didnt have health exception. Also, law could be reasonably interpreted to ban D & E as well. o OConnor concurs: state could ban D & X as long as they were specific about not banning D & E and provided a health exception. o Kennedy dissent (had been one of Casey joint opinion authors): Reads Casey as giving states more latitude in defining the interests they have. NE was entitled to find that its ban didnt deprive any women of safe abortions and therefore did not impose a substantial obstacle on the rights of any woman. NE was advancing important interests regarding the sanctity of life.

FAMILY RELATIONSHIPS: Loving v. VA: struck down ban on interracial marriage. EP violation, but court said it was probably violation of substantive DP too. Zablocki v. Redhail: struck down law that required court permission before marriage if you have outstanding child support. Turner v. Safely: struck down restrictions on prison inmates right to marry. 38

Downloaded From OutlineDepot.com Moore v. City of East Cleveland: Zoning ordinance restricted property to single family residents. Grandmother and two grandchildren didnt fit within statutory definition of family. INVALID on substantive DP grounds. o Legitimate goals: prevent overcrowding and traffic. o Applies STRICT SCRUTINY: When govt intrudes on choices concerning family living arrangements, Court must carefully examine importance of govtl interests and the extent to which they are served. o Family relationships that are given Constl protection go beyond nuclear family. o Powell acknowledges substantive DP concerns; however, there is a long tradition of extended families living together. o Contrast Belle Terre v. Boras: no substantive DP problem here, since ordinance dealt with unrelated persons living together. Troxel v. Granville : state court had granted grandparents the right to visit child over custodial parents objection. o Parent/child relationship trumps. State cant override decision made by fit custodial parent. Michael H. v. Gerald H. : natural father wanted parental rights over child he had with married woman. Court denied him these rights. o CA had presumption that child born during marriage was child of married couple. State can apply this presumption, even when there is concrete evidence that father is someone outside the marriage. o Scalia footnote: Have to look at most specific level of tradition. General tradition is parents right to children. Specific tradition is that adulterous father doesnt have rights with respect to child. OConnor disagrees with footnote: look at past decisions of Griswold and Eisenstadt (contraceptives). Specific tradition of prohibiting sexual contact outside of marriage might not allow Eisenstadt. Also, specific tradition wouldnt uphold Loving. o Brennan dissent: Presumption is no longer needed. C is living and can change with the times.

SEXUALITY: Bowers v. Hardwick o GA statute prohibited sodomy. It applied to everyone, but it was challenged in its application to homosexuals. UPHELD. o No fundamental right for homosexual sodomy. Long tradition of making conduct illegal. o Since sodomy isnt fundamental right, RATIONAL BASIS test is proper. White finds rational basis b/t law and states interest in MORALS. Lawrence v. Texas o TX law prohibited sodomy only for homosexuals. INVALID, OVERRULES Bowers. o Issue framed differently here: Liberty interest at stake is the right to form certain intimate relationships. Rather than looking at one sexual act, court looks at broader issue of private intimate relationships. Opinion focuses on CONSENTING ADULTS. o History and Tradition: Laws havent traditionally focused on homosexuals. Sodomy laws havent been traditionally enforced. Evidence of EMERGING TRADITION: MPC has suggested decriminalization, and states have moved in that direction. o SCALIA dissent: court isnt being consistent in application of stare decisis. In Casey, fact that Roe had been criticized was grounds against overturning it: dont want people thinking court is caving in to politics. Here, fact that Bowers has been criticized is a reason for overturning it. Kennedy might say in response that focus should be on reliance. Scalia would say look at judicial and legislative reliance as well as reliance by people. o Majority doesnt make clear which test (strict scrutiny for fundamental rights OR rational basis otherwise) its applying. If state passed this law to prevent STDs from spreading: that would hold up under rational basis, but would fail under strict scrutiny. Either way, probably EP problem. o States interest in MORALS: Majority brings up Stevens dissent from Bowers: fact that governing majority in state has traditionally viewed particular practice as immoral is not a sufficient reason for upholding law prohibiting the practice. Morality is not a legitimate state interest. Ex: neither history nor tradition could save a law prohibiting interracial relationships from constl attack. Kennedys dissent in D & X case: state can take sides on abortion and come down on side of life. Perhaps the types of moral concerns that affect others might be within states reach, but moral concerns that only reach the one committing the act are not. Gay Marriage: 39

Downloaded From OutlineDepot.com o o o o Is gay marriage a fundamental right? What state interest might justify ban on gay marriage? Perhaps procreation. Might pass rational basis, but not strict scrutiny. Abortion funding cases: Constl right to abortion, but govt doesnt have to help you. Similar here: sodomy will be tolerated, but govt isnt going to promote it thru gay marriage. Right to marry is protected by substantive DP (Loving). Case was decided on EP grounds, but substantive DP right was also asserted. Strict scrutiny applied to racial classifications, but only moderate scrutiny is applied to gender classifications. Law separating races creates stigma (one race is better than the other), but law trying to bring together same sexes doesnt really.

DEATH: Cruzan v. Dir., Missouri Dept. of Health o Virtually no chance that Cruzan would ever regain cognitive capacity. o There is a liberty interest in refusing or discontinuing medical treatment. Here, it rests with incompetent person. MO requires clear and convincing evidence of persons wishes to cease treatment. UPHELD. o State interest is upholding life and keeping family members from inappropriately ending anothers life. o Brennan dissent: MOs procedural obstacles impermissibily burden a fundamental right. Washington v. Glucksberg o Law prohibits assisted suicide. Another WA law expressly allows patient to refuse or discontinue treatment. UPHELD. o Court finds no fundamental liberty interest at stake and applies rational basis. Rights afforded protection under substantive DP must be limited to fundamental rights deeply rooted in nations history and tradition. Liberty under 14th amend has been carefully refined by CONCRETE EXAMPLES of deeply rooted fundamental rights. Long history of laws against suicide. Distinguish Cruzan: Decision not to take medicine is based on long standing idea that forcing medicine on someone is battery. Court unwilling to look to emerging tradition as it had in Lawrence. Maybe recent changes in law were more dramatic there. o Even if there is no fundamental right, DP clause still requires that the state act rationally. Must be rational relationship b/t state interest and legislation. Legitimate state interests: preserving life (as in Cruzan), public health concerns (depression, etc), integrity of medical profession, protecting vulnerable persons from abuse (as in Cruzan), preventing euthanasia. o OConnor concurs: Under WA law, if patient is under severe pain, doctor can prescribe medicine that hastens death. If thats the case, whats the problem with the law before the court? o Stevens concurs: patient has right to die with dignity. When death is inevitable, patient should be able to control the manner of his death: shape the final chapter in his life. o Souter: question to be asked is whether law imposes arbitrary impositions or purposeless restraints. Similar to Harlan in Poe from Griswold. State interest that supports statute: preventing euthanasia. Established state interest in protecting nonresponsible people. Vacco v. Quill o NY law prohibited assisted suicide, but it allowed people to refuse treatment. o Lower court found EP violation: discriminated among terminally ill people. o SC finds no EP violation. UPHELD: you can distinguish b/t people as long as you have a rational basis for doing so. Cause of death: with assisted suicide, medicine kills you. With refusal of treatment, the condition kills you. Intent: assisted suicide, the intent is to kill. With refusal, intent is to uphold wishes. 8th Amendment 8th amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Roper v. Simmons o Court held it unconstitutional to execute person under the age of 18 when crime was committed. o Trop v. Dulles: When analyzing the 8th amendment, you have to look to EVOLVING STANDARDS OF DECENCY that mark progress of maturing society. 40

Downloaded From OutlineDepot.com Court looks to whether there is a domestic consensus as to capital punishment of minors. Relevant as to whether punishment is unusual or cruel. Defining relevant group: Kennedy (majority): majority of states prevent minor execution. He counts in this number the states that prohibit death penalty altogether. Even where permitted, the practice is rare. Scalia(dissent): majority of states dont prohibit it. He looks at states that allow death penalty in general but dont allow juvenile execution. o Majority analysis after finding national consensus: Two purposes of death penalty: RETRIBUTION: b/c juveniles are immature, under-developed in character, and subject to peer pressure, they are less deserving of death penalty. DETERENCE: less likely to be deterred. In making moral judgment, Court rejects moral views of jury and state legislatures. o OConnor dissent: isnt judges job to decide on nationwide ban. Court is required to exercise moral judgment in 8th amend cases, but only after national consensus has been reached . Here, it hasnt been reached. o Scalia dissent: court shouldnt do its own moral analysis. In abortion cases, court realized that there were times when minors were mature enough to proceed (judicial bypass to parental consent). Why is this situation different? o International materials: US is the only country in the world that still allows juvenile execution. Confirms the courts moral judgment. Scalia of course disagrees. C never invokes foreign authority and later foreign decisions dont affect the state of C at time it was ratified. CJ Roberts: Foreign judges arent accountable to American public. You can always find someone who supports your view. Lawrence looked to foreign precedent as well. Easier to pick support in that context, since countries differ on the issue. Here, all states prohibit juvenile execution. Ginsberg: Foreign law isnt binding, but it adds to our store of knowledge just like law review articles, etc. Doesnt think C is frozen in time, and thinks there is a dynamic aspect. TEXTUALIST JURISPRUDENCE REVISITED: Elements: o Text of Constitution o Historical context o Structural Inferences Non-textualist stuff from recent cases: o National consensus o Scientific/Sociological evidence o Foreign case law o Treaties o Legal traditiondeeply rooted v. emerging, specific v. general o VIII. I. Separation of Powers

Conflict between Executive and Legislative Branches authority to make national policy A. Policy Behind Separation of Powers 1. Prevents tyranny concern about overreaching by center of power allayed by system of checks and balances 2. Immobilizes government government that governs less, governs best 3. Heightened accountability 4. Increase thinking about decisions a. Lots of people have to agree b. Flip side is grid lock, bureaucracy 5. Specialization of labor B. Youngstown Steel v. Sawyer (1952) president concerned with national strike in steel mills during war so he orders secretary of commerce to seize steel mills 1. No express authority for action a. Not authorized by congress i. They did not say you can seize or approve ii. Taft Hartley Act contemplated giving president this power but congress did not adopt it b. No express constitutional authority but the President pointed to other grants which may imply it i. Art. II 1 the executive power is vested in the President ii. Art. II 2 commander in chief 41

Downloaded From OutlineDepot.com iii. Art. II 3 take care that the laws be faithfully executed Court says president exceeded constitutional authority contrary to his argument that he had implied authority a. Said lawmaking is role of legislature b. President is not too get involved c. a formalistic opinion, written by Justice Black i. process of creating rigid, mutually exclusive categories and assigning activities to each (a) in Commerce cases it was direct/indirect; production/commerce (b) here, legislature/executive 3. Frankfurters Concurrence says majority too rigid constitution is more flexible a. Accusation of too rigid formalism similar to early commerce clause cases i. says the categories are not mutually exclusive that the Framers purposefully made the powers overlap ii. here, it was just that the Congress decided not to let him take that action a. Says really powers are blurred president is involved in law making through his veto power b. He says this outside presidential authority because its not a power he has exercised over time to which congress has acquiesced (adverse possession theory of power) i. Seizure hasnt happened enough ii. Plus, Taft Hartley shot down d. Majority answers no good even if he had exercised power, has not acquired it 4. Douglas Concurrence says this is a taking a. If have a taking must pay reasonable compensation b. since only congress can allocate money through the spending power, only congress can authorize a taking c. Because president doesnt have ability to pay taking invalid 5. Jackson concurrence divides executive acts into 3 categories a. President acts pursuant to express or implied authorization of congress constitution + congressional authority is when his power most broad i. Congress cant authorize him to do something unconstitutional ii. Congress cant delegate their power to president if he is prohibited to do it iii. These are limits otherwise its a strong presumption of validity b. President acts in way incompatible with express or implied congressional intent i. When congress has denied him authority to act and he does anyway this is when his power at its lowest ii. Limit- congress cannot deny him his powers conferred in constitution c. President acting in area where congress has not spoken this is twilight zone where executive and legislature have concurrent authority i. Must look at the imperatives of events (events will make it obvious that someone has to act) and contemporary imponderables (what the framers could not have thought of) basically , look at facts and circumstances, decided on a case by case basis ii. Cant just look at in abstract 6. Jackson says here acting in way incompatible with intent of congress a. By congress rejecting Taft-Hartley it implicitly denied the executive power to seize. Congress has spoken b. Thus, this act is invalid c. Counter arg that this falls into the twilight zone? Refusing to authorize doesnt mean congress has actually denied this power to the president 7. Jackson also rebuts arguments of executive a. President has executive power says if you view this clause as broad power, no need to have Article II, deals with enumerated powers only b. President is commander in chief so once he commits troops he can do whatever he wants to support them Jackson said this would give the president too much domestic power plus power to support army is congresss c. President must insure laws faithfully executed this is power to carry out laws, not make new ones. The power only extends so far as there is actually any law to execute d. President has inherent power to deal with emergencies too vague and open-ended to say great power when necessary. It would be like giving the president a blank check to act as he chooses during emergencies. 8. Dissent says inherent power to deal with emergencies a. Points out that Jackson made the same argument when he was a solicitor general b. Jackson replies he was just an attorney then. As a judge he doesnt have to accept the self-serving arguments of an advocate - even if that advocate was himself. 9. After Youngstown, is there any room from Presidential emergency power? a. under Blacks analysis, no b. under Frankfurter, if the President had done it before, then it might be ok to do it again c. under Jackson, it is not clear C. Field Circuit Case (In Re Nagles) (69) US marshal was appointed by executive to accompany SC justice Field on circuit and protect him. He killed someone who attacked the judge 1. US marshal charged with murder because he had no authority to protect judge 42 2.

Downloaded From OutlineDepot.com This is in area where congress had not spoken twilight zone case a. No power given no express or implied intent not to have power b. SC decided president did have authority to assign marshals to protect the justice (course theyd think so) c. Have to look at facts and circumstances no congressional intent or history in these cases d. Beck says could arg that Prez is just exercising art 2, sec 3 power to faithfully ensure execution of the laws D. Executive Agreements 1. US v. Belmont president by executive agreement agrees to recognize USSR in exchange for assignment of all Soviet expropriations claims against Americans to US a. This was not a treaty senate did not ratify the agreement b. SC held executive agreement valid i. Agreement has force of preempting state law and policy that conflicts under supremacy clause. Preempts NY law ii. Under Article II 3 president has power to recognize delegates and ambassadors this is constitutional authority for this agreement iii. Prez has power to make certain agreements w/o ratification of congress: Protocols, modus vivendi etc p. 255 2. Dames & Moore v. Regan (1981) executive agreement entered into by president to try and resolve hostage crises in Iran nullifies Iranian liens and suspends claims by Americans a. Court says Jacksons 3 categories overly simplified i. Analytically useful to divide into pigeon-holes ii. But probably analysis of authorization of executive agreements should really be a spectrum b. Court said presidential act nullifying liens is expressly authorized i. Statute gives broad authorization and discretion to president ii. In first category of Jackson president acting pursuant to express authorization is given the broadest presumption of validity c. Court said presidential act suspending claims is implicitly authorized i. This type of action has been done before in international law ii. Sovereign should have power to settle claims because they are sources of international friction iii. This is also in first category of Jackson congress hasnt said president cannot do this but has long acquiesced in the past so it is presumptively valid d. Case consistent with Youngstown although reaches different result about congressional silence i. Youngstown there was no history of taking over mills, whereas here Congress has given this kind of authority b4 ii. Here, congressional intent shows acquiescence where in Youngstown , congress declined to authorize iii. Black in Youngstown may say lawmaking so needs congressional authorization iv. Also executive action in Youngstown was very local, this is action is more directed outside the country E. Use of Armed Forces 1. Constitutional Authority a. President is commander in chief b. Art 1, sec 8 : Congress has broad regulatory authority over military e.g. power o declare and finance war, suppression of insurrection by calling on miltia. 2. Intent of Framers probably intended for president to act as commander in chief pursuant to congressional declaration of war a. Changed earlier draft of constitution from giving congress power to make war to declare war b. Want president to have power to act in emergencies hence Prez can make war in emergency w/o congress consent c. May have intended president to act outside congressional approval pursuant to a treaty like a pre-authorization d. Questionable congressional authorization for preemptive strikes 3. Congresss recent involvement a. Last time declared war was WWII b. President has often used military at other times 125 instances where Prez ordered action w/o congress approval II. Executive Discretion in Times of War in Terrorism A. The President Congress and War Powers War Powers Resolution of 1973 Congress attempt to clarify respective powers a. President does not need congressional approval to use military b. In times of emergency may use military i. Has to give written report to congress within 48 hours ii. Congress may review for 60 days and then (a) Declare war (b) Extend 60 days (c) Automatically extended for 30 days if Congress cant physically act iii. If no congressional action must withdraw in 60 days iv. Congress can direct president to pull out by concurrent resolution c. Nixon vetoed resolution but Congress overruled him 43 2.

Downloaded From OutlineDepot.com He said to look to history- Something like Frankfurters argument - Presidents have been declaring war all the time, theyve been doing it so long it should be part of their power. d. Has this curbed the use of military force without prior congressional approval? i. Has not stopped much unilateral action by presidents ii. Doesnt cover short-term involvement less that 60 days iii. There is a natural political tendency to support troops once overseas (Congress doesnt rigidly enforce) Executive Discretion in Times of War or Terror: Art. I, 8: Congress given power to declare war, raise and support armies, provide and maintain navy, call militia. Art. II, 2: Pres is Commander in Chief of armies, navies, militias. o Seems like Congress was intended to have more control over military forces. o Congress hasnt declared war since WWII. Pres has acted militarily w/o Congl approval over 100 times since then. War Powers Resolution of 1973: Pres can take action, but he must report to Congress after he deploys troops. Congress can authorize troops in three ways: (1) declare war, (2) authorize thru statute, or (3) emergency. If Congress doesnt authorize conflict, Pres must pull troops out. Ex Parte Merryman o Lincoln had suspended writ of HC b/t Phili and D.C. Court holds that only Congress can suspend writ. Its enumerated in Congress powers. Lincoln tells court to fuck off and suspends it for entire country. He felt that if writ werent suspended, whole govt would fall apart. Ex Parte Milligan o Milligan wasnt a soldier but was sentenced to death by military tribunal after civil court refused to indict him. o Military trial of Milligan IMPROPER : Denied trial by jury of peers Court wasnt ordained by Congress and wasnt composed of judges appointed during good behavior. o 5th amend: military personnel surrender right to civil trial by jury. o Martial law can never exist when federal courts are open. Ex Parte Quirin o Germans captured with explosives in US. Sentenced to death by military tribunal. UPHELD. o These guys are UNLAWFUL BELLIGERENTS: arent in uniform. Violates law of war. o If you are an unlawful combatant, that trumps your US citizenship. Johnson v. Eisentrager o Foreign citizens captured and tried in foreign countries arent entitled to HC relief in US. They arent in US control, so US courts have no JDX. Rasul v. Bush o GB detainees are entitled to bring HC proceedings in US courts. o These people have been denied all legal proceedings, whereas detainees in Eisentrager at least went before military tribunal. Hamdi v. Rumsfield o US citizen detained after being captured in Afghanistan fighting against US. o Largest plurality: Long-standing recognition of authority to detain enemy combatants, US citizens or not. Hamdi is POW, unlike Milligan. They think Hamdi is entitled to some type of proceeding in which he can challenge the contention that he is an enemy combatant. He should get (1) notice of why govt thinks hes an enemy combatant and (2) opportunity to rebut the assertions. Can be done before military court. Dont have to follow normal rules of civil procedure. You can detain enemy combatants for duration of hostilities. o Scalia: Govt has two options: Commence with criminal trial OR HC proceedings unless writ is suspended. In Quirin, guys werent contesting status as enemy combatants. o Thomas: would allow the detention. Courts shouldnt second guess executive determination of who is an enemy combatant. III. Congressional Violation of Separation of Powers A. Legislative Veto INS v. Chadha (1983) Attorney general had authority to suspend deportation if alien has met certain criteria and has hardship o 44

Downloaded From OutlineDepot.com House then made resolution vetoing suspension pursuant to statutory authorization a. Does not send to senate b. Does not send to president c. Statute said one house may veto this authority delegated to executive 2. Other Possible Types of Legislative Vetos they are used widely a. Could have 2 house veto b. Could have committee veto 3. Court says legislative veto unconstitutional a. Presentment Clause Article I 7 every bill which shall...before it becomes a law be presented to president i. This is after passed both houses ii. Gives him power to then veto b. Bicameralism Article I 7 every bill which shall have passed the house and the senate i. Both houses have to pass on bill before becomes law ii. Legislative power vested in both houses c. Purpose of Clauses i. Increases scrutinization promotes good decision making by getting more people involved ii. Implements separation of power divides authority to protect liberty iii. Makes it harder for a faction to control but may increase their ability to impede legislation iv. Protects executive branch from legislative encroachment d. Does not apply to every congressional action only when passing legislation i. Doesnt apply when acting administratively ii. Just limits law-making authority iii. Court says this house veto is law-making (a) Test to determine if law-making look at purpose and effect (b) The veto has law- making purpose and effect if altering legal rights, duties and relations of persons outside of the legislative branch (c) Chadhas rights were altered bc he could no longer stay in the country 4. Dissent says legislative veto passes constitutional requirements a. Purposes behind presentment and bicameralism satisfied i. All the parties/branches are involved ii. Separation of powers preserved b. Legislative Veto is useful delegation of congressional authority i. Gives legislature more power over executives execution of laws ii. It is efficient and promotes good government (a) Government has become huge after New Deal (b) Pre-new deal almost all legislation was enacted by congress who decided what people must do to comply with laws iii. Legislative veto good for democracy (a) making sure the elected people are the ones making the rules (b) Agencies are not less political accountability (c) Is a check to make sure rules coming from executive branch are what they had in mind (d) Not feasible for congress to make all the rules anymore c. Majority too Formalistic i. Need more practicality and functionalism ii. Promotes good government 5. Concurrence says unconstitutional because encroaching on judiciary a. Legislature is reviewing actions to see if law was properly applied which is a proper judicial function b. Decision should be more narrow majority says all legislative vetos invalid i. This one should be shot down because adjudicatory in nature ii. Other not like this should be upheld if only vetoing broad application of rule rather than its application to individual, may not be adjudicatory 6. War powers act has legislative veto at any time congress may order troops back by concurrent resolution a. Does not meet presentment b. Would not be valid after Chadha 7. Which opinion is better? a. Advantage of majority i. Gives clear guidelines ii. Need bright lines for separation of power Scalia iii. One of biggest concerns of framers is growth of legislative power b. Advantage of dissent case by case resolution B. Impoundment Controversy 1. Article 1 9 gives congress power over the purse 45 1.

Downloaded From OutlineDepot.com a. President executes appropriations by congress b. Appropriations bills may give president lots of discretion c. May also be mandatory appropriations must spend X on Y 2. Why might executive not want to spend it is helpful to give discretion a. If contingency budgeted for goes away b. If what they want is unavailable c. Executive gets better prices 3. Can president use discretion to not spend appropriations a. Nixon said extra spending has bad economic effects b. Courts have rejected the assertion that president may impound funds no constitutional authority c. Impoundment Control Act seeks to clarify and define basic relationships among branches i. Distinctions (a) Deferred spending saying he will wait, and either house may disagree (b) Terminate spending cant do this unless both houses pass legislation saying he can ii. Problems seems to be a legislative veto 4. Clinton v. NY (1998) balanced budget act gave president line item veto on taxing and spending provisions a. What kinds of taxing and spending may be canceled with veto i. Dollar amount in discretionary budget items ii. New direct spending iii. Limited tax benefits b. What is purpose of line item veto i. Appropriations bills allows canceling of parts of the bill, not whole ii. Theory is that congress cannot control themselves way to get appropriations bills passed is to spend in congressional districts (Congressional cry for help: stop us before we spend again) c. Statute constitutionally passed meets bicameralism + presentment d. Court said line item veto unconstitutional i. Gives president power to selectively repeal and enact law. ii. Constitution does not provide for this type of enactment e. Scalias Dissent says title of line item veto fakes out majority f. Not really a veto no different than discretionary spending. Prez is just exercising his spending power in the form of a line item veto on certain monetary sections i. He is executing the law ii. Breyer argues congress could simply put in a footnote addding discretionary power on each provision iii. Majority also says gives more policy control than congress if discretionary you are enacting their policy iv. Majority also has problem with changing text of statute (a) If discretionary you can change your mind on spending (b) With veto will have to make new legislation to spend, the statute is less recovable f. Dissent also says no encroachment or aggrandizing i. Encroaching moving in on the constitutional authority of another branch taking power of another branch ii. Aggrandizing branch increasing power above constitutional limits g. President is aggrandized increases his power in political process, enlarging your powers o He has something to hold over the heads of the members of congress h. Another option for congress i. Different bill for each item in bill so president can veto bill as a whole ii. Make appropriations lines discretionary iii. Amend the constitution too much work C. Appointments Clause 1. Article II 2 president shall nominate and, by and with the advice and consent of senate, shall appoint ambassadors, judges of the SC, and other officers of the US, whose appointments are not herein otherwise provided for, and which shall be established by law, but congress may by law vest the appointment of such inferior officers , as they think proper, in the president alone, in the courts of law, or in the heads of departments a. Principle Officers of the US i. President nominates ii. Senate/President appoint b. Inferior Officers congress can vest power to appoint in i. President ii. Courts iii. Heads of departments 2. What does advise/consent mean: does the phrase mean congress has power to deny the appointment or are they a little constrained? What is the permissible scope of discretion is allowing the appt? 3. When is Person an Officer Subject to Clause a. Buckley v. Valeo congress trying to appoint FEC 46

Downloaded From OutlineDepot.com Court says they are officials subject to clause they are given (a) Direct and wide-ranging enforcement power, AND (b) Extensive rulemaking and adjudicative powers they make and adjudicate election law ii. Who can congress appoint (a) Not on list to appoint even inferior officers (virtually no appointment powers of it own) (b) Only time can make an agency and appoint officers is when it is given only those powers congress may delegate to own committee (more of a delegating power) (1) Performing investigations (2) Gathering information b. Bowsher v. Synar (1986) deals with Balanced Budget and Emergency Deficit Control Act that puts maximum annual amounts on deficits an attempt to control congressional spending i. Court says role of comptroller general is unconstitutional (a) Court says this duty is executive in nature execution of laws (1) Also seems legislative congress sets spending levels (2) Court says he must first interpret a statute before he can carry it out (b) Congress views him as legislative officer because he may be removed by congress (c) Court says because congress has power to remove executive officer violation of separation of powers (1) Congress can only remove executive officers by impeachment (2) Impeachment only for treason, bribery, or other high crimes and misdemeanors (3) Here, congress may remove for maladmistration (4) Ct says thus the comtroller is an agent of congress ii. Relationship with Chadha (a) Chadha said cant aggrandize the power of a branch congress increasing its power above constitutional limits if does not meet bicameralism + presentment (b) Bowsher says cant encroach on power of another branch congress moving in on the constitutional authority of executive branch (c) Basically these cases are saying that once congress has enacted a statute, its job is done. It has to stop its involvement and let the executive do its job instead of installing its agent or trying to retain power to itself (d) Only way congress can retain execution of laws power (1) Impeachment (2) Pass new legislation iii. Dissent says role of comptroller constitutional (a) As a practical matter comptroller not an agent of congress independent party, so not encroaching (b) Removal of comptroller doesnt aggrandize power of congress (1) Removal has to meet bicameralism (2) Also meets presentment because subject to presidential veto iv. As an aside: Is there a potential appt clause problem w this statute? The prez is given a nominations and then he gets to chose the comptroller from there whereas the appt cl says the prez will nominate and appt. So can he be confined to a list of 3 ppl chosen by congress? There is a case law saying the congress cannot unduly limit the prez power to nominate. Does this preclude congress from setting down criteria? - say congress says president has to nominate someone who is learned in the law - this will limit presidents power a little. Is it a problem? c. Metropolitan (we didnt read it): This is bout 2 airports in DC area owned buy the fed government and it wanted to transfer the airports to a regional agency owned by VI and MD. However in the transfer statute, congress put in a requirement that the states create a board of review which had to have 9 members of congress. They would have authority to review and veto decisions made by the agency. Why do u think congress cared so much about a airport in the DC area? Free parking at the airport. o Ct said violated separation of power issues. Could it be viewed as a law making power (chadha) or as Congress delegating exec power to its own agent (bowsher)? o The ct decided it didnt have to decide this bc once congress has passed legislation, its involvement has to end - it cannot try to somehow retain control. Ct didnt have to characterize what congress is trying to do here. It is unconstitutional either way Removal of Officer 3. Who has Power to Remove an Officer a. If nothing said in statute look to constitution b. Myers v. US (1926) court says that because postmasters are purely executive, president can remove them without consent of senate i. Even if violates statute limiting removal power of president congress shouldnt interfere ii. Reasoning because president responsible for faithfully executing laws, need power to remove his executive officials that he delegated power to if they mess up c. Humphreys Executor v. US (1935) court says president cannot remove FTC officials in violation of statute 47 i.

Downloaded From OutlineDepot.com i. Not purely executive president must follow statutory limits ii. Here, FTC has quasi-legislative and quasi-judicial functions thus not purely executive Wiener v. US (1958) court deciding if president can remove war claim commissioners i. Not purely executive their function is intrinsically judicial ii. Congress has to confer power to remove non purely executive can only remove purely executive officials if power is not conferred Do we have 4 branches under Humphreys- how so?

d.

e.

o There are independent agencies now - they are using federal power but they are not directly under any of the other branches and cannot be removed but for cause
4. Morrison v. Olson (1988) Act allows court to appoint independent counsel to serve as executive officer to investigate high-ranking officials if the Attorney General finds reasonable grounds to believe a crime was committed a. Can Judiciary Appoint him i. Independent counsel argues appointments clause violated - says independent counsel is a principal officer must be nominated by executive (here, atty gen) and appointed by and with consent of senate ii. Court says inferior officer (a) He has limited duties (b) Limited duration (c) Limited jurisdiction (d) Thus, it is fine for judiciary to appoint them iii. Is this true (a) May not be temporary one has lasted 8 years and spent 60 million (b) Limited only to one investigation b. Can Congress Limit Power of Removal of Purely Executive Officer only for Good Cause i. Consistent with Myers and Humphrey says congress can limit removal power of president over quasilegislative or quasi-judicial officers not purely executive ii. Independent counsel is purely executive (a) Executing the laws (b) Arguably, cannot limit his removal power iii. Court says may limit removal if doesnt impede presidents ability to perform his constitutional duties execution of the laws (a) Court says requiring good cause is not too much of impediment/interference (b) Ability to remove for good cause is sufficient removal power for executive of purely executive officer c. Court says no separation of powers violation i. No encroachment on executive or judiciary ii. No aggrandizement act doesnt disrupt balance between branches congress/judiciary not interfering directly d. Dissent says act unconstitutional Scalia dissents all by his lonesome i. Constitution vests all executive power in president not just some (good cause ones) ii. Power taken away because judiciary may appoint official iii. Also, removal power should be given to president (a) Thinks there should be no limit if purely executive (b) Says that congress interfering with removal power of president iv. Should prevent abuses of power with political process (a) Federal prosecutors appointed by president and he can remove (b) If abuse take out on president in election (c) Independent counsel outside reign of political process e. Who is right i. Dissent is formalistic constitutional says prez has power so president gets power to fire ii. Majority is functionalistic probably need good cause limit if IC investigating high ranking executive officers (president) f. What happened to the Independent Counsel Statute : it expired and congress did not renew it.

Delegation of Legislative Powers by Congress Non-delegation Doctrine congress may not constitutionally delegate its legislative power to another branch of government Legislature will often delegate law-making authority to another branch Limit on Delegation congress must lay down in the legislative act an intelligible principle to which the person or body authorized to act is directed to conform Hasnt been an effective limit Only 2 cases have found violation of non-delegation doctrine 48

Downloaded From OutlineDepot.com Mistretta v. US (1989) congress delegated power to make sentencing guidelines to commission under judiciary branch a. Federal judges enacting guidelines members are appointed by president with advice and consent of senate i. Public Citizen case says nomination power with president ii. Provision of list may violate constitution open issue b. Court rejects non-delegation doctrine challenge i. Court says there is a sufficient guiding principle here ii. Judges can make guidelines been making rules for years iii. But arguabally it is something congress should do impairs discretion c. Court says will not impair judiciarys impartiality Judges will not try to get on panel May be bad if too many such panels are set-up III. Executive Privilege A. US v. Nixon (1974) tapes and documents of president had been subpoenaed in a criminal case against 7 of his advisors in connection with Watergate scandal 1. Subpoena was for limited information a. Didnt ask for all conversations b. Only wanted tapes and documents from certain meetings 2. President says he has executive privilege says privileged from answering similar to attorney-client privilege a. Says he needs it as a matter of policy needs confidentiality in matters such as foreign affairs, military action, etc. b. Concerned that advisors will not speak with candor because of concern of information going public c. Says he is in a unique position 3. Court recognizes a Qualified Executive Privilege rather than the absolute privilege asked for by the president, court says qualified privilege with balancing test a. General Need for Confidentiality vs. b. Due process fair administration of law 4. If subpoenaed in civil case privilege is stronger because need for due process as in criminal case is not as strong confidentiality more important 5. If subpoenaing information dealing with specific presidential powers the privilege is stronger because need more confidentiality 6. If subpoena for congressional investigation stronger privilege because due process is not on the other side of the balance so may not outweigh confidentiality interest B. Nixon v. Administration of General Services (1977) congressional statute told administration to seize all presidential papers and screen them 1. Nixon says violates separation of powers 2. Court says valid act because of substantial public interest and limited intrusion a. Congress not being overly disruptive b. Not overly encroaching on executive branch Bowsher 3. Nixon later sued saying a taking without just compensation a. Auction of documents could bring huge value b. Probably settled IV. Executive Immunity A. Nixon v. Fitzgerald (1982) in a civil case an Air Force whistle blower is suing president for his termination 1. Civil suit based on wrongful termination 2. Court say absolute immunity from civil case based on official acts a. Judges and prosecutors also have absolute immunity b. President gets it because he is an easily identifiable target in spot light c. He is in a unique position runs whole executive branch and so dont want him distracted d. Also dont want to effect his decision making 3. How do you protect against abuse of office a. Impeachment congress can kick him out of office b. Political process bad reputation may not get him elected c. Congress can hold hearings d. Possible that congress could pass statute overriding absolute immunity B. Clinton v. Jones (1997) president sued in civil suit for sexual harassment while governor 1. President claims temporary immunity from civil suit on unofficial act willing to give her day in court, but not while serving a. Argument for absolute immunity from civil case on official acts is to not disrupt b. Here, president may be disrupted c. Court says Nixon v. Fitzgerald pertains only to civil cases on official acts immunity based on function, not identity d. Court doesnt believe this disruption strong enough for temporary immunity 49 2.

Downloaded From OutlineDepot.com How to deal with disruption he will have to take part in case a. Court says district courts can handle it b. They have discretion in scheduling c. Courts should respect his position and give deference to his schedule d. If he is sued more than once this argument may not hold V. Impeachment A. Article II 4 president, vice-president, and all civil officers may be removed for treason, bribery or other high crimes and misdemeanors B. Ford once said an impeachable offence is whatever the majority decides historically, congress never could get a majority to impeach C. What are Grounds for Impeachment 1. Crime some argue only for crimes 2. Abuses of Office some argue high crimes and misdemeanors can be used here 3. Anything Majority of Congress Thinks are Grounds this is the outside view C. Grounds for Nixon Impeachment never voted on by Senate o Johnson: impeached for firing a guy in violation of a statute that would have required Congressional approval. High crime or misdemeanor? o Nixon: using government agencies for political purposes, obstruction of justice, and willfully disobeying subpoenas thru asserted exec privilege. o Slick Willy: obstruction of justice during discovery of Jones, perjury in civil proceedingwhile in office but relating to pre-office conduct. 2.

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