Professional Documents
Culture Documents
Fall 2008
and to the intervening history of interpretation. But the ultimate questions must be: what
do the words of the text mean in our time?
For the genius of the Const. rests not in any static meaning it might have had in a world
that is dead and gone, but in the adaptability of its great principles to cope with current
problems and current needs.
Loffredo: Brennan is saying: dont look at specific original intent, but maybe look at
original intent with respect to grand/broad principles. Resonates with Marshalls
discussion in McCulloch.
McCulloch v. Maryland (1819)
First Question - Does Congress have the power/authority to establish a National
bank? Yes, Congress has Const. authority to establish a national bank.
Second Question -If it does, can the state of MD constitutionally impose a direct tax
on the national bank? No.
Chief Justice Marshall We must never forget that it is a Constitution we are
expounding. What do his statements say about the Constitution and how judges
should interpret it?
o Necessary and Proper Clause Maryland argues that the clause meant
indispensable, it limited the means Congress could use. Marshall looks at
the word necessary the ordinary meaning of the term in the
constitution. He argues that there are no limitations placed in this clause as
to the means. Marshall looks at the ways in which necessary is used
throughout the Constitution. He looks to imports Article I. 10: absolutely
necessary. Marshall notes that Art I. 8 grants powers, Art I, 9
prohibitions on congress. Necessary is placed amongst the enumerated
powers. If Congress only had powers that were enumerated then there
would not need to be limitations within the Const. Thus, implied powers
were recognized by the framers.
o The Articles of Confederation limited powers to those expressly states in
the confederation made the gov ineffectual. So, in the constitution the
framers omitted the word expressly in the 10th Amendment, which
means Congress power are not limited to those expressed in the Const.
o The Constitution is meant to avoid the prolixity of a legal code; meant to
be enduring The legitimacy of the Constitution comes from the consent
of the people. Const is an expression of the peoples will. In order for
sovereignty to work, must be consented to by the people. He makes his
iconic statement: We must never forget, that it is a Constitution we are
expounding. [As opposed to statute law that can be changed at any time]
o The Constitution is meant to be enduring and last for the ages and should
not be subject to frequent changes where does he derive this from?
Look at Article 5 it is extremely hard to amend it. It had to be kept short
and simple, therefore it had to be sketched in open terms that would later
by necessity be given meanings by other generations in part depending on
circumstances that wouldnt have been foreseen by the original ratifiers
(evolutions in society) the meaning of the constitution was not fixed at
3
Can an act repugnant to the constitution become the law of the land? he collapses
the 2 issues into 1
He is avoiding the question of who gets to decide whether an act is repugnant to the
constitution. He is minimizing the role that the courts would play in interpreting the
constitution. look at pgs. 35-36 for his examples the examples he gives require
almost no interpretation as they are very straight forward examples. They downplay
the role of judicial interpretation and law making it is deceptive b/c our
Constitution does not have simple clauses all like the examples he gives; i.e. the P&I
Clause
There are several bases for finding Judicial Review, as stated by Marshall:
o He cites the oath taken by judges to support the constitution against all
threats but, it should be remembered that pursuant to article 6, Congress
takes the same oath so all branches have a duty to the constitution and
this cuts against his argument.
o Article 3 gives the Court power to hear cases arising under the
Constitution this requires the inference that an act of Congress would
arise under the Constitution. Is there a counterargument to this?
However, there are other ways that cases can arise under the constitution.
o The written constitution wrote limits on the government and it would be
meaningless to have written limitations without a way to enforce it and
judicial review is the way to do that. A counterargument is that other
countries have written constitutions w/o judicial review, i.e. France you
could also have popular enforcement of the constitutionality of laws but
that poses a problem to minorities if the majority is happy with the way
things are, etc.
o Article 6 Supremacy Clause Constitution and laws in pursuance of are
Supreme laws of the land and laws against it are not and subordinate to
the constitution and void. This however doesnt get to who decides
whether they are in pursuance of the constitution.
Synthesis of Supreme Courts Power of Judicial Review
The Supreme Court has Appellate Jurisdiction to hear Federal Question decisions
that were reached in State Court
The Supreme Court does not have the Power to hear a pure state question heard in a
state court
A state court has the power to declare a Federal Act unconstitutional and the
Supreme Court has appellate jurisdiction over that decision
Martin v. Hunters Lessee (1816) Supreme Courts Power to Review a State Courts
Federal Question Decision
FactsThis was a dispute over ownership of land in Virginia, and the Supreme
Court rules in favor of Martin and remands the case back to state court, but that court
refused to abide by the Supreme Courts decision, because it found 25 of the
Judiciary Act to be unconstitutional and therefore the Supreme Court did not have
jurisdiction to hear the case. This was a judgment in a state court involving Federal
law. The state court held that the state courts were equal legal and sovereign status
as the US Supreme Court, even on questions of Federal law; so giving the supreme
court appellate jurisdiction over the states highest court would be a breach of state
sovereignty.
A state does have the power to declare a Federal Statute unconstitutional; even after
the holding in Term Limits, this right is still protected it has been this way since
Marbury, and also, the Supreme Court has oversight power of these state court
decisions.
Virginia makes the argument that the Constitution is a compact between the states
and refuses to recognize this hierarchy of sovereigns.
RuleThe Supreme Court has appellate jurisdiction over state court decisions on
questions of Federal Law (constitutional or statutory). Article III empowers the
Supreme Court to adjudicate all cases arising under Federal law, irrespective of
whether the case originated in a state court or a Federal Court.
To support the rule, Justice Story starts with an Article III argument except for a
few instances of Original Jurisdiction, the Supreme Court is given Clause I Appellate
Jurisdiction never many instances, including Federal Law THE ESSENCE OF
JURISDICTION IS OVER THE CASES, NOT THE COURTS.
He makes an intent argument concerning Article 6 Sec. 2 the framers contemplated
state courts would hear federal claims b/c this clause says the Constitution binds
state judges also, so the framers contemplated that the lower state courts can hear
federal question cases and it therefore follows that the SC, by a reading of Article III,
can exercise appellate jurisdiction.
He also makes a structural argument, concerning the people they are the
sovereignty and not the states it refutes Virginias argument that the states have
retained sovereignty.
One of the assumption underlying Storys concerns about uniformity is in the
interpretation of the Constitution one Q may evoke more than 1 answer so the
identity of the judges will matter in the determination of the issues they resolve
REMEMBER in Marbury, Marshall says its not really about the court because the
text has the answer i.e. he gives simple examples, but in this case Story recognizes
that it is about the members of the Court.
Stevens, in dissent, says that if there is ambiguity in a state court decision and no
federal right has been denied, then the Supreme Court should just decline review
because there would be no point in granting review preserve scarce Supreme Court
resources. No allegation of a violation of federal rights and state law judgment is
ambiguous, Sup Ct should decline the case no federal interest. Why should national
gov be interested in that circumstance? For Stevens, this is a reversal of roles
because he is supporting more state independence.
Remember, the Federal Law is the floor under which states cannot go beneath.
The archetypal case of adequate and independent state grounds involves a decision
of a states highest court that interprets the states constitution or laws as providing
greater rights than the Federal constitution or laws.
o So long as there is no claim that the state law violates any federal law (this
would give rise to a federal question) the SC may not exercise appellate
jurisdiction to review the state court holding.
Hypothetical Concerning Adequate and Independent State Grounds:
1) Protesters who were arrested bring a claim in NY State Ct. under NY State Civil
Rights law and a Federal Claim under 1st and 14th As. So say the state ct. says they
win under both claims under state law they only get compensatory but under Fed
law they got compensatory and punitive.
a. s appeal to the US SC what can the ct. do with respect of the state law
claim? Cant review it. So s still get compensatory damages. With
respect to the Federal Law Claim can the Ct. hear it? Yes so if they rule
for the , they can reverse and the would get no damages on the federal
claims but they still get damages on the state claim. So at the end of the
day, the result can be only compensatory.
b. It can be seen that in this hypo, if you took away the federal claim, the
result would be different and the SC can do something that would change
the outcome, therefore the state law claim does not adequately support the
state courts judgment.
Hypo:
HYPO
Warrantless searches of peoples trash. Lets say police search trash and find evidence.
Oregon Supreme Court decides police cant conduct warrantless searches, violates
Oregon Const. The gov is ordered to suppress. Supreme Court cant grant a writ of
certiorari because the ruling is based on state law only.
New Facts:
Lets say federal law forbids warrantless searches, but Oregon Const allows it. Can
Oregon Court allow such police searches even though the Supreme Court says it violates
4th Amend. No Oregon Ct cannot allow it! Article VI Supremacy Clause. Judges
must enforce the federal const. takes precedence.
State Ct
Oregon Const
Remedy: $
4th Amend
Remedy:
10
Outcome
$ & Supp
US Ct
Result
Suppression
Reverse: No Supp
No Supp
Ex Parte McCardle
Facts:
After the Civil War, Congress imposed military government on many former Confederate
States by authority of the Civil War Reconstruction Acts. McCardle was publishing
articles in a Mississippi newspaper critical of the Reconstruction plan. He was held in
military custody on charges of publishing libelous and inflammatory articles.
McCardle filed a writ of habeas corpus claiming that Congress lacked authority under the
Constitution to establish a system of military government. He filed under an 1867 Act,
which authorized federal courts to grant habeas corpus to persons held in violation of
their constitutional rights and granted the Supreme Court the authority to hear appeals.
McCardle petitioned the Supreme Court for a writ of habeas corpus. After arguments
were heard however, Congress passed an act on March 27, 1868, repealing the portion of
the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the
Supreme Court of jurisdiction on any such appeals, past or present. Congress did so,
fearing that the case would be a vehicle for invalidating the reconstruction plan.
The court held that appellate jurisdiction of the Court is not derived from acts of
Congress, but from the Constitution, and is conferred with such exceptions and under
such regulations as Congress shall make. (Article III. 2) The court held that when
Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final
decisions in certain cases, it operates as a negation or exception of such jurisdiction in
other cases.
What is the narrow version of the holding?
o Congress has the power to withdraw appellate jurisdiction and the Court
must abide by it look at the Exceptions Clause in Article III. Thus, Ct
does not have jurisdiction to hear the case.
Does the case recognize an unlimited power by Congress to restrict Federal
Jurisdiction? This case wasnt one where congress completely restricted the Courts
jurisdiction McCardle had another avenue other than Habeas. The Ct says that they
will not look into the motives of Congress to restrict jurisdiction.
The Federal Courts have never decided a case based on anything like this. Some
arguments for it exceptions clause Congress can take away the Courts Appellate
Jurisdiction as well as it has the power to simply create the lower federal courts so
there are textual arguments for it. Arguments against it would be more of a structural
one.
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B. Juticiability Limitations
This is the determination of whether a federal court has jurisdiction based on the
appropriateness of the issue for judicial decision (i.e. political question doctrine) or
the condition of the parties (i.e. standing, ripeness, mootness)
ARGUMENTS FOR A CONGRESSIONAL POWER TO ELIMINATE
JURISDICTION OF FEDERAL COURTS:
1. Art III Exceptions Clause(with respect to the Supreme Court)
2. Art I and Art III power to establish inferior courts
ARGUMENTS AGAINST A CONGRESSIONAL POWER TO ELIMINATE
JURISDICTION OF FEDERAL COURTS:
1. Contrary to Marbury
2. Violation of separation of powers (if Congress intrudes on core function of a coequal branch)
3. Article III the judicial power shall extend to all cases arising under the
Constitution and laws of the U.S. ?
4. Congressional exercise of powers over federal jurisdiction subject to
constitutional limitations (same as other plenary powers/individual rights
arguments if access to courts denied?
B1. Standing
Federal Cts have the jurisdictional power ONLY when they are presented with a
concrete dispute with 2 or more adverse parties. A live case in controversy.
The Federal Courts can only hear cases where the court is presented with an actual
Article III case or controversy. So standing is a threshold question that asks whether
the party is entitled to have the court hear their case.
Two overarching themes to keep in mind:
o The Supreme Courts use of Separation of Powers and Federalism in these
cases what is the Cts perception of federalism and separation of power to
justify its decisions? How does the Ct use these themes to narrow
standing?
o Federalist 51: Madison says we separate the powers to safeguard
individuals from oppression of the govt. How does this concept play into
how the Ct limits standing.
o Pay attention to what extent the courts view on the countermajoritarian
difficulty comes into play when making standing decisions. In the past 25
years, when taking a stricter view on standing, the court has done so under
the banner of judicial restraint.
Many members of the Supreme Court have referred to standing as the most
amorphous doctrine in law it is very malleable and has also been criticized as a
way to further a political agenda.
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Bickel quote (Handout 4): Cts job is to validate or invalidate the govts action.
Federal Cts, especially the Sup Ct should have the discretion to avoid complicated
constitutional questions for institutional reasons, to protect the Cts legitimacy.
Does the indeterminate standing doctrine limit or expand judicial power?
Standing is jurisdictional comes from Art III of the Const. Standing determines
whether the Ct can hear the case. Marbury is an outlier in the way the Ct did not
determine standing/jurisdiction first. Cts must state their authority.
Art III, 2, cl.1: does not say anything about standing, but Art III was understood as
barring advisory opinions.
From Flast v. Cohen (1968) (Handout 4): [The question of standing asks] whether
the party seeking relief has alleged such a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens the presentations
of issues upon which the court so largely depends. Recognition of judicial power
can have profound consequences for individuals, including individuals not before the
Ct. The legal issue might have broad consequences affecting many. Those mostly
directly affected should be in charge of presenting the claims to the Ct individual
autonomy. Those whose actions are at stake should have control of presenting to the
Ct.
2 policies: individual autonomy, vigorous litigation.
During the Flast Era (1960s), the Court asked whether a particular person was a
proper party to maintain an action; standing did not, by its own force, raise
separation of powers problems related to improper judicial interference in areas
committed to other branches of government. Such problems arose, if at all, from the
substantive issues the individual sought to have adjudicated. Since Flast the Ct has
raised the threshold to establish standing, although the Ct has been a bit inconsistent.
They might relax standing requirements to get to the merits of the case (ex. Gratz).
Theoretical level: Ct has more and more justified its standing doctrine by referring to
separation of powers and federalism.
Currently, the Court has shifted from that standard to now overtly rely on Federalism
and Separation of Powers as justifications for restrictive standing doctrine.
Current Standing Doctrine
1) Article III Case or Controversy Requirements (Constitutionally mandated)
(Cannot be Overridden by Congress)
a. Actual or Threatened Injury
b. Causation (the injury is fairly traceable to the s actions)
c. Redressability (the Court can provide some effective relief)
2) Prudential Limitations (Judge-made, non-constitutional) (Can be Overridden
by Congress)
a. No generalized Grievances
b. No Assertion of Third Party Rights (with some exceptions)
c. Zone of Interests Test
Under standing, there used to be no separate inquiry, as long as the had a
substantive claim he could do so but in the 20th century, statutes that involved large
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numbers of people came around such as welfare laws and 2) constitutional rights i.e.
voting rights. So, the question came up, who should be able to go to court to
challenge unauthorized governmental actions that affected such a wide population.
So who should be able to go to court in the 20th century to bring claims? One view is
that any one should be able to bring the claim originalist approach; 2) A number of
forward thinking and progressive justices tried to restrict and confine standing to
those claims that had to do with a common law interest such as property; they did
this to try to further New Deal Actions; beneficiaries of the programs would not have
standing under this restrictive view
As can be seen in the Data Processing Case and Flast, the court liberalized the
standing doctrine again and now, in the present day as can be seen in Allen v. Wright
and Lujan, the court has once again restricted the doctrine.
60s and 70s applies the 6 part test to liberalize the standing doctrine (beneficiaries
who benefit from the statute could claim an injury)
80s Ct more conservative, switches back to common law analogs
15
OConnor describes the injury in one way and Brennan in a more focused way.
OConnors description is in broad terms, which allows her to say the litigants do not
have a cognizable injury - no actual harm or injury.
Can racial stigma be counted as a injury under Art III standing requirements? The Ct
says racial stigma can count. Ruling: claims fails at requirement 1.
2nd Claim: Loss of opportunity to receive an education in an integrated or nonsegregated school. Yes, to harm, but fails 2nd requirement, causation not traceable
to govt.
Stevens (dissenting): simple economic argument subsidies encourage the
discriminating behavior.
OConnor [pg. 96]: separation of powers doctrine and concerns for the basis on
deciding on the elements of standing to dismiss cases in the cts view that violates
the separation of powers (in this case, telling an agency that was created by congress,
to act a certain way). No standing here because the plaintiffs are trying to enlist the
Cts to tell a govt agency how to enforce its own rules a role for the Executive
Branch. Stevens responds using Marbury: Ct has authority to enforce that the
executive branch follow the law. Cts are to say what the law is.
Takeaway: Cases like Allen: Standing no longer about individual plaintiff, individual
stake, individual autonomy. We are looking at standing as the Cts mechanism to enforce
its view on separation of powers and federalism.
Lujan v. Defenders of Wildlife (1992)
Factsthe US Interior Dept reinterpreted the ESA to apply only to governmental
actions taken in the US or on the high seas and not in foreign nations. Two members
of the Defenders of the Wildlife had visited separate sites abroad and claimed
reinterpretation of the act. The members planned to return some time to observe
endangered animals in the sites they had visited but the interior Depts new
interpretation would probably increase the extinction rate of the species they planned
to study. They sought a declaratory judgment requiring the interior Dept to apply
the ESA to actions taken in foreign nations. NOTE there was a clause stating that
any citizen could bring a suit.
Plaintiffs brought suit requesting an injunction requiring the Secretary of the Interior
(Secretary) to reinstate an initial interpretation of the Endangered Species Act of
1973 (ESA). The initial interpretation applied the Act to actions taken in foreign
nations. Secretary reinterpreted the ESA to be applicable to actions only within the
United States or the high seas. The Plaintiffs, organizations dedicated to wildlife
conservation, filed an action against the Secretary seeking an injunction requiring the
Secretary to reinstate the initial interpretation of the ESA. The Secretary claimed that
the Plaintiffs lacked standing.
Plaintiffs claim their future work will be harmed because they wont be able to see
the animals they are studying.
Scalia rejected the s claim of injury because he said there was no cognizable or
imminent injury. Why?
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o He said that these were people who had studied certain animals that were
threatened but their past history was not good enough evidence of current
interests.
o No actual injury because the plaintiffs dont even know when they will
visit these sites again all hypothetical.
o No concrete injury. Plaintiffs havent shown a genuine interest in
continuing to study these animals no plane tickets, no trips planned, etc.
Note: past cases have allowed plaintiffs history was good enough to establish a
connection and an injury. This concept can be manipulated.
Scalia also says that this case involves a generalized grievance, because of the
Citizen Suit part of the statute that authorized any person to commence a civil suit on
his own behalf he says that the proper role of the courts is to protect minority
interests and not majority interests therefore the ban in generalized grievances is an
Article III limitation which Congress cannot override by statute (this view was
rejected in FEC v. Akins)
In terms of redressability Scalia found that there would be no redressability
because the was the Interior. Only agency before the Sup Ct is the Dept. of Interior
and even if the Interior went back to the agencies funding these projects, the other
agencies might not comply. Outrageous argument the agencies wont follow Sup Ct
decision. This argument only received 4 votes. The other Arg: even if plaintiffs get
what they want from the Sup Ct. (requiring federal agencies to consult with the
interior), there is no guarantee that the projects will stop and the animals will be
protected.
Souter and Kennedy concurrence
o Extent to which Congress can create statutory interests, the invasion
of which creates an Article III injury
Congress has to identify the injury and relate to a class of persons
entitled to sue
Congress has the power to define injuries and articulate chains of
causation that will give rise to a case or controversy where none
existed before
In exercising this power, however, Congress must at the very least
identify the injury it seeks to vindicate and relate the injury to a
class of persons entitled to bring suit.
Plaintiffs argued they had statutory standing
Congress authorized standing through the Endangered Species Act: Any person
may commence a civil suit on his own behalf to enjoin any person, including the
United States and any other governmental instrumentality or agency who is
alleged to be in violation of any provision of this chapter. Scalia/Ct held the statute
unconstitutional because it has to comply with Art III and the statute doesnt.
According to the statute any person even if they are aggrieved can bring a suit.
The Statutory interest has to be more specific, can't be a widely shared interest of
govts obedience to the law NO GENERALIZED GRIEVANCES. (No
generalized grievances falls under prudential limitations)
17
An Act like the EPA will allow the judiciary to direct the executive in how to
enforce the laws. Scalia quotes Marbury Cts have no authority where the
constitution gives discretion to the executive. The duty to role of the power to the
executive. The executive has the duty to take care that the Laws be faithfully
executed. Atr II, 3 (pg. 103). This Act would enable the Cts, with the permission
of Congress, to assume a position of authority over the governmental acts of
another and co-equal department.
Scalia: The executive should have discretion to not enforce laws enacted by
congress. Handout 4, pg. 33: power of the executive to repeal acts of congress.
Scalia is calling for a reassignment of legislative power to the executive
Doctrinally, Lujan: Kennedy: Congress has the power to define injuries and
articulate chains of causation that will give rise to a case or controversy where none
existed before. Congress must at the very least identify the injury it seeks to
vindicate and relate the injury to the class of persons entitled to bring suit. Pg.
104
Akins v. FEC
FactsGroup of voters file a petition with the FEC to make AIPAC a Political
Committee and disclose their numbers. They got into court by a statute which says
that any person can bring a complaint and any petition that is denied, they can go to
court and sue the commission. The gov. argued that there was no standing as the
lawsuit involved a generalized grievance and they cite Lujan.
Statute: 1)Any person who believes a violation of this Act has occurred may file
a complaint with the Commission. 2) Any party aggrieved by an order of the
Commission dismissing a complaint filed by such party may file [an action in
federal district court seeking review of that dismissal]
Govs strongest arg: generalized grievances. Breyers Response: Harms shared by
large amount of citizens can count for injury in fact for Art III purposes, as long as
the injuries are concrete and not abstract.
Ruleas long as the s injury is concrete as opposed to abstract it can count as an
injury in fact even if it is one that is widely shared. As long as the s injury is
concrete it can count as injury in fact, even if most or all citizens are suffering the
same injury.
What concrete harm did the s suffer?
o Lack of access to the information that they were given a right to by the
statute they were entitled to.
o The s said they needed the information in order to evaluate candidates
for office in order to be informed to vote.
Scalia dissents the group of people is too large and generalized. The majority
misunderstands the generalized argument. To count as an Art III injury it has to be
particularized in that if affects the individual in a way that is different from everyone
else. He distinguishes between harms that are particularized (the has to show that
the harm affected her differently than it does anyone else) and ones that are
undifferentiated (groups of people that have the same harm). A must show that
the s harm is particular to her. Such a generalized grievance should be raised
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through the political process. Generalized grievances should be taken up through the
political process not the courts. Congress does not have the authority to entitle
individuals to take such claims to Ct. The Ct is to protect individual rights and not to
protect the public at large. And, Akins is impacted the same way everyone else is.
Why doesnt the fill out Scalias particularized grievance formula Because
AIPACs nondisclosure affects Akins the same way it does anyone else in the United
States and therefore it is felt by almost everyone in the US and should be left to the
political process (remember, Scalias position is that when a majority is affected,
then it is not the Judiciarys province to intervene; rather it should be left to the
political process).
Breyer says that the right to vote is shared by all citizens, so under Scalias theory, if
we were all disenfranchised, we would have no standing to sue. Scalia responds that
if an action like that happened, we would all be affected individually and particularly
in our right to vote.
After Akins, the fact that something is widely shared doesnt mean it cant
satisfy Article 3 IT MUST BE CONCRETE AND NOT ABSTRACT.
o Ex. of Concreteness Congress passes a statute that says all public
officials must be honest and anyone who feels that their representative is
not honest has standing to sue is this concrete? If youre the gov. look at
Lujan that was abstract; if then look at Akins the right to get info
was concrete.
o Ex. Any citizen has a right to constitutional government and anyones
right that is violated by an official can sue too abstract
After Akins the ban on generalized grievances is a Prudential requirement and
NOT AN ARTICLE III ONE. Remember, Lujan suggested that it was a
constitutional limitation but Akins changes this.
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It makes no difference that the procedural right has been accorded by Congress. That
can loosen the strictures of the redressability prong of our standing inquiryso that
standing existed with regard to the Burnt Ridge Project, for example, despite the
possibility that Earth Island's allegedly guaranteed right to comment would not be
successful in persuading the Forest Service to avoid impairment of Earth Island's
concrete interests. See Ibid. Unlike redressability, however, the requirement of injury in
fact is a hard floor of Article III jurisdiction that cannot be removed by statute.
[I]t would exceed [Article III's] limitations if, at the behest of Congress and in the
absence of any showing of concrete injury, we were to entertain citizen suits to
vindicate the public's nonconcrete interest in the proper administration of the
laws. ... [T]he party bringing suit must show that the action injures him in a
concrete and personal way. Id., at 580581[, 112 S.Ct. 2130]
Justice KENNEDY, concurring.
I join in full the opinion of the Court. As the opinion explains, deprivation of a procedural right
without some concrete interest that is affected by the deprivationa procedural right in vacuois
insufficient to create Article III standing. Ante, at 1151. The procedural injury must impair a
separate concrete interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992).
This case would present different considerations if Congress had sought to provide redress for a
concrete injury giv[ing] rise to a case or controversy where none existed before. Id., at 580, 112
S.Ct. 2130 (KENNEDY, J., concurring in part and concurring in judgment). Nothing in the statute at
issue here, however, indicates Congress intended to identify or confer some interest separate and
apart from a procedural right.
Loffredo: Narrow way of reading Kennedys comments: if congress had created a right to
comment, a right to participate, it would have been a stand alone issue that could have
granted standing, but congress did not mean to do that. Congress only meant to create
protections for forest lands. Statute silent on a class of persons that are entitled to sue,
thus not granted standing.
B. Causation
The must show that the injury she asserts is fairly traceable to the s action.
The Court has not defined the level of causation OConner says separation of
powers issues will play into this also.
This standard really changes from case to case the court has been strict in applying
this when there is a long chain of causation, under the Rehnquist Court when the gov.
was the and
The court has been criticized for classifying the harm (or characterizing it) in a way
so as to reach the desired standing result.
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Allen v. Wright
The loss of opportunity argument failed at step 2; why?
o Causal link not sufficiently strong. OConner says that the injury was not
fairly traceable to the action that they are claiming in the lawsuit. She
says that the lack of exemptions wont necessarily mean that they will not
be segregated anymore.
Stevens Dissent the whole theory of tax subsidies is to subsidize
behaviors that you want to encourage.
OConner makes a Separation of Powers Argument under Article III, the President
has a duty to make sure that the laws are faithfully executed the IRS is an executive
agency so she is saying that it would be a separation of powers issue to have the
court decide whether or not it is doing its proper function.
o Stevens counters this argument by saying that Chief Justice Marshall in
Marbury said that if the executive is not doing what it should be then the
Court must hold it to the requirements of the law.
What Loffredo said about Separation of Powers:
o OConner brings in separation of powers it explains why the Court cant
conclude that the injury is traceable to the govs actions (causation) if
the court is troubled by a separation of powers issue, they will use the
elements much more restrictively they will not necessarily look to see if
the present case is similar to others, they will focus on separation issues
which will guide how restrictively they apply the elements. Article II Sec.
3 President has duty to make sure the laws are faithfully executed you
have an uphill battle if your complaint is about the executives enforcement
or non enforcement of a law which affects a third party.
Implications of this case:
o It marks a break with Flast and opens the door to the separation of power
doctrine in standing cases
o the court doesnt announce an ad hoc approach to standing but leaves itself
wide latitude in applying the standard and leaves itself broad discretion in
standing cases.
Concurrence Congress can create novel interests that dont look like common law
interests, which will give rise to article 3 injuries limitations on Congress - but
Congress must identify the injury
Multiple Links Example
Note issue of multiple links in the causal chain; especially where
some links in the chain involve actions of third parties not before the
court (e.g. Allen v. Wright; Linda R.S., Eastern Kentucky Welfare
Rights Organization; compare SCRAP); multiple links in the causal
chain between the challenged action and the injury are not necessarily
fatal, but the Court will scrutinize such chains to determine if the
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causal links are strong enough; note that the courts characterization
of the injury may affect the length of the causal chain.
s conduct ---------(causes)------ 3rd party to Act ------(causes)---- injury
Examples:
Allen
IRS
Tax (subsidies) exempt to Disc. Private schools (white students) ---- white student
exit schools ---- loss of non-segregated edu.
Simon Ekward
IRS
(reduced the amount of free medical care it had to provide to indigent patients to receive
federal funds)
IRS Hospitals (reduce amount of free care) s = poor people, hosp: denial of
medical care
Linda R.S (pg. 111)
Non-enforcement of child support orders for non-marital children
Support orders ------- Absent father - Father not to pay ----- s = non marital child,
lack of child support
If you cut out the middle the injury would be denial of equal treatment btw
mothers and fathers in supporting their kids. (This is what it would be if you
cut out the middle).
One characterization: denial of equal treatment between marital and nonmarital children. Doesnt matter what the father does (eliminates intermediate
step in the causal chain and goes from statute to child.
Simon Ekward
IRS reduces amount
Free medical care for poor
Tax exempt ------------ hospitals reduce amt. of free med. care --- poor individuals
denied
medical care.
It is important to notice that the injury in these cases can be re-characterized
in a way that cuts out the middle link in the chain.
Re-characterize injury to take out the middle player: IRS action increases
risk the s wont be able to access medical care when needed. Increase risk:
is that an injury?
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Ultimately up to the court to define what the injury is. Critique of Ct is that they
characterize the injury in a specific way to come up with their conclusion. Ct can
manipulate the definition of injury.
Ex. Bakke: does not illustrate links in the change, but illustrates how courts recharacterize injury and causation.
Facts: UC Davis medical school. School reserves 16 of their 100 seats for
minority applicants. Bakkes application is denied along with many others
(who had higher test score). Bakke sued the application program.
If you want to deny standing how would you characterize injury: characterize
the harm as denial of admission to the medical school. Can Bakke satisfy the
causation prong? Must show his injury is fairly traceable to the defendants
conduct challenged in the lawsuit (the affirmative action program). Bakke
would have to show that one of the set-aside seats would have been given to
him but for the affirmative action program. He would have to show causation
and redressability: but his injury would not be cured because there are too
many applications in the pool with higher grades and scores. Ct actually
characterized the harm as: denial of opportunity to compete for all 100 seats in
the medical school. Causation is easy: affirmative action program causes the
injury. Redressability possible no program, all students can compete for all
100 seats.
C. Redressability
The Court asks; does our order address the harm?
The also has to show whether the injury is likely to be redressed or resolved at
least in part by a judicial decree. The has to show that there is some relief that the
court can grant that will in some way ameliorate the injury. If there is no relief that
will redress the injury then she doesnt have standing because she doesnt have a
stake in the outcome. No stake in outcome, no case or controversy. The court order
does not have to fully cure the injury, it is enough that the court can remove some
barrier.
Hypo: you apply to Medicaid and are denied. Usually have access to a hearing to
challenge decision. State says, tough budget no more hearing. You got to CT to
challenge states refusal to give you a hearing. If Ct rules in your favor, they rule that
you have to have access to a hearing, not that you get Medicaid. The Ct moves you
closer to your goal.
An award of relief to the plaintiff must be likely to redress (cure, mitigate,
compensate for) the injury alleged (which must be cognizable under Art. III) (Allen)
This does not require that the Court apply the only relief that the is seeking We
can see this in Akins on pg. 10 As long as the Court can remove some barrier in the
s path to bring it one step closer to relief. In Akins, if won, the FEC would have
then included AIPAC but that didnt necessarily mean that they would get the info
they wanted because FEC had discretion in that area. But, it is enough that a barrier
is cleared for the s.
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Causation and redressability are very similar They go hand in hand; but Linda RS
is an example of causation and no remedy the harm which had causation of lack of
child support but if she won the remedy the husband would be going to jail and she
still would not have gotten the child support.
Lujan: Scalia Footnote 7: With a procedural right you can sue without showing
redressability as you would in ordinary cases. You dont have to show that getting the
procedure would alleviate the ultimate harm or address the issue you are trying to
protect.
Example of where causation would not establish redressability: cases where damages
are not available. And if the harmful behavior has stopped before the lawsuit is
brought and/or the harm is irremediable (damages cannot be undone).
PRUDENTIAL LIMITATIONS
The significance of the fact that they are not compelled by article 3 is that congress
can override them.
Even if the established the three constitutional limitations, the Court can
decline to extend judicial power based on the prudential limitations, but its
mitigated by the fact that Congress can step in and override them by congressional
statute.
These requirements give the Court greater discretion. Ct has broad latitude to grant
standing.
D. Generalized Grievances
No "generalized grievances;" i.e., harms or injuries that are said to affect
many or all citizens in roughly equal measure and implicate no personal
interest beyond the generalized citizen's interest in constitutional operation of
the government (see Akins, Richardson; Schlesinger). Thus the general rule
in federal court is no "citizen standing" and no "taxpayer standing." Those
types of grievances should be addressed through the political process.
Remember, that just because its a widely shared grievance doesnt mean you dont
have standing the Concrete Factor. Ex. if Congress took away everyones right to
vote, it would affect us all but we would still have standing.
A generalized grievance comes around when the injury is more amorphous
Examples of Generalized Grievance Cases:
o Schlesinger v. Reservists
Factsinvolved a claim made by an association of present and
former members of the reserves, challenged that the reserve
membership of certain members of Congress violated the
Incompatibility Clause (US Const. Art I. 6. Cl 2) which state, No
person holding any office under the US shall be a member of either
House during his continuance in office.
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Ct: lack of standing. The Court held that, the only interest is one
shared by all citizens. The claimed non-observance of that clause,
standing alone, would adversely affect only the generalized interest
of all citizens in Constitutional governance, and that is an abstract
injury.
o U.S. v. Richardson
Factstax payer challenge to the CIA Act of 1949, which
provides that CIA expenditures may not be made public.
According to the , the Act violated Article I 9, clause 7 of the
Constitution which provides that a regular statement of account of
the receipts and expenditures of all public money shall be
published from time to time.
Ct: lack of standing. The Court responded that the s claim was
only a GG that was common to all members of the public. While
we can hardly dispute that this respondent has a genuine interest in
the use of funds and that his interest may be prompted by his status
as a taxpayer, he has not alleged that as a taxpayer, he is in danger
of suffering any particular concrete injury as a result of the
operation of this statute.
Are Akins and Richardson Consistent? 1) Richardson has no
statute so he has to satisfy Article 3 and Prudential
Requirements; but Akins has a statute so he is excused from
satisfying the prudential requirements. Richardson does not have a
statute that excuses the prudential requirements. In Akins, the
statute provides standing.
Generalized Grievances:
1. No citizen standing in federal court
2. No taxpayer standing in federal court
Exceptions to Generalized Grievances:
1) Congress may create such standing by statute, subject to Article III limitations
(see Akins)
2) Flast v. Cohen taxpayers have standing to challenge governmental spending
legislation as violating the 1st Amendment prohibition against the establishment
of religion.
E. No Assertion of Third Party Rights
Generally, a is not allowed to assert 3rd party rights of those not before the Court
(rule against Jus Tertii [right of 3rd party]).
Understand the justification for this: idea that party whose rights most
directly at stake should have responsibility and control over litigation of those
rights (e.g. case discussed in class of Penn Station police challenging their
supervisors direction that they clear the station of homeless people).
Prudential Limitations of Standing
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dissent says no, that once they have established an article III controversy, they
will hear the case, regardless of the relief requested.
Another Case: s were maced. No standing for injunction unlikely to be maced again
Another case: Deaf arrived in emergency room and sued hospital for not having
translation policies in hospital. Sued. Ct: No standing - unlikely to be brought into
the emergency room again.
HYPO:
National Congress for Puerto Rican Rights v. NY
Alleged that SCU officers pursuant to NYPD policy subject residents of high
crime areas (particulary black and latino men)to be stopped and frisked on
profiles of race and national origin. Each alleged he had been stopped and
frisked by a police officer based on race/national origin and not reasonable
suspcion. They were injured, several were stopped more then once and they
have a fear of being stopped again. They sought damages and a perspective
injunction. The city moves to dismiss on standing grounds, using Lyons.
How does the lawyer distinguish Lyons unlike in Lyons, where fear is not
enough?
o In this case, they had a fear but also a reasonable belief that they
could not go out b/c of their knowledge of how they are viewed in
these neighborhoods. Here were also subjected to the policy a
number of times thus there is a likelihood of recurrence. In Lyons it
was an unlawful traffic stop, and the court wasnt going to assume
that the plaintiff was going to break the law and be subject to the
policy of chokeholds again. Here, in this case, the s are just
walking down the street when they are subjected. Also, the s are
very distinguishable in this case there were tens of thousands of
victims and in Lyons there were less. Also, racial profiling was an
issue here as compared to Lyons.
o Policy contained to specific areas/neighborhoods, Lyons more
general.
o Here, explicit argument of racial profiling arg: policy is targeted
and thus a great likelihood that s will be subject to the harm again.
In Lyons, racial profiling exists, but not addressed explicitly.
o In Lyons, Ct says the would have to break the law again to be
exposed to the policy. Here, s are walking down the street, not
violating the law and policy will apply to them.
B2. Ripeness
RULE: P has to show an actual case or controversy not simply a disagreement
that might or might not become a case of controversy dependent on future events
that might later the nature of the dispute.
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members went to Alaska for the canning season, the Immigration and
Naturalization Service has since enforced the Act precisely as plaintiffs feared.
Since the complaint was filed the union members have actually been subjected to
the immigration procedure as if they were entering the United States for the first
time. Some of them are about to be denied the right to return to their homes. The
threatened injury which the majority insists is too remote and hypothetical for
adjudication has already come about. This is precisely the sort of case or
controversy courts should decide. Judicial action is absolutely essential to save a
large group of wage earners from irreparable harm due to alleged lawless
enforcement of a federal statute. (Handout 4, pg. 36)
Longshoreman has never been overruled and it is cited. But the current rule is from
Abbott
Abbott Labs v. Gardner Modern Ripeness Rule
Factspre-enforcement challenge to FDA regulations that would have
required the plaintiff drug company to re-label its pharmaceutical products at
substantial expense to include the generic name of a drug in every place that
the company uses the brand name. The drug company sought a judicial
declaration of the regulations invalidity before the FDA actually enforced the
regulations.
Note, absent judicial intervention at this early, pre-enforcement stage, the
plaintiff would be put to the choice of incurring significant expense (in order
to abide by the regulations) or intentionally disobeying the regulations at the
risk of incurring civil or criminal penalties (in order to have an opportunity to
challenge the regs in court).
The Supreme Court was apparently moved by the drug companys dilemma
and held that the case was ripe.
RuleThe test that emerged from Abbott asks two questions:
1)Whether the claims are "fit for judicial review: "to the extent that a
claim raises "purely legal" questions (like facial challenges to a
regulation's or statutes validity) it is more likely to be found "fit for
judicial review;" conversely, if the resolution of the claim seems to
turn on factual circumstances that have not fully developed at the
time review is sought, the claim may be deemed unfit for judicial
review.
a. However, if the issues turns on specific facts that havent
occurred yet or if the court believes that waiting for a concrete
factual scenario would help then the case would be found as
unfit and dismissed as unripe.
2)Whether delaying adjudication will result in hardship to a party: the
typical instance of "hardship" is where denying pre-enforcement
review will put a party to the choice of risking significant sanctions
in order to challenge the allegedly illegal government restriction, or
suffering a deprivation by accepting the restriction. Abbott is an
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Ninth Circuit that reached several conclusions about circumstances in which students
with disabilities may be suspended or expelled. At its core, the ruling affirmed the district
court's holding. The school district petitioned the Supreme Court to review the ruling.
Under Art III this Court may only adjudicate actual, ongoing controversies. That
the dispute between the parties was very much alive when suit was filed, or at the
time the Court of Appeals rendered its judgment, cannot substitute for the actual
case or controversy that an exercise of this courts jurisdiction requires. (Handout
4, pg. 59)
The present rule in federal cases is that an actual controversy must exist at all
stages of appellate review, not merely at the time the complaint is filed. (pg. 65)
B4. Political Question
Political Question Doctrine asksIs it appropriate for judicial determination or for
separation of powers reasons is it better to have one of the other branches have final
say of the issue.
This doctrine looks at the justiciability of the issue itself
This doctrine looks like one of the tools that Bickel talks about, because it allows the
court to step away from a case when it thinks its legitimacy is on the line.
This doctrine doesnt mean that the court wont adjudicate questions that have some
political content
Constitutional issues which, as a matter of separation of powers principles, are
committed by the Constitution to other branches of government or are inappropriate
for judicial decision.
The political question doctrine will come into play where there are separation of
power concerns.
The Court has tended to focus on 2 questions, both of which must be answered in the
affirmative to determine whether an issue presents a political question:
o Does the issue implicate the separation of powers?
o Does the constitution commit the resolution of the issue to either the
President or Congress?
Baker v. Carr
Six Situations Where the Court has found that a case presents a non-justiciable
Political Question:
1) textually demonstrable constitutional commitment of the issue to a
coordinate department;
2) lack of judicially discoverable and manageable standards;
3) impossibility of deciding case without a policy determination of a kind
clearly for non-judicial discretion;
4) impossibility of adjudication without expressing lack of respect for a
coordinate branch of government;
5) an unusual need for unquestioning adherence to a political decision already
made; or
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Demonstrable Commitment. Also, using a Baker factor, the court said there was a
lack of judicially discoverable and manageable standards because the constitution
did not define try.
The first 2 Baker factors are often cited by the court in these cases, but the other 4
are not really used as much.
The Court is also unlikely to find a political question concerning a statute conferring
power to Congress and also where there is a determinable constitutional provision
based on individual rights.
HYPO: Military commissions act:
The act states: no jurisdiction for judges to hear or consider an application for habeas
concerning enemy combatants or undocumented immigrants in US custody.
Now, look at Const. Article 1 Sec. 9 Clause 2 privilege of a writ of habeas shall not be
suspended unless when in cases of rebellion or invasion the public safety may require it.
Article 1 Sec. 8 cl. 10 congress shall have the power to define and punish piracies and
felonies on the high seas and offenses against the law of nations.
What if you were defending an enemy combatant who has been detained and file
a habeas petition?
o Argue that currently there is no rebellion or invasion and therefore the
power isnt conferred to the political branches to suspend the writ and
therefore not a political Q.
What would the gov. argue?
o There is an invasion and the political branches are the ones to determine
exactly what that means i.e. 2nd factor.
B5. State Sovereign Immunity
Amendment 11. Suits against states Restriction of judicial power
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.
Article III, Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority; to all Cases affecting Ambassadors, other public Ministers and
Consuls; to all Cases of admiralty and maritime Jurisdiction
Subject Matter Bases (Cases)
Federal questions
Affecting ambassadors, etc.
Look at 11th A along with Article III what are the possible textual interpretations?
o Just looking at the 11th A 1 interpretation - cant have a suit in Fed court
by a citizen of 1 state against a different state, no matter what the subject
matter is
o Now bring Article III in and look at the 2 together You only need 1 from
the chart to be able to get into Federal Court (either a subj.matter or a
party config. Basis).
o If you look at both together, the 11th A seems to repealing parts of article 3
so 1 way of looking at what the amendment does is removing the
highlighted factors from the list.
o It eliminates state citizen diversity and state foreign diversity as
independent bases of federal jurisdiction but didnt do anything to federal
courts authority to hear federal question claims where a state is a
defendant; this is one view!
State citizen diversity and state foreign citizen diversity were blocked by the text of
the 11th Amendment. Nothing in its language banned federal question jurisdiction, as
Chief Justice Marshall also stated.
The Constitution says nothing about State Sovereign Immunity! Pre-11th A, the
constitution contemplated that states could get sued in Fed. Court. Also, is the power
of a monarch not to be sued consistent with our republican form of government?
Also goes against the idea that the people are the ultimate sovereigns. Who is the
sovereign in terms of national law? The People or the national government that the
people created.
SC says that b4 the constitution was ratified, most states recognized state sovereign
immunity. And the doctrines of sovereign immunity that existed in common law and
pre-constitution, survived the writing of the constitution.
IRONY the principle of sovereign immunity that the SC espouses is much broader
than anything the monarch ever enjoyed in England back then, you couldnt name
the king or queen as a Defendant- you either had to petition the crown to hear it,
or sue the kings officers. But there was not a case where citizens would be
completely shut out of courts. This is unlike the SCs rule where citizens who suffer
injury at the hands of the state have no remedy.
State citizen diversity and state foreign citizen diversity were blocked by the text of
the 11th Amendment. Nothing in its language banned federal question jurisdiction, as
Chief Justice Marshall also stated.
Doctrine also protects state s from certain suits even in their own state courts.
This operates in 3 different forums
o In federal court these doctrines immunize states form certain suits in
federal court, even if congress has authorized the suits. (Seminole)
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39
Retrospective Damages
No (Edelman)
No (Edelman)
Prospective (inj./decl)
No (Penhurst)
Yes (Ex Parte Young)
Hypotheticals:
Wisconsin passes a statute that non-citizens cant get welfare. This is a clear
violation who can the non-citizens sue and get relief from? Lets assume there is no
Congressional statute abrogating the states immunity.
o They can get an order enjoining the state of Wisconsin from enforcing this
statute. This order would be necessary to halt an ongoing violation of
federal law so it would be OK.
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o However, the s could not get relief in terms of reimbursing them for
money that they didnt get. This would violate Edelman.
A fed district court orders for public schools to desegregate and pony up money to
fund enrichment programs to address the current effects of the past dejure
discrimination in public schools.
o If youre the state, how do you characterize this? damages/retrospective
an attempt to impose liability for past behavior.
o If youre the you would argue it is ancillary and that it is necessary
to carry out the injunction. Prospective relief b/c it was designed to wipe
out continuing notions of past inequality.
Second Exception - Congress Power to Abrogate Congress can Abrogate when the
following conditions are met:
Two Part test for Congressional Abrogation:
1. Congress must make intent to abrogate unmistakably clear in the text of the
statute
2. the statute must be an exercise of a constitutional power that authorizes
abrogation of state sovereign immunity
1st Requirement: Language must be in the statute itself Ct will not look at legislative
history. The text must be clear. No magic words required by the Ct will only look at the
text of the statute.
2nd Requirement:
Seminole Tribe v. U.S. (1996)
This case marks the furthest that the Court has gone with pushing state sovereign
immunity; this was a 5-4 decision and the 4 dissenters have refused to see this case
as good law.
HoldingThere was intent to abrogate BUT Congress had no intention to do so
under the Commerce Clause. They also suggested that there is no power under
anything in Article I to do so. To do this, the Court had to overrule Union Gas.
After Seminole, how can Congress abrogate? They can try to cast it as 5. But the
problem is that the Court is still narrowing 5 power; Federal enforcement a
federal agency can bring suit against states for violating federal rights; states can
waive their sovereign rights how can congress induce states to waive their
sovereign immunity? Make the receipt of federal funds contingent on the states
agreeing to waive immunity.
Can Congress ever abrogate state sovereign immunity? Yes, Congress can
override it pursuant to 5 of the 14th Amendment. Cant abrogate it pursuant to an
article I power.
To what extent is each state a sovereign entity? The whole point of the
constitution is that the states gave up some of their sovereignty in favor of the
people. Was this broad concept of SSI something that the states retained?
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What does Souter mean by the plan of the convention? The adoption of the
constitution. He is quoting the Federalist 81 the powers the constitution delegates
to the national government are powers surrendered by the states. They surrender
their sovereignty in those areas. So if they dont enjoy sovereignty where the
constitution has given power to congress they cant really have sovereign immunity.
So, Souter is saying that states have lost their sovereignty to areas where congress
was given control by the constitution.
Two-Part Test:
1st Requirement: Yes, Congress, in the Indian Gaming statute clearly abrogated state
immunity.
2nd Requirement: BUT Congress doesn't have the authority to remove state sovereign
immunity.
Ct relied on Precedent Hans v. Louisiana (1890). Before Hans, Ct read 11th Amend to
have eliminated state citizen diversity, state foreign diversity. Hans, citizen of Louisiana
suing the state of Louisiana, trying to collect a bond. He gets into Ct by claiming a
federal question claim because state is not paying the bond. Ct dismisses claim on state
sovereign immunity.
Seminole majority interpret Hans to mean that common law state sovereign
immunity was received into the federal constitution as a federal constitution
limitation binding on the federal courts and binding on a limitation of
congressional power.
Souter in his dissent: No proof that the federal constitution perceived this notion
of sovereign immunity. Hans was wrongly decided. Hans was distinguishable
from Seminole Tribe: Seminal Tribe plaintiffs had federal law congressional
authorization for their suit. Hans Ct had no congressional authority for his lawsuit.
Hans Ct did not look into Congress power to abrogate state sov. Immunity.
Souter compares the case to Lochner which restricted the congress ability to
regulate. Common law rule of contracts to invalidate a federal rule. Both
scenarios Ct is taking common law principles and elevating them to const.
statute to advance particular philosophical goals and to use the common law
principles to trump federal. Seminole more egregious than Lochner making an
effort to make meaning to a const. term.
Holding 11th Amend and these broader background principles are const. limitations
(Limitations on Art III and binding on congress)
RULE: Congress cannot abrogate state sovereign immunity through exercise of Art I
powers but CAN abrogate state sov. immunity through section 5 of the 14th Amend civil
rights powers.
From Seminole Tribe (handout 5 at p. 35):
the 14th Amend, by expanding federal power at the expense of state autonomy, had
fundamentally altered the balance of state and federal power..
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Temporal Argument: 1789 Art I and Art III. 1795 11th Amend. 1868 14th Amend.
Argument: 11th Amend limits Art III and 14th Amend limits 11th Amend.
Seminole sued state of Florida and the Governor. Lawsuit against state cannot go
forward b/c state did not have authority to abrogate state sov. Immunity. Against
Governor not allowed as well. Where congress intended the state to be an exclusive
remedy. How detailed and comprehensive is the statutory remedy and is the statutory
remedy narrower than what the P could receive under Ex Parte Young. Here, remedy very
detailed detailed remedial scheme exists.
Central Virginia Community College v. Katz
HoldingThe Bankruptcy Clause of Article I Section 8 itself effectuated an
abrogation of state sovereign immunity in the bankruptcy context.
After this case, you cant say that there is an iron clad rule that Congress cannot
abrogate state sovereign immunity through Article I.
Alden v. Maine Congress cant Abrogate a States Immunity in State Court Either
1999
IssueWhether a state can be sued in its own court on a federal claim where
congress supports to abrogate their immunity; so can Congress authorize Federal
claims against states in state courts?
Hold states have sovereign immunity against private suits in its own courts and
this is a constitutional immunity and means that congress cannot abrogate it. So the
Court again takes a common law immunity and makes it a constitutional issue out of
the reach of congress.
Article III and 11th A say something about state immunibility in federal court; we
may disagree over exactly what it says, but there is NOTHING in the Constitution
that mentions anything concerning state immunity in its own courts.
The majority says that the states were sovereign pre-constitution. And it was a
universal thought that states were immune from suits in its courts and that this
universal understanding was imported into the constitution. 10th Amendment.
Souter disputes this saying this is found nowhere in the record of the constitution.
He cites the Chism case for support why would this case undercut the majority
argument that the universal understanding was that states were immune in their own
courts? In that case, the majority never talks about this universal understanding. In
the Chism dissent, 2 dissenters were part of the ratifying committee and rejected the
view of state sovereign immunity. Dissent says this is a case of common law/natural
law both can be overridden by Congress.
Kennedy also makes a structural argument saying that the principles of federalism
are all through the constitution this is a throw away argument because it allows
them to fill this vessel with whatever they want.
So this case stands for the proposition that a states immunity is the same in
state court as it is in federal court.
Kennedy:
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Pg. 94: If the principle of representative gov is to be preserved to the States, the
balance between competing interests must be reached after deliberation by the
political process established by the citizens of the state, not by judicial decrees
mandated by the Federal Gov and invoked by the private citizens Ps have
no remedy.
Pg. 95: unwilling to assume the states will refuse to honor the Const or obey the
binding laws of the U.S. (honor system) but here, the state did not obey the
laws!
Does this fit with the Marbury notion: where there is a right there should be a
remedy?
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Congress may require states to waive 11th Amendment immunity as a condition for
receiving Federal funds, and courts will enforce the waiver if Congress has set forth
the condition in very clear terms (rule from Pennhurst).
Lipides Exception: If a state voluntarily involves jurisdiction of federal Ct, it may be
found to have waived its immunity (Univ. Prof sued Univ. on employment issues, sues in
state Ct b/c state had waived its immunity to suit in state Ct. AG representing univ
removed to federal Ct and moves to dismiss on state sov immunity. Sup Ct said that
tactical use of the invoking fed Ct jurisdiction was not permissible!)
In-Class Exercise 11th A.
Defendant
New York City
Theory
No 11th a. for political
subdivision
Relief
Injunction
Damages
Counter Argument
(representing the city)
The city is acting as an arm
of the state (the standard is
that you have to show you
are under the control of the
state).
You can also argue you are
not the employer.
Ex Parte Young
Prospective Injunctive
relief
(representing the
communions of the dept of
heath)
Statute provides for
remedial relief therefore it
is not available under ex
part young b/c the remedy
is the exclusive remedy b/c
the remedy scheme is so
detailed and
comprehensive and
provides ore of a limited
relief, thereby being the
only kind of relief
available.
So you ask:
(1) did congress intend to
abrogate state sovereign
immunity, and
(You would argue this falls
under the 5 of the 14th a.
you have to argue EP or
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Damages
Injunction you can get
injunction but it would
only run against the
individual and not the
agency.
Employer?
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o Cts have expanded the 10th Amend has read state sovereignty into the 10th
Amend and have used 10th Amend to strike down acts of Congress
B. Sources of Congressional Power
The main source of Congressional power is its enumerated powers in Article I,
section 8. However, other constitutional provisions, such as Articles III and V and
section 5 of the 14th Amendment also confer power on congress.
Article I Congress has the whole of the National Legislative authority, but it is not
a general power and not unbounded they have ENUMERATED powers.
What about states? Do they have some grant of power from the constitution? States
DO NOT have to point to anything in the federal constitution because the source of
their powers are their states constitutions.
So the question is what are the federal regulations on state acts? The Supremacy
Clause states cant legislate in a way that conflicts with national legislation, cant
legislate in ways that conflict with powers left to congress, i.e. immigration, cant
legislate against a constitutional prohibition
Federal legislation has to be (1) authorized affirmatively from the constitution and
(2) federal legislation cannot contravene any prohibition in the constitution. US
Const not the source of state authority only federal authority. So, state legislation
does not have to pass these 2 hurdles. States cannot enact laws that conflict with
federal statutes (Art. 6), states cannot intrude into areas that the Const. entrusts to the
national govt (war powers, naturalization, etc.)
State legislation:
2 Limits on Congress
o Internal Limits (aka federalism-based limits) Congress may act
only within the bounds of powers delegated to it by the constitution. A
requirement that congress act within an affirmative grant of the
constitution. Sometimes referred to federalism based. It determines the
outer bounds of congress authority
o External Limits Congress may not exercise any power in violation of
a constitutional prohibition or a constitutional right. Even if it comes
within the scope of the outer bounds, it violates a Constitutional
prohibition. i.e. congress passes a law saying literature on stem cell
research cant be transported across state lines. So this is within its internal
limits because under commerce clause congress can determine movement
of goods across state lines. BUT it violates an external limit because it
violates the 1st and 5th Amendments.
Eras in Supreme Court Jurisprudence re Congressional Power
Early 19th Century/Era of Nation Building
(McCulloch, Gibbon)
- controlled by federalists in favor of strong national government. Led by Marshall
Late 19th early 20th Cent
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Lochner Era
- Conservative judicial activism
1937 1995
(Jones & Laughlin, Wickard, McClung, etc.)
New Deal/Modern Era
- Liberal judicial restraint re congressional power
1995 - ?
State rights revival
- Conservative judicial activism
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When ever you are considering the constitutionality of an act of congress, always
think of the ends and the means look at the goal of the legislation and how close it
comes to fulfilling that goal
So, what is the goal here? Carrying into effect the enumerated powers of taxing,
raising armies, revenue (is the end). The National Bank is the means to achieve
those goals. This is Marshalls theory and why it is constitutional.
RuleLegislation that is rationally related to a goal entrusted to congress by the
constitution is constitutional unless it violates some constitutional prohibition. This
is a pretty low standard.
State Goal ------------------------------------------------------------- Legislation
(means-ends fit)
Deference High
Legit
Rational
Important
Close
Compelling
Least restricted narrow tailored
Scrutiny
low
deference
Fed Govt
EWD
Direct/Indirect
relationship btw the
motives and the
legislation
(commerce clause)
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Holding court upheld the national labor relations act (guaranteed employees the
right to organize and collectively bargain applied internationally in manufacture
and production)
After Schechter and Carter there was fear that this statute would fail in the Court b/c
it had to do with manufacture.
The here was the 4th largest conglomerate in the US and it spanned a number of
states so the Court said that industrial strife in such a big company that spanned
several states could in fact have an effect on interstate commerce. The Court from
here then seemed to move into a more deferential mode.
Rule
o Substantial Effects TestCongress can regulate an activity even if not
interstate and not commerce so long as the regulated activity has a
SUBSTANTIAL EFFECT on interstate Commerce.
The courts begin to reject the formalist categories and it implies that the
direct/indirect limitation on Model 2 is NO longer good law.
2. Aggregate or Cumulative Effect Rule
Congress can regulate activities that, taken alone, would have no effect on interstate
commerce so long as the cumulative effect of all such activities nationally would
have a substantial impact on interstate commerce.
Wickard v. Filburn (1942)
Facts National aggregation production limits to a family farm. Taken alone, the
farmers 23 acres of wheat was going to have 0 impact on interstate commerce, but
the court upholds the applications of national legislation limiting this farmers amount
of wheat.
Rule
o Aggregation Principlecongress can regulate activities that considered
individually would have no effect/impact on interstate commerce but
aggregated nationally (add them up), if it then does have a substantial
effect on interstate commerce, then congress can regulate it.
Since Filburn was growing his own wheat and not purchasing it he was not going to
the market place, but if a ton of Filburns exist then less and less people are going to
the market.
So looking at this with Jones, you can see what an enormous expansion of Congress
power these caused.
3. The Irrelevance of Congressional Motivation
Congress may directly regulate interstate commerce for any reason, even if
Congresss "real" purpose is to achieve some goal that would otherwise be outside its
constitutional authority.
U.S. v. Darby (1941)
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Factsat issue was a Federal statute, the Fair Labor Standards Act (FLSA), which
prohibited the shipment in interstate commerce of certain products manufactured by
employees who earned less than the minimum wage or who worked more hours than
a specified maximum. The statute also prohibited the employment of workers, at
other than the prescribed wages and hours, in the production of goods intended to be
shipped in interstate commerce.
2 provisions of the act 1) prohibited interstate transport by workers making less
than minimum wage (this is model 1 a direct exercise of congress enumerated
power of regulating commerce across state lines). 2) keeping commerce clear of
unfair practices model 2.
RuleThe Court will not look to what Congress motives are when exercising their
Commerce power so long as Congress is not running afoul of a constitutional
prohibition. It doesnt matter what Congress real motives might be. It is fine if
Congress wants to achieve social or moral or other goals.
As a lawyer, you would have wanted to argue that the statute was unconstitutional
based on Hammer v. Dagenhart look at Congress motivation and if that motive is
something reserved to the states then it should be shot down, BUT The Court
overrules Hammer.
o This case involved a Federal act regulating the employment of children
o So what strategy did they use to regulate child labor in light of EC Night?
Congress banned the interstate transport of goods produced by under age
children.
o SC holds that congress power to regulate interstate commerce is banned
where the goal is to further societal goals like protecting the nations
children. The goal must be commerce.
o The motive and purpose of a regulation of interstate commerce are matters
for the legislative judgment upon the exercise of which the constitution
places no restriction and over which the courts are given no control.
Whatever their motive and purpose, regulations of commerce which do
not infringe some constitutional prohibition are within the plenary power
conferred on Congress by the Commerce Clause. (pg. 208)
o Using a formalist approach, what result would the SC reach? It would be
upheld because it deals with commerce. BUT the SC invalidates the
statute. So there is really no sticking to any approach during this era
except that regulation usually loses and free market wins.
So Darby stands for three propositions
o Can regulate commerce for any reason (Ct wont inquire into motives)
SC wont look into congress purpose or real motives
o congress can reach into areas that were thought to be reserved to the states
through use of its commerce power
o congress gets wide latitude to choose the means to meet a federal end (no
more direct/indirect limitations);
Darby gives congress virtually unlimited latitude to choose the means to reach a
federal end. If congress wants to use commerce power to improve working
conditions it can do that. It can attempt to achieve these means.
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Perez
This case adds to Darby
Rule
o Deferential Rational Basis ReviewCongress does not have to develop
a legislative record to support its theory of regulation that it has an effect
on interstate commerce.
So adding all of the New Deal Doctrine, we get doctrine that shows judicial
deference to congress congress can pretty much do whatever it wants as long as it
doesnt run afoul of a constitutional prohibition.
Heart of Atlanta and McClung
Issuein both cases, the issue was whether Congress had constitutional authority to
enact landmark civil rights legislation. These cases involved racial discrimination in
hotels and restaurants.
The legislation said that there can be no discrimination in public places such as a
restaurant or hotel.
The theory for sustaining this legislation falls under Model 2 (it is outside the sphere
of their power). The real motive may have been equality, human dignity, etc.
But the statute is justified on the grounds that it is a means of protecting interstate
commerce, b/c racial discrimination in these places was interfering with interstate
commerce, b/c blacks couldnt travel b/c there was no accommodations. There was
less interstate commerce and traveling carrying on because of the discrimination
This legislation was a MEANS of protecting interstate commerce.
The Court makes clear that the standard of review is Rational Basis Review. i.e.
Could Congress have rationally concluded that the required relationship between the
regulated activity and interstate commerce exists?
Ct uses the phrase Affect Commerce If the activity affects commerce then can
be regulated.
Ct confirmed the aggregated affect rule from Wickard
Ct confirmed that real motives dont matter. Even if Congress was after civil rights
doesnt matter.
Hypothetical:
Suppose your counsel for a senator and the senator says that Machine guns are terrible
and he wants federal legislation that eliminates production of machine guns in the US.
How can he do it within the scope and powers of congress (this way it will be upheld
based on the Theory in Darby)?
o There are two sections:
1. make it illegal to transport guns across state lines
2. bar the production of machine guns in the US.
The federal goal is to clear out machine guns; the means is to
prohibit production of the guns (Model 2).
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56
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o Thomas wants to do away with the substantial effects test altogether. Then
there is the concurrence. For him it is back to EC Knight and the
Formalist approach.
o Only Rehnquist and Scalia agree with the Lopez majority standard
o The Concurrence uses the traditional state functions test
The goal of the majority was to reign in congress and politically it would have
looked bad if there was such a fractured opinion in terms of the states rights group,
which is why they all signed onto the majority.
Under the majority and concurrence tests, the characterization of the statute is very
important to the result.
What does the majority characterize it as? Crime. Concurrence? Education.
Dissent? Gun market
After Lopez, can congress pass a law making shoplifting a federal crime? If you
characterize as economic, then you use rational basis and ask can congress conclude
that shoplifting when aggregated to the entire US and taken as a whole would affect
interstate commerce? Yes.
What about if your against it? Cite Lopez and say it is a criminal statute. Look to
see if there is a jurisdictional hook or if it is part of a broader economic issue
Can Congress pass a statute outlawing the sale of guns in school zones? Same 2
arguments.
What about possession of guns in or around private schools? Make a Category 2
argument.
Hypotheticals:
1. What would the analysis be if congress made a statute outlawing prostitution, i.e. could
congress make prostitution a federal crime?
Whats the first question you would ask under the substantial factor test?
o Is it Economic. Once you are here, you could use Wickard Aggregation
so taken as a whole, can congress rationally believe that this would have
an impact on the economy. So, the motive would probably be morals, plus
that regulation is really something usually left to the states, but it would
pass anyway so it can be seen that the goals of Lopez may not always be
furthered by this test.
2. A national statute that required the teaching of computer science in public schools
This is a Lopez Category 3 analysis
o It is non-economic so you cant use aggregation, so therefore it will not be
upheld.
3. What if they made shoplifting as a crime?
If it was characterized as an economic activity (Substantial effects test #3). Then the
test becomes: could congress aggregate all the shoplifting in the US, and if this is
enough it will pass. Wickard. Ct should apply rational basis review. Test # 2: stores
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are in interstate commerce and if they are being the stolen from then interstate
commerce is being affected.
you could also argue that it is non-economic. What the statute regulates, you would
cite Lopez, and say that because it is a criminal statute it is not economic. Regulating
crime. Non-economic, then cant rely on cumulative affect (aggregate test). Then you
would look to see if there was a jurisdictional hook or whether it was part of some
broader economic activity.
4. What if we shift the gun free zone statute from public schools to private schools?
Arg: Private schools are businesses. Collect money for services
U.S. v. Morrison (2000)
Violence against Women act, a provision which creates a civil remedy and federal
cause of action in damages against the abuser. This is meant to address an enormous
nationwide problem that has been under addressed. Congress asserts two bases: 1)
commerce power; 2) Civil Rights Power
Congress makes extensive findings, empirical evidence, showing the close
connection between gender motivated violence and interstate commerce. The s try
to distinguish this act from the act at issue in Lopez. What is the argument?
Congress made a very impressive record, but the court doesnt buy this and rejects
the statute
The Court doesnt necessarily reject the connection between gender motivated
violence and commerce but rejects the statute anyway; why? They make a slippery
slope argument again if they accepted the reasoning by congress here, then there
would be no stopping point. Rehnquist: gender-related violence non-economic and
therefore no substantial affect test! Otherwise, Govts reasoning would allow
Congress to regulate any crime - attenuated effect upon interstate commerce. No
judicially enforceable stopping point in congress commerce power.
RULEIf the regulated activity is non-economic, YOU CANNOT USE
WICKARD AGGREGATION it doesnt matter what findings or evidence there is;
congress CANNOT reach non-economic activities through substantial factor test IF
REGULATED ACTIVITY IS NON-ECONOMIC, CONGRESS CAN ONLY PASS
THE BILL IF THERE IS A JURISDICTIONAL HOOK OR IF IT IS AN
ESSENTIAL PART OF A BROADER REG OF NATIONAL ECONOMIC
ACTIVITY. CANNOT REGULATE ON A SUBSTANTIAL AFFECT THEORY
USING THE CUMULATIVE AFFECT (under Wickard) - RAICH. There must be a
nexus between the non-economic activity and commerce: Under Category 1
jurisdictional hook.
IMPORTANT Morrison shows that findings are indeed important!
How would you redo the VAWA so that the Court would accept it? Perhaps you can
see if the instrument used in the crime cant cross state lines, etc that is an example
of a jurisdictional hook. If you say something along the lines of someone crossing
state lines that abuses women that would be too broad for the court
You can also try the broader national commerce one.
Broader national economic activity: Transportation
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Gonzales. v. Raich
Upholds the controlled substances act for homegrown marijuana for medicinal
marijuana.
Does this case change the Lopez Test? This case suggests that if Congresss statute
falls within the category of whether the statute is a necessary part of a broader
regulation of economic activity, then rational basis will be applied. Part of a broader
reg of econ activity. Homegrown marijuana, considered in the aggregate would
impact the interstate commerce of illicit drugs. (could fit under category 3).
Congress can consider the cumulative impact of non-economic activity to determine
if the activity impacts a broader reg of econ activity. Rational basis review under the
Raich theory.
RULE/QUESTION: Could congress have rationally concluded that the noneconomic activity in the aggregate was an essential part of a broader regulation of
economic activity?
Hypothetical:
The Federal Freedom of Access of Clinic Entrances Act
The first question for whether the statute would be passed:
o What does this statute regulate (the different characterizations)
o Criminal regulation b/c it is a crime to be obstructing, or
o You could argue that it is economic
o How do you argue for or against the constitutionality (keeping in mind the 3
Lopez categories):
o Under #3
o If recognized as a crime: This cant be justified under 3 b/c it is about
regulating crime (not economic) so you cant get Wickard Aggregation or
there is no judicial hook. (This is an argument NOT in favor).
o Under #2
o Argument for this protects the businesses themselves, it may not be
commerce or interstate, but congress can protect the business themselves
from the economic threat (interstate commerce and the moving of
business). (This is the non-economic intrastate activities).
E. 10th Amendment
Amendment 10. Powers reserved to states or people
The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.
There are two distinct interpretations of this Amendment
Textual
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o the 10th A simply means what its words say. The Constitution gives
specific powers to the Fed government and anything not in the Const goes
to the states.
o On this interpretation, the 10th A doesnt have any substantive content it
doesnt add anything to congress powers and it doesnt require that
Article I powers be looked at in any different way.
o The states have to look to the national political process for the protection
of states rights this is not an area open to judicial interpretation.
State Sovereignty
o the 10th Amendment has substantive meaning beyond the words of the text.
The amendment imposes substantive limits on congressional powers; it
confirms unwritten background principles of state sovereignty that
imposes external limits on power to Congress under Article I powers.
o Example, under this view, the 10th Amendment poses a limit on Congress
Civil Rights powers. So it imposes limits on Congress to act in ways that
unduly intrude on state sovereign interests. This holds weight during the
Lochner period. Rejected by the Ct during the New Deal Era. (emerges in
Natl League of Cities, then rejected by Garcia)
What is the analytical parallel between the Courts 11th Amendment work and the 10th
Amendment state sovereignty approach? The Court is exerting unwritten
background principles and rising them to the level of constitutional protection.
10th Amend state sovereignty Ct is reading into the constitutions text
11th Amend - Ct is reading common law principles into the constitution.
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Why did the Court analyze this statute along the Garcia side of the analysis? The
statute actually does regulate public and private so it should be seen as one of general
applicability
Ct. also sees the state being regulated as owners of databases and not sovereigns.
RuleThe question is not whether it applies to states only but whether it
applies to states as sovereigns (governors; regulators) then it will be on the
states only line. If it regulates states as non-sovereigns (market participant;
database owners) and not in its capacity as a sovereign then it falls under
Garcia and the statute will be upheld.
Standard for judging the constitutionality of a states only act (this is called the NY
side of the analysis)? First, you have a commerce clause regulation and you
determine that it is designed against only states. So what does it mean to say that it
cant interfere with the core of state sovereignty? In NY v. US this means that
Congress cant commandeer state legislative processes; meaning that it cant compel
state legislature to enact or enforce federal regulatory programs. This is the holding
from NY v. US
If the statute regulates the state as a governor or a regulator, you are in the NY side,
and the court is going to task if this imposes of the states legislative process. It
cannot compel the state legislature to adopt a federal regulatory program.
On a test the first question is which branch of the 10th Amendment line do you go
down?
Printz (1997)
Brady bill, gun control law, set federal limits on who could buy a gun. This required
gun dealers to ask the local chief law enforcement officer, of info concerning
whether the prospective purchaser was able to get a gun under the federal law.
(essentially, they were looking to see if the person had a felony).
This was a 5-4 decision, authored by Scalia
Holdingthe statute was struck down, this is going beyond NY with legislative
processes to simple executive enforcement now.
After Printz can congress require state judges to enforce federal law (NY says
congress cant force legislature to enforce fed law and Printz stopped state executive
to enforce federal law) No. Article VI says fed law is supreme among state
judiciaries
Lofreddo says that the disturbing thing about Scalias argument here is that there are
virtually no absolute rights in the constitution, but here the court is setting up state
sovereignty as an absolute right.
Does Printz mean that state officials no longer must abide by federal law? State
officials must abide by federal law, but there are certain laws that are prohibited by
congress b/c of the 10th A. nothing gives state officials the right to ignore federal
law.
3 ways to get around Printz (to abide by the Printz rule): Legislative Alternatives
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Preemption the FEDs decide they are going to regulate and the states stay out of the
way. They forbid state regulation in that area. There is nothing wrong with this as long as
it is within the commerce power.
Conditional Preemption congress says that either the states regulate (the way the
federal govt want it) or the federal govt will take charge and regulate in that area. No 10th
Amend limit on that. (Ex. Affordable Care Act states are supposed to set up those
exchanges, but if the state does not want to then the federal govt will. Statute gives States
a choice, thats why its not unconstitutional)
Conditional Spending (if non-coercive) instead of directly mandating local law
officials to participate gun a state (gun control), you give incentives like giving funds for
anti-crime. (so, if they dont do this they dont get funding). Conditional spending not
limited by the 10th Amend unless it crosses the line into coercion.
10th Amendment
Federal Legislation
(Commerce clause)
General Applicability:
(reg private only, reg private and
public)
Regulate states as non-gov (nonsovereign capacity).. mkt
participates, data customers.
States ONLY
(States as States)
Garcia
- virtually no J & Dic EWF
limits
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Kimel (2000)
(ADEA voided)
[eq. prot.; age]
Morrison (2000)
(VAWA voided)
[eq. prot.; gender; state action]
Garrett (2001)
Hibbs (2003)
Lane (2004)
Coleman (2012)
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All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article.
U.S. Const., Amdt. XV
Section 1.
The right of citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
Section 2.
The Congress shall have the power to enforce this article by appropriate legislation.
13th Amendment Rule: under 13th amend, federal legislation so far as necessary (pg.
372)
Katzenbach v. Morgan (1966) Remedial Theory v. Substantive Definitional Theory
FactsNY state has a law which imposed an English language literacy in the right
to vote. The effect in NYC was that it disqualified many members of the substantial
Puerto Rican community. In an earlier case, Lasiter, the court had upheld the
constitutionality of the English literacy test, unless it was used for racial
discrimination purposes. They saw it as completely constitutional in terms of voting.
Despite this ruling congress enacts the voting rights act of 1965, which in part says
that the states have to admit people, who at least have a 6 grade education to vote
(even if they couldnt speak English or were illiterate).
NY state challenges the constitutionality of the VRA of 1965 (Voting Rights Act) as
being beyond congresses power
NY State Arg: 1) Sup Ct has already held that English language literacy tests for
voting is constitutional. Not violating Constitution. Congresss act under 5 is
limited to acts found to be unconstitutional by the Ct. 2) the law encourages people
to learn English.
Two Theories:
1) Remedial Theory (Nec/Prop Model 2) 5 expressly gives congress
the power to enforce these acts (the provisions) through any appropriate
legislation. Congress gets broad discretion to choose the means to achieve
some 14th amendment goal.
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actually interfering with religious rights little evidence that unconstitutional state
action might be at play.
If Congress is going to use 5 power it must be based on the remedial theory and
must apply the congruence and proportionality test. If the statute outlaws
constitutional conduct and little unconstitutional conduct the statute will be in danger
of failing the congruence and proportionality test.
Congresss Civil Rights Power (5 of the 14th Amendment)
The Rule:
Congresss 5 power is solely remedial; no power to (re)define 14 am. Rights.
Congress may enact remedial legislation to prevent, deter and/or remedy violations
of the 14 am.
Such remedial legislation can prohibit conduct that is not itself
unconstitutional, as a means of preventing, deterring or remedying 14
am. violations. (Kimel/Garrett: Congress may outlaw a somewhat
broader swath of conduct than is proscribed by the 14th am).
The remedy prescribed by the legislation must be congruent and
proportional to the injury or threatened injury to 14 am. rights. (Ct
says this assures that the legislation is remedial and not an attempt
to redefine the scope of constitutional rights).
How has SCt applied the rule:
1. determine scope of the 14 am right (as defined by Ct) that the legislation seeks to
protect, and the nature and degree of the injury or threat of injury to the right.
2. determine scope of the remedy provided by the challenged legislation.
3. compare 1 and 2; if significant portion of the conduct outlawed by legislation is
constitutional, Ct. requires showing that legislation is indeed congruent and proportional
to the harm/threatened harm to 14 am rights; (strong measures may be permitted to
remedy intractable problems, but legislation outlawing a vast range of constitutional
behavior will be deemed not a proportional response to insubstantial injuries or threats to
14 am rights).
4. In Kimel and Garrett (involving non-suspect or quasi-suspect age and
disability classifications) Ct. required legislative findings and evidence of a significant
pattern or widespread pattern of unconstitutional behavior by states.
5. In such cases, Court closely scrutinized the quality of the evidence in the
legislative record, and subjected the legislation to a standard of review equal to or more
stringent than intermediate scrutiny.
Does Hibbs alter this test? Does Lane?
Board of Trustees v. Garrett Congruence and Proportionality
Is the ADA (Americans with Disabilities Act) sustainable under the Commerce
Clause? It is good Commerce Clause legislation. What about the 10th A, is there a
problem there? No, this is a general applicability statute, as it covers state and
private actors.
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o So if its good under Commerce Clause and not blocked by 10th A, why are
we talking about Congress Civil Rights power? They want damages and
the s are state agencies. So the only way to do this is waiver or
abrogation and in the wake of Seminole, congress can probably only do
this under 5.
The Court holds that the ADA is not under Congress 5 authority
Rehnquist applies the Boerne analysis
1. determine the scope of the 14 Am right (as defined by the Ct) that the
legislation seeks to protect and the nature and degree of the injury or threat
of injury to that right.
In this case, what is the right the ADA seeks to protect? Discrimination
against disabled in the workplace. The basis is 14th A EPC.
What is the scope of that right? Rational Basis (Ct. looks at its own
decision in Cleburne in Cleburne the Ct said Congress was better
equipped to administer the protection needed, not the Ct). This means that
state discrimination on the basis of disability is constitutional as long as it
is rationally related to a legitimate state interest.
2. What is the scope of the remedy provided by the challenged
statute/legislation?
Here, the Court looks at the ADA itself and points out that the ADA
requires reasonable accommodations for disabled people unless doing so
would create an undue burden. So it says its unlawful to fail to provide
reasonable accommodations for a disabled worker. Nothing in 14th Amend
requires accommodations for people with disabilities. The ADA outlaws
significantly more behavior than the Cts would be willing to declare
unconstitutional.
3. Compare 1 and 2; if significant portion of the conduct outlawed by
legislation is constitutional, Ct. requires showing that legislation is indeed
congruent and proportional to the harm/threatened harm to 14 am rights;
(strong measures may be permitted to remedy intractable problems,
but legislation outlawing a vast range of constitutional behavior will be
deemed not a proportional response to insubstantial injuries or threats to
14 am rights). Does the remedy (statute) exceed what the Constitution
requires? Does it prohibit a significant amount of constitutional behavior?
The Court says yes nothing in the constitution prohibits denying
accommodation it just prevents irrational behavior so therefore it
outlaws a significant amount of constitutional behavior
4. Where the statute outlaws a significant amount of constitutional behavior,
Congress has to show congruence and proportionality.
Apparently, Congress had to have a record demonstrating discrimination
against disabled workers. The Court began to nitpick about the quality of
the findings.
Know 5 power is remedial and congress cant define 14th A rights; can act to deter,
remedy, etc. these rights. Congress can prohibit things that are not themselves
unconstitutional as a way for remedying, etc. and SC will apply the congruence test.
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After this case, how would you sue a state under ex parte young suit? Commerce
Clause.
More than rational basis here constraining congresss choice of means and a
requirement that legislation demonstrate a factual record that supports the legislation
= heightened scrutiny (not rational basis)
Kimel v. Florida Board of Regents
FactsThe Age Discrimination in Employment Act (ADEA) makes it unlawful for
an employer, including a state, to fail or refuse to hire or to discharge any
individual, or otherwise discriminate against any individualb/c of such individuals
age. In April of 1995, librarians of FSU sued the Florida Board of Regents () in
the US District Court, the s all over 40, alleged that refused to require the 2 state
Universities to allocate funds to provide for agreed upon adjustments to salaries of
eligible University employees they claimed that this violated the AEDA.
5-4 decision
This is good Commerce Clause legislation and it is ok under the 10th Amendment.
Economic activity (employment) aggregate analysis substantial impact good
legislation. Garcia branch no 10th Amend problem b/c applies to all employers.
However, the Court is analyzing it under the Civil Rights Power because the ADEA
abrogates states sovereign immunity and this can only be done under the Civil Rights
Power. The law allows retroactive relief.
Rule
o congress power to enforce the 14th Amendment includes the authority
both to remedy and to deter violation of rights guaranteed hereunder
by prohibiting a somewhat broader swath of conduct, including that
which is not itself forbidden by the Amendments text.
The Court says under this test, they want to make sure that Congress is not
redefining the right under the 14th A, but rather that they are enacting legislation that
is proportional to what the Court has defined the right as. The Court wants to ensure
that Congress is employing remedial methods instead of interpreting the
Constitution.
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and says that the statute was very out of proportion with the scope of the right.
Why? Look at page 6 and the distinction between reasonableness and reasonable
necessity.
Under the 14th A, the presumption is that age distinctions are lawful and
therefore the burden is on the person claiming discrimination. HOWEVER,
based on the statute, age discrimination was presumptively wrong and the
burden was on the employer.
Statute stated: as long as the employer could show that using age as criteria
was reasonably necessary, whereas the constitution only bars age
discrimination if it is not reasonable, could be done. Significantly different
from rational basis standard
Although the statute fails on Question 2, the Court says that that doesnt end the
inquiry.
3. Compare 1 and 2; if a significant portion of the conduct outlawed by
legislation is constitutional, the Court requires a showing that legislation is
indeed congruent and proportional to the harm/threatened harm to 14th
Amendment rights; (strong measures may be permitted to remedy
intractable problems, but legislation outlawing a vast range of
Constitutional behavior will not be deemed a proportional response to
insubstantial injuries or threats to 14th Amendment rights.
The Court says that to justify broad prophylactic (preventative or defend)
conduct; Congress must show a significant pattern of discrimination by the
states. This is where you see the Congruence and Proportionality Test.
HYPO
Civil Rights Act of 1964
Title VII (employment discrimination)
Disparate Impact Claims
For prima facie case, plaintiff must show that:
a facially neutral employment practice has a significant discriminatory impact on
the basis of race, color, religion, sex or national origin.
Employer may defend by demonstrating that:
the challenged practice is job related for the position in question and is consistent
with business necessity.
Plaintiff may overcome that defense by showing that:
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other tests or selection devices with less discriminatory impact would serve the
employers legitimate business interest.
NY State Police has an exam that has disparate treatment and there is a finding that the
exam is only loosely related to the job. No evidence of intentional discrimination.
Officers bring suit under Title VII. NY State challenges the disparate impact as being
beyond Congresss 5 power. Washington v. Davis: EP violation needs to prove
intentional discrimination and provide evidence.
1. determine scope of the 14 am right (as defined by Ct) that the legislation seeks to
protect, and the nature and degree of the injury or threat of injury to the right.
- Protects against racism and discrimination. Right to be free from intentional racial
discrimination
2. determine scope of the remedy provided by the challenged legislation.
- Title VII above
3. compare 1 and 2; if significant portion of the conduct outlawed by legislation is
constitutional, Ct. requires showing that legislation is indeed congruent and proportional
to the harm/threatened harm to 14 am rights; (strong measures may be permitted to
remedy intractable problems, but legislation outlawing a vast range of constitutional
behavior will be deemed not a proportional response to insubstantial injuries or threats to
14 am rights).
- Congress has provided legislation that allows a to challenge something that
might have a discriminatory impact that is not intentional. Legislation gives a cause of
action for disparate impact.
- Employer is given an opportunity to show that the challenged practice is job related
and the could win if she could prove there were other ways to prove job-related
capabilities that discriminate less.
4. In Kimel and Garrett (involving non-suspect or quasi-suspect age and
disability classifications) Ct. required legislative findings and evidence of a significant
pattern or widespread pattern of unconstitutional behavior by states.
5. In such cases, Court closely scrutinized the quality of the evidence in the
legislative record, and subjected the legislation to a standard of review equal to or more
stringent than intermediate scrutiny
NY Dept of Human Resources v. Hibbs (2003)
Factsthe FMLA statute allows you to take off work to care for a sick family
member or for yourself. It requires employers to give 12 weeks. The Court upholds
certain provisions under 5 as a statute that abrogates state sovereign immunity.
NOTECt. attempted to apply the test
So what does Rehnquist say is the distinction between this and Kimel and Garret? In
terms of gender, there is a presumption of unconstitutionality as opposed to the other
2 classifications where there was a presumption of constitutionality. So here,
Congress did not have to show that much in terms of unconstitutional behavior.
Burden on the state.
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What is the connection between what the FMLA does and this goal of protecting
women against unconstitutional discrimination in employment? Seems to use
Necessary and Proper analysis (Model 2). 14 A goal Prevent Employer
discrimination against women . Universal right to 12 weeks leave for family care
is the MEANS.
If Congress is attempting to protect groups that get heightened scrutiny, the
legislations gets deferential analysis as opposed to the other type of legislation.
Why? It may be that the SC sees gender and race as the core issues of the 14th A and
remember, the Congress is given express authority under 14th A
1. Determine scope of the 14th Amend: Statute protect against gender
discrimination
2. Scope: heightened scrutiny for gender discrimination. Burden is on the
state.
3. Rehnquist launches into the evidence of a pattern of employers hiring
women and gender discrimination. No evidence of a pattern from state
employers. Leave disparities women taking parent leave way more then
men. If men are not taking leave, then women are, which means that the
cycle of gender-based discrimination continues in the workplace. Upholds
the serotypes of women being caregivers and men not, which would
incentivizes states to view women as liabilities in terms of hiring and
promoting.
- Very deferential to congress
- Ct accepting of general analysis of discrimination amongst
private employers and applies to state employers generally.
- Const does not require 12 weeks of leave impacts a lot of
constitutional practices.
CIVIL RIGHTS POWER AFTER HIBBS
When 14th Amend provides NARROW PROTECTION (no suspect or quasi-suspect
class/fundamental right)
Congresss Section 5 power is NARROW
Court gives less deference to Congress (i.e. judicial review akin to
intermediate scrutiny re means/ends, c&p legislation record)
When 14th Amend provides BROAD PROTECTION (suspect/quasi suspect
class/fundamental right)
Congresss Section 5 power is BROAD
Court defers to Congress re civil rights legislation (i.e. rational basis
review, deference re means/ends, c&p test, legislative record)
[Hibbs and Lane as examples]
Caveat: after Coleman how does Ct decide if state aims at gender/race discrimination?
Coleman
Tennessee v. Lane
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FactsMr. Lane was summoned to appear to answer a traffic violation on the 2nd
floor, but he couldnt get there because he was paraplegic. So, he filed suit.
Rule
o Stevens: The government can defend the statute in terms of 5 AS
APPLIED as opposed to on its face, even if the statute applies to a lot of
conduct that Congress would normally not be able to reach. Look at the
statute AS APPLIED to Ct access. (Rehnquist says no must look at all
the activity the statute may impact).
o Ct can uphold certain applications of a statute and look at the statute as
applied instead of having to look at the whole impact.
The difference between taking the statute as a whole, facially, as opposed to as
applied; in terms of congruence and proportionality. The majority applies the
congruence test AS APPLIED (and here it is access to the Courts). If you look at
title 2 on its face, there would be a disproportional impact because it allows LOTS of
state behavior that does not implicate any fundamental right.
Why does this case come out differently than Garrett, which both have to do with
disability discrimination? The right being protected here is not simply EP in general
for the disabled. What is at issue here is the fundamental right of access to the
Courts; DP
Scalia dissents and says he doesnt like the congruence and proportionality test
saying that it is unworkable and can mean anything. He says it was invented and just
pulled out of the air. He says we should get rid of all prophylactic model 2
legislation. He would abide by the precedents that allow legislature to abide by
remedial legislation to remedy race discrimination and nothing else. This would
overrule cases such as Hibbs.
Rehnquist wants to keep the scope narrow. Stevens is saying that the policy can
affect a wide array of issues and Section 5 can come into play to protect against the
various violations.
US. V. Georgia (2006)
Goodman, a paraplegic held in a Georgia state prison, sued Georgia in federal court for
maintaining prison conditions that allegedly discriminated against disabled people and
violated Title II of the Americans with Disabilities Act (ADA). Georgia claimed the 11th
Amendment provided the state immunity from such suits. The district court ruled for
Georgia, but the 11th Circuit reversed.
Before the 11th Circuit ruled in the case, the United States sued Georgia, arguing that the
ADA's Title II abolished state sovereign immunity from monetary suits. Congress could
do this, the U.S. argued, by exercising its 14th Amendment power to enforce equal
protection.
Issue
Did Title II of the Americans with Disabilities Act of 1990 validly abrogate state
sovereign immunity for suits by prisoners with disabilities challenging discrimination by
state prisons? Was Title II a proper exercise of Congress's power under Section 5 of the
Fourteenth Amendment, as applied to the administration of prison systems?
Holding
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In a unanimous decision authored by Justice Antonin Scalia, the Court ruled that Title II
validly abrogates sovereign immunity. Congress can enforce the 14th Amendment against
the states "by creating private remedies against the States for actual violations" of its
provisions, which can involve abrogating state sovereign immunity.
Morrison Violence Against Women Act
The act was outside of Congress 5 power. Why? This was a statute that governs
the behavior or private parties and pursuant to the Civil Rights Cases, Congress
cannot reach private behavior.
G. Taxing and Spending Power
US Constitution Article 1 8, Clause 1
The Congress shall have the power to lay and collect Taxes, Duties, Impost, and
Excises, to pay debts and provide for the common defence and general welfare of the
United States
Why would this power be more critical during this period? After Lopez, Prince,
Seminole, Borne, Kimmel, Garret, Morrison; Congress Authority to regulate directly
has been significantly constrained. So if you are drafting legislation for Congress,
you would want to see another way to get these statutes in other than Commerce,
Civil Rights, and also 10th A problems.
So, if you were on the judiciary committee, using the spending power, how could
you pass the statute against age discrimination from Kimmel. You would induce an
11th A by conditioning it on receiving Federal funds.
To get around a decision like Seminole Tribe
Scope of the Power
Under Lopez crime and education reserved to the states, but Congress uses
spending to reach those zones through the general welfare provision (no child
left behind, more police on the beat, etc.).
Hamilton takes a broad view, saying that Copngress can tax and spend for any
purpose. Says Congress can tax and spend for any general welfare purpose
(outside of the enumerated powers).
Madison takes a narrow view and says spending for the general welfare means
spending to accomplish some aspect of the enumerated powers. General welfare
limited to the enumerated powers tax and spend only to carry out the
enumerated powers (build an army, roads, etc), but no general authority to tax.
Hamilton wins and the RULE is that Congress can tax and spend in order to
advance the general public purpose.
There is NO INDEPENDENT general welfare power because that would be
essentially unlimited authority.
Spending power is the last untouched power of Congress.
NOTE: No such thing as the general welfare POWER, taxing and spending power
exists
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spending as a means to regulate violated the 10th Amend. However, funding things
by handing out money would have been OK.
New Deal Period:
Ct breaks with Bailey and Butler
Helvering v. Davis (1937)
(Social Security and Unemployment Insurance programs upheld; 10th Amend no bar on
use of taxing and spending power to regulate areas within state sphere; deference to
Congress)
Steward Machine v. Davis (1937)
FactsThe Court upheld unemployment insurance provisions created by the
Federal Government.
Rule
1. congress can tax and spend for any purpose that seems to be for the
general welfare
2. Congress can attach conditions to receipt of Federal funds, and
3. the Court will not inquire into motive
After this case, the 10th Amendment is no longer an external limit on congress
spending power. Congress can tax and spend for any purpose deemed to be for the
general welfare.
So Congress can regulate through spending in areas that are usually in a states
sphere; Congress can influence states through money this is known as
Conditional Spending.
Incentivizing is ok, coercion is not ok. Butler was coercive.
Real motive will not be considered.
South Dakota v. Dole (1987) Current Rule
FactsA federal statute that says they were going to withhold 5% from highway
funds for any state that allowed drinking on federal highways of any persons
younger than 21. They want to raise the drinking age to 21. Under 21 year olds
driving across state lines to get drunk and then driving back.
Why couldnt congress direct states to do this under the commerce power?
Couldnt prescribe a national drinking age due to 21st Amend which gives the
power to the states to regulate drinking. And, Congress cant simply direct a state
to legislate federal policy.
Not coercive because it was not substantial funding and therefore left the state
with a choice.
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what is the standard for general welfare? This is very broad and there may be no
judicial limits as the Court will most likely defer to congress to decide what the
general welfare is. Nearly no limitation. Ct will substantially refer to congress
barely even rational basis.
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In 1965 Congress offers money to any state that agrees to operate a Medicaid program
according to the federal guidelines for the Medicaid program. Until Sebelius, no one
thought this conditional model caused a constitutional problem.
Holding Violates 10th Amend. coercive of states. Congress cant condition states
receipt of Medicaid funding. Can Congress direct a state to regulate a Medicaid program:
NO (NY and Printz).
Ct Roberts says: There are limits on Congresss power to condition continued state
receipt of monies for existing federal program on states agreement on a new federal
program. The Ct is giving Congress almost no deference on this question: New
Program/or Amendment to existing program.
Inquiries:
1. Same program/New Program [if new program, then coercion]
Is the change the creation of a new program or an amendment to the existing program?
If the amendment is just altering the existing program than theres no 10th Amend
problem. If the amendment is for a new program, then Ct goes to coercion analysis.
Standard for determining whether you have a new program or not? No clear standard.
2. Coercion?
Standard for coercion: we know it when we see it. We dont have to draw the line,
because wherever that line is, this statute is surely beyond it (Supp pg. 106). Problem:
litigants, lower Cts dont know what to do with this standard, so much uncertainty to this
standard.
Dissent (Ginsburg): repeal the Medicaid statute and enact the new statute, offering it to
the states with a take it or leave it theory.
3 constitutional doctrines limiting state/local authority to discriminate against outof-state interest (ON TWEN).
1. Dormant Commerce Clause (the court made up the Dormant Commerce Clause)
2. Art IV P&I
3. 14th Amendment EPC
A. Dormant Commerce Clause (the default rule where congress is silent. once
congress legislates, that takes precedent)
The constitution delegates commerce power to congress and congress can exercise
that power by preempting regulation, it can authorize states to regulate commerce. If
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the power is left to commerce, but it hasnt been used, it is considered to be dormant.
Even when Congress doesnt use the commerce clause power the limitation is still
there.
Preliminary Question: why has the court created for itself an activist role in policing
the federal boundary in state incursions?) Why vigorously enforced against state
enforcement not vigorously enforced against federal encroachment? )
o There may be a hierarchy of constitutional values the value of national
unity and cohesion are given primacy. (They thought the federal courts
could safe guard national cohesion, thats why the courts take an active
role)
o political process theory/democratic theory
If a state is regulating in a way that harms out of state process they have no way to
regulate that b/c the harmed parties have no way to hold the state accountable.
The dormant commerce clause is the most frequent ground of Supreme Court
invalidation.
Why do Scalia, Thomas and Rehnquist propose getting rid of the dormant clause
doctrine?
o b/c this is a states rights issue, it is an effort to remove the yolk of federal
judicial oversight over these states.
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State/ Local
Regulation w/
Significant impact on
Interstate Commerce
Overt/Patent
Discrimination
against interstate
commerce
Facially Neutral w/
incidental impact on
interstate commerce
Protectionist Purpose
= unconstitutional
Strictest scrutiny
State/ local must prove/demonstrate
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If the statute on its face makes note on the movement of goods cross state lines =
overt/patent discrimination.
Facially Neutral:
1. Legitimate state interests: almost anything as long as it is not protectionism. Can
include economics.
2. Deference to the legislature
3. Balancing Test: policy test can write the statute without mentioning geography
or origin of product then can achieve less discriminatory means.
Edwards v. California
Facts
At the height of the Great Depression, anyone who knowingly assisted a pauper in
entering the state of California was guilty of a misdemeanor. A Californian named
Edwards drove to Texas and then returned to California with his indigent brother-in-law.
Edwards was found guilty of violating the state's "Okie law;" he was given a six-month
suspended jail sentence
Rule
How does the statute interfere with interstate commerce? Transportation of persons IS
commerce. Immaterial if the transportation is commercial or people.
Dormant Commerce Clause: when Congress is silent the Ct is going to presume
that states cannot act in ways that violate the commerce clause. When congress
speaks, congress has plenary power under the commerce clause and can have
states.
Holding
Court Strikes down statute as violating the Commerce Clause. CA statute created an
unconstitutional barrier to interstate commerce.
Reasoning
The Commerce Clause forbids a state to exclude indigents. California's interest in the
health of its citizens and the sufficiency of its welfare funds do not justify the burden on
interstate commerce occasioned by the law. Byrnes's unanimous opinion observed that
"the indigent non-residents who are the real victims of this statute are deprived of the
opportunity to exert political pressure upon the California legislature in order to obtain a
change in policy."
Notes from Class
States may not close off its borders to problems of a national scope. States cannot
insulate themselves in such a way. We are one nation states are not their own
individual nations. States closing off its borders is inconsistent with the principle
of a single unified nation.
Even if CA had good reasons for keeping people out, the means they choose was
categorically impermissible under the Commerce Clause
The purpose of statute was to prevent the migration of poor people into the state.
Ct said the purpose was unconstitutional. Byrnes's unanimous opinion observed
that "the indigent non-residents who are the real victims of this statute are
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88
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commerce clause. This means congress can override the courts constitutional
decisions on the dormant cause.
West Lynn Creamery v. Healy (1994)
FactsMassachusetts Commissioner of Food and was a Massachusetts milk
dealer with 95% of the milk it purchases from out of state farmers. In response to
Mass farmers losing market share to lower cost producers from outside, Mass
enacted a pricing order it required every dealer in Mass. to make monthly premium
payments based on the amount of milk sales, into a fund. The fund then distributed
the $$ to local dairy farmers proportionate to their contribution into the states
production of raw milk.
State Arg A non discriminatory tax is acceptable and a state subsidy to state-run
businesses is also unobjectionable under the dormant clause. (the Sup Ct says the 2
acts together are discriminatory!)
Issuewhether the pricing order unconstitutionally discriminates against interstate
commerce.
Rule
o When a non-discriminatory tax is coupled with a subsidy to one of the
groups hurt by the tax, a states political process can no longer be
relied upon to prevent legislative abuse, b/c one of the instate interests
which would otherwise lobby against the tax has been mollified by the
subsidy.
Scalias Concurrence there are 4 possible devices that would enable a state to
produce the economic effect that Mass. Has produced here:
1. A discriminatory tax upon the industry, imposing a higher liability on out
of state members than on their in state competitors.
This is unconstitutional under the commerce clause
2. A tax upon the industry that is non-discriminatory in its assessment, but
that has an exemption for in-state members
No different than the first one
3. A non-discriminatory tax upon the industry, the revenues from which are
placed into a segregated fund, which fund is dispersed as rebates to instate
members of the industry
4. A subsidy for the instate members of the industry, funded from the states
general revenues.
Scalia thinks this is acceptable
Is the actual impact of 4 any different from the other 3? Would an out of state milk
producer be any happier with 4 than with the other ones? No; but Scalia says people
will notice the economic impact more and the democratic process will work it out
he uses a democratic and unity value.
C & A Carbone v. Clarkstown (1994)
FactsClarkstown passed an ordinance that solid waste be processed at a
designated local transfer station before leaving the city. One company was conferred
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a benefit of $81 per ton, tipping fee, a cost higher than the market and a guaranteed
waste flow. Carbone began shipping its solid waste out of state to save costs.
Without the ordinance, Carbone would have shipped the non-recyclable materials to
out of state destinations at a lower cost than the fee the transfer station charged.
This case illustrates the difficulty in the first step of classifying the statute and
figuring out which branch applies.
Majority
Rule
Discrimination based on geography, even local geography (in state locality
against in state locality; or in state locality against out of state locality), will
trigger the per se rule of overtly discriminatory statutes. The fact that the state
can argue that other state interests are being hurt as well will not get you out
of the per se rule.
Reconfirmed the Milk Dean case = overt discrimination in terms of dormant
commerce clause
Single, local, actor still based on geography!
Analysis of the 3 Values:
National UnityIn terms of the National Unity value this statute probably
wouldnt trouble you it is a pretty benign issue, waste is a tough issue that
has to be taken care of
Democratic Valueask yourself who the harmed parties are. The one who
sues is another Clarkston resident; most injured parties are the ones who have
control over the Clarkston political process.
Free Trade ValueThe Dissent applies this value to the case.
NC (invalid)
Benefits
In-state
retailers 95%
Out of state
retailers 5%
All state apple
Burdens
Out of state
(refiners/producers)
100%
Out of state only
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growers except
Washington
What % benefit
is going in
state? Less
than 95%
100% to
Washington state
growers. Their %
of the market is
probably not as
high as the out of
state retailers in the
MD statute.
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If statute says all businesses in NY must purchase their supplies from NY business =
regulation
Agencies of the state of NY must purchase from NY businesses = market
participation
If NY passes a statute saying that NY newspapers can only be printed by NY
companies, what is it? Regulation, because the state is compelling private parties to
limit their business to in state business partners.
What could NY do? Require all state agencies to purchase paper from NY
state companies. Now it is acting as a market participant.
Hughes v. Alexandria
This case invents the Market Participant Doctrine. Bounties for abandoned cars with
the hope that it would incentivize private companies to remove abandoned cars. The
statute made it easier for in-state companies than out of state companies. Ct: MD was
a participant in the market.
Comes out around the same time as National League of Cities. Is it surprising that
these cases were decided at the same time?
o No. This was during the Federalism wars, so the same Court that expanded
the 10th Amendment protection to states is the same one that added an
exception to the dormant commerce clause, giving the states more power
in both decisions the majority was the states rights group.
If the dormant commerce clause applied in this case, then the statute would lose, but
the Court rejected the claim by drawing the market participant distinction
Reeves v. Stake Four Years after Hughes
FactsSouth Dakota had a cement factory and had a statute that said if there was
ever a shortage of cement then the factory had to prefer in state purchasers vs. out of
state purchasers
The Court upheld the statute. IF dormant commerce clause applies = discrimination
(based on geography) But, the state was a participant so the dormant commerce
clause does not apply.
White v. Massachusetts How to tell the difference between Market Participation and
Market Regulation
Facts Mayor of Boston made an executive order saying any contractor under
contract with the city of Boston has to agree to hire 50% Boston residents on these
jobs as construction workers
What is the analysis? Dormant Clause
o Is there facial/overt discrimination?
Yes, because pursuant to Carbone, any local law hurting other in
state residents will be overt. So it gets strict scrutiny.
o the statute will fail
o will fail the balance also
o The Cities only chance is to argue that it is a market participant
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The problem is that the city is not in a direct relationship with the
workers, so in effect it is telling its contractual partner how to
organize its business with third parties.
The Supreme Court, however, held for the city saying that the
analysis would be case by case paying attention to the specific
facts the Court placed the executive order in the market
participant side
The pivotal issue here is whether what the mayor did was market participation or
regulation. The city isnt in a direct relationship with the workers, so what they are
doing is telling its contractual partner how to organize their business with third
parties so the Ct would be seen as an effort to regulate the business relations.
The SC held for the city and said that market participation will be determined on a
case by case basis and the Court said that in this case, everyone involved was
working for the city which placed them in the market participation side.
See TWEN for NY statute that dealt with this subs c and e the part with people
working on the citys K directly is on the White side and therefore ok. However, the
second part may be more market regulation than participation, but it is participation
because it doesnt impose a regulatory burden outside of the contractual relationship
even if out of the city, they are still working for the city on its K.
2. Enact a statute providing that solid waste may not be brought into NJ from out of state
unless the waste has been pre-processed to remove any toxic material. (NJ law imposes
no such condition on the disposal of garbage created in the state)
It is overtly discriminatory. Even though it doesnt bar waste from out of state, it still
treats it differently, so it is discriminatory; so it fails and also it is not a market
participant
3. once the state acquires the facilities, they are now market participants.
4. the question would be the white south central distinction. Does it have a down stream
effect? It is Market regulation and will fail because it wont pass strict scrutiny (it is
overt discrimination)
5. This is fine congress can authorize/prohibit states from regulating interstate
commerce
B. Article IV Privileges and Immunities Clause
US Const Art IV
Sec. 1: Full Faith and Credit
Sec. 2:
cl. 1: Privileges and Immunities
cl. 2: Intersatte Extradition
Sec. 3:
cl.: New States
cl. 2: Territories
U.S. Const., Amdt. IV, 2 (does not create any substantive rights its own rights)
The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the Several States
(non-discrimination principle in favor of out of state citizens. Imposes limits on state and
local governments)
U.S. Const., Amdt. XIV, 1
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States
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U.S. Const., Amdt. IV, 2:This is a constitutional limitation on state and local govs
from discriminating against out of state citizens.
Distinctions between 14th A P&I and Article IV P&I
o What did the framers want to achieve with 14th A P&I? make the bill of
rights applicable to the states and have them enforced against the states,
but the Slaughter House Cases confined it to a small set of rights of priv.
and imun. That had to do with nats citizenship travel from state to state,
choose your state of residence, etc. The point of the 14th A P&I was to set
a national baseline of rights that citizens could enforce against their state
or any other state.
o Article IV P&I the current view is that it protects priv. and imun. Of
state citizenship not national citizenship the only thing that it does is to
prohibit states from discriminating against citizens of other states with
respect to priv. and imun., whatever those are deemed to be. It does not
create substantive rights it basically says that they dont have to have
any rights, as long as they are treated equal.
Who can be a Plaintiff in an Article IV P&I Case (who gets the protection)?
o You have to be a US citizen of ANOTHER state
o You must be a real person (not a corporation)
o It is only concerned with state discrimination against out of state citizens
according to this clause, the state can do whatever it wants to in state
citizens
o Cant sue your OWN state.
Market Participant does not apply to P&I because it is a judge made limitation on
state regulation so they can make exceptions to it and by contrast, P&I is an express
constitutional prohibition to promote national unity and therefore the Court cant
make exceptions to a constitutional protection.
Current Article IV P&I Analysis
Local/State Law
1. Has the state or subdivision discriminated against a U.S. citizen of another state?
Discrimination on an account of state citizenship against out of state citizen.
Local discrimination counts. Also, the Carbone rule applies here too it is
discrimination if a locality discriminates against in state citizens not in that
locality. Local discrimination counts as state discrimination. Locality =
discrimination on account of state citizenship.
2. If so, did the state discriminate with respect to a fundamental interest for Art 4
purposes? (Is it an Art. 4 privileges and immunities)?
What counts as an Article IV Privilege and Immunity?
o Sufficiently fundamental to the promotion of interstate harmony
o Bears on the nation as a single entity
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If the answer to 1 and 2 is NO then there is no violation and the analysis is done.
If the answer to 1 and 2 is YES (continue down the analysis)
Then the analysis: this would be something like intermediate scrutiny
3. Does the state have a substantial reason for the discrimination beyond the fact
that the disadvantaged parties are out of staters.
IF IT DOES
4. Then there must be a Close relationship btw discrimination and substantial
reason - peculiar source of the evil that the statute is meant to cure. 3 and 4
are pretty much intermediate scrutiny.
[Out of staters must be peculiar source of evil that the state means to address]
HYPO
Analyze whether the discrimination btw CUNY in state tuition and out of state
tuition violates the dormant commerce clause and the P&I clause.
Violation of Dormant Commerce Clause
1. Overt
o local and based on geography
Strictest scrutiny
State/ local must prove
1. neutral non-protectionist state purpose
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2.
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Dormant Comm Cl
but:
mkt particip exception
Cong can override
Art IV P&I
- intermediate-type scrutiny
- no mkt particp exception or
congl override
but:
limited plaintiffs (USC, o-s)
limited protected interests
14 A Eq Prot
- applies to all plaintiffs/interests
- no mkt partic exc or cong'l override
but:
only rationality review
(unless fundl rt implicated)
C. Preemption
US Constitution, Art. VI, cl. 2 (Supremacy Clause)
The constitution and the Laws of the US which shall be made in Pursuance thereofshall
be supreme Law of the land; and the Judges in every state shall be bound thereby; and
Thing in the Constitution or Laws of nay State notwithstanding.
Constitutional basis for preemption: Art. VI Supremacy clause.
What is the Constitutional basis for it? Article VI Supremacy Clause Federal Law
trumps any inconsistent state laws; i.e. if a state law was in conflict with 1st A, the
state law will fail.
the question in many cases is whether federal regulation in an area preempts state
tort remedies and
there are different alignments of judges on these cases; why?
o Strong preemption (liberals like conservatives dont) also results in more
laisez faire market (conservatives like; liberals dont) and the other way
around
Given the broad applicability of pre-emption, the way the S.Ct administers it can
have an effect on state and national balance of powers.
3 kinds of Pre-Emption
1) Express
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Where congress, within the statue, says there are pre-empting the state.
Exp: this act supersedes any state law that relates to
2) Implied
a. Conflict
The terms of the fed law or in conflict with some state
policy/law.
o Dual compliance is possible
o there are not many cases that find preemption where
dual compliance is impossible
o Objective
o Where the state law is an obstacle to or frustrates
the federal objective then it will be preempted
b. Field Pre-emption
The court will infer from comprehensive or pervasive
[something] that congress meant to occupy. If the court infers
pre-emption of the field, then all state regulation within that
field is PROHIBITED.
The court is inferring from the pervasiveness.
Two questions:
1. What field did congress occupy? What is the scope of
the field?
2. Does the state regulate within that field? Does the
challenged state law infringe on that field?
General Principles for Preemption
1. Preemption is disfavored Court says it is reluctant to apply preemption
a. Why would the Court adopt such a stance? By saying it is disfavored, the
Court is narrowing the scope of their judicial review so it is a federalism
issue. Also, states are to retain the power that the Constitution doesnt
give to Feds, so the Court cant have a vigorous preemption doctrine
b. State laws that fall within an area of traditional state concern in these
circumstances the Court is very reluctant to have Federal statutes override
these.
c. Note: this doctrine comes down to Congressional intent; with implied the
court is inferring an intent to occupy the field, and the same with conflict
preemption.
2. The Court will very readily find preemption in areas that are peculiarly National;
where the Constitution gives Congress the authority to act in that area; i.e. in
terms of immigration policy.
a. Preemption will be a lead argument in trying to stop states from regulating
against immigration.
Pacific Gas & Electric Co. v. State energy Resources Conservation & Development
Commn
If you were arguing for preemption, how would you want to define the field?
If arguing for it you want to define the field as broadly as possible.
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The Court defined the field more narrowly as nuclear safety rather than energy
probably for federalism reasons
Second Q did the moratorium operate within the preempted field? According to
pacific gas, how does the Court decide that?
a. If theres a moratorium on new nuclear plants how would you know if that
was a safety measure or an economic one?
1. look at the states purpose/goal to answer question 2 NOT at
the real impact on the federal policy
2. the court upheld the moratorium on the basis that the state had an
economic purpose and not safety.
3. the same exact moratorium would have been struck down if the
Court found that the states purpose was safety.
Silkwood v. Kerr-McGee
This was 1 year after Pacific Gas
Issueare the punitive damages preempted?
RuleThree Step Process for Field Preemption:
1. is there field preemption? Yes
2. Define the scope of the field (what field did Congress occupy?) nuclear
safety
3. what is the purpose of a punitive damage award (did the state act within the
preempted field; look at state purpose)? To regulate the behavior in ways that
regulate safety this was the argument by Kerr Mcgee and if this is accepted
by the Court then the punitive damages are within the preempted zone.
The majority found that punitive damages were not preempted why? Based only
on Congressional intent based on legislative history, Congress did not intend to
displace traditional tort remedies.
Court says that field preemption wouldnt be a basis for stopping tort damages;
conflict would though.
The Court was uncomfortable with finding implied preemption against tort remedies.
They were looking for more evidence that that was what was intended.
Congress can always step in and make its intent clear (similar to the dormant
commerce clause).
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tend to favor a strong unitary executive (any function that looks like,
smells like, walks like an executive function is under the executive)
o Functionalist there wont always be clear lines between the branches
and its not useful to think about the powers without any overlap. You ask
whether the actions of one branch interfere with the core functions of
another branch. You accept that the branches are interdependent and that
their powers would overlap.
An example would be that the Executive is the Commander in
Chief of the Armed Forces, but Article I vests the power to declare
war in Congress as well as the power to raise and support the army,
etc. There is also the Necessary and Proper Clause. So basically,
they can make rules for maintaining the army.
Separation of powers approach to separation of powers corresponds with a formalist
approach
Checks and balances approach to separation of powers corresponds to functionalist
approach
A. Executive Power
Where does executive power come from? Art II Sec. 1 called: The Vesting
Clause
Ways to look at the extent of Executive Power:
o NarrowHis powers are only those that are listed in Article II and
nothing else. The argument is that even obvious roles such as being the
head of state are listed in Article II.
o BroadHis powers extend beyond those listed in Article II. For
example, Article I Sec. 1, when listing the powers of congress refers to
them as the powers herein granted meaning those granted by the
Constitution (enumerated specifically in the Constitution). That language
is absent in Article II, there is not herein granted.
NOTE The Court has rejected the idea that he has a generic
overriding power
Commander and chief of the armed forces. Constitution has made the president
the commander and chief of the armed forces. Why? To put the military forces under
civilian control and protect the nation from undue power from the military. For
Congress, the constitution provides that Congress declares war, raise and support
armies, provide for a navy, etc. (Art I, Sec. 8). Congress has an enormous role in this
area.
Take Care Clause Executive has the power to take care that the laws are
faithfully executed
o Nixon argued that the Take Care Clause gave him the authority to refuse to
spend certain federal programs the Congress authorized.
o Scalia in Printz says this clause gives President exclusive authority to
make sure the laws are carried out
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- Vesting Clause
- Take Care Clause
- Inherent/Emergency Powers
o The steel companies did not deny that the government could take over
their property in emergencies. Rather, they claimed that the wrong branch
of the government had proceeded against them; in essence, they sued the
president on behalf of Congress on the basis that the presidential action
had violated the constitutional doctrine of separation of powers. Six
members of the Court agreed, and Justice Hugo Black's majority opinion
made a strong case for requiring the president, even in wartime, to abide
by established rules.
Justice Blacks Analysis:
o If pres has the power to seize the steel mills it either has to come from
statute or from article II. He concludes that he doesnt have statutory
authority in this case. He addresses three sources of Article II power one
by one:
Commander in Chief Argument He distinguishes between true
management of a war and other kind of activities that have some
relation to a war but where the power resides elsewhere. Even
when there is a fear of war the executive does not have certain
powers; so if the opposite approach were taken, any act could be
seen as related to war
Take Care Clause He rejects the idea that this gives pres any
policy making power. Congress makes the law, president carries
out the laws.
Vesting Clause A power to seize property is in essence a
legislative power its a policymaking role; Congress has that
power and therefore president cannot impede on that.
o Blacks opinion is seen as formalist. One weakness to this is that powers
can overlap. Black also recognizes that Congress could give the power to
seize property to the president; is that consistent with his theory? Yes,
because Congress would be making the policy and the President would be
carrying it out. Congress can delegate power to the president but it has to
be accompanied by intelligible principles (instructions on how to use the
power)
If you were trying to come up with a rule for presidential power what would you
make of what Black says about the Necessary and Proper Clause and Congress
having the power necessary to legislate in order for the other branches to carry out its
powers?
o Congress, at least in any case of an implied or inherent power, the N & P
Clause gave Congress authority to define ancillary powers necessary for
the president to carry out Article II powers. At the very least, this would
mean that where there is a conflict between a power the president says is
inherent and a duly enacted statute by Congress, then the statute prevails
under the N & P Clause. The N&P Clause gives Congress the power to
make laws for carrying into execution the foregoing powers and all
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southern ports all without congressional authorization. Dissent says Trumans acts
comparable because acted pending congressional action (like Lincoln). Loffredo:
distinctions: half the country in enemy hands, civil war approaching, etc.
All except for Black take a functional approach and with respect to inherent
presidential power, Congress can override.
They also recognize that there is some inherent executive power but again, it can be
overridden. The Court was not convinced that here Congress silence gave the
president more power.
Dames and Moore v. Regan
FactsIran Hostage crises Lawsuits pending against Iran in US courts are to be
cancelled and sent too an arbitration tribunal this was the agreement btw Iran and
the US for the release of US hostages. Congress did not give the president any
power to cancel lawsuits. Dames and Moore had a contract pending against Iran in
the US court, for services that were being given to Iran. The action was cancelled on
Reagans order.
Rehnquist doesnt follow Blacks analysis. Proposes to alter the 3 categories and
blends them into a continuum.
Does Rehnquist take the analysis whole sale and use the 3 categories; or does he alter
it? He blends them into a continuous spectrum from express congressional approval
of a presidents approval through
o What would have happened if he used one of the 3 categories? It would have
either been under 2 or 3. At best, it would have been under 2 and the Court
would have found that there was some constitutional/inherent executive power
to cancel the proceedings in a co-equal branch (the Court) and that would
have been a very disturbing holding; so the Court wanted to proceed more
gingerly.
Rule We cannot ignore the general tenor of Congress legislation in this area in
trying to determine whether the president is acting alone or at least with the
acceptance of Congress. Congress cannot anticipate and legislate with regard to
every possible action the president may find it necessary to take or every possible
situation in which he might act. Such failure of Congress specifically to delegate
authority does not,especiallyin the areas of foreign policy and national security,
imply congressional disapproval of action taken by the executive.
o when congress gives the president broad discretion, the court might infer a
congressional intent to act over related areas.
Is this consistent with Youngstown?
o Here, the Court comes to an opposite conclusion in terms of Congressional
silence
o In Youngstown, silence by Congress in the statute prevented the president
from doing something and in this case it only meant that there wasnt
congressional disapproval
o Youngstown analysis: Congress has legislated in the area (Taft Hartley Act)
and did not give the Pres authority to seize property. Where Congress acted in
some areas and not others, such silence indicates disapproval. In Youngstown
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there was an amendment (unlike in Dames and Moore) and in Youngstown the
govt had an alternative method to deal with the problem (the Taft Hartley Act)
and in Dames and Moore there was no alternative method although the
President could have gone to congress to make the request.
Rehnquist seems to be putting the action by the president here under category II
In Dames and Moore the executive order is upheld. Where did the authority for the
executive order come from?
o Category 2 congressional silence might be interpreted as an invitation for
the president to act b/c it is not expressly authorized or disapproved of.
o Article 2 powers may extend if congress is silent.
o Are there limits on the presidents power? Could Congress legislate in a way
that would limit the Presidents power? Yes the court allows the power in the
absence of congressional intent.
o Even though the Ct approved the presidents action it still seems based on
congressional intent
o Separation of powers: rejected the formalist approach set out by Black in
Youngstown.
Medellin v. Texas (2008)
FactsInternational treaty ratified by the Senate (congressional participation). Vienna
Convention on Consular Relations requires signatories to inform detained foreign
nationals of the right to request assistance from the consul of their states. Texas not
following the rules of the treaty. Bush issues memo instructing states to abide by the
Vienna convention. Sup Ct struck down the memo said it was beyond Press power.
Roberts: Category 3. Pres acting in conflict with Congress. Senate ratified a non-selfexecuting treaty will not have domestic affect unless approved by Congress they must
enact legislation putting the treaty into affect. President was unilaterally creating
domestic law, he acts in conflict with the understanding of the ratifying Senate.
B1. Foreign Affairs
Post 9/11 Executive Power Cases/Statutes
Hamdi v. Rumsfeld (2004)
Presidential power to order military detention
of U.S. Citizens deemed enemy combatants;
access to judicial review; due process.
Rasul v. Bush (2004)
Habeas corpus jurisdiction extends to U.S.
naval base in Guantanamo Bay, Cuba.
Detainee Treatment Act
(2005)
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o How does the court distinguish Ex Part Milligan (famous civil war case, that
has the language of inappropriateness of using military courts as long as the
civilian courts are open and operating).
o The Court does not have to reach the issue whether the president can authorize
this they instead decide it on statutory grounds. So this is a very narrow
holding saying that Congress authorized detention of this very narrow group
of US citizens.
Issue 2 - if so, do US citizens have a right to judicial review to contest their
confinement and what procedures are attached to that review (what is the
nature of that review)? One separation issue is the role of the Courts and the
president in times of war; a second is that if the president holds someone
without review, that is in effect a suspension of the writ of habeas corpus which
Congress has the authority to do only
o The government took the position that Hamdi had no right to habeas petition
and they could hold him indefinitely; but right before this case got to the
Court they said that he could file a habeas petition and get a lawyer. Why this
change in position?
That was a very extreme position and there was no plausible argument
that Bush could suspend the writ over a period of years (it wasnt like
it was an immediate suspension in an emergency because this took
place over years). Unprecedented claim by the Pres that they have the
power to suspend Habeas Corpus it is understood that Congress is
the branch that has the power to suspend
OConner (for the plurality) turns the separation of powers argument
back on the govt saying that its argument would have its own
separation of powers problem by concentrating a lot of power in one
branch at the expense of other branches and here the court has
authority over individual rights and the govts position would take that
away.
o So, what rights does Hamdi get?
Gov argues that the Ct should not interfere during times of war.
Ct responds govts approach condenses power into a single branch of
govt. A state of war is not a blank check for the president when it
comes to the rights of the Nations citizens (quoting Youngstown).
Ct- strong language, but watered down results. A fairly pale version of
DP; and the Court leaves open the suggestion that a non-judicial
proceeding might satisfy the requirement. Lesser standard of proof is
permissible, including admission of hearsay. Burden of proof on the
petitioner (not the government).
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the AUMF it is inapplicable here because Bush had not charged Hamdi
as a military criminal. Govt wasnt abiding by the laws of war and
therefore AUMF does not apply. Govt must prosecute in an Art III Ct.
Congress spoke and AUMF doesnt authorize detention, and no
detentions are allowed by acts of Congress under 4001(a).
Commander-in-chief argument doesnt hold b/c Congress can override
the Presidents Art. II power.
Souter and Ginsburg think that 4001 controls and Scalia and Stevens
dont think president has the authority
In terms of what process is due he says that Hamdi is entitled to
more process but he joins the opinion so that Souter can get some sort
of process
Scalia and Stevens Dissent
o Issue 1 if a US citizen is waging war against the US, then charge him with a
crime in the US. If the situation is so dire and exigent that they cannot do so,
then Congress can suspend the writ temporarily. AUMF does not purport to
suspend the Writ.
o He takes a textualist and very formalistic approach
o So, Souter said that Congress had spoken in a way that indicated disapproval
of executive detentions (4001). In contrast, Scalia says that even with
approval by Congress, the Constitution itself bans classifying citizens as
enemy combatants. It is political doctrine question for Congress, not the Cts
In terms of the power to detain the plurality (4) plus Thomas say there is power to
detain. Thomas, remember says that the president has this authority. In terms of
saying that Habeas review is due 8 minus Thomas say he is due some sort of
process but the process is very one-sided and not fair. Concurrence joins the
plurality to get a decision.
Hypothetical Concerning Jose Padilla
Youngstown Sheet and Tube (The Steel Seizure Case)
Analysis from concurring opinion of Justice Jackson
Category 1
President acts pursuant to congressional authorization.
(congressional power constitutionally delegated to Pres.
plus Article II power).
Category 2
President acts absent congressional auth'n or disapproval.
(Article II power only. What role congressional inertia?)
Category 3
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AUMF speaks to those in connection with 911 attacks. Here, no evidence that
Padilla is part of 911.
Stevens/Scalia will vote against detention of Padilla.
If AUMF doesnt authorize detainment
Padilla does not fit the narrow definition that was given in Hamdi.
o You would argue that the pres doesnt have the inherent article 2 power to detain
Padilla.
One line of analyses this is a Youngstown category 3 argument the govt cant
point to any other act, so they have to release the man. President acting contrary to
Congress.
Suppose the court finds that 4001(a) 2 wasnt applicable here, that it didnt apply to
military actions. Where does that leave the arguments?
o Govts Argument The Dames and Moore case congressional silence. If
4001(a) doesnt apply, then congress is silent. However, they do have the patriot
act, and you would want to compare that to
o Padillas Argument Cite Youngstown, a situation where congress is silent but
has the opportunity to speak.
o Patriot Act should be taken as Congressional disapproval of detention of US
citizens.
o 4001(a) only applies to criminal acts not military actions.
o Padilla Arg 4001(a) was a response to the internment camps/military
detentions and was established to prevent such detentions by the govt.
(Molly Notes)
Applying Youngstown / Dames & Moore / Hamdi to Padillas case
-First Question
Has Congress spoken?
o Authorized?
o Disapproved?
o Silent?
Three statutes to decide how Congress feels about it:
4001(a)
AUMF
o Foreign soil
US Patriot Act
o Like Dames & Moore?
Congress gives broad authority in area of
national defense, the Court might infer
congressional approval/acquiescence in pres.
exercising related authority especially if
theres been a history of president acting w/
congressional acquiescence
Padillas argument
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Hamdan v. Rumsfeld
Facts:
It is alleged that between the years of 1996 and 2001 Hamdan was engaged in actions in
preparation of the September 11, 2001 attacks against the United States. Militia forces in
Afghanistan that were fighting the Taliban captured Hamdan and turned him over to the
U.S. Military in 2002. He was transferred to Guantanamo Bay. A United States occupied
Military base. After a year of being detained without any charges being brought against
him, President Bush declared that he had committed acts triable by a military
commission. He was charged with one count of conspiracy to commit offenses triable by
the commission. This commission is created by military necessity, not by statute or
constitutional power. This commission has a presiding officer and at least three other
members. The accused is afforded military counsel, and a copy of the charges against
him. This hearing may be conducted outside the presence of the accused for the accused
does not have a right to see all evidence or hear all witness statement against him for
purposes of national security. After being tried and convicted of conspiracy, Hamdan
apply for a writ of Habeas Corpus stating he deserved all the constitutional rights
afforded to him at trial, the writ was granted.
Arg:
President Bush asserting AUMF authority and Commander-in-Chief powers.
Issue:
Whether Hamdan committed a crime triable by military commissions and whether that
commission is constitutional.
Rule:
More like Youngstown analysis.
If there is a conflict between Congress authority under art. I and Pres under Art.
II there seems to be a presumption that Congress prevails UNLESS Congress does
not have Art I power or Congress is interfering with the CORE of Art II power.
Ex. President has the power to issue pardons, veto legislation, prez has power who
to nominate to the Supreme Ct all power Congress cannot interfere with.
Sup Ct will look skeptically at power that places concentrated authority in one set
of hands one branch. Executive is defining, executing and sitting in judgment =
all authority in one set of hands.
Holding/Reasoning:
Contrary to the UCMJ and Congress has already established policies.
Falls under category 3: Congress has spoken and the President is acting in
contrary to it. Like in Youngstown: where Congress delegates to the Pres under
certain conditions, the Ct reads that as congressional disapproval beyond those
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limited delegations (like the Taft Hartley Act in Youngstown). Congress, here,
authorized Pres to conduct military tribunals under the UCMJ. The Pres military
commissions were not consistent with the UCMJ procedures which requires
courts-marshal established by statute.
Violates the laws of war under the Geneva Convention - Common Art III. Judicial
guarantees. Bushs order fails to meet these guarantees. No Kangaroo Cts. There
needs to be regularly constituted Cts (pg. 390 sec. b)
The President at a time of war has the power to try and punish crimes against the
laws of nations. This is the constitutional provision used to show that military
commission tribunals are legal. However, this court feels that only certain
circumstances allow for offense to be triable in a military commission. Those
offenses are; 1 in place of civilian courts when marital law has been declared, 2
temporary military government in occupied territory or in lands where there is no
government to try cases, and 3 when the crime is an incident to the conduct of war
which violate the laws of war. The court states that only the 3rd type applies,
however the charge of conspiracy is not an incident to the conduct of war.
Incidents of war are accusations of actual conduct, not the attempt or planning of
such conduct. Inchoate criminal charges belong in a federal court or court martial
proceeding. Secondly this commission violates not only constitutional rights
afforded an individual, but also rules established by the Uniform Code of Military
Justice (UCMJ) and the Geneva Conventions. A military commission tribunal
must have rules and regulations that do not fall short of at least a military court
marshal proceeding. The lack of presence and ability to see the evidence and
witness before you is not constitutional. Therefore Hamdan should not be tried in
front of this commission. This court reversed the commissions charges of
conspiracy.
Concurrence:
The President does not have a blank check to try prisoners of war as he pleases. While
there is a large separation of powers issue here, Congress has specifically legislate the
UCMJ to prescribe the rules for such commissions to avoid these violations and we will
not disagree with it.
Does the Geneva Conventions ties Congress hands?
Conventions doesnt have the status of higher law, but statutory law
Conventions only applies if Congress wants it to. Its not a per se application.
Boumediene v. Bush (doesnt add to the general rule)
Detainee Treatment Act unconstitutionally restricted the writ of habeas corpus. The
limited the review in the US Ct of Appeals provided for in the Act was not an adequate
substitute for Habeas.
U.S v. Nixon: 3 principle legal issues
1. Justiciability
2. Presidential amenability to judicial process
3. Existence and csope of executive privledge
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