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Con Law Final Outline

Con Law Final Outline

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Sections

  • AUTHORITY FOR JUDICIAL REVIEW OF STATE JUDGMENTS
  • FEDERAL LEGISLATIVE POWER
  • FEDERALIST 45
  • WHAT DOES AMONG THE STATES MEAN?
  • US v. LOPEZ
  • CONCURRENCES
  • UNITED STATES v. MORRISON
  • GONZALES v. RAICH
  • SOUTH DAKOTA v. DOLE
  • YOUNGSTOWN SHEET AND TUBE v. SAWYER
  • US v. RICHARD NIXON
  • THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER
  • THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE
  • APPOINTMENT POWER
  • CHECKS ON THE PRESIDENT
  • SEPARATION OF POWERS AND FOREIGN POLICY
  • US v. CURTISS WRIGHT
  • DAMES AND MOORE v. REGAN AND SECRETARY OF TREASURY
  • WAR POWERS
  • PROHIBITION OF GENERALIZED GRIEVANCES
  • UNITED STATES v. RICHARDSON
  • HEIN v. FREEDOM FROM RELIGION FOUNDATION
  • POLITICAL QUESTION DOCTRINE
  • BAKER v. CARR
  • POWELL v. MCCORMICK
  • GOLDWATER v. CARTER
  • NIXON v. UNITED STATES
  • HOOD v. DU MOND AG. Of NY
  • FACIALLY DISCRIMINATORY LAW:
  • CITY OF PHILADELPHIA v. NEW JERSEY
  • FACIALLY NEUTRAL LAWS
  • HUNT v. WA STATE APPLES
  • 2 exceptions to dormant commerce clause
  • WESTERN SOUTHERN v. CA
  • SOUTH-CENTRAL TIMBER DEVELOPMENT v. ALASKA

1

INTRODUCTION
A. WHAT IS CONGRESS S AUTHORITY TO REGULATE COMMERCE AMONG THE STATES? United States v. Lopez

JUDICIAL REVIEW
MARBURY v. MADISON formalized notion of judicial review in this case HOLDING & DECISION: 1. YES. The Supreme Court has the power, implied from Article 6 Section 2 of the Constitution, to review acts of Congress and if they are repugnant then the court can declare them void. 2. Court must consider 3 questions o Has the applicant a right to the commission he demands?  Yes. When a commission has been signed by the president, the appointment is made; and the commission is complete when the seal of the US has been affixed to it by the Secretary of State.  To withhold the commission is an act deemed by the court as against the law, and violating a vested legal right. o If he has a right and it has been violated, do the laws of this country afford him a remedy?  The government of the US is a govt. of laws, not men,.  Whether the legality of an act of the head of a department is examinable by the court depends on the nature of the act y The president, bound by these laws is given certain political powers by the constitution, laws he can use at his discretion. y To aid him in his duties, he is authorized to appoint certain officers to carry out his orders. y Their acts as officers are his acts and are never subject to examination by courts. y HOWEVER, when these officers are given by law specific duties on which individual rights depend, any individual injured by a breach of duty may resort to the law for remedy. y The question whether Marbury s right had vested or not must be left up to the courts to decide. o Is he entitled to the remedy for which he applies for? This depends on:  The nature of the Writ applied for y Madison meets the criteria of the Writ o He is an officer of the US and Marbury is without any other redress. y Marbury had a right to the commission and by Madison refusing not to deliver it he violated that right. y This is a plain case of a Mandamus. What Marbury v. Madison Does: 1. Creates authority for judicial review of executive actions.

2 a. Distinction between areas concerning individual rights (govt. duties) and political rights where they can exercise their discretion. Article 3 is the ceiling of federal court jurisdiction a. Precise Holding: Congress cannot expand the original jurisdiction of the Supreme Court. Establishes the authority for judicial review of legislative acts. a. Does this by establishing that the Judiciary Act of 1789 is unconstitutional i. Which the court interprets as authorizing the Supreme Court to exercise mandamus on original jurisdiction Congress cannot increase the jurisdiction of the federal courts, article 3 is a ceiling not a floor Court can review executive branch to determine its legality if they are ministerial acts, discretionary acts do not qualify Court can review legislative acts as well for constitutionality.

2. 3.

3. 4. 5.

WEST Article AND THE PROGRESSIVE AND LIBERAL VIEW Robin West Reading: -don t just accept the constitution as what s best. -maybe the 1st amendment is wrong should we really protect hate speech? -be critical of the constitution (she is speaking from the left, progressivism)
believes that the debate over the Constitution's meaning dominates scholarshp to the exclusion of a debate over the Constitution's value. 2 Constitutional scholars, she surmises, ought to be asking whether the Constitution is desirable as written. 3 Academics should scrutinize the Constitution for how broadly it protects such values as free expression, self-actualization, and political debate, and whether protection of those values is desirable. 4 As a progressive, West looks to the Constitution as a solvent of private power, and finds it lacking. 5 She concludes, for example, that the Constitution fails to prevent private power from restricting the equality and freedom of "subordinated peoples." 6
Does

the 1st amendment provide for goods values? Does it add to the social cohesion of society?

Progressives: committed to individuals leading autonomous, fulfilling lives Difference between Progressives and Liberals Liberals feel our greatest danger is an over oppressive state Progressives feels that unjust concentrations of private power are the biggest danger. -we must target these spheres and that will require state intervention. Problems with constitution under progressive view: 1. It does not prohibit the abuse of private power that interferes with the equality of subordinate people. 2. Constitution leaves untouched the very subordination that is ruining society. a. No protection against Private racism, homophobia, homelessness i. This relegates some to lead lesser lives. 3. Constitution actually protects the private spheres which enables this subordination. a. Protects hate speech, pornography (subordination of women) nd 4. 2 issue: the 14th amendments protection of equality, rather than a limit on liberty impedes progressive progress.

3

Constitution protects negative liberty - refers to freedom from interference by other people
-negative liberty is protected at the cost of other positive forms of liberty that are necessary for progressive change. Positive Liberty is central to Progressivism refers to having the power and resources to act to fulfill one's own potential, as opposed to negative liberty, which refers to freedom from restraint.[1] Inherent to positive liberty is the idea that liberty is the ability of citizens to participate in their government

AUTHORITY FOR JUDICIAL REVIEW OF STATE JUDGMENTS
The authority for judicial review of state court decisions was established in 2 decisions, Martin v. Hunter and Cohens v. Virginia y Martin v. Hunter o Granted review and declared the authority to review state court judgments o Justice Story s Argument:  Structure of the Constitution presumes that the Supreme Court may review State Court decisions.  Constitution gives Congress discretion to create lower federal courts, but if they choose not to do so then the Supreme Court would be powerless to hear any cases, except for the few that fall within its original jurisdiction Unless it could review state court cases. y Cohens v. Virginia (lottery ticket case) o Held: Supreme Court, in opinion by Justice Marshall, reaffirmed the constitutionality of Section 25 of the Judiciary Act and the authority of the Supreme Court to review state court judgments. o Reasoning:  Court emphasized that state courts often could not be trusted to adequately protect federal rights because in many states the judges are dependant for office and for salary on the will of the legislature. LIMIT ON JUDICIAL AUTHORITY: INTERPRETATION OF THE CONSTITUTION DEBATE BETWEEN ORIGINALIST AND NON-ORIGINALISTS (pg 18) IDEAS TO CONSIDER WHEN INTERPRETING THE CONSTITUTION: -Think of broad ideas as we interpret: Textualist: look no further than the text, that s all the people ratified, didn t ratify present or future understanding of the text going beyond that is beyond judges power (Justice Black was textualist). Originalism: linked to textualism, not just look at text though, look to what the founders thought the language would mean.. Traditionalist: look towards tradition, what has this country done for the past 200 years this puts a spin on what the constitution means Constitutionalists: all this plays a role, but we must also look to how the values play out in today s changed world. Process based argument: courts role is to enforce a fair and democratic process can t read substantive values into the constitution, court can read fair procedural gestures into the constitution though.

4

FEDERAL LEGISLATIVE POWER
McCULLOCH v. MARYLAND Necessary and Proper Clause implementation y Certain federal powers, giving congress the discretion and power to choose and enact the means to perform the duties imposed upon it, are to be implied from the Necessary and Proper Clause (article 1, section 8) o Constitution does not exclude incidental or implied powers o Creating a bank was a means to execute a power expressly given to congress by the constitution, all necessary means is that the method be convenient, useful or essential This would transfer supremacy to the States!! y If states may tax one instrument employed by the govt in the execution of its powers, they may be able to tax all other instruments employed in the execution of its powers!

FEDERALIST 45
y y y y y y y y y y
However, they do not think about how much strength is required in a government to sustain the union. There are many examples from ancient and modern confederacies that prove that the individual members often betray the union. Since the states, under the U.S. Constitution, keep a lot of power it is important to analyze whether enough checks have been placed on their authority to hurt the union. The federal government serves to protect states from disputes with their neighbors, to grant powers in the state governments and to provide the additional support of the people The federal government cannot run without the state governments. The state legislatures are the ones to elect the President of the United States, and to select the state Senators. Each branch of the federal government relies in these ways upon the state governments and will feel dependence towards them. The powers granted to the federal government are few and specific and will be exercised towards external parties Powers granted to the states are many and general and focused solely on internal affairs. The federal government will be the most important in times of war and danger, the state government in times of peace and security. The more powerful the federal government is to deal with war and danger, the less likely the will need to be most active. The proposed plan of government does not propose new powers, but a strengthening of the original powers that were vested in it under the Articles of Confederation. The change does not enlarge powers, just proposes a new way of administering those powers People are more likely to be more supportive of state governments, which are geographically closer to them and in which they may have relatives or neighbors The state governments clearly have an advantage because the people are more attached to them and the federal government depends on the states for elections. A local spirit will inevitably control the members of Congress, and make them inclined to focus more on local rather than national goals.

2 arguments in his federalist 45: 1. Must protect from external concerns a. Bring states together because articles of confederation didn t 2. State govts. Still retain essential powers a. Responding

COMMERCE POWER

and insurance were not considered commerce. giving it a nearly complete control of the refining of sugar in the United states. o This case: NY law conflicted with federal regulation dealing with interstate commerce (navigable waters). between the same points. congress may not control a monopoly of manufacturing. y Manufacturing is not commerce. the state regulation MUST yield to federal law. so the NY law is not valid. precommercial activities like mining. sought to enjoin Gibbons from operating his ships. ANALYSIS: y During the laissez faire period. o States in that case must base the regulation on some other source of power other than commerce power (such as police power of the state). unregulated economy. y commerce succeeds to manufacture. licensed by the FEDERAL GOVT. agriculture. although it is possible for states to pass regulations that may affefct some activity associated with interstate commerce. REASONING: y Power to control manufacturing is secondary and incidental to the power to control commerce. Ogden RULE: y If a state law conflicts with a congressional act regulating commerce. y Federal Govt. . and is not a part of it. There was hostility to government economic regulation (limited federal commerce power) US v. FACT SUMMARY: y Ogden.5 Article 1. REASONING: y Congress has been given all the power to regulate interstate commerce. Section 8 congress shall have the power to regulate commerce with foreign nations and among the several states y Authority for broad array of federal legislation INITIAL ERA: GIBBONS DEFINES COMMERCE POWER Gibbons v. 1890 s to 1937: Supreme Court during this era was deeply committed to laissez-faire. the congressional act is controlling. after acquiring a monopoly right from the state of NY to operate ships between NYC and NJ. brought an antitrust action to set aside the acquisitions. EC KNIGHT RULE: y The commerce clause does not empower congress to regulate manufacturing FACTS: y American Sugar Refining Company acquired several sugar refineries. y Regardless of the source of state power though.

y Controlling question is the effect on interstate commerce. FACTS: y Railroad freight rates for intrastate shipment were lower than for interstate shipment. y Whenever the interstate and intrastate activities of carriers are closely related. which applies to instruments of interstate commerce. y THUS. and Wickard overruled the earlier era of commerce clause decisions and expansively defined the scope of congress s commerce clause power. even intrastate production. UNITED STATES RULE: y Congress has the power to regulate intrastate commerce when it impacts interstate commerce. REASONING: y Congress s authority. y The ICC finding that the lower intrastate rates discriminated against interstate commerce. not the state that has the final say. o protective principle KEY DECISIONS CHANGING THE COMMERCE CLAUSE DOCTRINE NLRB Jones. NLRB JONES v. if the activity has an appreciable effect. DARBY RULE: . either direct or indirect. Darby. such that the regulation of one affects the other. ordered that this price discrimination cease. y If production were interrupted at one of the plants due to a labor dispute.6 WHAT DOES AMONG THE STATES MEAN? HOUSTON EAST & WEST RAILWAY v. it is congress. on interstate commerce. such as railroads in this case. was charged with unfair labor practice under the NLRA y Board issued a cease and desist order to Jones to stop using coercive and discriminatory practices to prevent union organization at 2 steel plants. CONGRESS MAY CONTROL INTRASTATE COMMERCE TO PROTECT INTERSTATE COMMERCE. extends to intrastate activities of such intrastate commerce when those activities have a close and substantial relation to interstate traffic. even intrastate production. REASONING: y Congress under the commerce clause has the power to regulate any activity. not the source of the interference. FACTS: y A manufacturing company with subsidiaries in several states and nationwide sales. LAUGHLIN STEEL CORP RULE: y Under the commerce clause. if the activity has an appreciable effect on interstate commerce. the extensive nationwide operations of Jones indicate that there would necessarily be an immediate effect on interstate commerce US v. Congress has the power to regulate any activity.

maintaining a herd of dairy cattle. sown in the fall and harvested in July.  Production of lumber was an intrastate activity.1 acres which normally yielded 20. but it was part of an economic process that led to the sale of lumber across state lines WICKARD v. feed part to the poultry and livestock on the farm. FACTS: y Appellee for many years owned and operated a small farm in Ohio . o He was twice given notice of this. some of whose goods were later shipped in interstate commerce y He was indicted for violation of the wage and hour provisions of the Fair Labor Standards Act and defended on the ground that as an intrastate producer he was not subject to federal regulation.1 bushels of wheat an acre. since the goods produced will be lower priced than the goods produced under adequate conditions. y HOWEVER. raising poultry.11 cents in all .  This would spread the use of substandard conditions and truly affect commerce. y FACTS: y Darby was a lumber manufacturer. o Congress determined that the employment of workers in substandard conditions is a form of unfair competition injurious to interstate commerce. subject only to the specific provisions of the constitution. use some in making flour for home consumption and keep the rest for the following seeding. y Congress has power to exclude from interstate commerce any article that it determines to be injurious to public welfare. he ended up sowing 23 acres and harvested from the 11. there was an establishment for the appellee s 1941 crop of wheat acreage of an allotment of 11. pursuant to the Agricultural Adjustment Act of 1938. subject to a penalty of 49 cents per bushel or $117. the shipment of goods across state lines is interstate commerce and the prohibition of such shipment is a regulation of commerce. y In July of 1940.7 Congress has the power to regulate the hours and wages of workers who are engaged in the production of goods destined for interstate commerce and can prohibit the shipment of interstate commerce of goods manufactured in violation of the wage and hour provisions. y His practice was to raise a small acreage of winter wheat. can now reach economically insignificant acts by looking at everyone combined. and selling poultry and eggs.9 acres of excess acreage 239 bushels o And under Act this constituted a farm marketing excess. FILBURN AGGREGATION PRINCIPLE: from this case we can consider aggregated situations to get to a national scale this aggregation principle is a very principle that has been established greatly increases congresses power. selling milk. before his planting in the fall and harvesting in July. y ANALYSIS o Congress has the power to exclude from interstate commerce harmful objects or immoral activities o This case extends the power to exclude articles produced under conditions that congress considered harmful to the national welfare. REASONING: y Although manufacturing itself is not interstate commerce. o With the wheat he would sell a portion.

WELL ESTABLISHED: . o Commerce among the states in wheat is large and important o The effect of consumption of homegrown wheat on interstate commerce is due to the fact that it constitutes the most variable factor in the disappearance of the wheat crop. o These activities are beyond the reach of the commerce clause because they are local in character and their effect on interstate commerce is at most indirect. COURTS REASONING: y Questions of the power of congress are not to be decided by any formula that would give force to words such as production and indirect. *EVEN if activity is local and not regarded as commerce it may still be reach by congress if it exerts a substantial economic effect on interstate commerce IN REACHING THE DECISION ON THE CASE AT BAR: y Parties have stipulated a summary of the economics of the wheat industry. o Consumption on the farm where grown appears to vary in an amount greater than 20% of the average production. which would be divided into allotments for individual farms. coupled with many others is far from trivial. o Though appellee s own contribution to the demand for wheat may be trivial by itself.8 SCHEME OF AAC of 1938: y Was to control the volume of wheat moving in interstate commerce to avoid surpluses and shortages that would result in abnormally high or low prices which would obstruct commerce. its not enough to remove him from the scope of federal regulation  His contribution. o COURT:  This question would be easily answered under Darby because there the court sustained the federal power to regulate production of goods for commerce  PROBLEM: this Act extends federal regulation to production not intended in any part for commerce but wholly for consumption on the farm y Appellee: This is a regulation of production and consumption of wheat. At the expense of considering the actual effects of the activity in question upon interstate commerce. Appellee s Argument: y Congress does not have the power to do this under the Commerce Clause. y The effect of this statute is to restrict the amount which may be produced for market and the extent to which one may forestall selling their wheat on the market when its most convenient. o Whether the subject of the regulation in question was production consumption or marketing is not a material purpose for deciding the question of federal power. Maintaining the price of wheat by government regulation is effectively accomplished by sustaining or increasing the demand as by limiting the supply. y Under the Act the Secretary of Agriculture would set a national acreage allotment for wheat production.  Total amount consumed as food doesn t vary much and the use for seed is relatively constant.

if their business activities have some impact on interstate commerce. o Even if the wheat is never sold it has a substantial effect on interstate commerce because it reduces the demand for wheat (these farmers will buy less for themselves when they have a surplus) y y y MEANING OF COMMERCE AMONG THE STATES: civil rights laws. PRIMARY PURPOSE OF ACT: to increase the market price of wheat and to limit the volume that could affect the market. y THUS. the power of Congress to promote interstate commerce also includes the power to regulate local incidents o Including local activities in both state of origin and destination . it does not matter how local the operation which applies the squeeze. regulatory laws. under the commerce clause. y Congress enacted this legislation under its commerce clause power y Section 5 only allowed congress to regulate government conduct and therefore could not regulate private behavior under the 14th amendment. moral concerns are irrelevant. o So congress chose the commerce clause for its authority HEART OF ATL MOTEL v. UNITED STATES RULE: y Congress. y ANALYSIS: this case has been argued to make the commerce clause power so broad it is beyond the intention of the framers. a conclusion that it could rationally make. FACTS: y Heart of ATL Motel which operated a single Hotel in downtown Atlanta brought suit seeking declaration of the Civil Rights Act as unconstitutional because it was against a local business. y Only issue is that the means chosen must be reasonably adapted to the end permitted by the constitution. congress found that racial discrimination in public lodging had a deleterious effect on interstate movement of persons and goods. and criminal laws. CIVIL RIGHTS LAWS y Civil Rights Act of 1964: prohibits private employment discrimination based on race. farmers will sell more of their crop that was intended for home consumption causing the price to drop.9 The power to regulate commerce includes the power to regulate the prices of the commodities within that commerce. Home consumed wheat could have a substantial influence on price and market conditions o As the market price of wheat climbs. gender. REASONING: y That a particular business is local in character does not impact congress s ability to regulate it. or religion and forbids racial discrimination by places of public accommodation such as hotels and restaurants. COURT: y if it is interstate commerce that feels the pinch. may regulate business local in scope. provided that the business in some manner impacts interstate commerce. y As long as valid commercial motivation for a law exists. y Here.

Indiana y y Court upheld a federal law that regulated strip mining and required reclamation of strip mined land COURT: o This law was within the scope of congress Commerce Clause authority and described the power in expansive terms:  Court may only invalidate legislation enacted under the Commerce Clause when it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce. FACTS: y Ollies BBQ refused sit-down service to Blacks. that there is no reasonable connection between the regulatory means selected and the asserted ends. y Although the amount of food served at Ollie s may be insignificant when compared with the amount of food transported in interstate commerce and although Ollie s may appear to be local. if their contribution taken together with that of many others similarly situated is substantial. NOT all justices Agreed with this broad definition of the Commerce power! o Rehnquist:  it would be a mistake to conclude that congress power to regulate is unlimited  some activities may be so private or local in nature that they may not be in commerce  Court asserts that all there needs to be is a rational basis for finding that the regulated activity affects interstate commerce y . diminished spending by blacks. The lower court found that a substantial portion of the food served in the restaurant had moved in interstate commerce. it may still be reached by congress if it exerts a substantial economic effect on interstate commerce.  OR. y Rational basis: had a direct effect on travel by blacks. congress may still regulate it if there is a rational basis for its finding that the Civil Rights Act to be necessary to protection of commerce. REASONING: y Although an individual defendant s own effect on commerce may be slight. but did conduct prolonged hearings on the Act and the record is full of testimony of the burdens placed on commerce by discriminating in restaurants. sold less food in interstate commerce.10 WHICH MIGHT HAVE A SUBSTANTIAL AND HARMFUL EFFECT ON COMMERCE! o KATZENBACH v. then the individual s activity may be regulated. REGULATORY LAWS HODEL v. y Congress did not make any formal findings as to the effect upon commerce of discrimination in restaurants. McCLUNG RULE: y Although an activity is local and may not be regarded as commerce.

a. LOPEZ 1. Jones case: warned that scope of interstate commerce must be considered in light of the dual system of govt. affects interstate commerce.. District Court in bench trial found him guilty i." 4. they still can extend to this CRIMINAL LAW: SEE LOPEZ (loansharking case) y 1990 s to ????. .. Occurred because of changes in the way biz was carried out. 3. state charges dismissed. y In 2000 the Court reaffirmed Lopez in US v. This is now where the case is at. and the `business' of elementary. y 1995 in Lopez the Supreme Court for the 1st time in 60 years found a federal law to exceed Congress s Commerce Clause authority. i. the court again used the 10th amendment to protect state governments from federal encroachments. Jones.NARROWING OF THE COMMERCE POWER AND REVIVAL OF THE 10TH AMENDMENT AS A CONSTRAINT ON CONGRESS. US. Appealed to 5th Circuit a. federal agents charged him with violating the Gun-Free School Zones Act of 1990 a. Darby and Wickard: ushered in era that greatly expanded the authority of congress under commerce clause. "a constitutional exercise of Congress' well defined power to regulate activities in and affecting commerce. y In 1992 additionally. Govt. but also confirm there are limitations. o There has not been any decisions concerning the 10th or commerce clause since Justices Roberts and Alito replaced Rehnquist and O Conner (who both were in the majority for limiting power) US v. middle and high schools . 3. is invalid as beyond the power of Congress[5] under the Commerce Clause. in the full reach of its terms. Charged with TX state law 2. of enumerated powers a. . in NY v. will reduce the risk of tyranny. US and in 1997 Printz v. REASONING 1. Next day. enterprises were more national than local now. . A healthy balance of power between state and fed govt. 2. petitioned for Supreme Court Review a. Reversed and Remanded i. Sentenced to 6 months and 2 years probation ii. o All of these decisions limiting the scope of congress s commerce clause power were 5-4 rulings. "section 922(q). y Notes: land is purely local. These decisions may have expanded power under the commerce clause. Constitution creates a federal govt. Morrison.11 *there must instead be a showing that the regulated activity has a substantial effect on that commerce. Reviewed history of Commerce Clause decisions a.

Section 922 is a criminal statute o Has nothing to do with commerce or economic enterprise. b. or a thing in interstate commerce left within the 3rd rung o US v Bass: court required an additional nexus to interstate commerce o Unlike Bass. Congress s commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce i. instrumentality. Can t embrace effects upon interstate commerce that are indirect. this would obliterate distinction between what is national and what is local. From this case. o Not an essential part of larger regulation of economic activity that could be undercut o CANNOT be part of cases where the activities arise out of an aggregated commercial activity that would substantially affect interstate commerce 4. even though the threat may come only from intrastate activities i.12 i. 4. Heart of ATL c. 922 has no element that will limit its reach 5. Darby. There are no congressional findings concerning the effect on interstate commerce o This is not required but it helps the court evaluate whether it substantially effects interstate commerce Govt s Argument: y Possession of firearm in school zone does indeed substantially effect interstate commerce o Results in violent crime which affects the national economy in 2 ways:  1st: costs of violent crime are substantial. First 2 categories are irrelevant to analysis o If 922 is to be sustained it must be under the 3rd category of substantially affecting interstate commerce 2. Hodel: coal mining. effects economy through mechanism of insurance . court concludes it must substantially affect commerce NOW Congress s power in light of this framework to enact Section 922(q): 1. Darby: couldn t send lumber interstate. Congress may regulate the use of channels in interstate commerce i. or persons or things in interstate commerce. legislation regulating that activity will be upheld 3. Since then the court has adopted the strategy of determining whether a rational basis existed. 3 broad categories of activity that congress may regulate under its commerce power a. if a regulated activity sufficiently effected Interstate commerce. Court has upheld a wide variety of Acts regulating intrastate economic activity where it has substantially affected interstate commerce o Ex. if it did we would have a gun that moved in interstate commerce we don t have a channel. violated labor standards b. Congress is empowered to regulate and protect instrumentalities of interstate commerce. Contains no jurisdictional element which would ensure through a case by case inquiry that the firearm possession in question affects interstate commerce -no requirement to show this gun moved in interstate commerce. Perez: loansharking o These cases establish a pattern  Where economic activity substantially affects interstate commerce.

Since the 1930 s the Commerce Clause has been the source of most of Congress s legislative power. DECISION: 1. iii. If one is willing to accept a lengthy series of inferences and assumptions. a. an activity having a substantial effect on interstate commerce. iv. That point is where the regulated activity does not substantially affect interstate commerce a. This clause is not a general grant of police power though! 3. If concept of limited Govt. HOLDING: The 1990 Federal Gun-Free School Zones Act exceeded Congress s Commerce Clause regulatory power. 2. 1. y This results in less productive citizenry COURT S RESPONSE y Cost of Crime Reasoning: o This could allow the govt to regulate ALL violent crime as well as any crime that might relate to interstate activity y National Productivity o This would allow congress to regulate any activity it found was related to economic productivity of individual citizens y Under these theories there seem to be no limitation on Congress s Power! y There is always going to be legal uncertainty under the Commerce Clause o Constitution mandates this uncertainty by not giving congress plenary police powers that would allow any type of legislation. is one of limited. A law passed under this clause must relate to: a. the regulated activity (carrying a gun to school) has no such effect. *Court is unwilling to pile inference upon inference to reach a substantial effect on interstate commerce. Congress s legislative power must be cut off somewhere. Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. In this case. enumerated powers. any activity may affect interstate commerce b. ii. Federal Govt.13   2nd: violent crime reduces the willingness of individuals to travel to areas perceived to be unsafe (heart of ATL argument) Guns in school also propose a substantial threat to the education process. This is purely a local matter. PROBLEM i. i. is to have any meaning. That point has been passed in this case! CONCURRENCES Kennedy . *possession of a gun in a local school zone is in no sense an economic activity that might substantially affect any sort of interstate commerce.

beyond the boundaries of the property y Absent a stronger commercial connection which is essential to the commerce clause. why not apply it to every other power of the federal govt. This exercise of power upsets the balance of power between the states and national Govt.000 ft. o there are over 100. Can t replace commerce with different enterprise such as manufacturing. y Statute hear upsets the federal balance to a degree that renders it unconstitutional o There is no commercial aspect in this case o This area is one of local concern y Interference of these dimensions occurs here. b. y History of commerce clause decisions contains 2 lessons of relevance to this case: o The imprecision of content based boundaries used to define limits of the clause o Stare decisis operates with great force to counsel the court in not calling into question the principles now in place respecting congressional power to regulate. a result that is clearly at odds with the 10th amendment. this interference upsets the balance of power. The substantial effects test is a New Deal innovation that goes far beyond the original intent of the Framers. commerce encompasses traffic of such articles. y MUST reexamine the substantial effects test o Interjecting a modern sense of commerce into the constitution generates significant textual and structural problems. Only with great care court should intervene in matters relating to the commerce clause a. y Writes because case law has drifted from the original understanding of commerce clause. o Must find that balance between recent decisions and original understanding y Constitution leaves issues such as the one in question to individual states. each of these now has a federal zone extending 1. absent affects on interstate commerce. y Manufacturing involves the production of goods. we must allow the states to continue to be laboratories for experimentation where solutions are unclear. Court intervention in this case is proper. a. 1 sect. but has no stopping point . Thomas 1. a.000 elementary and secondary schools in the US. They had a much narrower view of what commerce could be regulated.14 1. Must respect decisions of our elected officials 2. o Substantial effects test gives congress a police power over nation o Aggregation principle is clever. It is a matter best left to the political sectors of Govt. 2.  Ex. o Commerce clause mentions nothing about substantial effects  Article 1 section 8 would be surplusage if congress had the authority over matters that substantially affect commerce. 8! o If we are going to accept the substantial effects test. it is well established that education is a traditional concern of the state o Court has a duty to ensure the federal-state balance is not destroyed o Though it is unwise to allow carrying a gun in school. This grants Congress something approaching general police power. y Power we have given congress has swallowed Art. y Statute before us forecloses the State from experimenting and exercising its own judgment.

4. BUT whether congress could have a rational basis for so concluding o Numerous studies inside and outside of govt. business opportunities are likely to diminish for the community. It is clear that the cumulative impact of the possession of weapons by students on campus will. Breyer applies 3 basic principles of commerce clause interpretation: o The power to regulate commerce encompasses local activities so long they substantially affect interstate commerce o In determining whether a local activity will have a significant impact on interstate commerce. over time. it is necessary to consider not a single example of the regulated activity. make clear that congress had a reasonable basis for making this connection To hold this statute constitutional does not obliterate distinction between national and local: o 1st : this statute is aimed at curbing a particularly acute threat to the educational process y y . i. The education of our youth has a major impact on the national economy and is a proper subject for Commerce clause regulation y Guns are articles of commerce and can be used to restrain commerce o Directly affects commerce Souter 2. TO reach this decision. have a significant impact on the national economy. not its beginning. Whether Congress could have a Rational Basis for enacting the statute. its just like the old distinction between direct and indirect y reflects the centuries end. the court needs to apply the aggregation principle. Is there a rational basis for finding a connection between gun-related school violence and interstate commerce? YES. Leads to poorly educated workers that must work low paying jobs 2. y y Statute falls well within the scope of commerce power as this court has understood in the past.15 DISSENT Stevens 1. With lack of well educated workforce. In determining whether a regulated activity has a significant impact on interstate commerce. True Question to Answer: a. Majority s approach today is a step backward towards the excessive judicial activism that characterized judicial review of the congressional enactments during the first part of the century y We must respect congress if there exists a rational basis for their finding y There is really no distinction between commercial and noncommercial. 2 reasons Congress could have found that gun related violence near the classroom poses a serious economic threat: 1. Breyer 3. ii. o Congress must be given a degree of leeway in determining the factual connection between regulated activity and interstate commerce QUESTION before the COURT is NOT whether the regulated activity affected commerce. but rather its cumulative effects of all similar instances of the conduct. a.

Souter downplay the role that economic nature of the regulated activity plays in the commerce clause analysis. Majority s holding creates 3 problems: o Runs contrary to modern supreme court cases . but found M guilty of sexual assault and sentenced him to immediate suspension for 2 semesters. B s Contention: y Seeks to sustain that section 13981 as a regulation of activity that substantially affects interstate commerce.16 There is evidence of the immediate connection between education and the national economic well-being. o y UNITED STATES v. o Focuses on fact that gender motivated violence occurs all over COURT: y In lopez the court held it was a criminal statute and had nothing to do with commerce or any sort of economic enterprise y B and J. MORRISON FACTS: y Brzonkala enrolled at Virginia Tech in the fall of 1994 y In September of that year she met Morrison and Crawford who were students and football players at VT y Brzonkala claimed that within 30 minutes of meeting Morrison and Crawford they assaulted and repeatedly raped her. o The statute in Lopez contained no express jurisdictional element that could limit the reach of congress o There were no congressional findings in Lopez regarding the effects upon interstate commerce that gun possession in a school zone may have. y B filede a complaint with VT s judicial committee who found insufficient evidence to punish Crawford. the decision in Lopez RESTED on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. criminal nature of the conduct at issue was central do the decision in the case.  Congress has enacted many statutes using the words affecting commerce to define their scope. y Important considerations from Lopez o BUT in Lopez the noneconomic. .court has upheld congressional actions despite connections to interstate activity that are less significant than school violence o Court feels it can justify its decision by making a distinction between commercial and noncommercial  This approach fails to heed the courts earlier warning not to turn questions of the power of congress upon formulas that would give controlling force to nomenclature and foreclose consideration of the actual effects of the activity o It threatens legal uncertainty in an area of law that was thought to be settled. o *FINALLY.

and not the courts. the proper conclusion to this case is clear: Gender-motivated crimes of violence are not. aggregated impact of that crime had substantial effects on employment. In contrast to Lopez. perpetuating the federal governments view that the commerce clause has no limits DISSENT: y The past cases stand for the following propositions: o Congress has the power to legislate with regard to activity that. . o Lopez. in the aggregate. o The fact of the substantial effect is a question for congress in the first instance. in any sense of the phrase. y BUT the existence of congressional findings is not sufficient. CONCURRENCE y The notion of a substantial effects test is inconsistent with Congress powers and early Commerce Clause jurisprudence. *Congress argument is weakened by the fact it relies so heavily on the method of making inference upon inference. simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so. HOLDING: y Court rejects the argument that Congress may regulate noneconomic. economic activity! *Thus far in our Nation s history the cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. to sustain the constitutionality of Commerce Clause legislation. y PROBLEM WITH THIS METHOD o This style of reasoning would allow congress to regulate any crime as long as the nationwide. y This style of reasoning that petitioners seek to use is the but-for causal chain from the initial occurrence of the violent crime to every attenuated effect upon interstate commerce. by itself. o 2nd Point:  If congress could regulate gender motivated violence it would be able to regulate murders and rapes because gender motivated crime is merely a subset of this crime and is certain to have a lesser economic impact.need economic activity. if noneconomic then no luck. Section 13981 is supported by numerous findings regarding the impact of gender motivated violence on victims and families. has a substantial effect on interstate commerce. o Here congress has assembled a mountain of data demonstrating the effects of violence against woman on interstate commerce  In this case Congress HAS IN FACT amassed substantial findings to demonstrate that such intrastate violence does have an effect on the instrumentalities of commerce. transit or consumption. production. violent criminal conduct based solely on that conduct s aggregate effect on interstate commerce o Reinforces the lopez holding .17 With these principles underlying the commerce clause jurisprudence as reference points.

WA v. GUILLEN RULE: y Congress s commerce power authorizes legislation aimed to improve the safety of the channels of interstate commerce. y The county declined to provide this information asserting that it was protected by section 409. y Relevant to this case is the Hazard Elimination Program o Provides state and local governments with funding to improve the most dangerous sections of their roads o To be eligible for funds under the program the state or local govt. y In connection with the tort action Guillen served the county with interrogatories seeking information about the intersection. Counsel for Guillen sought to obtain from the County information about the accidents that had occurred at that intersection. y After this failed Guillen turned to the Washington courts y Guillen then filed another suit asserting that the county had been negligent in failing to install proper traffic controls at the intersection. o The county refused to comply with the discovery request relying on section 409 y Guillen successfully sought an order to compel and the county moved for discretionary appellate review of the trial judges interlocutory order COURT: . Congress adopted several programs to assist the states in identifying highways in need of improvements and in funding those improvements. FACTS: y Beginning with the Highway Safety Act of 1966 congress endeavored to improve the safety of the nation s highways by encouraging closer federal and state cooperation with respect to road improvement projects. y In doing so. Guillen s wife died in an car accident at the intersection of 168th and B st in Pierce County. must undertake a thorough evaluation of its public roads y After the adoption of the HEP the Secretary of Transportation reported to congress that the states objected to the absence of any confidentiality with respect to their compliance under section 152 o According to the report states feared that diligent reporting of hazardous roads would open them up to liability for accidents that took place on those roads before the improvements could be made. y Several months before the county had requested section 152 funding for this intersection and was denied y The county renewed its application for funding and was approved 3 weeks after the accident occurred.18 PIERCE COUNTY. WA. y To address this the congress adopted 23 USC 409: o Basically holds that any information collected by the states and turned over to the govt is not subject to discovery or can be admitted into evidence in federal and state courts.

o High demand for marijuana in interstate market will likely draw home produced marijuana into that market. and distinguished from Lopez and Morrison. RAICH (this case is ground in principle from Wickard. stemming from the fear it might open them up to liability concerning accidents on these roads. (lopez) o In addition. FACTS: y 2 sufferers of serious physical ailments sought to grow and use marijuana for medicinal purposes as permitted by CA law.19 Must consider whether section 409 is a proper exercise of Congress authority under the constitution. o Congress was reasonable in believing that adopting a measure that would curb the unforeseen side effect of information gathering would result in better efforts to collect the relevant information y y y GONZALES v.  The proposed use here seeks only to invalidate local enforcement of the CSA for a very specific purpose. under the commerce clause congress is empowered to regulate and protect the instrumentalities of interstate commerce Congress adopted section 152 to assist state and local govts in reducing hazardous conditions in the Nation s channels of commerce. y DIFFERENCE FROM LOPEZ AND MORISSON: o Lopez and Morrison the court decided challenges to entire statutes. o This effort was impeded by the states reluctance to comply. WE CONCLUDE THAT IT IS o Commerce clause gives Congress the authority to regulate the use of the channels of interstate commerce. ISSUE: y Whether congress s power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally? PETITIONER S ARGUE: y CSA s categorical approach to drug classification as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to CA law exceeds congress s commerce clause power. seems to have restored much of the gigantic breadth of the commerce clause power that existed before the Lopez decision) RULE: y The commerce clause permits congress to criminalize local cultivation and medicinal use of marijuana even if those uses otherwise comply with a state s laws. and they involved no economic activity. here too congress has a rational basis for concluding that leaving homeconsumed marijuana outside federal control would similarly affect price and market conditions. and the use is also an economic activity. . COURT: y Just as in Wickard.

US. McCulloch) . o It gives the states considerable influence over both branches of government and affords the states protection against the unbridled regulation of the fed govt. private as well as public have to meet. US Constitutional question: what is the proper division of authority between the fed govt and states? HELD: congress has the substantial power under the constitution to ENCOURAGE the states to provide for the disposal of the radioactive waste generated within their borders. they were monetary incentives y 3rd was the Take Title Provision (the most severe) COURT: y These questions can be viewed in 2 ways: o Court will inquire whether the act of Congress is authorized by one of the powers delegated to Congress in Article 1 of the constitution (Perez. not one of result. REASONING: y The manner in which states are insulated from congressional regulation under the commerce clause is found in the limitations imposed by the constitution under Article 1 and in the structure of the federal government itself. o In the present case it is sufficient to say that in the application of the minimum wage and overtime requirements of the FLSA to SAMTA is not destructive of state sovereignty or violative of any constitutional provision  SAMTA faces nothing more than the same minimum wage and overtime obligations that hundreds of thousands of other employers. US and Printz v. SAN ANTONIO METRO TRANSIT AUTHORITY RULE: y The test for determining state immunity from federal regulation under the commerce clause is whether the regulation applied to the state activity is destructive of state sovereignty or violative of any constitutional provision. NY v. DOES THE 10TH AMENDMENT LIMIT CONGRESS S AUTHORITY? 2 cases that have used the 10th amendment to invalidate federal laws: NY v. BUT the constitution does not confer upon Congress the ability simply to compel the states to do so. o The constitutional scheme developed to protect the states as states is thus one of PROCESS.20 10th AMENDMENT BETWEEN 1937 AND THE 1990 S GARCIA v. The act in question provided 3 types of incentives to encourage states to comply with the statutory regulations y First 2 were not at issue.

san Antonio) o -If power is delegated to congress in the constitution. regulation of the interstate market in waste disposal is well within congress s authority under the commerce clause. -if a power is an attribute of state sovereignty reserved by the 10th amendment. While congress has substantial power to govern the nation directly. whether congress may direct or otherwise motivate the states to regulate in a particular field or particular way. Good quote from Butler. FRAMERS: it was a lively debate whether the Constitution should permit Congress to employ state governments as regulatory agencies i. . congress has impermissibly directed the states to regulate this field. o Rather than addressing the problem of waste disposal by directly regulating the generators and disposers of waste. NOT STATES. it is necessarily a power that has not been conferred on Congress *The 10th amendment thus directs the court here to determine whether an incident of state sovereignty is protected by a limitation on the Article 1 power. b. Since space in radioactive waste disposal sites is frequently sold by residents of one state to residents of another. This litigation concerns the circumstances under which Congress may use the sates as implements of regulation. a. PRINCIPLES THAT GUIDE THE RESOLUTION OF THE ISSUE: 1. the Constitution has NEVER been understood to confer upon congress the ability to require the states to govern according to Congress s instructions. the framers EXPLICITLY chose a constitution that confers upon Congress the power to regulate individuals.21 The court seeks to determine whether an act of congress invades the province of state sovereignty reserved by the 10th amendment (Garcia v. Court has consistently respected this choice iii. y Under the supremacy clause congress could also if it wished pre-empt state radioactive waste regulation PETITIONERS MAIN ARGUMENT: y Only contention is that the 10th amendment limits the power of congress to regulate in the way it has chosen. even including areas of intimate state concern. PETITIONERS ARGUE. B. it lacks the power directly to compel the states to require or prohibit those acts. question is not what power the federal government ought to have but what powers in fact have been given by the people. Congress may not simply commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program. Court has always understood that even where congress has the authority under the constitution to pass laws requiring or prohibiting certain acts. ii. the 10th amendment bars the states from any claim to that power. In providing for a stronger central govt.

they may choose to have the federal govt. Remain responsive to the local electorate s preferences. y . o Where congress encourages state regulation rather than compelling it. state govts. Occupation safety and health act *By either of these methods. This does not say that congress lacks the ability to encourage a State to regulate in a particular way. IT DOES NOT AUTHORIZE CONGRESS TO REGULATE STATE GOVT S REGULATION OF INTERSTATE COMMERCE! 2. Where congress has the authority to regulate private activity under the Commerce Clause. Under Congress s spending power. accountability is diminished when. o THUS. elected state officials cannot regulate in accordance with the views of the local electorate in matters not preempted by federal regulation. y BY CONTRAST o When the federal govt compels states to regulate. y Court upheld the monetary and access incentives created by congress for states to open waste sites. congress may attach conditions on the receipt of federal funds. III.22 c. to devote its attention elsewhere. the court has recognized Congress s power to offer states the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation. it may be state officials who will bear the brunt of public disapproval. due to federal coercion. and they may continue to supplement that program to the extent state law is not preempted. they may elect to decline a federal grant. the residents of the State retain the ultimate decision as to whether or not the State will comply. 1. 2 ways congress may urge a state to adopt a legislative program consistent with federal interests: i. y If a state s citizens view federal policy as sufficiently contrary to local interests. the accountability of both state and federal officials is diminished. a program of cooperative federalism a. rather than the state bear the expense of a federally mandated regulatory program. The allocation of power contained in the Commerce Clause authorizes congress to regulate interstate commerce directly. a. o This was a permissible exercise of the spending power TAKE TITLE PROVISION o congress has crossed the line distinguishing encouragement from coercion. Ex. while the federal officials who devised the regulatory program remain insulated from the electoral ramifications of their decision. and state officials remain accountable to the people. Such conditions must bear some relationship to the purpose of federal spending ii. (south Dakota) 1. y If residents would prefer their govt. Clean water act.  Where the federal govt directs the states to regulate. or that Congress may not hold out incentives to the States as a method of influencing a State s policy choices.

to reduce the risk of tyranny. a. Early enactments of congress contain no evidence of the assumption that the Federal Govt. when the 1st congress enacted a law aimed at obtaining state assistance of the most rudimentary and necessary sort for the enforcement of the govts laws: the holding of federal prisoners in state jails 2. the federal govt may not compel the states to enact or administer a federal regulatory program. i. This separation of the two spheres is one of the constitutions structural protections of liberty. No constitutional text speaking to this precise question court looks to historical understanding and practice. may command the states executive power in the absence of a particularized constitutional authorization. THOMAS CONCURRENCE: y Must temper our commerce clause jurisprudence and return to an interpretation better rooted in the clause s original understanding RENO v. a. the Constitution simply does not give Congress the authority to require the States to regulate. Framers experience under the articles of confederation had persuaded them that using the states as instruments of federal governance was both ineffectual and provocative of federal state conflict. until very recently.23 Take title provision: offers state govts a choice of either accepting ownership of waste or regulating according to the instructions of congress. they contain an indication of the opposite assumption! i. it may not conscript state govt s as its agents. ii. PRIOR JURISPRUDENCE OF THIS COURT a. it must do so directly. y The constitution instead gives congress the authority to regulate maters directly and to preempt contrary state regulation. to the structure of the constitution. consideration of the structure of the constitution. 3. CONDON . unprecedented. states are being reduced to puppets of a ventriloquist congress b. 1. UNITED STATES PETITIONER S ARGUMENT: y Object to being pressed into federal service and contend that congressional action compelling state officers to execute federal laws is unconstitutional. o *No matter how powerful the federal interest involved. Compelled enlistment of state executive officers for the administration of federal programs is. PRINTZ v. o Where a federal interest is sufficiently strong to cause Congress to legislate. and in the jurisprudence of the court. There must be a healthy balance of power between the states and federal govt.

y DPPA o Establishes a regulatory scheme that restricts state s ability to disclose personal info without driver s consent. COURT: y Begin with time honored presumption. sale of the info in interstate commerce is subject to regulation. US. NOT because congress lacked legislative authority. y SC CONTENTION o DPPA violates the 10th amendment because it:  Thrusts upon the states all of the day to day responsibility for administering complex provisions AND thereby makes state officials the unwilling implementers of federal policy . y BASIS FOR COMMERCE CLAUSE ARGUMENT o Personal info that DPPA regulates is a thing in interstate commerce. US and Printz v.  Prevents officials from knowingly disclosing info obtained by DMV o Defines personal info as: info that identifies an individual (social security number ex. y COURT: AGREE with US s CONTENTION o Driver s info is an article of commerce in this context y BUT o Still does not resolve the constitutionality of the DPPA  In NY and Printz court held federal statutes invalid. BUT because those statutes violated the principles of federalism in the 10th amendment. y SC AG filed suit: o alleging that the DPPA violates the 10th and 11th Amendments. FACTS: y DMV s require drivers to provide personal information which may include name. o These sales generate significant revenue. HELD: y Enacting this statute congress did not run afoul of the federalism principles enunciated in NY v. social security y Congress found that many States in turn sell this personal information to individuals and businesses. address. phone number.24 Driver s Privacy Protection Act: y regulates the disclosure of personal information contained in records of the DMV. DPPA is a constitutional exercise of legislative power o US Asserts: DPPA is a proper exercise of Congress s authority to regulate interstate commerce under the COMMERCE CLAUSE.) o Provisions do not apply solely to states  Prevents resale of personal info by private persons who have obtained the info from the DMV CASE: y South Carolina law conflicts with DPPA provisions o SC law: info in the DMV is available to anyone that fills out a form listing the requester s name and stating the info will not be used for telephone solicitation.

Highway funds from states who maintained a drinking age of under 21. TAXING AND SPENDING POWER y Article 1 section 8 o congress shall have the power to lay and collect taxes o Under articles of confederation govt. o DPPA is consistent with constitutional principles enunciated in NY and PRINTZ SC LAST ARGUMENT: o DPPA is unconstitutional because it regulates states exclusively. y SD sued in district court o Contention was that 158 violated the constitutional limitations on congressional exercise of the spending power and violates the 21st amendment. so long as the conditions are expressly stated and so long as they have some relationship to the purpose of the spending program. DOLE FACTS: y SD s drinking age was 19 y In 1984 Congress passed 23 USC section 158 o Directs secretary of transportation to withhold a percentage of fed. SOUTH DAKOTA v. it did not seek to control or influence the manner in which states regulate private parties. had no taxing power and therefore no revenue to spend o Taxing power is now one of Congress s greatest powers CONDITIONS ON GRANT S TO STATE GOVERNMENTS y Congress may place strings on such grants. BAKER y Upheld statute prohibiting states from issuing unregistered bonds because the law regulated state activities. COURT: y Congress has the power to tax o Incident to the power congress may attach conditions on receipt of federal funds o Congress has the power to further broad policy objectives by conditioning receipt of federal funds upon compliance with a certain requirement. o DPPA doesn t require States to regulate their own citizens  DPPA regulates the state s as the owners of databases.25 State employees have to learn and apply acts restrictions o This will consume TIME and STATE RESOURCES y y y y COURT S RESPONSE o Agree DPPA will require time and effort.  This case is governed by SC v.  May only regulate states by means of generally applicable law COURT: o General applicability is not at issue here. DPPA is not generally applicable. but REJECT the argument that the DPPA violates the principles laid down in either NY or PRINTZ. .

actions. derived from language of constitution a. o Congress could not use 13th to adjust the social rights of men in the community. pursuant to §2 of the 13th and section 5 of the 14th may regulate only state and local govt. courts should defer to judgments of congress on this 2. these 3 amendments contain provisions that empower congress to enact civil rights legislation y WHOM MAY CONGRESS REGULATE UNDER THE POST CIVIL WAR AMENDMENTS? Civil Rights Cases y Court held that Congress. NOT PRIVATE CONDUCT. conditions must be unambiguous. DISSENT: y CONGRESS S POWERS UNDER THE POST CIVIL WAR AMENDMENTS y after the civil war 3 extremely important amendments were passed: o 13th amendment  Prohibits slavery  Section 2: congress shall have the power to enforce this article by appropriate legislation o 14th Amendment  no state can abridge the privileges and immunities of such citizens. enabling states to exercise their choice knowingly 3. nor may states deprive a person of life. or previous condition of servitude. subject to several general restrictions 1.26 Spending power is not limited. y 20 years after the Civil War o Little need for civil rights legislation to protect African Americans .  Section 2: congress shall have the power to enforce this article by appropriate legislation Thus. conditions might be illegitimate if they are unrelated to the federal interest in particular national projects or programs. liberty and the pursuit of happiness without due process of law or deny any person of equal protection of the laws  Section 5: congress shall have the power to enforce this article by appropriate legislation o 15th Amendment  the rights of citizens of the US to vote shall not be endied or abridged by the US or any state on account of race. y Civil Rights Act of 1875 o Broadly prohibited private racial discrimination by hotels. color. must be in pursuit of general welfare b. restaurants. transportation and other public accommodations  By 8-1 the Court held this act was unconstitutional and adopted a restrictive view as to the power of congress to use these Amendments to regulate behavior y 13th Amendment applies to private conduct only in the sense it bans slavery which is private conduct.

27 J. . Congress may prohibit racial discrimination  Jones Case y Court held Congress could prohibit private discrimination in the selling and leasing of property y Af. action. Congress cannot regulate private behavior under section 5 o y y US v. y HOWEVER. lease property. o Other justices concluded that congress could prohibit private discrimination under 14th section 5 power. y In first part of opinion the majority held that it exceeded the scope of Congress s Commerce Clause Authority (had nothing to do with economics) In the Alternative: y Govt. Am couple sued using 42 USC Section 1982 o all citizens have same right to purchase. that interfere with the 14th. pursuant to section 2. MORRISON ISSUE: y Constitutionality of the civil damages provision of the Violence Against Women Act. y Court held that 1982 applies to prohibit private discrimination o The court said congress has broad legislative authority under the 13th amendment. o language of section 5 empowers congress to enact laws punishing all conspiracies. o HOWEVER  Court recently reaffirmed that Congress cannot regulate private behavior under the 14th amendment. argued that the law was constitutional as an exercise of Congress s remedial power under Section 5 of the 14th amendment. cannot be used by Congress to regulate private behavior. FACTS: y women from VT who while a freshman was allegedly raped by football players y She sued under the civil remedies provision of the Act. with or without state action. regardless of race. GUEST o Court: Concluded that Congress may outlaw private discrimination pursuant to Section 5 of the 14th o Involved fed law that made it illegal to go in disguise on hwy or another s property to hinder exercise of enjoyment of any right o Could have used commerce clause for this. y US v. Guest was recently overruled. Bradley there must be some stage in the progress of his elevation when he takes the rank of a mere citizen 14th Amendment o Congress lacked authority to enact the law o Only applies to govt. sell. NOW AND DAYS o Under the 13th.

28

y

Congress expressly invoked the 14th amendment as a source of authority to enact Section 13981.

PETITIONERS ARGUMENT: y There is pervasive bias in various state justice systems against victims of gender motivated violence. o This assertion is supported by an ample congressional record. ANALYSIS: y Language and purpose of 14th place limitations on the way in which Congress may attack discriminatory conduct. o These limitations are necessary to prevent the 14th from eliminating the balance of power between the states and national govt.  14th could have a broad reach by its wording y LIMITATIONS: o By its terms, prohibits ONLY state action  Erects no shield against merely private conduct (won t protect individuals  2 cases were decided right after the adoption the 14th interpreting its provisions y US v. HARRIS and CIVIL RIGHTS CASES o Held: laws exceeded congress s section 5 power because the law was directed exclusively against the action of a private person, without reference to the laws of the state  STARE DECISIS y Stands behind these decisions not only by length of time but also by the insight attributable to the members of the court. o Every member had intimate knowledge and familiarity with the events surrounding the adoption of the 14th y PETITIONERS ARGUMENT o Rely on Guest for proposition that the rule of the Civil Rights Cases is no longer good.  Court had no right to revisit the rulings of these cases because they had already determined that the charge contained an allegation of state involvement. y So 14th worked on that ground. y COURT: o Section 13981 is not aimed at proscribing discrimination by state officials or state actor, but at individuals who have committed criminal acts motivated by gender bias.  This is unlike any other section 5 remedies that have been upheld. o Congress s effort in 13981 to provide a federal civil remedy cannot be upheld by the commerce clause nor under section 5 of the 14th amendment.  She should seek redress under Virginia law. DISSENT: y Govts argument: o Congress used section 5 to remedy the actions of state actors who through discriminatory design failed to provide adequate state remedies.  This is a failure of the state

29 WHAT IS THE SCOPE OF CONGRESS S POWER 2 Different views as to scope of congress s power under the PCWA and particularly Section 5 of the 14th Amendment NARROW VIEW: y Congress only has the authority to prevent or provide remedies for violations of rights o Congress cannot expand the scope of rights or provide additional rights Broad view: y Congress can interpret the 14th to expand the scope of rights or even create new rights o Congress may create rights by statute where the court has not found them in the constitution, but congress cannot diminish constitutional rights Choice between 2 views is a textual argument concerning what Section 5 means when it empowers congress to enforce the amendment by appropriate legislation. NARROW: -congress is not enforcing if it is creating new rights BROAD -congress is enforcing the amendment by creating greater protections than those found by court. KATZENBACH v. MORGAN ISSUE: y Concerns the constitutionality of Section 4(e) of the Voting Rights Act of 1965 o Law provides no person who has successfully completed the 6th grade in a public or private school, accredited by the commonwealth of Puerto Rico in which the language of instruction was other than English shall be denied the right to vote in any election because of his inability to read or write English VOTERS OF NY ARGUMENT: y This law prohibits the enforcement of the election laws of NY requiring an ability to read and write English as a condition of voting. y NY AG urges that 4(e) cannot be sustained as appropriate legislation to enforce the Equal Protection Clause (of the 14th) unless the judiciary decides that the English literacy requirement prohibited by 4(3) is forbidden by the EPC itself. COURT: y We Disagree y If congress were limited to restricting only those state laws that violated the amendment, there would be no need for federal law, since the state law could be invalidated by the courts. y The test must be whether the federal legislation is appropriate to enforcement of the Equal Protection Clause. Even though congress is adding rights of Puerto Ricans to vote, they are inversely restricting the rights to those voters who meet the requirements .there vote will now mean less -congress can go beyond what the court has said.

30

CITY OF BOERNE v. FLORES In Smith case court changed the law and held that the free exercise clause cannot be used to challenge neutral laws of general applicability y OR law prohibiting use of peyote was neutral because it was not motivated by a desire to interfere with religion y And it was a general law against drug use. y In response to this congress adopted RFRA to overturn smith and restore the old test y State can t deny me rights for engaging in religious practice o Supreme court: 1st does not protect this individual o Previously, if you have a generally applicable law that incidentally affects religious practice, it will be scrutinized o If law applies to all, is neutral (doesn t affect different people differently) then it doesn t matter if it captures people engaging in religious conduct.  Smith is outta luck, he can t smoke peyote because nobody can o This case was seen as attacking religious freedom  Congress then passed the RFRA, overturning the important part of smith y Now its really hard for state to apply a generally applicable law to religious practice ISSUE: y Calls into question the authority of Congress to enact the Religious Freedom Restoration Act of 1993 o Spurred on by a decision of a local zoning authority to deny a church a building permit FACTS: y Church was built in 1923 and it replicates the mission style of the regions earlier history y The church seats 230 worshippers which is too small for the growing parish. y So in order to meet the needs of the congregation the archbishop of san Antonio gave permission to the parish to plan alterations to enlarge the building. y A few months later the Boerne City Council passed .check notes for facts! SUIT: y RFRA: y

Archbishop brought this suit challenging the permit denial relying upon the RFRA as one basis for relief prohibits government from substantially burdening a person s exercise of religion even if the burden results from a rule of general applicability unless the govt. can demonstrate the burden: o Is in furtherance of a compelling govt. interest o Is the least restrictive means of furthering that compelling govt. interest

PARTIES DISAGREEMENT: y Whether RFRA is a proper exercise of Congress s section 5 power to enforce by appropriate legislation the rights conferred by the 14th amendment.

31 COURT: y Section 5 is a positive grant of legislative power given to congress y BUT it is also true that the congressional enforcement power is not unlimited. y Congress can t change the rights we have established ASSESSMENT OF SECTION 5 TEXT: y Congress has been given the power to enforce the provisions of the article o Agree w/ church that congress can enact legislation under section 5 enforcing the constitutional right to free exercise of religion y BUT o Congress s power under section 5 is remedial, it extends only to enforcing the provisions of the 14th amendment. o The RFRA redefines the scope of the free exercise clause HISTORY OF 14TH CONFIRMS REMEDIAL RAHTER THAN SUBSTANTIVE NATURE OF THE ENFORCEMENT CLAUSE y Court looks to the first draft of the amendment which has a direct bearing on the central issue that defines congress s enforcement power o Criticisms had a common theme  Amendment gave congress too much legislative power at the expense of the existing constitutional structure y Congress could intrude into traditional areas of state responsibility (a power inconsistent with the federal design central to the constitution) New Draft: o Had self-executing limits on the states (by adding section 5) o This allowed congress to correct the unjust legislation of the states.

y

REMEDIAL AND PREVENTATIVE NATURE OF CONGRESS S ENFORCEMENT POWER y NO case has really questioned Congress s section 5 power as corrective or preventative. y Limitation on power was confirmed in civil rights cases y enforcement clause did not authorize congress to pass general legislation upon the rights of citizens; but CORRECTIVE legislation o Legislation that was necessary for counteracting state laws that violated the amendment WHETHER RFRA IS ENFORCEMENT LEGISLATION UNDER SECTION 5 OF THE 14TH. Church s ARGUMENT: y RFRA is a proper exercise of congress s remedial or preventative power o Act is reasonable means of protecting freedom of religion o If congress can prevent racial discrimination in violation of equal protection clause, then it can do the same for religion. The Court, in an opinion by Justice Anthony Kennedy, struck down RFRA as an unconstitutional use of Congress's enforcement powers. Because it was the Court that had the sole power of defining the substantive rights guaranteed by the Fourteenth Amendment a definition to which Congress could not add and from which it could not subtract and because RFRA was not legislation designed to have

YOUNGSTOWN SHEET AND TUBE v. -Court is issuing a very strong opinion that the judiciary is supreme in interpreting the constitution. y Because Article II does not limit the President to powers herein granted. Although Congress could enact "remedial" or "prophylactic" legislation that guaranteed rights not exactly congruent with those defined by the Court. . SAWYER ISSUE: y Whether the president was acting within his constitutional power when he issued an order directing the secretary of Commerce to take possession and operate most of the Nation s Steel Mills. Congress could not constitutionally enact RFRA. FEDERAL EXECUTIVE POWER INHERENT PRESIDENTIAL POWER Alexander Hamilton: y The wording of articles 1 and 2 reveal the framer s intent to create inherent presidential powers.32 "congruence and proportionality" with the substantive rights that the Court had defined. it could only do so in order to more effectively prevent. -this is a switch from katzenbachs nationalist view but now court says that katzenbach is much more narrow and applied only to its facts. the president has authority not specifically delineated in the constitution James Madison y The open language of Article II was simply to settle the question whether the executive branch should be plural or single and to give the executive title. y President has no powers that are not enumerated in Article II and such unenumerated authority would be inconsistent with a Constitution creating a govt. deter or correct violations of those rights actually guaranteed by the Court. RFRA was seen disproportionate in its effects compared to its objective This case seriously limits what congress can do under 14th. a legislative function which the constitution has expressly given to congress and not the president GOVT ARGUMENT: y Order was made on findings of the President that his action was necessary to avert a national catastrophe which would have resulted from a stoppage of steel production o President was acting within the aggregate of his constitutional powers as Chief Executive and the Commander in Chief of the Armed Forces. -states can enact laws now that might incidentally affect religion. of limited authority. STEEL MILL ARGUMENT: y The president s order amounts to lawmaking.

33 JUSTICE BLACK: y President s power to issue this order must stem from either an act of congress or from the constitution itself. a. If president had the authority to issue this order it must be found in some provision of the constitution. NOT MILITARY AUTHORITIES. Govt. COURT: cases don t concern the court here i. a. y Govt. Framework of constitution gives President the power to see that the laws are faithfully executed which refutes the idea he is a lawmaker (his job is to oversee. If all this failed unions were cleared to strike 2. not create) FOUNDERS TRUSTED THE LAWMAKING POWER TO CONGRESS BOTH IN GOOD TIMES AND IN BAD TIMES. Should encourage settlement through mediation and conciliation iv. 1. o There is no statute that authorizes him to take possession as he did here o Neither is there an act of congress from which this power can be implied 2 Statutes that authorize the President to take both personal and real property under certain conditions. Order cannot be sustained because of several constitutional provisions that grant executive power to president a. It would interfere with collective bargaining iii. tries to validate this by citing cases upholding the broad powers vested in military leaders engaged in war b. admits these conditions were not met. Order cannot properly be sustained as an exercise of the President s military power as Commander and Chief of the Armed Forces a. Taft Hartley ACT i. 2. JUSTICE JACKSON CONCURRING Puts force an analysis: The power of the president to act can be viewed as three separate categories of circumstances: . No express constitutional language grants this power GOVT ARGUMENT: y Presidential power should be implied from the aggregate of his power under the constitution o Place reliance on article II COURT: 1. order was not rooted in either statute. Must remain faithful to the constitution by not affording the commander in chief the power to take possession of private property c. Use of this seizure technique to solve labor disputes was previously unauthorized by congress. Congress rejected amendment which would have authorized governmental seizure in an emergency ii. THIS IS A JOB FOR CONGRESS.

Courts can sustain this action only by disabling congress. he may do so only where it can be shown that Congress has exceeded its constitutional powers and the President is acting in his own sphere of authority (lowest grant of power) a. . it marked an occasion when power should be exercised. Congress has ruled against it in 3 different statutes already. COURT IS LAST LINE OF DEFENSE OF OUR GOVT JUSTICE DOUGLAS. CONCURRING y The country s emergency did not create power for the president. a. COURT: y The constitution expressly places in the Congress the power to raise and support armies and to provide and maintain a navy o Congress controls the raising of revenues. 3. A seizure executed by President pursuant to an act of congress would be supported by the judiciary and the burden would be on those who would oppose it. y Only category left is the severe test of the 3rd situation. the President acts solely on the basis of his powers as specified in the constitution. so they must do so with great caution. When the president acts in contravention of congressional action. 2. y The constitutional grant of powers to the president is in specific terms that do not permit any loose aggregation to create powers not specified THE EXECUTIVE ACTION WE HAVE HERE ORIGINATES IN THE INDIVIDUAL WILL OF THE PREZ AND IS AN EXERCISE OF AUTHORITY WITHOUT LAW.34 1. In the absence of a congressional grant of power. doesn t know what powers will emanate from a decision giving the president power to seize industry. APPLIED TO THE CASE AT HAND: y Doesn t apply to the first situation. -slippery slope. it is their responsibility to decide the manner in which they will spend for army and navy procurement. o No congressional authorization exists for this seizure y Doesn t fit in the second situation either. a. i. The president s power is at its maximum when he acts pursuant to express or implied congressional authority. of internal affairs based on the writing of the constitution. In this area the actual test of power is likely to depend on the situation rather than any theory of law. o Seizure of property is not an open field. The balance of power afforded by the constitution is at stake here. o Only congress can provide the president with an army or navy Military powers of commander and chief are not to supercede representative govt.

o o y y y y y JUSTICE FRANKFURTER. Legislative process is slow to exercise. CONCURRING y CONGRESS COULD NOT MORE CLEARLY STATE THAT THE PRESIDENT DOES NOT HAVE THE POWER OF SEIZURE o NO LEGISLATIVE HISTORY GIVING ANY RISE TO THIS POWER o Our govt. MOVES QUICKER IN A TIME OF CRISIS. Congress also expressly states the compensation to be paid. satisfy the requirements of Rule 17(c). and that may cost us in a time of emergency BUT As justice brandeis said.  When US seizes a plant. lack of jurisdiction and failure to PRESIDENT S LACK OF JURISDICTION CLAIM: y ARGUE: Court lacked jurisdiction to issue the subpoena because the matter was an intra branch dispute . y y y VINSON. US must compensate for temporary possession  President has no power to raise revenues  That power is given to congress by article 1 section 8 THE BRANCH OF GOVT THAT HAS THE POWER TO PAY COMPENSATION FOR A SEIZURE IS THE ONLY ONE ABLE TO AUTHORIZE A SEIZURE. RICHARD NIXON ISSUE: review of the denial of a motion filed in the district court on behalf of the President to quash a 3rd party subpoena duces tecum issued by the USDC of DC. y Subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisors. separation of powers was not adopted to promote efficiency but to preclude the exercise of arbitrary power. was meant to have restrictions Congress has authorized seizure 16 times since 1916. each time of which there were limits and safeguards. US v.35 Congress as well as president are trustee of the national welfare. REED and MINTON DISSENTING o The majority s opinion has left the president powerless to act at the very time the need for his independent and immediate action is greatest. WE CAN T DECIDE THIS CASE BY WHICH BRANCH OF GOVT. THE answer must depend on the allocation of powers under the constitution. COURT: rejected President s claims of: absolute executive power. Under the Labor Management Relations Act of 1947: o It was clearly stated that the only method for preventing a shutdown of industry was vested in congress. That in turn requires an analysis giving rise to the seizure and the seizure itself.

the president s decision is final in determining what evidence is to be used in a criminal case. ARGUE: Federal courts should not intrude into areas committed to the other branches of Govt. CLAIM OF PRIVILEGE: President s claim: y Subpoena should be quashed because it demands confidential conversations between a president and his close advisors y 1st CLAIM: o The separation of powers doctrine precludes judicial review of a President s claim of privilege. y Starting point is the nature of the proceeding for which evidence is sought: a criminal prosecution o This is a judicial proceeding in federal court alleging violation of federal law o Under authority of Art. y The respective branches of the govt cannot share powers. o y COURT: y Mere assertion of a claim of an intra-branch dispute without more has never defeated federal jurisdiction .36 This dispute does not present a case or controversy which can be adjudicated in federal court. Madison. o Views this as a jurisdictional dispute within the executive branch o Since executive branch has exclusive authority and absolute discretion to decide whether to prosecute.jurisdiction does not depend on such a surface inquiry. reaffirming the holding of Marbury v. court should hold as a matter of constitutional law hold that the privilege prevails over subpoenas. officials and those who seek to advise them. II section 2 congress vested power in attorney general to conduct the criminal litigation of the US Govt. this would defeat the checks and balances system. y HELD: court must say what the law is with respect to the claim of privilege presented in this case 2 GROUNDS SUPPORTING PRESIDENT S CLAIM OF PRIVILEGE ARGUMENT: 1. COURT: y Presidents counsel reads constitution as providing an absolute privilege of confidentiality for all presidential communications: o It is up to the judicial dept to say what the law is.  This gives special prosecutor explicit power to oppose the president in the process of seeking evidence y ISSUE: the production of specified evidence deemed by the special prosecutor to be relevant and admissible in a pending criminal case. . o Issue of who wins special prosecutor acting within the scope of his express authority or president acting on his duty to preserve the confidentiality of his communications. y 2nd CLAIM: o If the 1st claim of absolute privilege does not prevail. Need for protection of communications between govt.  Also vested the power in him to appoint special prosecutors.

COURT: y Legitimate needs of the judicial process may outweigh presidential privilege o Must resolve these competing interests in a manner that preserves the essential function of each branch. C. 2. this could affect the decision making process. This is very important. Officials might censor themselves if they knew their words would reach the public. the court finds it difficult to accept the argument that confidentiality of Presidential communication is diminished by production of such material for an inspection afforded all the protection that a district court would provide. THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER . y Absent a claim of a need to protect military. *NO case has extended this high degree of deference to a President s generalized interest in confidentiality *The right to production of all evidence at a criminal trial has constitutional dimensions: y 6th Amendment: o Explicitly confers that a Df. y It is the duty of the court to uphold those guarantees AND in order to do so it is essential that all relevant and admissible evidence be produced. Absolute privilege claim rests on the doctrine of separated powers. In a criminal trial has the right to be confronted with witnesses against him th y 5 Amendment: o Guarantees no person shall be deprived of liberty without due process of law.37 a. a. *Court must weigh the importance of the president s general privilege of confidentiality of communications against the privilege of a fair criminal trial.still have power to withhold conversations that are important: military actions and national security. COURT: y NEITHER OF THESE CLAIMS SUSTAINS ABSOLUTE UNQUALIFIED PRESIDENTIAL PRIVILEGE OF IMMUNITY FROM JUDICIAL PROCESS UNDER ALL CIRCUMSTANCES. Independence of the executive branch within its own sphere insulates the president from judicial subpoena. COURT: y This will not negatively affect the advisors y BUT to withhold evidence that is relevant to a criminal trial would cut deeply into the guarantee of due process of law and impair the basic function of the court. NOTES: this is the only time you have to give over conversations. don t worry this isn t going to happen much . diplomatic or sensitive national security secrets.

 Executive: they are responsible for bringing enforcement actions against those who violate the relevant federal laws and regulations. HELD: y Line Item Veto Act is unconstitutional. 2 cases where non-delegation doctrine was used to invalidate federal law not the practice though! . but even delegations without this criteria have been upheld.  All delegations. executive & judicial. CITY OF NEW YORK (Involves the constitutionality of a federal statute that created the line-item veto act) y Statute empowered the President to veto (or more precisely cancel ) particular parts of appropriation bills while allowing the rest to go into effect. y Madison: this is the very definition of tyranny. no matter how broad have been upheld. EPA) o Exercise all the powers of government: legislative.  Judicial judgment: broad delegations are necessary in the complex world of the late twentieth century and the judiciary is ill-equipped to draw meaningful lines. unaddressed by the framer s intent. rather than leaving this to unelected administrative officials. y There is no provision in the constitution that authorizes the President to enact." There are only two options available.38 CLINTON v. to the President: he is not authorized to amend the bill and then sign it. o Controlling and checking administrative agencies presents constitutional problem. violates the Presentment Clause o Delegated legislative powers to the President. o President and approve bills or he can return them before they come into law. FDA. under the clause. o Have broad power (examples: FCC. amend. SEC. here with the line item veto act it is just a portion of the bill though. y The constitution is silent on whether the President has the authority to do this o Court must construe silence as an express prohibition. but if not he shall return it. o In past 70 years NOT A SINGLE federal law has been declared an impermissible delegation of legislative power by the Supreme Court. "if he approve [the bill] he shall sign it. or repeal statutes. THE CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE Administrative Agency: y Congress delegates its legislative power to executive agencies.  Judicial: they employ administrative law judges who hear cases brought by agency officials against those accused of violating agency regulations. violated the non-delegation doctrine o Violated Article 1 Section 7.  Constitutional return of a bill is for the entire bill.  Legislative: they possess authority to promulgate rules that have the force of law. NON-DELEGATION DOCTRINE y Principle that congress may not delegate its legislative power to administrative agencies o Forces a politically accountable congress to make the policy choices.  Court says that Congress must provide criteria to guide the agency s exercise of discretion.

the financial impact of implementing such standards should have been considered by the EPA 2. RYAN HELD: y Congress cannot delegate its powers to the President or his agencies without providing policy standards and guidance for the delegated powers. Because: o EPA had interpreted the statute to provide no intelligible principle to guide the agency s exercise of authority y Court thought that the EPA could avoid the unconstitutional delegation by adopting a restrictive construction of section 109(b)(1) y SO instead of declaring the section unconstitutional the court remanded the NAAQS to the agency. Schecter and panama: y These statutes violated the nondelegation principle because they provided no standards or guidelines for exercising the agency s authority. y THIS CASE arose when the Administrator revised the NAAQS for particulate matter and ozone CIRCUIT COURT: y Agreed with respondents that section 109(b)(1) delegated legislative power to the Administrator in contravention of US Constitution Art. AMERICAN TRUCKING ASSN. UNITED STATES HELD: y Congress cannot delegate its legislative power to the president PANAMA REFINING v. RESPONDENT S ARGUMENT: 1. ISSUE: whether Section 109(b) of the Clean Air Act (CAA) delegates legislative power to the Administrator of the EPA Section 109(a): y requires the administrator of the EPA to promulgate NAAQS for each air pollutants for which air quality criteria have been issued y Once a NAAQS has been promulgated the Administrator must review the standard at 5 year intervals and make revisions. COURT: y Economic considerations play no part in the promulgation of NAAQS under section 109 . WHITMAN v. 1 section 1.39 ALA SCHECTER POULTRY CORP v. the Clean Air Act did not provide an intelligible principle to guide the EPA in promulgating the NAAQS.

there is an absolute bar on cost considerations II.40 1st step in assessing whether a statute delegates legislative power is to determine what authority the statute confers address the issue of interpretation first and constitutional argument second o How does the EPA know what the public interest is or what an adequate margin of safety is EPA can basically do whatever it wants y INTERPRETATION ARGUMENT: y Section 109 instructs the EPA to set PAAQS. the attainment and maintenance of which are requisite to protect public health. y COURT AGREES WITH SOLICITOR GENERAL: y Section 109 at minimum requires that the EPA must establish uniform national standards at a level that is requisite to protect public health from adverse effects of the pollutant.  Article 1 section 1 of Constitution vests all legislative power in congress y This text permits NO DELEGATION of powers y When congress confers decision making authority upon agencies congress must lay down by legislative act an intelligible principle to which the body authorized is directed to conform NEVER SUGGESTED AN AGENCY CAN CURE UNLAWFUL DELEGATION OF LEGISLATIVE POWER BY ADOPTING IN ITS DISCRETION A LIMITING CONSTRUCTION OF THE STATUTE. y TEXT OF SECTION 109(b) o Interpreted in its statutory and historical context and considering its importance to the CAA. and set the standard at that level. o It is very clear that the text does not permit the EPA to consider costs in setting standards. o EPA lacked criteria to draw lines o Failed to intelligibly state how much is too much  The EPA s interpretation violated the nondelegation doctrine (not the statute itself) COURT: WE DISAGREE o Delegation challenge: Constitutional Question: whether the statute has delegated legislative power to the agency. decrease the concentration to provide an adequate margin of safety. CONSTITUTIONAL ANALYSIS y Appeals Court: section 109(b)(1) as interpreted by the administrator did not provide an intelligible principle to guide the EPA s exercise of authority in setting NAAQS. . y Agency can t just decline to exercise some of its power o Whether statute delegates legislative power is a question for the courts  Agency s voluntary self-denial has no bearing upon court s answer. o Nowhere are the costs of achieving that standard made part of the initial calculation. y EPA is to identify the maximum airborne concentration of a pollutant that the public can tolerate.

Congress can t just give away its authority if they at least have some intelligible principle they are still legislating.Panama -ALA Schecter COURT SUMMATION: 1. its not an unconstitutional delegation congress is making a choice on how things are regulated. nor do they impermissibly interfere with the President s authority under Article II in violation of the principle of the separation of powers. y President also has the appointment and removal power of agency officials. Section 109(b) is interpreted to require the EPA to set air quality standards at the level that is requisite. can use this as check.to protect the public health a. Act of 1978 HOLDING:  These provisions of the act do not violate the Appointments Clause of the constitution. . 4. o o *Scope of discretion of section 109(b)(1) is well within the outer limits of the non-delegation precedents.41 Requisite means sufficient but not more than necessary These limits are similar to limits approved in other statutes. APPOINTMENT POWER MORRISON v. -only 2 statutes where the intelligible principle was lacking. laws can be enacted directing agencies to perform certain tasks or denying them authority in particular areas o Congress can overturn agency decision by statute o President can also veto such statutes. requiring that Congress act by a 2/3 vote to effectuate such a check o Congress also controls the budget of administrative agencies. FACTS:  Title 6 of the Ethics in Govt Act allows for the appointment of an independent counsel to investigate and prosecute appropriate high ranking govt. 2. officials for violations of criminal laws. literally providing no guidance for the exercise of discretion: . OLSON ISSUE:  A challenge to the independent counsel provision of the Ethics of Govt.that is. the limitations of Article III. This fits within the scope of discretion permitted by precedent. CHECKING ADMINISTRATIVE AGENCIES y Congress can control administrative agencies through statutes. Court has almost never felt qualified to second guess congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law. o For instance. not lower or higher than necessary. but leaving the specifics up to the agency. There must be some intelligible principle when congress confers decision making power on an agency 3.

the special division appoints an appropriate independent counsel and defines the independent counsel s prosecutorial jurisdiction. Within this jurisdiction the independent counsel is granted full power and independent authority to exercise all the powers of the department of justice o Power includes: conducting prosecutions. o Better to have IC investigate because they aren t as linked to the politics o You need IC who is not tied to political    2 STATUTORY PROVISIONS GOVERN THE LENGTH OF AN INDEPENDENT COUNSEL S TENURE: 1.  No dispute that the constitution for purposes of appointments divides all its officers into 2 classes. 2. Act provides for congressional oversight of IC activities COURT:  Appointment s Clause of Article II o but congress may by law vest the appointment of such inferior officers as they think proper. The fact that she is can be removed by the AG indicates to some degree that she is inferior in rank and authority. The IC is subject to removal by a higher executive branch official a. 2nd provision allows for termination of IC s office when he informs the AG he has substantially completed his investigations or prosecutions under the act. he is required to report to a special court created by the act for the purpose of appointing independent counsel If the AG finds there are reasonable grounds to continue investigation or prosecution then he applies to the division of the court for the appointment of independent counsel. IC can seek judicial review of this decision 2. or by the judiciary. and when he has completed this investigation.42  The attorney General conducts the initial investigation.. 3. signing indictments and handling all aspects of the case. The IC is empowered by the Act to perform only limited duties a. by heads of depts. COURT: o Morrison is clearly an inferior officer o Several factors lead to this conclusion o Court looks to tenure. duration and duties to establish the label of inferior officer for the IC 1. Upon receiving the application. or 90 days has passed. QUESTION IN THIS CASE: whether appellant is an inferior or a principle officer?  If it this position is a principle officer then the Act is in violation of the Appointments Clause THE LINE BETWEEN INFERIOR AND PRINCIPLE OFFICERS IS FAR FROM CLEAR AND THE FRAMERS PROVIDED LITTLE GUIDANCE AS TO WHERE IT SHOULD BE DRAWN. a. Duties are restricted to investigation and if appropriate prosecution of federal crimes . The first provision allows the AG on his own personal action to remove independent counsel for good cause. o Principle Officers: selected by President with advise and consent of the senate o Inferior Officers: can be appointed by president.

Starr was an IC was supposed to investigate shady real estate deals in AR but ended up writing about Clinton s sexual exploits. DISSENT: (much longer in book) o President has sole discretion in conducting criminal prosecution and the law in question deprives the executive branch of its right to exercise sole discretion o The law violates the separation of powers and should be invalidated. o Worried about a runaway prosecutor  In Clinton case. Absolute Immunity: the complete protection from civil suit for a president for all official actions while in office. and impeachment. FITZGERALD ISSUE: what is the scope of the immunity possessed by the President of the US? HOLDING: A president is entitled to absolute immunity from damages liability predicated on his official acts. The IC s office is limited in jurisdiction a.43 i. The IC s office is limited in tenure a. SUING AND PROSECUTING THE PRESIDENT: y 2 Supreme Court Cases: Nixon v. The office of the IC is temporary in that the IC is appointed to accomplish a single task and when that task is over the office is terminated. CHECKS ON THE PRESIDENT Important informal mechanisms: pressure of the public opinion and checks by Congress (through budget process). this grant does not include authority to formulate policy or give administrative duties outside of those necessary to her office 3. FITZGERALD S CLAIM:  he was wrongfully terminated by the President in retaliation for revealing to congress information that was embarrassing to the department of defense. IC can only act within the scope of the jurisdiction that has been granted by the special division pursuant to a request by the AG 4. Even though IC has full power and independent authority to exercise her functions. Jones o NIXON: established absolute immunity o CLINTON: rejected any immunity for acts that occur before a President takes office. NIXON v. Fitzgerald and Clinton v. PRESIDENT S CLAIM: he is shielded by absolute immunity from civil damages liability.  President is only entitled to qualified immunity . y 2 primary formal mechanisms: o Civil suits and criminal proceedings against president.

COURT S REASONING:  Immunity should be conferred on the President because of his unique position in office. UNIQUE POSITION:  Unique position in the constitutional scheme o Article 1 section 1 grants the executive power shall be vested in the president  This grant of authority establishes the Prez as chief constitutional officer of the Executive branch. o The Air Force said his dismissal occurred in the context of a departmental reorganization and reduction in force o They further justified it as an action taken to promote economy and efficiency in the armed forces. entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity.44 FACTS:  In 1970 Ernest Fitzgerald lost his job as a management analyst with the airforce. FITZGERALD S ARGUMENT: President is only entitled to qualified immunity -relies on cases in which governor s are held to this standard COURT:  These cases do not apply .  Testified that cost overruns on a transport plane could approximate 2 billion dollars and unexpected technical difficulties had arisen during the development of the aircraft.  Fitzgerald s discharge attracted unusual attention from congress and the press though.President s unique status under the constitution distinguishes him from other executive officials o Because of the importance of the president s duties diversion of his energy by concern of private lawsuits would effect the functioning of the govt.  In commenting Nixon assumed full responsibility for the dismissal o A day later the whitehouse issued a retraction of the statement saying he had Fitzgerald confused with another former employee. but he is not loyal and that s the name of the game o At a news conference in 1973 Nixon was asked about fitzgerald s firing. o INCLUDES:  Enforcement of the law y take care that the laws be faithfully executed  Conduct of foreign affairs y Courts lack the relevant information to nullify these actions (president may have secret info they don t)  Management of executive branch y Power to remove the most important subordinates in their most important duties. o The administration was not fond of reassigning him though  Butterfield Memo: y no doubt a top notch cost expert. based on the constitutional tradition of separation of powers and supported by history. . o A year earlier he appeared before the subcommittee on Economy in the Govt.

it will not eat up a substantial amount of time affecting duties. Absolute immunity will not leave the nation without sufficient protection against abuse from the president: o We can impeach him o There are formal and informal checks on presidential action  He is constantly scrutinized by the press  He is under constant surveillance by congress which would deter abuse  He wants to be reelected  President s are traditionally concerned with how they will be viewed after they leave office. the constitution affords the president temporary immunity from civil damages litigation arising out of events that occurred before he took office.     CLINTON v.  Immunity serves purpose to allow officials to perform their designated functions without fear that a certain decision will open them up to liability. The president would be an easily identifiable target for civil damages because of the visibility of his office and the effect of his actions on countless people. CLINTON S STRONGEST ARGUMENT:  Based on the text and structure of the constitution o He relies on article 2 and the separation of powers principles o He contends that his office is unique. JONES CLINTON S CLAIM:  That in all but the most exceptional cases. o This could make the president act much more timidly which would be a detriment to the nation.45 President has to concern himself with matters that arouse intense feelings These cases are precisely why we need to afford the maximum ability to let the president deal with these without fear of liability. the separation of powers doctrine does not bar every exercise of jurisdiction over the president . COURT:  This claim cannot be sustained on the basis of precedent ONLY 3 PRESIDENT S HAVE BEEN DF IN CIVIL LITIGATION INVOLVING ACTIONS PRIOR TO TAKING OFFICE  Roosevelt & Truman o Cases were dismissed before they took office. COURT: y If this case is properly managed.  None of these cases shed any light on the constitutional issue before the court. litigation will burden his ability to perform presidential role. reaffirmed after inaugurations  Kennedy o Unsuccessfully argued that his status as Commander in Chief gave him a right to stay under the Soldiers and Sailors Civil Relief Act of 1940  Matter was settled out of court. and that the powers of the president are too important. PRINCIPLE RATIONALE FOR AFFORDING IMMUNITY FOR LIABILITY ARISING OUT OF OFFICIAL ACTS IN INAPPLICABLE TO UNOFFICIAL CONDUCT. y Settled law.

y Article I. PROBLEMS: y What constitutes high crimes and misdemeanors? o One view: limited to acts that involve criminal law and are a serious threat to society o Other view (Ford): impeachable offense is whatever majority considers it to be SEPARATION OF POWERS AND FOREIGN POLICY Constitution says very little about foreign policy decision making y Article 1. to raise and support armies y Article 2: president shall be commander-in-chief of the army and navy and of the militia of the several states. o If there is an impeachment by the House. then a trial is held in the Senate. Bribery. Section 3 gives the Senate the sole power to try impeachments and prescribes that no person shall be convicted without the Concurrence of 2/3 the members present. Section: grants Congress the power to regulate commerce with foreign nations. Section 2 provides that the House of Representatives has the sole power to impeach. Section 4 provides the president. when called into the actual service of the US. provided 2/3 of the senators present concur. vice president and all civil officers of the United States shall be removed from Office on Impeachment for. y Article I. by and with the Advice and Consent of the Senate. to declare war. to make Treaties. or other high crimes and Misdemeanors.46 IMPEACHMENT y Article II. CURTIS WRIGHT ARGUMENT:  Thought the joint resolution was an unconstitutional delegation of legislative power ISSUE:  Even If this delegation of power would be unconstitutional if it were confined to internal affairs may it nevertheless be sustained on the ground that it s aimed to provide a remedy in a foreign territory? FACTS:  Congress passed a joint resolution authorizing the President to prohibit the sale of arms to Bolivia and other countries that were involved in an armed conflict in Chaco o President believed that the prohibition would increase the chances of reestablishing peace  Curtis Wright was indicted for violating the terms of the embargo when they conspired to sell 15 machine guns to Bolivia . o President shall have power. and Conviction of Treason. US v. CURTISS WRIGHT Action to prosecute a company that violated an embargo authorized by Congress and proclaimed by the president.

o The whole aim of the resolution is to affect a situation that is completely external to the US which falls into the category of a foreign affair. REGAN AND SECRETARY OF TREASURY Dames and Moore filed suit to recover funds owed to them on a contract with the Government of Iran. DAMES AND MOORE v.47 COURT:  Unnecessary to determine whether the resolution would have been open to challenge had it related solely to internal affairs. FACTS: o In Nov.  2 classes of power are different both in respect to their origin and nature The belief that the govt can only exercise those powers specifically enumerated in the constitution and use of the implied powers that are necessary and proper to carry into effect those enumerated powers is only true in respect to internal affairs. but when congress approves the president s actions. LAW: President lacks the power to settle claims against foreign govts through an executive agreement.  The president. o He makes treaties with the advice of the senate.  Investment in the fed govt. FEDERAL POWER OVER EXTERNAL AFFAIRS DIFFERS NOT ONLY IN ORIGIN AND CHARACTER FROM INTERNAL AFFAIRS. he can settle such claims. but the order of attachment was voided by an executive agreement. those powers could not have been taken from the mass the others were taken from SINCE STATES NEVER POSSESSED INTERNATIONAL POWERS THEY WERE TRANSMITTED FROM THE CROWN. BUT PARTICIPATION IN THE EXERCISE OF THE POWER IS SIGNIF. NOT congress has the better opportunity of knowing the conditions which prevail in foreign countries o He has confidential sources of information  Secrecy in respect of info gathered by president s agents may be highly necessary and disclosure of this info could have harmful results. with the powers of external sovereignty do not depend upon affirmative grants of the constitution. LIMITED. . and its sole representative with foreign nations.  Purpose of constitution was to carve certain legislative powers from states that were desirable to be vested in the federal govt. but he alone negotiates o Both congress and senate are powerless to invade this sphere o Marshall president is the sole organ of the nation in its external relations. 1979 President Carter acting pursuant to the International Emergency Economic Powers Act (IEEPA) froze Iranian assets in the US after Americans were taken hostage in Tehran.  All other powers were left to the states  SINCE the states never possessed international powers. *MUST FIRST CONSIDER THE DIFFERENCE IN POWER OF THE FEDERAL GOVT CONCERNING INTERNAL AND EXTERNAL AFFAIRS.  President alone has the power to speak or listen as a representative of the nation.

20. o CRUCIAL TO COURT S DECISION TODAY o the conclusion that congress has implicitly approved the practice of claim settlement by executive agreement o This is best demonstrated by Congress s enactment of the International Claims Settlement Act of 1949 (the act had 2 purposes: o To allocate to US nationals funds received in the course of an executive claims settlement with Yugoslavia o To provide a procedure whereby funds resulting from future settlements could be distributed.  US v.  President under these agreements agrees to renounce claims of US nationals in return for a lump sum of money.  This is international practice reflecting international theory. Pink o FINALLY RECOGNIZE  This decision is narrow .48 The Americans held hostage were then released on Jan. who were holders of an attachment order against Iranian assets. o To resolve these difficulties nations often enter into agreements settling the claims of their respective nationals. COURT: o Affairs between nations concerning claims by nationals of one country against the govt of another are sources of friction.  To achieve these ends congress created the International Claims Commission and gave it jurisdiction to make final and binding all decisions with respect to claims by US nationals  By creating a procedure to implement future settlement agreements congress placed its stamp of approval on such agreements o Over the years congress has frequently amended the ICSA to provide for problems that arise from the act  This demonstrates congress s continued acceptance of the president s claim to settlement authority o Prior cases have also recognized the president does have some measure of power to enter executive agreements without obtaining the advise and consent of senate. o o o D &M ARGUMENT: o The actions of the president implementing the agreement with Iran were beyond his statutory and constitutional powers o Were unconstitutional because they adversely affected their final judgment against Iranian govt. filed suit for declaratory judgment and injunctive relief against the US and the secretary of treasury to prevent enforcement of the Executive Order. 1981 pursuant to an executive agreement entered into the day before. o US has longstanding tradition of settling such claims by executive agreement without the advice and consent of senate. The agreement included a promise to settle all claims and litigation between the countries through arbitration Dames and Moore.

The MCA of 2006 is a violation of the Suspension Clause of the Constitution. or persons he determines planned. o Courts cannot be forbidden from examining the cases of individuals and be confined to only looking at the legality of the broader detention scheme. authorized or committed terrorist attackes. the court is not prepared to say that the president lacks the power to settle WAR POWERS HAMDI v. REASONING: y Since congress authorized the detention of Hamdi. y Hamdi was captured in Afghanistan and detained in the US.49 Where congress has acquiesced to the president s action. y Military officers engaged in the work of waging battle would be unnecessarily and dangerously distracted by litigation half a world away and discovery into military operations would both intrude on the sensitive secrets of national defense and result in a futile search for evidence buried underneath the rubble of war. o Must prevent a combatants return to the battlefield y Court: without a doubt. y President then ordered troops into Afghanistan to subdue al qaeda. If the MCA is considered valid. The Military Commissions Act of 2006 strips the federal courts of jurisdiction over habeas petitions filed by foreign citizens detained at Gitmo. o state of war is not a blank check for the president when it comes to the rights of the nation s citizens. Congress passed a resolution authorizing the President to use all necessary and appropriate force against those nations. BOUMEDIENE v. y COURT: reject Govt. o Constitution most assuredly envisions role for all 3 branches of govt when individual liberties are at stake. argument that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. its legislative history requires that the detainee s cases be dismissed. FACTS: y After 9/11. 2. . BUSH RULE: 1. president was okay to do so. our Constitution recognizes that core strategic matters of warmaking belong in the hands of those who are best positioned and most politically accountable for making them. REASONING: 1. organizations. RUMSFELD RULE: y A united states citizen designated and detained as an enemy combatant has a due process right to challenge the underlying factual support for that designation before a neutral arbitrator.

y Constitution forbids interference with the final judgments of courts y History shows that the framer s crafted this charter of the judicial department with an express understanding that it gives the federal judiciary the power not merely to rule on cases. its power are not absolute and unlimited. y Suspension clause is designed to protect against these abuses. to maintain the delicate balance of governance that is itself the surest safeguard to liberty. changing the limitations periods established by case precedent and mandating reinstatement of cases dismissed as time barred. there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. Because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the habeas writ. SPENDTHRIFT FARM (finality case) RULE: y Congress may not retroactively command the federal courts to reopen final judgments without violating the separation of powers doctrine FACTS: y After congress amended the Securities Exchange Act. the district court denied Plaut s motion to reinstate the final judgment in his case on the ground that the amendment was unconstitutional. o The clause protects the rights of the detained by affirming the duty and authority of the Judiciary to call the jailer into account. at least as to non-citizens. PLAUT v. The judiciary will have a timetested device. but to decide them subject to review only by superior courts in the Article III hierarchy.50 2. . 2. the MCA operates as an unconstitutional suspension of that writ. the writ. COURT: our cases do not hold it is improper for us to inquire into the objective degree of control the Nation asserts over foreign territory. REASONING: y Article III of the Constitution establishes a judicial department with the province and duty to say what the law is (marbury) in particular cases and controversies. There must first be an actual dispute between adverse litigants. GOVERNMENT: constitution has no effect at Guantanamo Bay. o President s construction of a lease agreement would be entitled to great respect. because the US disclaimed sovereignty in the formal sense COURT: constitution cannot be chartered away like this o Even when the US acts outside its borders. For a case to be justiciable and not an advisory opinion. COURT: questions of sovereignty are for the political branches to decide. y y y y JUSTICIABILITY PROHIBITION AGAINST ADVISORY OPINIONS y Core of article III s requirements for cases and a controversy is that federal courts cannot issue advisory opinions. 1. but are subject to such restrictions as are expressed in the constitution.

personal interest that can support standing in some circumstances. WRIGHT (don t forget separation of powers issue here too Parent s are trying to restructure IRS. (kids diminished ability to receive desegregated education) o This is definitely a judicially cognizable harm and a serious injury. it is not fairly traceable to the government conduct respondent s challenge as unlawful. court says that it does not have the authority to delve into this realm) Petitioners: y Parents of black school children who are in districts undergoing desegregation brought on behalf of them. y 1st: fails under clear precedent because it does not constitute a judicially cognizable harm o Interpreted in 2 ways: could either be a claim to have the govt avoid violating the law or could be a claim of a stigmatic injury suffered by all members of a group. Despite fact this second claim is a judicially cognizable injury. . 2.  Neither is judicially cognizable. y CLAIM: o Children have not been victims of discriminatory exclusion of named schools (never allege that their children would have applied) o Allege direct injury form the mere fact of the challenged Govt. The federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated. which is executive agency. structure and traditions of Article III. INJURY Respondents allege 2 injuries: 1.  No standing to simply complain that their government is violating the law. the children and other parents of black children in schools undergoing or in the future will undergo desegregation the class they seek to represent includes several million people.51 With Section 27A(b) Congress has exceeded its authority by requiring the federal courts to exercise the judicial power of the US in a manner repugnant to the text. o Stigmatic injury: only accords a basis for standing to those persons who are personally denied equal treatment by the challenged discriminatory conduct. conduct & injury to their children s opportunity to receive a desegregated education. o asserted right to have the Govt. They are harmed directly by the mere fact of Government financial aid to discriminatory private schools. y ALLEN V. act in accordance with the law is not sufficient alone for standing. COURT: y Neither of the alleged injuries suffices to support Parent s standing .  If this claim were judicially cognizable it would extend to all blacks all over the country to assert this injury  Would transform the courts into a vehicle for vindication for interests of bystanders y 2nd INJURY: respondent s alleged harm poses a concrete.

ISSUE: standing Petitioners claim: 1. Any school that discriminates cannot get tax exempt status -problem: these schools are still segregating. Injury: generalized grievance is not enough. yet they are getting a tax exempt status. not just everyone limited class. If schools are getting tax exempt status.  Would be traceable to IRS ONLY IF there were enough discriminatory schools receiving tax exemptions in the Parent s communities for withdrawal of those exemptions to make an appreciable difference in desegregation. but particular harm is .52 COURT: y Illegal conduct: IRS s grant of tax exemption to some racially discriminatory schools. o Constitution assigns to executive branch the duty to take care that the laws be faithfully executed court could not recognize standing here without running afoul of principle. (this is enough to satisfy the injury prong) -this is different from the first claim of injury -this is an individualized harm. but to seek restructuring of the apparatus established by the executive branch to fulfill its legal duties. ALLEN: this claim of generalized harm Think of this as 3 separate prongs: must have injury. y the line of causation between that conduct and desegregation of Parent s schools is attenuated at best. they are cheaper to go to and will foster segregation a. y NO REDRESSABILITY IN SIGHT EITHER o No evidence showing schools would even change if they lost tax exempt status o Don t know how many schools are even receiving the funds in violation CONCLUSION: y Standing in this case would allow a suit not to enforce specific legal obligations whose violation works a direct harm. this is there kids. if we rule otherwise it would allow concerned bystanders to file law suits it would make the judiciary into a political body this is not for the courts to deal with the claims of concerned bystanders. causation. o From perspective of IRS the injury to Parents is highly indirect and results from the independent action of some 3rd party not before the court. We have an interest in the govt following the law. Govt is not following its own law a. they are contributing to the continued segregation of public schools KEY: has to be an individualized harm. thus we are injured by the law 2. and redressability 2nd ISSUE: Is this injury recognizable in court: (kids aren t getting a desegregated education) -this is a very serious injury within our legal system. By IRS giving this status to private schools.

causation. EPA Mass is upset. it threatens sovereignty this is actual harm. Lujan: no actual harm. its just a general claim: like to travel. a litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent. it s a reduction in land mass less area for people to live on. -heart of MASS argument is that it reduces their sovereignty. CAUSATION: Allen: causation is attenuated at best -unsure of how many racially segregated schools are receiving exemption -schools may still continue to segregate even if they don t get the exemption .actual because there is evidence they have already lost some coastline. EPA is not regulating greenhouse gases from cars EPA made decision they would not regulate these emissions. Mass is upset saying that EPA has to do this under the statute congress tells the agency what to do Mass is saying EPA is not doing what congress told it to do MASS must have standing to bring this claim: show injury. Is the court acting as a political body or someone adjudicating a dispute? Allows justices to pick and choose their cases in determining whether there is standing. but that its going to get worse this is certain to happen -not only do we need an injury that is personal to the plaintiff. imminent in the sense that it may not happen tomorrow. DE and NY have same harms but its limited. like to see the animals maybe if they would have bought tickets to see the animals then there would have been harm -general claim of unhappiness that animals disappear is not enough -its not actual and imminent unless you say when its going to happen to me -must be particular to the individual and the harm must be actual and imminent. and redressibility. harm may cause a looong time in the future shouldn t be worrying about this.53 MASS v. but we need an injury that is actual and imminent. -this harm is just not shared by everyone NJ. COURT: this is a severe harm. Injury is just one of 3 aspects of standing though still must meet causation and redressability. If you open it up to far you are going to be enabling the court to act as a political body.. INJURY HERE: Mass may lose a lot of its coastal property and cause millions of dollars injury: we are losing coastline Claim from EPA: mass isn t injured.

court can infuse its own opinion . EPA: maybe it does contribute. what we have here are not cases or controversies (what court is basically saying). china and india are expanding and emitting greenhouse gasses. need causation: alleged injury fairly traceable to the DF claimed action. the rulings may not be consistent Redressability: ALLEN: injury actually is redressable. too many intervening actors -COURT: we need to have fairly traceable injury has to be traceable to the alleged conduct by the defendant -intervening third parties eliminate the traceability of the injury to the injuror. If school more expensive it still doesn t mean that the white kid s parents wouldn t pay more money to send their kids to these schools -too many steps along the way. Court may be only body that could bring about this change how are you supposed to know about causation and redressibility at the pleading stage. this determination is made before discovery. or just letting the issue affect the standing -justices may be fed up with how slow the desegregation process was occurring. but so does a ton of other things COURT: look to only 1 contributing factor in Mass here there is still intervening decisions though. -sorry. actual or imminent. need redressability: judicial relief to bring about some change. just like allen. These aren t cases or controversy. but there is no traceable causation to DF actions here. -NO STANDING: cognizable injury. Advisory opinion concern: if court can t help you with your problem. you can t get all the docs the govt or df has this is kind of unfair. WE need an injury that is concrete. kicked out of court because you don t have these documents yet. whatever WE do is just a drop in a bucket.54 -don t know if school administrators or parents would change their behavior. Is the court letting the merits affect the standing. then all it would be doing is issuing an advisory opinion. maybe get more evidence MASS Causation: not regulating the gasses is contributing to the injuries. -Mass had 5 judges sympathetic to global warming concerns? -standards are malleable here. court can get this tax exemption changed could bring about the relief requested MASS: EPA: if we caused some of this harm. nothing you can do about this in court can use the political process to address their concern maybe take this to the press or your local representative that is what the political process is for -maybe you can go back to court with another theory not enough causation on the first try.

 Woman needs Dr. WULFF Action for declaration of the unconstitutionality of a state statute that excludes abortions that are not medically indicated from the purposes which Medicaid benefits are available to needy persons. 3rd party standing and general grievances SINGLETON v. y The physicians brought suit challenging the statute as an unconstitutional interference with the decision to have an abortion.  Woman s right to abortion is at stake here  Physician is uniquely qualified to assert these rights for women. but doctrines were created to help the court function. and a poor woman can not secure an abortion without the state paying the Dr.  Need to make sure the 3rd party (or actually harmed) actually wants to bring this lawsuit. to secure abortion.these are constitutionally required 2 other doctrines that are not constitutionally required. causation.55 STANDING: Injury. prevent unnecessary adjudication . and redressability . RULE: a litigant has standing to bring suit where the litigant s relationship with a third party whose rights he wishes to assert is very close and where there are genuine obstacles to the 3rd party suing on its own behalf (only a couple month s window for a pregnant women to claim injury) 2 distinct questions are presented: 1. y The physicians standing to maintain the suit was challenged. DECISION: y The physician s alleged injury in fact (a sufficiently concrete interest in the outcome of their suit to make it a case or controversy subject to the courts Article III jurisdiction o COURT: if physicians prevail they will benefit by receiving payment for the abortions o The state will be out of pocket the amount of the payments  This is classically adversial relationship y Reasons why the court hesitates to allow a person to seek redress for a 3rd party: o Holders of rights may not wish to assert them o 3rd parties are often the best parties to assert the rights y 2 reasons why physicians could assert these rights o Looks to relationship between litigant and 3rd party o Ability of 3rd party to assert their own right y CASE AT HAND: o There is a closeness in relationship to litigants and patients. FACTS: y Missouri enacted a statute that excluded abortions that were not medically indicated from the purposes from the purposes for which Medicaid benefits were available to needy persons y The plaintiffs were 2 licensed physicians who performed non medically indicated abortions for needy women who were eligible for Medicaid payments. Whether as a prudential matter the PL are proper proponents of the legal rights on which the suit is based. Whether PL alleged an injury in fact or a concrete interest in the outcome the suit 2.

PROHIBITION OF GENERALIZED GRIEVANCES Prohibition against generalized grievances prevents individuals from suing if their only injury is as a citizen or a taxpayer concerned with having the government follow the law. y HOWEVER o He made no claim that funds were being spent in violation of constitutional limitations on taxing and spending power. RICHARDSON FACTS: y Richardson brought an action as a federal taxpayer alleging that certain provisions of the CIA Act of 1949 violated article 1 section 9 clause 7 of the Constitution. 2 part test for third party standing: closeness between parties and if there is some obstacle to the 3rd party bringing the suit themselves. not just strangers. y It is a prudential principle preventing standing when the asserted harm is a generalized grievance shared in a substantially equal measure by all or a large class of citizens UNITED STATES v.  Is the 3rd party suited to bring suit? Is there a way they depend on each other? Yes. doctors get paid women get abortion o Several obstacles to women asserting their rights. he was seeking to compel the govt.  May be chilled by the fact she wants to protect her privacy  Woman only has a few months to decide whether to undergo an abortion HELD: it is appropriate to allow a physician to assert the rights of women patients as against government interference with an abortion decision. court relied on minute and remote uncertainty of the impact on the taxpayer and the failure to allege the direct injury required for standing y FLAST . which requires a public accounting of the receipts and expenditures of public money. o Denying standing. rights are bound up together.56 y They will also raise the best arguments y This is why the court puts these additional hurdles in the way. to give him information on how the CIA spends its funds RULE: a taxpayer does not have standing to bring a generalized grievance challenging a statute regulating a federal agency s accounting and reporting procedures. Must make sure that the obstacle is serious that s how you figure out whether the rule applies must meet these requirements from singleton to determine 3rd party standing. o RATHER. DECISION: y Frothingham: o Injury alleged was that the congressional enactment challenged as unconstitutional would increase the complainants federal income taxes.

He claims without detailed info on CIA expenditures he cannot fulfill his function as a citizen and member of the electorate b. moved to dismiss on the ground that appellants lacked standing y Flast and company alleged standing based solely on their status as taxpayers DECISION: y Question of standing is related only to whether the dispute sought can be presented in an adversarial context and is capable of judicial resolution.57 Key question for determining standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy as to assure concrete adverseness  Court announced a 2 prong test: y Challenging enactment under the taxing and spending clause of art I section 8 y Claiming that the enactment exceed specific constitutional limitations imposed on taxing and spending power. o Emphasis on standing is whether a person has stake in the outcome of the controversy and whether the dispute touches upon the legal relations of parties having adverse legal interests o No absolute bar in article III to suits by federal taxpayers challenging unconstitutional federal taxing and spending programs. d. y TAX PAYERS MUST SATISFY A 2 PART NEXUS TEST: 1. Taxpayer must establish a logical link between the status as a taxpayer and the type of legislation attacked (thus they are limited to challenging exercises of the congressional power under the taxing and spending clause) 2. y Govt. CASE AT BAR: 1. There is no logical nexus between richardson s status as a taxpayer and the failure of congress to require disclosure of CIA expenditures a. This is the kind of general grievance that is common to all members of the public c. There must be a link between the taxpayer status and the precise nature of the constitutional infringement alleged . His process for remedy for such is the political process o y FLAST v. o Reaffirmed frothingham that fed taxpayer cannot use court to aire his grievances. THUS: he has not alleged that as a taxpayer he will suffer a particular injury from the operation of the statute.COHEN FACTS: y Flast and other taxpayers alleged that federal funds had been disbursed by federal officials under the Elementary and Secondary Education Act of 1965 to finance instruction and purchase of educational materials for sue in religious schools o This is a violation of the Establishment and Free Exercise clauses of the 1st amendment.

-Court further limited Flast in Hein: taxpayers lacked standing even under the Establishment Clause. -even in the context of the Establishment Clause. FREEDOM FROM RELIGION FOUNDATION ALLEGATION: y The Establishment Clause has been violated by organizing conferences at which faith based organizations are singled out as being particularly worthy of federal funding o Conferences sent a message:  Religious believers are insiders and favored in the political community. o Permitting standing for such public actions will upset the balance of power among the branches of the federal govt. not full members of the political community. o Their constitutional challenge is made to an exercise by congress of its power under the taxing and spending clause. y BUT being a taxpayer is generally not enough to establish standing . y MADISON the Establishment clause was designed to be a bulwark against potential abuses of govt power and that clause of the 1st amendment operates as a specific constitutional limitation upon the exercise of Congress s taxing and spending power. HEIN v. y Conferences were designed to promote religious community groups over secular ones.58 a. y STANDING: they are tax payers that are opposed to congressional appropriations to advance and promote religion. which violates the Establishment Clause ISSUE: claim was that conferences held as part of Bush s Faith Based and Community Initiatives program violated the Establishment Clause because Bush and Sec of Edu gave speeches that used religious imagery and praised faith based programs for delivering social services. Taxpayers must show the statute exceeds specific constitutional spending power and not simply that the enactment is generally beyond the powers delegated to congress by article 1 section 8 HOLDING: y Flast and company have satisfied both nexuses to support their claim of standing under the test announced by the court. to spend for the general welfare o The challenged program involves a substantial expenditure of federal tax funds. Flast has not be extended beyond challenges to expenditures. Plaintiffs claim they have standing based on their status as federal taxpayers. and nonbelievers are outsiders. DISSENT: y the majority s double nexus test does not measure a taxpayer s personal interest or stake in the outcome of any suit: o a taxpayer s interest in a suit challenging a public expenditure does not vary according to the constitutional provision under which he states a claim. *Flast represents a narrow exception to the general rule that taxpayers do not have standing to bring generalized grievances about governmental conduct.

in flast it was asserted that the Establishment clause was violated by a federal law y ISSUE: y Congress did not specifically authorize the use of federal funds to pay for the conferences or speeches that PL allege o INSTEAD they were paid for out of the general Executive Branch appropriations. o This falls within FLAST exception o expenditure of govt funds in violation of the expenditure clause COURT: o Expenditures at issue in Flast were made pursuant to express congressional mandate and specific congressional appropriation o PL in Flast established the requisite logical link between status and enactment attacked because it was a specific congressional appropriation pursuant to an express congressional mandate. they have a continuing legal right to ensure the funds are not used by Govt in a way that violates the constitution. no logical nexus between taxpayer status and legislative enactment attacked. o FREEDOMS OTHER ARGUMENT: . REASONING: y Taxpayer has standing to challenge the collection of a specific tax as unconstitutional o Being forced to pay this tax causes an immediate economic injury to the individual RESPONDENTS CLAIM: o Having paid taxes to the treasury at some point. APPEALS COURT: y PL have standing as taxpayers because the conferences were paid for with money appropriated by congress FACTS: y President Bush issued an executive order that created the Office of Faith-Based and Community Initiatives o This was a program aimed at allowing religious charitable organizations to compete alongside nonreligious ones for federal funding o It also required various executive departments to hold conferences promoting the Faith based initiative. y No congressional legislation specifically authorized the creation of these bodies. y FREEDOM FROM RELIGION FOUNDATION o Nonstock corporation opposed to government endorsement of religion.59 FLAST was a narrow exception to the rule. not congressional action o HELD ON THIS ISSUE: o Challenged expenditures were not authorized by congress. o HERE: o No link between congressional action and constitutional violation o Expenditure at issue is not made pursuant to an act of congress o These expenditures resulted from executive discretion. o They were created entirely within the executive branch by Presidential order o These activities are funded through general executive branch appropriations.

the injury to taxpayers in either situation is the injury targeted by the Establishment Clause and Flastno money to support religion exacted from taxpayers o o COURT: o FLast focused on congressional action. constitution is seen as assigning certain provisions to the other branches of government. not show of hands.60 Money spent by congress or money spent by the executive is all the same. DISSENT: o Taxpayers suffer injury when executive agencies spend identifiable sums of tax money for religious purposes. allowing this interpretation of Flast would subject executive action to be called into question by any taxpayer under establishment clause. no other branch its applicable POLITICAL QUESTION *Refers to allegations of a constitutional violation that federal courts will not adjudicate and that the supreme court deems to be inappropriate for judicial review. o Cases under Guaranty clause ARE NEVER justiciable. only when congress spends money. and you can challenge a statute you were forced to listen to a lecture that was religious in nature and you ve been harmed maybe that could get you into court. y Defended on separation of powers grounds. -Flast is very limited: because the expenditures were not authorized by a specific congressional enactment there is no logical nexus to status as a tax payer Courts concern here: opening the door to too many lawsuits. overstepping bounds by questioning another branch of govt. y Court has long refused to find cases under the Guaranty Clause justiciable. no less than when congress authorizes the same thing. y BAKER: is same challenge of malapportionment justiciable under the Equal Protection Clause? . o Executive branch is almost always funded by some congressional appropriation.. o o POLITICAL QUESTION DOCTRINE NOTES: once taxpayers give money to congress and then congress gives to the executive the relationship is not close between taxpayer status and the expenditure of money -must be someone who has been actually injured by this. court does not want to extend this holding to encompass acts of the executive. We have to limit this. o SEPERATION OF POWERS CONCERN HERE TOO! HELD : we leave flast where we found it CONCURRENCE (SCALIA): o Plurality s distinction is utterly meaningless and Flast should be overruled  Need to decide cases by rule of law. y Some constitutional provisions are left to the political branches of govt to interpret and enforce. o Minimizes judicial intrusion into the operations of other branches of govt and allocates decisions to branches of govt that have superior expertise in particular areas.

y The decision today empowers the courts to devise the proper composition of the legislatures of the 50 states.61 BAKER v. y HOLDING: since the equal protection claim does not require a decision of a political question and since the presence of a matter affecting state govt. *the nonjusticiability of a political question is primarily a function of the separation of powers We get one person. not between the judiciary and states which give rise to the political question. one vote here it holds that your vote is just as important as the next. HELD: claim here neither rests upon nor implicates the Guaranty Clause so its justiciability is not foreclosed by prior cases (rests on the equal protection clause) *It is the relationship between judiciary and federal govt. Policy is left to legislature. regardless of the population of your district this is protected by the equal protection clause. Guaranty Clause: guarantees the states a republican form of government and they will be protected from invasion. court does not want to step on their toes by going against legislatures wishes in certain areas. . Claimants are not barred from bringing suit under the equal protection clause provided it doesn t conflict with any of the previous factors. y Courts may be impaired in its role as the ultimate organ of the supreme law of the land o Courts authority rests on public confidence in its moral sanction o It must be upheld by the court avoiding political matters by not injecting itself into situations where the political forces are at struggle. does not render the case nonjusticiable. branches y An unusual need for unquestioning adherence to a political decision already made y The potentiality of embarrassment from a variety of announcements by different governmental departments on one question. CARR *Mere fact that a suit seeks protection of a political right does not mean it presents a political question. not the guaranty clause. CASES WHERE A POLITICAL QUESTION IS PRESENT: (factors to look at to determine if political question or not) y Textually demonstrable constitutional commitment of the issue to a coordinate political branch y A lack of judicially manageable standards for resolving it y The impossibility of deciding the case without an initial policy determination calling for nonjudicial discretion y The impossibility of resolving it without expressing lack of respect due other govt. the appellants have a proper cause of action DISSENT y A long line of cases has held that the Guaranty Clause is not enforceable through the courts y The present case involves all of the elements that have made the guaranty clause cases non justiciable.

a subcommittee had investigated the expenditures of a committee Powell had headed and found that he and other employees deceived house authorities concerning travel expenses. y POWELL is right: historical materials lead to the conclusion that the House only has the authority to exclude based on standing requirements prescribed by the constitution. however. Powell was told to step aside while the oath was administered. o Had their been less clarity of framer s intent court would have still resolved the matter by narrowly constructing the scope of congress s power. y Previously. o HAMILTON: people should choose who they want to govern them  Powell was elected by the people . o Also evidence that Powell had advised illegal salary payments to be made to his wife. y Powell filed suit in District Court o CLAIM: the house could exclude him only if it found he failed to meet the standing requirements of age. y When the 90th congress met to be sworn in. the commentary from the post convention. y ARGUE HISTORY: records of the debates of the constitutional convention. COURT: y Must determine what the phrase. and early congressional applications of article 1 section 5 support his construction.62 Appeal for relief should not be sought in the courts. be the judge of the qualifications of its own members means. MCCORMICK FACTS: y Powell was elected to serve in the House of Representatives. y Democratic members-elect met in caucus and voted to remove Powell from his position of chairman of the committee. it should be done through the political process. citizenship and residence contained in Article 1 section 2 of the Constitution which the house found that Powell met and had thus excluded him unconstitutionally. HOUSE S 1st CONTENTION: y This case presents a political question because under article 1 section 5 there has been a textually demonstable constitutional commitment to the house of the adjudicatory power to determine Powell s qualifications. pursuant to a House resolution he was not permitted to take his seat. y POWELL v. o What power does the constitution confer upon the house through art 1 section 5 POWELL: y Constitution provides that an elected representative may only be denied his seat if the House finds he doesn t meet one of the standing qualifications expressly prescribed in the Constitution. o House has power to determine who is a qualified member COURT: y To make this determination court must look to the constitution.

its not the court s job to do so. no final vote has been undertaken. o Political question doctrine sets forth 3 inquiries: . Stewart and Stevens Concurring with Judgment: y Question brought by Goldwater is political and therefore nonjusticiable because it involves the authority of the president in the conduct of foreign relations and the extent to which the Senate is authorized to negate the action of the president. GOLDWATER v. y Should be left for resolution by the executive and legislative branches Constitution expressly provides the Senates power to participate in the ratification of a treaty. CARTER *President Carter rescinded the United State s treaty with Taiwan as part of recognizing the People s Republic of China y Senator Goldwater brought a constitutional challenge arguing that the Senate must rescind a treaty. FOREIGN POLICY AND THE PQD it is error to supposed that every case or controversy which touches foreign relations lies beyond judicial cognizance. just as the senate must ratify the making of a treaty. o Senate has only considered a resolution declaring that its approval is necessary for termination of a treaty. MUST BE CONTROLLED BY POLITICAL STANDARDS y It involves foreign relations y This is a treaty commitment to use military force in the defense of a foreign govt POWELL: y Would dismiss the complaint as not ripe for judicial review y Dispute between congress and the president is not ready for judicial review unless and until each branch has taken action asserting it constitutional authority o Judicial branch should not decide issues affecting the allocation of power between the president and congress until the branches reach a constitutional stalemate  Otherwise this would encourage small groups of congress to seek judicial resolution of issues before the political process has the opportunity to resolve the conflict. y Dissents because this is not a political question.63 MADISON: govt should not limit who the people can select for representatives (must limit the power to expel) Would also nullify the decision to require a 2/3 vote for expulsion. BRENNAN: y Concurs in the dismissal o If congress chooses not to confront the president. o o HELD: the textual commitment formulation of the political question doctrine does not bar federal courts from adjudicating Powell s claim. but is silent as to its participation in the abrogation of a treaty. Rehquist.

UNITED STATES ISSUE: y Whether senate rule XI. this is a power of congress. 3rd for bringing disrepute on the federal judiciary. a former federal judge in MS was convicted of making false statements to a grand jury and was sent to prison y Because he refused to resign from his office as US District Judge he continued to collect his judicial salary while serving time in prison. which allows a committee of senators to hear evidence against an individual who has been impeached and to report that evidence to the full senate. NIXON v. There is no textually demonstrable constitutional commitment here a. the senate voted to invoke its own impeachment rule 21 o A committee receives evidence and takes testimony and then presents the full senate with transcripts of the proceeding and a summary of evidence and contested facts. Article 6 provides that treaties shall be a part of the supreme law of the land. THERE IS NO POLITICAL QUESTION AT PLAY HERE. A standard is possible to reach here a. violates the Impeachment Trial Cause of Article 1 section 3 1st Court must decide whether it is justiciable or whether it can be resolved in the court -COURT: NO IT CANNOT NIXON S ARGUMENT: y Senate Rule 21 violates the constitutional grant of authority to the Senate to try all impeachments because it prohibits the whole senate from taking part in the hearing. Interpretation of the constitution does not imply lack of respect for the other branches of govt. This is normal constitutional interpretation 3. All the court needs to do is decide whether the president may terminate a treaty under the constitution without congressional approval b. y May 10th the House of Representatives adopted 3 articles of impeachment for high crimes and misdemeanors.64 Does the issue involve resolution of questions committed by the text of the constitution to a coordinate branch of govt?  Would resolution of the question demand that a court move beyond areas of judicial expertise?  Do prudential considerations counsel against judicial intervention? The answer to each of these questions would require court to decide the case if it were ready for review  o 1. o First 2 charged Nixon with giving false testimony. No provision explicitly confers this power to the president b. y Senate voted by more than the constitutionally required 2/3 to impeach Nixon. . FACTS: y Nixon. y After the House presented the articles to the Senate. 2.

to say the word try does not present a judicially manageable standard is insupportable where one would intuitively expect that the framers used the word in its legal sense SOUTER: y Agrees this is nonjusticiable political question Not all judicial interference with the impeachment process is inappropriate and such could be necessary if the senate were to act in a manner seriously threatening the integrity of its results. -OR do these doctrines make sense in saying the court has limits. created 2 safeguards y Impeachment power is divided between 2 legislative bodies y Needs 2/3 vote to impeach ALSO LACK OF FINALITY ARGUMENT AND DIFFICULTY FASHIONING RELIEF y Judicial review of this process could potentially expose the country s political life to periods of chaos. we can t allow the court to turn into a political body. NOTES Are these justiciability issues so malleable that they can be used to further the political interests of the judiciary? Are these standards so malleable that the justice can stay out of things they like. . y Further. impeachment and criminal  Keep trials separate so there is no biases o Judicial review would be inconsistent with checks and balances  Impeachment is a check on the judiciary by the legislature NIXON: y Judicial review is necessary to put a check on the legislature o Feels legislature will usurp power if unchecked  Framers saw this. WHITE AND BLACKMUN CONCURRENCE: y The framers intended the use of the word sole to be a limitation on potential interference by the House and not on review by the judiciary. and interfere with things they don t like? -is the same with standing.65 COURT: y Must examine article 1 section 3 to determine the scope of authority conferred upon the senate by the framers y Language and structure of clause are revealing o Word sole is of considerable significance  Senate alone will have authority over who should be acquitted or convicted y 2 reasons why judiciary does not have role in impeachment: o Framers realized there may be 2 trials. y Could affect legitimacy of successor if president was impeached his effectiveness would be impaired while original president s case was under review. redressibility and whatnot? Does this just allow the justices to infuse their own views in the process.

y If NY can guard its farmers against the competition of the cheaper prices of VT. FACTS: y Hood was a Boston Milk distributor who obtained some of his supply from producers in NY y The controversy concerned the opening of an additional plant in NY. even in the absence of congressional action. CARDOZO in Baldwin: y The states must sink or swim together. Of NY (state has power to protect its residents from menaces to their health and safety or from fraud.66 LIMITS ON STATE REGULATORY AND TAXING POWER HOOD v. additional plant would draw milk supplies from other processors and deprive local market of adequate supply) Most relevant decision to date concerning milk litigation came from the Baldwin case: y NY placed conditions on local sale of milk imported from VT. but NOT to promote its own economic advantages by burdening interstate commerce. y Court held in Baldwin that the commerce clause. o One of the sole purposes which led to the drafting of the constitution was to address the issue of trade between the states. o This sets up a rampart of customs duties designed to neutralize advantages belonging to the place of origin Distinction between state ability to shelter its citizens from menaces to health and safety or fraud and its lack of power to burden the flow of commerce for its economic advantage is deeply rooted in history and law: y Once colonies gained independence they drifted towards commercial warfare between each other. designed to basically exclude them from the market o HERE: the order proposes to limit local facilities for purchase so as to withhold milk from export. prohibited this type of regulation. (deny plant will aid local economic interests. DU MOND AG. then this opens the country up to the very rivalries that were meant to be averted by vesting the commerce power into the federal govt. which the state sought to deny. y A state cannot use the power to tax or the police power to set up restrictions against competition. threatened solidarity of country. y the economic objective was the root of the statutes invalidity y Such a power would set a barrier to traffic between the states and act as customs duties. in the long run prosperity is in union not division. o States would legislate to procure economic advantages. y COURT: recognized state interest to protect inhabitants against perils to health or safety. . it would clog up the mobility of commerce. but it does not have the power to burden the flow of commerce for its economic advantage) ISSUE: y Whether NY can deny additional facilities to an out of state company to acquire and ship milk in interstate commerce where the grounds of denial are that the limitation on interstate business will protect and advance local economic interests.

MD) Criticism of the Dormant Commerce Clause: y No basis in the text of the constitution y Court has used the commerce clause to make policy-laden judgments that it is ill equipped and unauthorized to make. protectionism is inefficient because it diverts business away from low-cost producers Political justification: states and their citizens should not be harmed by laws in other states where they lack political representation. y Framers were concerned about stopping protectionist state legislation FACIALLY DISCRIMINATORY LAW: y The law in its very terms draws a distinction between in-staters and out-of-staters . (McCulloch v. y If not discriminatory. which was the goal of the framers. rather the court should confine itself to interpreting the text of the constitution.67 The necessity of centralized regulation of commerce among the states was so obvious and recognized that the commerce clause was hardly debated. Traditional arguments for having a dormant commerce clause: 1. DETERMINING WHETHER A LAW IS DISCRIMINATORY Balancing test: varies depending on whether the state or local law discriminates against out of staters or treats in staters and out of staters alike y If a state is discriminating against out of staters then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose. y y The system of commerce in place in this country is based on free competition. There is an economic justification for the DCC: the economy is better off if state and local laws impeding interstate commerce are invalidated a. then the presumption will be in favor of upholding the law and will be invalidated only if it is shown that the law s burdens on interstate commerce outweigh its benefits. There is a historical argument: the framers intended to prevent state laws that interfered with interstate commerce 2. THRESHOLD QUESTION: whether the state law is discriminatory against out-of-staters. o States producing natural resources withholding for the use of their own industry would burden the country substantially. y TEXTUAL ARGUMENT: o Drafters could have included a provision prohibiting states from interfering with interstate commerce y Invalidating laws pursuant to the dormant commerce clause should not be a task for an unelected federal judiciary. o Whether a particular statute serves a legitimate local public interest o Whether the effects of the statute on interstate commerce are merely incidental  Non of the policy laden decisionmaking is proper. Established interdependence of the states emphasizes the necessity of protecting interstate commerce against local burdens.

and out of state waste is posing a threat to the health and safety of the public CRUCIAL INQUIRY: y Is 363 a protectionist measure or is it a law directed to legitimate local concerns. GOAL OF 363: y Volume of waste is rapidly increasing and the treatment and disposal of this waste continues to pose a greater threat to the environment y Space within state landfills is being diminished. these subjects are open to control by the states so long as they act within the restraints imposed on the commerce clause. FACTS: y NJ enacted a statute that prohibited the importation of waste which was collected or originated in another state y The law was challenged by private landfill owners in NJ *all objects of interstate trade merit commerce clause protection y Reject State court s suggestion that valueless out of state wastes deserve no protection II.68 CITY OF PHILADELPHIA v. to treat them differently. apart from the commerce s origin. RATIONAL: y Today cities in NY and PA find it necessary to send waste to NJ and NJ claims the right to close its borders to such traffic BUT tomorrow NJ may find it necessary to send its waste to PA or NY and when they try to close their borders . with effects upon interstate commerce that are only incidental? COURT: y It doesn t matter what NJ ultimate purpose is (saving its citizens $ or protecting the environment) y IT CANNOT ACCOMPLISH ITS GOALS BY DISCRIMINATING AGAINST COMMERCE COMING FROM OUTSIDE THE STATE o Unless there is some reason. y Court has consistently recognized evils of protectionism and economic isolation o But still recognizes that incidental burdens on interstate commerce may be unavoidable when state legislates to safeguard the health and safety of its people. NEW JERSEY ISSUE: y Court has to decide whether a NJ law that prohibits the importation of solid or liquid wastes that originated or were collected outside the state violates the commerce clause. 363 violates the principle of discrimination Court has in many instances denied a presumably legitimate goal by the states on the ground they sought to achieve it by the illegitimate means of isolating the state from the national economy. y Many subjects of potential federal regulation escape congressional attention because of their local character y In absence of federal legislation. y HELD: both on its face and in its plain effect.

but also discriminating against them. the legislature wanted to protect the reputation of WA apples y This standard was regarded throughout the country as superior to the USDA standard. HUNT v. y There were alternatives: o Could have changed marketing practice for NC or do away with preprinted containers y BUT none of these were good alternatives for the industry DC: the statute has the effect of not only burdening interstate sales of WA apples. Statute s consequence of raising the costs of doing biz in NC while leaving NC growers unaffected. ISSUE: is NC s facially neutral law prohibiting the labeling of state standard grades discriminatory in its effects? FACTS: y NC required apples sold in state to be packed in cartons carrying only the U. 500k of which reach NC o It is industry practice to purchase these containers preprinted with the grades prior to harvest. o State law may constitute economic protectionism on proof of either discriminatory effect or discriminatory purpose. Dept of Ag grade or no grade at all y But WA. Discrimination takes various forms: 1. who is the leading apple producer. had developed at a significant cost a system of grading apples that was more stringent than the USDA standard. a. o Since the ultimate destination of the packaged apples are unknown at the time they are placed in storage. o WA growers ship nearly 40 million containers in commerce. y This NC regulation presented the WA apple industry with a marketing problem of potentially nationwide significance.S. NC growers were not forced to alter their marketing practices like the WA growers to comply with the statute. WA STATE APPLES RULE: a facially neutral law is discriminatory if it has discriminatory effects.69 The commerce clause will protect NJ just as it is today protecting NY and PA o DISSENT: y NJ recognized the health and safety problems associated with the use of landfills in disposing of wastes FACIALLY NEUTRAL LAWS y Can be discriminatory if they either have the purpose or the effect of discriminating against outof-staters. . o Because of the importance to the industry to the state. compliance with the statute would have required WA to do away with the printed labels on the containers.

a. o NC fails to meet this burden on both levels o This statute doesn t protect consumers in NC. not particular interstate firms. Increased costs posed by the statute would shield the local industry from competition 2. y HERE. y The absence of these factors distinguishes this case from those in which a state law was found to be discriminatory. the court shifted the burden to the state to prove both the local benefits and a lack of discriminatory alternatives-more stringent than the discrimination doctrine. y Interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one interstate supplier to another. By not allowing WA to market its apples under the superior grading system the statute has a leveling effect which operates to the advantage of local producers. y The commerce clause protects the interstate market. MARYLAND RULE: y A facially neutral law that burdens some interstate companies with disparate impact is not discriminatory merely because it imposes such burdens. EXXON CORP v. the law had a discriminatory effect on out-of-state oil companies and impermissibly burdened commerce. it actually deprives them of all the information that could be available to them in purchasing the apples. System has gained nationwide acceptance in apple trade 3. therefore. or distinguish between in state and out of state companies in the retail market.70 b. ANALYSIS: y If the balancing test of the burden doctrine alone were used. nor does it prohibit the flow of interstate goods. y There are non-discriminatory alternatives to this outright ban o Could require states that use state grades to also include USDA grades. the burden would be on WA (challenging the statute) to prove that the burden on interstate commerce outweighed the local benefit. WA sellers would have a market advantage with the grading system. . COURT: y Burden falls on the state to justify the local benefits derived from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interest at stake. REASONING: y The statute here creates no barrier against interstate independent dealers. Statute has effect of stripping away from the WA apple industry the competitive and economic advantages it has earned for itself through its expensive inspection and grading system. but without the distinction they have to use the USDA which levels the playing field. place added costs upon them. FACTS: y Maryland law prohibited oil companies from operating retail service stations within the state y Virtually all oil companies were located outside of Maryland y The oil companies argued that. a.

y Reasonable and adequate alternatives exist . WI ordinance prohibited the sale of any milk as pasteurized unless it had been processed and bottled by an approved plant within 5 miles of the city. o Plainly discriminates against interstate commerce. COURT: y The ordinance erects an economic barrier protecting a major local industry against out of state competition. Maine prohibited the importation of nonnative baitfish y Taylor. even to protect the health and safety of its people if reasonable alternatives exist which do not discriminate and are adequate to conserve legitimate local interests. so he was denied a license to sell its milk products within Madison solely because his plants were over 5 miles away. Dean s Contention: statute violates the commerce clause and the 14th amendment FACTS: y Dean Milk was an IL corporation engaged in distributing milk products in IL and WI y A Madison. o Madison could send its inspectors to the distant plants o Could exclude from its city all milk not produced in conformity with standards as high as those in Madison o It could use the local ratings checked by the US Public Health Services to enforce such a provision *The regulation must yield to the principle that one state in its dealings with another may not place itself in a position of economic isolation MAINE v. FACTS: y To protect native fish. TAYLOR RULE: a facially discriminatory law is constitutional where less discriminatory alternatives are unavailable. arranged for the importation of live baitfish and was indicted under a federal statute making it a federal crime to transport fish in interstate commerce in violation of state law. y Taylor moved to dismiss the indictment on the ground that Maine s law unconstitutionally burdened interstate commerce. . WI RULE: y A locality may not discriminate against interstate commerce. y It must be decided whether the ordinance can be justified in view of the local interest and the available methods for protecting those interests. y Dean milk had pasteurization plants located 65 and 85 miles outside Madison. who was a bait dealer.71 Analysis if a law is deemed discriminatory Dean Milk Co.v. Madison. o DEAN MILK: this places an undue burden on interstate commerce.

a discriminatory measure. ARIZONA RULE: y In deciding whether a state law places an unreasonable burden on interstate commerce the court must balance the nature and extent of the burden which would be imposed by the statute against the purposes to be derived from the regulation. y COURT: y This statute is discriminatory on its face. SC granted review. Based on the evidence presented by the experts on behalf of the state of main there was found to be no less discriminatory way to prevent the significant threats to the fisheries. SOUTHERN PACIFIC v. Wild Fish population would be put at risk by 3 different types of parasites prevalent in out of state baitfish not common in Maine 2. y It authorized the state to recover a monetary penalty for each violation . court of appeals reversed. y The state bears a heavy burden to justify such blatant discrimination y The ambiguity of the ecological impact should defeat. COURT: y Maine has a legitimate interest in guarding against imperfectly understood environmental risks y Commerce clause cannot be read as requiring Maine to sit back and wait until potentially irreversible environmental damage has occurred. Could disturb Maine s aquatic ecology a. although it still doesn t mean its unconstitutional (restricts interstate trade in the most direct manner possible) y Maine has the burden of showing that the law both serves a legitimate local purpose and that this purpose cannot be achieved by any other nondiscriminatory means. DISSENT: y Maine is blatantly discriminating against other states. Balancing test: courts balance the benefits of a law against the burdens that it imposes on interstate commerce. but flatly prohibits importation of baitfish from other states. Experts (2 significant threats): 1.72 MAINE: there was no less discriminatory alternative to protect the state s fisheries from parasites and nonnative species that might be included in the shipments of imported baitfish. because it has a thriving baitfish population of its own. rather than sustain. No satisfactory way to inspect shipments of baitfish. o District court dismissed Taylor s motion. FACTS: y The Arizona Train limit Law made it unlawful to operate within the state a train of more than 14 passenger cars or 70 freight cars.

then there is a much less demanding test. y Bruce Church. o By complying with the law it could result in an increase of a million dollars for the railroads in question. about 30 miles away from its operation o Cantaloupes are highly parishable and this was the closest packing plant to the farm. . y COSTS BURDEN o There is a relationship between operating costs and the length of trains. it must come in the form of a national regulation which can only be imposed by congress. y Act required that all cantaloupes grown in AZ be packed there.73 Arizona claimed that the law had a reasonable relation to the safety and well-being of residents of the state by preventing train accidents. LOREN PIKE v. (for efficiency and economy). who was a farming corporation with operations in CA and AZ sent some of the cantaloupes that it grew in AZ uncrated and in bulk to one of its packing facilities in CA. o If the length of trains is to be regulated at all. y NO DOUBT THIS IS A BURDEN ON INTERSTATE COMMERCE o Impedes the movement of interstate trains through the state and imposes a substantial obstruction to the national congressional policy to promote efficient and economical railway transportation services o ALTERNATIVE TO CARRIER  Conform to the lowest train limit restriction of states  If one state can control train lengths than so can others this has the effect of controlling train operations beyond the boundaries of the state y NO REASONABLE RELATION TO SAFETY! o This law makes operation more dangerous  The danger from having more trains running offsets the potential danger to having longer trains running. y Non-discriminatory laws are upheld so long as the benefits to the state outweigh the burdens are interstate commerce. y EFFICIENCY o The conversion and reconversion of train lengths at the terminals will cause delays by breaking up and remaking the longer trains upon entering and leaving the state. o COURT:  The AZ safety measure only affords a slight advantage. BRUCE CHURCH RULE: y A non-discriminatory local safety measure that places burdens on interstate commerce that clearly exceed the local benefits is unconstitutional FACTS: y Bruce Church was found in violation of the Arizona Fruit and Vegetable Standardization Act. y COURT: y Findings show that the operation of long trains is standard practice over the main lines of the railroads of the United States. not enough to restrict the free flow of commerce Analysis if law is deemed non-discriminatory: y If it treats in-staters and out-of-staters alike.

NAVAJO FREIGHT LINES RULE: y A non-discriminatory local safety measure that places a burden on interstate commerce that clearly exceeds the local benefits is unconstitutional ISSUE: y Does an Illinois statute requiring the use of a certain type of rear fender mudguard on trucks and trailers operated on the highways of that state conflict with the commerce clause? Appellees: interstate motor carriers challenge the constitutionality of the act. y Courts will often uphold these measures. o If a legitimate local interest is found. The company faced a $700. it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the local benefits.000 loss of its 1968 crop if it could not send them to the CA plant. the policy decisions are left to the state legislature. y The nature of that burden outweighs the local benefit y When states require business operations to be performed in state that could be performed more efficiently out of state. y This statute puts Church in a straitjacket o This incidental consequence of a regulatory scheme could be upheld if a more compelling state interest was involved. y y y COURT S: GENERAL RULE (for determining validity of state statute affecting interstate commerce) y When the statute regulates both in state and out of state parties even handedly to effectuate a legitimate local interest. ARIZONA S INTEREST y This act is not designed to protect consumers from contaminated or unfit goods y Its purpose is to protect and enhance the reputation of growers within the state o These are legitimate state interests COURT: y State s interest in having the cantaloupes identified as AZ cantaloupes cannot constitutionally justify the requirement that the company build a $200. TEST: y Unless it can be concluded on the whole record that the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematic as not to outweigh the . FACTS: y DC: this places an unreasonable burden on interstate commerce. the question becomes one of degree o And whether it could be promoted with a lesser impact on interstate activities. illegal in Illinois and because taken together with an Arkansas statute requiring the use of straight mudflaps it rendered the use of the same vehicle equipment in both state impossible COURT: y the power of states to determine safety measures for their highways has been broad and pervasive.74 Pike in his official capacity issued an order prohibiting the company from transporting the uncrated cantaloupes. which is legal in 45 states. and its effects on interstate commerce are only incidental. the courts will scrutinize the situation more intensely. and if there are alternative ways to solving a problem. o BIBB v.000 packing plant in AZ. o because it made the conventional straight mudflap.

 This is where you change trailers rather than unload the cargo into another truckl. WESTERN SOUTHERN v. CA ISSUE: y Presents the question of the constitutionality of retaliatory taxes assessed by the state of CA against Western and Southern Life insurance (an OH corporation) SECTION 685: y Imposes a retaliatory tax on out of state insurers doing business in CA. b. y Trucks would require extensive work if operated in both AR and IL o They would have to change mudflaps upon entering the respective states.  This is especially important when dealing with perishables. the statute must be upheld. When congress approves the state law 2. And could involve welding (not good for army trucks w/ explos) y INTERFERES WITH INTERLINE o Interferes with the interchanging of trailers between an originating carrier and another carrier. when the insurer s state of incorporation imposes a higher tax on CA insurers doing business in that State . . o congress may confer upon the states an ability to restrict the flow of interstate commerce that they would not otherwise enjoy. Market participation exception a.75 national interest in keeping interstate commerce free from interferences. than CA would otherwise impose on that States insurer s doing business in CA COURT: y No judicial decisions limit the authority of Congress to regulate commerce among the states as it sees fit. A state may favor its own citizens in receiving benefits from governmental programs or in dealing with government owned business. y SAFETY (introduced by IL) o IL: this is a safety precaution to prevent throwing of debris o BUT: contour flap possess no advantages over the straight flap  Evidence that contour flap creates previously unknown hazards to the roadway y It heats up the break drum and decreases the effectiveness of brakes. 2 exceptions to dormant commerce clause 1. REASONING: y The heavy burden the Illinois statute places on interstate movement of trucks and trailers passes the permissible limits for safety regulations y COSTS o Add to carriers costs of doing business since every truck entering interstate commerce would have to have the contoured mudflap because of the impossibility of determining at what point a truck may enter Illinois. which could be 2 to 4 hours of labor.

REEVES v. such as with a state-owned business. and not a regulator. in a time of shortage. may confine the sale of cement it produces solely to its residents. which is what SD is doing here. y BUT in 1978 there was a nationwide shortage of cement and the Plant decided to reaffirm its policy of supplying all SD customers first and with the remaining cement they would distribute on a first come first serve basis. . y ACT: o Section 1: business of insurance is a public interest. FACTS: y In 1919 SD build its own plant to produce cement y By the 1970 s some 40 percent of its output was going to out of state distributors y Reeves was an out of state distributor that purchased almost all of its cement from the plant for the past 20 years. WILLIAM STAKE ISSUE: y Whether the state of South Dakota. so they filed suit against the Plant challenging the policy of preferring SD citizens and seeking injunctive relief.76 If congress ordains that a state may freely regulate an aspect of interstate commerce. o CASE AT BAR: y Congress removed all commerce clause limitations on the authority of the state to regulate and tax the business of insurance when it passed the McCarran-Ferguson Act WESTERN S ARGUMENT: y The McCarran-Ferguson Act does not permit anticompetitive state taxation that discriminates against out of state insurers COURT: finds no such limitation in the language or history of the act. y Reeves was hit hard and unable to find another supplier. the dormant commerce clause does not apply. o Discrimination against out of staters is allowed that otherwise would be impermissible. any action taken by a state within the scope of that authorization is rendered invulnerable to commerce clause challenge. the McCarran-Ferguson Act removes entirely any commerce clause restriction upon CA s power to tax the insurance biz. COURT: y The commerce clause responds principally to state taxes and regulatory measures impeding free private trade in the national marketplace. any silence by congress shall not be construed to impose a barrier to the regulation of taxation o Section 2: the business of insurance shall be subject to the laws of the states which related to the regulation or taxation of such business HELD: y Must reject Western s commerce clause challenge. without violating the commerce clause. MARKET PARTICIPATION EXCEPTION y If the state is literally a participant in the market. y There is no indication of a constitutional plan to limit the ability of a state itself to operate freely in the free market.

it was a market participant. y Application of the commerce clause should turn on the nature of the govt. o STATE ALSO CHARGES a significantly lower price for the timber than it otherwise would. o HELD: does not violate the commerce clause o city expended only its own funds for the contracts. so states in this instance should share the same freedoms from federal constraints Regulating in this instance is better a task for congress than the courts y y y DISSENT: y This policy represents precisely the kind of economic protectionism that the commerce clause was intended to prevent. activity involved. State proprietary activities are often burdened with the same restrictions imposed on private market participants. The successful bidder must partially process the timber prior to shipping it outside the state  This does not limit the export of unprocessed timber though. owned by the state o PURPOSE OF REQUIREMENT: o To protect existing industries. the Alaska Dept of Natural Resources published a notice that it would sell 49 million board feet of timber in the following month o The proposed contract provided that: o primary manufacture within the state of Alaska will be required as a special provision of the contract. o If a state enters the private market and operates a commercial enterprise for the advantage of its citizens. and manage the State s forests on a sustained yield basis. SOUTH-CENTRAL TIMBER DEVELOPMENT v. that has been recognized since the drafting of the constitution.77 The state occupies the role of guardian and trustee for its people o It is long recognized that the manufacturer engaged in an entirely private business is free to choose who he will do business with. o SD has ordered that the state cement plant must turn away out of staters until all SD orders are filled. . and derive revenue from all timber sources. MASS o Mayor of Boston issued executive order that required all construction projects funded in whole or in part by city funds to be performed by a work force consisting of at least half boston residents. o There is a need to ensure unrestricted trade among the states. ALASKA FACTS: o In 1980. y SD may provide cement for its public needs without violating the commerce clause o Does not agree that SD may withhold cement from interstate commerce in order to benefit private citizens and businesses. provide for the establishment of new industries.  Which meant. it should not evade the constitutional policy against economic protectionism WHITE v.

o THE MARKET PARTICIPANT DOCTRINE PERMITS A STATE INFLUENCE A DISCRETE IDENTIFIABLE CLASS OF ECONOMIC ACTIVITY IN WHICH IT S A MAJOR PARTICIPANT o It allows the state to impose burdens on interstate commerce within the market but not to go any further (AK is imposing conditions after the sale. o This provision has a substantial regulatory effect outside the timber market. o AK makes the choice for him though! If he buys the timber from the state he is not free to take the timber out of state prior to processing. COURT: o If a state is acting as a market participant. o They do not operate a mill in Alaska. primarily to Japan. rather than a market regulator. o ALASKA ARGUMENT: o Alaska s entry into the market should be viewed exactly as the same type of subsidy to local interests that he court found acceptable in Alexandria Scrap COURT: o When MD became a participant in scrap market it was a purchaser of scrap. ON THE OTHER HAND Alaska participates in the market.78 PETITIONER (SOUTH-CENTRAL DEVELOPMENT) o Alaska corporation engaged in the business of purchasing standing timber. o THE LIMIT OF THE MARKET PARTICIPANT DOCTRINE MUST BE THAT IT ALLOWS A STATE TO IMPOSE BURDENS ON COMMERCE WITHIN THE MARKET IN WHICH IT IS A PARTICIPANT. they customarily sell unprocessed logs. the dormant commerce clause places no limitations on its activities. HELD: o state may not avail itself of the market participant doctrine to immunize its downstream regulation of the timber-processing market in which it is not a participant . o State is attempting to govern private.in the timber-processing market)  Alaska is a direct participant in the timber market. o If the state directly subsidized the timber-processing industry the purchaser would have an option of taking advantage of the price cut by processing in state. o They then brought INJUNCTION:  ARGUE: the requirement violated the dormant commerce clause. payment for timber in this situation does not end the obligation of the purchaser purchaser cannot do what he pleases with the timber right away. and shipping the logs into foreign commerce. but NOT THE PROCESSING MARKET o the doctrine is not carte blanche to impose any conditions that the state has the power to do. o HOWEVER. separate economic relationships of trading partners. BUT imposes conditions downstream in the timberprocessing market. logging the timber. BUT NOT FURTHER. or foregoing these benefits and exporting the unprocessed timber. that has an effect outside the market . o Alaska isn t subsidizing the timber processing market as MD was subsidizing scrap metal o STATE IS MORE THAN MERE SELLER OF TIMBER o Seller usually has no say or no interest in the product after sale. it burdens the processing market as well.

o CONTENTION: the statute is not meant to conserve shrimp. all of which are the same as the contractual provisions held invalid. and $2. sovereign states. and not the union it is today. o Designed to insure that a citizen of state A who ventures into State B has the same privileges of that state as B does. PRIVILEGES AND IMMUNITIES CLAUSE IS NOT ABSOLUTE o Must be a substantial reason for the discrimination beyond the mere fact they are a citizen of another state. but to exclude non-residents and create a commercial monopoly for South Carolina residents.500 for each one owned by a non-resident. o AK could have chosen a number of constitutionally valid ways of requiring the buyers of its timber to process it within the state. STATUTE: o Section 3300: waters in that area shall be a common for the people of the state to fish o Section 3379: requires payment of a license fee of $25 for each shrimp boat owned by a resident. o LONG AGO DECIDED THAT THE CLAUSE GUARANTEES TO CITIZENS OF STATE A the ability to do business in state B on terms of substantial equality. PRIVILEGES AND IMMUNITIES CLAUSE TOOMER v. o Without this provision the Republic would have remained a league of states. COURT: purpose of Privileges and Immunities clause: o Help fuse into one nation a collection of independent. APPELLANTS: o 5 individual fishermen who are all residents of Georgia and a non-profit fish dealers organization incorporated in FL.79 DISSENT: o the distinction drawn in the plurality opinion between market participation and market regulation is unconvincing and artificial. WITSELL ISSUE: o Suit to enjoin as unconstitutional the enforcement of several South Carolina statutes governing the commercial shrimp fishing in the 3 mile maritime belt of the coast of the state. INQUIRY FOR EACH CASE: o Is there a substantial reason for discrimination and does the degree of discrimination bear a close relation to the reason CASE AT BAR: o SC plainly discriminates against non-residents o SC argues that the goal was to conserve shrimp by heading off an impending threat of excess trolling o Record casts doubt on this . o Statute therefore violates privileges and immunities clause and equal protection clause of 14th amendment.

purpose of that clause is to outlaw classifications based on non-citizenship unless there is something to indicate that the non-citizens constitute a peculiar source of evil at which the statute is aimed. places citizens of different states on same footing as citizens from other states. can t read the clause so literally. but they can remedy the situation at the polls. o Out-of-staters venturing into NJ will not enjoy the same privileges of those in NJ  Granted neither can some NJ residents enjoy this privilege. COURT: o Pursuit of a common calling is one of the most fundamental of the privileges protected by the clause. Clause is phrased in terms of state citizenship. Quickly rejected a municipality is a political subdivision of the state which it derives its authority b. Must determine whether an out of state resident s interest in employment on public works contracts in another state is sufficiently fundamental to the promotion of interstate harmony to fall within purview of Privileges and immunities clause. City derives its authority from the state. i. b. o UNITED BUILDING OF CAMDEN v. just because it discriminates does not end the inquiry . 2. THE CLAUSE DOES NOT APPLY TO A MUNICIPAL ORDINANCE SUCH AS THIS 2 separate contentions are advanced in support of this position 1. Municipality residency classifications do not give rise to same concerns. o BUT. o UNITED BUILDING challenges this as violation of the P and I clause. CITY OF CAMDEN ISSUE: o A municipal ordinance of the city of Camden requires that at least 40% of the employees of contractors and subcontractors working on city construction projects be Camden residents. Does not apply to an ordinance that discriminates solely on basis of municipal residency. The clause only applies to laws that discriminate on the basis of state citizenship a.80 SC assumes that any means adopted to attain a valid objective squares with the P and I clause o BUT. so it can no more accomplish an unconstitutional objective than a state could. COURT: 1ST ADDRESS THE ARGUMENT ACCEPTED BY NJ SUPREME COURT. COURT: o NO. The clause only applies to laws passed by a state a. Court must decide whether the ordinance burdens one of the privileges and immunities protected by the clause 2. o Whether a citizen is residing in a municipality or state the person will still be excluded. y Out of staters do not have this opportunity o HELD: o Ordinance is not immune from constitutional review at the behest of out of staters just because it excludes some in staters APPLICATION TO CASE AT BAR: Entails a 2 step inquiry: 1.

Huseby. reduction in biz o Resident hiring program is designed to increase the number of employed persons living in Camden and to stop middle class flight o ALSO. o The non-resident thus paid 7 and a half times as much as the resident. non-Camden residents employed on city public works projects are the source of evil (they don t live there but work there) the statute is aimed at. decline in population. of all fees already paid  MT licensing scheme violates the Privileges and immunities clause COURT: . in part. ability to earn a livelihood LESTER BALDWIN v. o Carlson. economic interests. APPELLANT: o Baldwin is a MT resident who is a hunting guide. CAMDEN ARGUMENT: o Ordinance is necessary to counteract grave economic and social ills.. FISH AND GAME OF MONTANA ISSUE: issue as to the constitutional validity of disparities between residents and non residents in Montana s state hunting license system. o there has been no trial. who still have access to 60% of jobs. o Case must be remanded to NJ supreme court What are privileges and immunities: constitutional rights. o HELD: o Impossible to justify Camden s claims on the record as it now stands. but if they did it only cost them $30. FACTS: o In 1975 MT residents could purchase a license for solely elk for $4 o The non resident. and if he wanted to hunt only elk it was 25 times. no findings of fact have been made. o Majority of his customers are from out of state who come to Montana to hunt big game. however. o They are upset with the disparity in price between resident and non-resident licenses o FILE SUIT CLAIMING: declaratory and injunctive relief and for reimbursement. in order to hunt elk was required to purchase a combination license at a cost of $151 (for 1 elk.81 Law can discriminate against out of state residents where there is a substantial reason for the difference in treatment. o Spiraling unemployment. 2 deer) o 1976 the resident license for elk went up to $9. o they live off Camden. without living in Camden o The ordinance is carefully constructed to alleviate evil without harming non-residents. Lee and Moris are MN residents who have been hunting big game in MT for the past couple years and wish to continue to do so. and the non resident was still required to purchase the combination license but for $225 now. o Residents were not required to purchase a combination license.

4. Nonresident s interest in maintaining a good reputation provides the same incentive to maintain high ethical standards as they do for residents b. and access to state courts. NEVER SUGGESTED THAT STATE RESIDENCY MAY NEVER BE USED TO DISTINGUISH AMONG PERSONS. permits lawyers to move away from state and still retain their membership in bar. may require any lawyer who resides a distance away to retain a local attorney who will be available on short notice. b. If you are going to take the bar in NH and pay dues chances are you will leave near NH. simple residency requirement underinclusive i. ownership of private property. Supreme Court NH v.  Appellants are not totally excluded from hunting in MT o Appellants interest in sharing the limited resource of hunting on more equal terms with MT residents does not fall within the purview of the privileges and immunities clause. Lawyer will always be concerned with his reputation no matter where he practices i. PIPER ISSUE: NH limits bar 1. State can also protect this interest through less restrictive means. (former resident is not going to maintain a more active practice in NH than a nonresident who does not live in state) 2. a.  not a basic maintenance or well-being of the union. it is not a means to the nonresident s livelihood. its been to cases involving unreasonable burdens on out of staters in pursuit of common callings.82 When the privileges and immunities clause has been applied. o For example voting or running for elective office (some distinctions merely reflect that this is a nation composed of individual states) o o QUESTION BEFORE COURT: o Does the distinction made by MT between resident s and nonresidents in establishing access to elk hunting threaten a basic right in a way that it offends the Privileges and Immunities clause? o NO . Nonresident still may be required to represent indigents HELD: . no evidence to support NH claim that nonresidents might be less likely to keep abreast of local rules and procedures a. Nonresident lawyer can still be disciplined 3. More merit to claim that nonresident member of the bar may at times be unavailable for proceedings. no reason to believe that a nonresident lawyer will conduct practice in a dishonest manner. Most lawyers who become members of a state bar will be likely to perform their share of pro bono work a. a. if a lawyer is going to pay the annual dues then chances are they intend to practice within in the state b. o Elk hunting by out of state residents is a recreational sport.

like its legislators and judges. o THUS. be members of its constituency.83 NH does not advance a substantial reason for its discrimination against nonresident applicants to the bar. o The practice of law varies in each state because the states establish their own laws. allocating responsibility may prove troublesome. o ANOTHER INTEREST: THE NEED TO HAVE ATTORNEYS AVAILABLE FOR THEIR CLIENTS IN EMERGENCY SITUATIONS AND IN THE COURSE OF REGULAR LITIGATION.  Rule 42 accomplishes this goal.  Have to explain things to client. o DISSENT: o Practice of law is not like other business conducted across state lines. o The use of local co-counsel raise more problems than it solves. can be found to be unconstitutional -how much are we a nation . a state has a substantial interest in having its lawyers. o MAJORITY S LESS RESTRICTIVE MEANS ANALYSIS IS NOT APPROPRIATE IN THE CONTEXT OF PRIVILEGES AND IMMUNITIES CLAUSE o The court can always think of another less restrictive approach which is judicial second-guessing of he legislature. o HELD: o NH has more than a substantial reason for requiring its attorneys to be residents State laws can be preempted. nor does it demonstrate that the discrimination practiced bears a close relationship to its objectives.

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