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Con Law Outline 3

Con Law Outline 3

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Constitutional Law

Constitution v. Articles of Confederation 1. AOC - most power to the states - all powers not expressly delegated to the national government reserved to the states 2. AOC Flaws: a. No power for national government to tax the states b. Congress lacked power to regulate foreign commerce. States conducted commerce on their own. c. Encouraged unfair competition among states d. States had approve any laws passed by national government – nearly impossible b/c 9 out of 13 were necessary 3. Constitution – provided strong central government, with three branches of government. a. Also gave federal government power to regulate foreign commerce AND b. Power to tax Court Systems in the U.S. 1. Levels of Federal Courts a. District Court (Trial level) – has limited original jurisdiction. b. Circuit Court (Appellate level) c. U.S. Supreme Court. A case can reach the Supreme Court by: i. Original Jurisdiction (very rare, acts as a trial court) ii. Direct Appeal (only in very rare cases, such as with the voting rights act of 1965 iii. Certification – can only be requested by a lower, federal level judge when they don’t know what to do with an issue of law iv. Writ of Certiorari – at the S.Ct.’s discretion whether they will grant it; do not have to hear a case. Granted usually when (a) there is a ripe issue or (b) there is a significant split in the Circuit courts v. Advisory Opinions – court will not issue them because difficulty of prediction. Seen as akin to legislating and produces a separation of powers problem. d. Federal Question cases i. Arise under federal law, central to the issue (basically). ii. Treason, Kidnapping across state lines, Civil Rights, Anything under the Major Crimes Act, iii. Mail Issues, Tax issues, because of the federal power of it.

Judicial Review –
2. Definition - Power of S. Court to consider & overturn any congressional and state legislation or other official governmental action deemed inconsistent with the Constitution, Bill of Rights, or federal law. 3. Sources of the Power a. Marbury v. Madison (1803) – outgoing Adams Federalist administration made number of judicial appointees; One district judge didn’t get his appointment and complained based on an act of congress that granted the court to review this issue. i. HOLDING: Instead of grant the appointment, supreme court invalidated the act of congress that granted them jurisdiction over the case. ii. Judiciary Act of 1789 invalidated b/c it violated Art. III sec. 2 of the Constitution (grant of original jurisdiction to the Supreme Court) - the writ of mandamus was not among the Constitution’s grant of original jurisdiction to the S.Ct. (2) Separation of Powers – if Congress kept passing legislation telling S.Ct. when to exercise original jurisdiction, it would be controlling the court and infringing on its sphere of power. (3) Congress isn’t going to invalidate its own statute – (pro checks & balances argument) (4) Judges not being swayed is a good thing.

b. Counter Argument to Ct.’s power of Judicial Review i. Constitution old, not easily amended. ii. Congress represents the people’s interests and their will. (judicial review anti democratic – judges are political appointees and not accountable) c. What does a judge look to in interpreting law/constitution? i. Text of law (strict/formalist reading – Scalia – strictly what is in the text of the Constitution or law) versus functionalist/broader interpretation – look at the intent. ii. Precedent (stare decisis) iii. Tradition (what has the court done in the past? – how Congress & President have acted towards each other in the past) iv. Original Intent – what the framers had in mind when the wrote the constitution (look to Federalist papers, convention debates) Tension between whether the framers intended a framework or conception that is fixed for all time or whether they intended a general concept that might evolve over time. What is a judge to do when the fixed conception seems out of step with modern day realities? v. Future Implications – what effects will a judicial decision have on future? vi. Social Norms, Social Policy, Prevailing Social Consensus or Morality (i.e. Heart of Atlanta – Civil Rights movement in the 1960’s) vii. Justice or Fairness viii. Judges’ own Ideologies/Personal beliefs (conscious or unconscious) a. Limitations on Constitutional Adjudication a. Jurisdiction – court must have authority to hear the case b. Justiciability – case must be appropriate for judicial resolution. POLITICAL QUESTION DOCTRINE 1. Political Question Doctrine – (1) political question exists when no law is broken OR when there are reasons for the court to stay out of the issue, better left to the other branches. Where as a political issue (2) Essential element of the Political Question Doctrine - A political question exists when there is no legal barrier to the action or when there are prudential reasons for the court to stay out of the issue. 2. Baker v. Carr (TN 1962) - Facts: Voters unhappy with the districting policies of the state since they hadn’t been redistricted since 1901; Assembly violated their equal protection rights. Legislature was mis-apportioned. Relying on the 14th Amendment. Some over some under represented a. HOLDING: Didn’t fall under these conditions of a political question. Elements of a Political Question c. textually demonstratable constitutional commitment of the issue to a coordinate branch. I) Constitution assigns the power to decide the issue to either Congress or the President. II) Sort of saying that no law has been broken. d. lack of judicially discoverable and manageable standards to decide the case I) Court uses standards/rules of law in deciding cases; if there are no rules of law in a particular area or standards by which to judge whether something is right or wrong, II) If the point in 2(a) above is true, then the court should not decide it. e. impossibility of deciding without making an initial non-judicial policy determination I) Court can’t first decide the case without making a policy determination that should be left to the legislative or executive branch II) I.e., should we go to war?

. I) Foreign policy a good example here as well.S. Casual connection between plaintiff’s injury and alleged illegal action (cannot be general injury to the public as a whole. Sec. Carter – treaty making A. c.. actual or imminent. Article I. which must be: a. Prudential grounds – to avoid potential embarrassment due to conflicting pronouncements. – Facts – Nixon a former chief judge of a District Court. unusual need to adhere to a political decision already made I) More important to follow the course of action that either Congress or the President has set us on. Show respect to what President has already done. Defenders of Wildlife– wildlife group wanting Endangered Species Act to extend to foreign nations. Court could decide the case/was justiciable. not the courts should determine what procedures would validly constitute a “trial”. McCormack – House refused to seat member because he had been convicted of a crime. evidence only taken by committee and not full Senate. that it wasn’t a PQ & could be adjudicated. sent to prison Judge was impeached. #6 of the PQD D. argued fell under #1 of PQD. Talking about terminating a treaty – there is no textual provision B. Gov’t. II) No disrespect to Congress or the President. I sec. “Sole Power” – court interpreted this reference in the Constitution to mean that the Senate. – textually demonstrative delegation to a coordinate branch 1.e. potential embarrassment due to conflicting pronouncements from various branches. k. foreign relation should be left to the president Standing – Appropriate person/party must bring the case. 3 cl. Injury in Fact (P must have suffered). Nixon v. III) Goldwater v. Concrete & Particularized b. not to impose additional membership requirements. impossibility of deciding without showing due respect to coordinate branches. claimed were going to go bird watching overseas. Court held no. i. not conjectural or hypothetical (loose future plans) 3. REASONING: House only had power to decide whether someone met minimums in Art. REASONING: Under #1 of the Political question doctrine elements. 6 2. Court ruled the issue is a political question – on what basis? C. foreign affairs questions) g. Injury will be redressed by the relief requested.f. 1. I) Don’t undermine the other branches of the government. 2. (i. made false statements. “To satisfy the standing requirement inherent in Article III § II “case or controversy” requirement” 2. II) Powell v. U. fed court may only decide on the rights of individuals) 4. Lujan v. HOLDING: Held Nonjusticiable because power is granted to the Senate j. He argued that he met all constitutional requirements for membership. than the courts decide the case II) Foreign policy h.

m. It’s a little trickier in cases where someone works directly with animals of a particular species. . Wright.HOLDING: P’s did not have standing to bring suit because there was no injury in fact. (purely prudential limitation) Mootness Falls under Justiciability – constraint to hear cases. no concrete plans to visit the elephants. To get that status. Holding: Same causation problem as in Warth v.Circumstances have changed that make the case irrelevant or it has been resolved. E. Casual connection between D’s actions and the alleged harm suffered by P is minimal. Allen v. Seldin – causation of the injury wasn’t direct enough. group of people sued. The members would have standing on their own 2. enough and plaintiffs failed to meet causation requirement. They can’t show that taking away the IRS status would mean that the public schools would be integrated. common sense) limits on standing (not allowed): 1. 3 hypos from Scalia Concurring Opinion. P’s claim . with a particular species of animal and if that animal is threatened there is a concrete and particularized p. but no concrete plans or definitive time period)(Purchase of plane tix would have helped) n. would prolong segregation. speak to whether a case is ripe for review.Overcome Mootness in an extraordinary case that would repeat itself but can defy judicial review 1. Application  Because it is not clear that lower income housing would be built. . then there is injury in fact that is concrete enough as to you. c.Tax-exempt status encouraged flight to private schools where they didn’t have to desegregate. 2. There must be some PERSONAL STAKE in the injury which must be concrete and particularized to that injury/plaintiff. Organizations may sue if: 1. a. Exceptions – good example is Roe v. livelihood doesn’t depend on ‘watching the animals”) – a person who works with a particular threatened animal is affected by a federal decision. Warth v. Wade a. Court doesn’t know that except for zoning requirement the builders would have built the houses. 1.It then becomes moot and won’t be heard . Claims on behalf of third-party interests. If just seeing an endangered animal. ( 2. the D’s actions didn’t directly cause an injury to the P’s. Prudential (Good sense. Generalized grievances (including taxpayer suits) Claims by P’s outside the “zone of interests” protected by Constitution or statute. Rules  Required for standing: (1) injury wouldn’t happen “but for” the action. (don’t work directly with animals. only tentative (statement of intent to return. A favorable decision will redress the injury F. P’s claiming IRS giving tax-exempt status to private schools that practice racial segregation. (2) a decision will redress the injury b. Seldin (1975) – lack of affordable housing because of Penfield city-zoning practice. normally they have to prove to the IRS that they aren’t segregating. i. The interests of the association is a “but for” cause of the injury 3. o. c. because: l. Baby had been born by the time it got to the Supreme Court . a. b.

(2nd time) – Maryland imposed a tax on the national bank. Powers given to the State Governments s. open to interpretation . it would be moot. 1. (aka the Elastic Clause) a. etc. but court held that it was allowed/implied under the Necessary and Proper Clause (dependent on the enumerated power to collect taxes. United Public Workers v. Documents is flexible. 2. they were going to go ahead and decide it anyway. Congress chartered a national bank. Federal Power a. Maryland (1819). General Police power – power to protect the general welfare of its citizens McCulloch v. Federalist Argument – very broad interpretation. Ripe – something in its prime…when it’s ready for review. Federalism . 2. borrow money) b. Context of the provision. Court held that they couldn’t adjudicate a case for violation of something that not yet happened. MD didn’t have power to tax. had not yet done so. broad. Reasoning: a. enacting ALL LAWS NECESSARY AND PROPER TO THE EXECUTION OF ITS AUTHORITY. For interpretation – look to the text of the Constitution. v. Issue (1) Does have Congress have the power to incorporate the bank? (2) did MD have power to lay a state tax on a federal entity 4. 10th Amendment – all powers not expressly delegated to the federal government are reserved to the states t. Articles I (Congress) II (Executive). regulate Commerce. Article I.C. State Advantages (1) can tailor laws to residents (2) easier access to government and more opportunity for citizens to be involved (3) can experiment with policy more easily/smaller scale (4) check of federal power b. State Power i. u. framer’s intent. Advantages of National/Federal Power vs. Congress had the power (2) No. Thinks the N&P clause should expand Congress’ power. Sec. RIPENESS 1. Power to establish bank not an listed power.b. The framers did not mean to enact a code. HOLDINGS: (1) Yes. Would be capable of repetition and would forever to reach the Supreme court – where there is a factual situation going to be repeated where always by the time it got to the S. Precedent. 8 – Necessary & Proper Clause – gives Congress its implied powers. 3. Mitchell (1947) – example. Powers given to the Federal Government q. Necessary means “needful. Federalism Advantages (1) uniformity of laws (2) less competition among states ii. and III (Judicial) r. those not specifically enumerated in the Constitution. b. B. useful or conducive to” those laws which are useful to Congress in exercising its enumerated powers. WHY? 5. requisite. incidental. NATURE OF THE CONSTITUTION– it doesn’t prohibit addition by not expressly stating. P’s said they were going to violate the act.division of power between federal/national government and the state governments.

by hurting congress as a whole. c. DISSENT in U. a. Congress/Federal Government Supreme to the states – Supremacy Clause b. but rather from the delegated powers of national sovereignty.Congressmen are not national representatives. RULE: Any state power to set the qualifications for membership in Congress must derive not from the reserved powers of the state sovereignty.S. HOLDING (3) – Congressional reps are not merely state-centric representatives. e. It comes at the end of Article I’s listing of Congress’ powers. The Bank is a means not an end – means to exercise its enumerated powers. but they serve the national government as a whole a. States could only RESERVE what existed before or at the time the Constitution was written. No power to set qualifications for Congressional members was set before the constitution was ratified. ISSUE: Can a state amended constitution affect or control qualifications for a state’s representative to Congress? 2. a. they serve the people of the state from which they’re elected. c. HOLDING (2) Framers intended Constitution to be exclusive source of qualifications for members of Congress and the framers thereby divested states of any powers to add qualifications. they’re taxing everybody. 2. Analysis/Counter Analysis of U. d. Textually and structurally. by taxing the fed they are taxing the country.Unfairness to the other states. b. Location of Necessary and Proper Clause is in the Text of the Constitution 1. rather than a limitation on Congressional Authority. so how could the states have had that power?? Oxymoron g. Minority/Dissent emphasizes that the people of AR elect state reps.b. Reasoning of why MD doesn’t have the power to tax the national bank a. Term Limits v. it’s placed among Congress’ powers in the Constitution. Thornton (1995) 1. Kennedy Concurrence – State imposed Term limits are a violation of federal sovereignty 6.S. U. not just their district or state. Nothing in Constitution says states can’t prescribe requirements h. gov’t. HOLDING (4) . constrains Constitution’s ability to fit new situations. d. Compare the framers use of language elsewhere in the Constitution. When state taxes operations of fed. therefore the change represents the people’s interests. a. acts upon institutions created not by own constituents. and thus the states did not have that power. Counter Argument: Where does the power of Congress end – slippery slope I) Hole in Marshall’s argument what is that ends he is trying to meet. Congress should have ability to choose means it thinks is necessary to perform its enumerated duties. state reps are changing the AR constitution. State exercising the power would undermine federal government’s authority. Powers reserved to the states under 10th Amend include “Post Constitutional” powers – Congress didn’t exist before the constitution. if Congress’s ability to choose its means is constrained. Term Limits v. 5. FACTS: Arkansas tried to impose a term limit period for representatives in Congress 3.S. HOLDINGS: (1) Power to add qualifications is not within “original powers’ of the states and thus not reserved via the 10th Amendment. Thornton a. Logic . a. Term Limits v. . 4. leads to the conclusion that Federalists are right and that this is an expansion. Thornton f.

Holding: Marshall took a very broad view of Congress’ power. and AMONG SEVERAL STATES and with the Indian tribes. Commerce within one state can be a part of the larger commercial intercourse if it ultimately ends in a different state.Y. 3 – grants power to Congress to regulate “commerce with foreign nations. j. b. b. AR reps have to meet MORE requirements than what is in the constitution – the constitution is merely the minimum requirements: I) Term limits gives states/reps MORE power b/c they have the power to add and subtract requirements in the first place. (1892) SUGE KNIGHT – a. Livingston licenses exclusive right to operate steamship boats in NY waters between NY and NJ to Ogden. v. E. was written c.” Pre Commerce United States. ISSUE: Does Congress’ power to regulate interstate commerce allow it to regulate manufacturing within a state? . and involves more than mere sale of goods. 8. a. navigation through interstate waters. commerce needed to be redefined a. COMMERCE INCLUDES ALL COMMERCIAL INTERCOURSE. Issue: Whether the NY monopoly law was pre-empted by the 1793 federal statute cited by Gibbons giving Gibbons the right to operate a. in violation of Livingston’s monopoly. acquired Penn.S. Ogden (1824) – Court’s first concept of what “Commerce” was. cl.Majority’s COUNTER: AR’s representatives don’t just affect AR. Undue Aggrandizement between federal and state power – d. U. Knight Co. Affects the nation as a whole. legislature granted to Livingston (barge operator). Facts: N. everything looked like interstate commerce II) Court asked whether they should redefine interstate commerce III) Industrial revolution was happening. Congress began exercising federal regulation under commerce power in 1887 with laws such as the Anti Trust Act – I) As national economy grew. Minority/Dissent – Constitution is silent. Gibbons began operating competing steamboat service. Any power not expressly delegated is reserved to states. Who gets to police the line between state and federal power? What are the restraints on federal power and should they be enforced by the political or judicial process? c. i. Federalism Q– whether the states or federal government should be able to regulate a. Limits on Congress’ power to regulate interstate commerce – determined by the political process unless this exercising is in violation of some other aspect of the constitution. b. Sec. Government sues under Anti Trust Act.C. I) Majority Counter: States couldn’t reserve powers they didn’t have before the const. Gibbons v. I) Transactions that are wholly within the state Borders are NOT interstate commerce. Ogden obtains injunction to stop Gibbons from operating. They’re a part of the larger body of Congress which does/can affect every state and the term limits are not fair to the rest of the country. c. FACTS: American Sugar company had 2/3rd of market. therefore powers are reserved to the states. I) Commerce Clause (History) Article I.Lacked power to regulate commerce between states under AOC b. Companies that gave them 98% control of the sugar refining market. D argues refining sugar was purely interstate commerce. c. Commerce is broad enough to include transportation of goods.

Congress has the power to regulate local commerce when allowing that local commerce practice would hinder. Whereas Shreveport has to do with transportation.Rule from Shreveport Rate case that stated Congressional regulation fell within the Commerce power so long as the activities being regulated had a substantial economic effect on interstate commerce. limit or destroy the interstate commerce. Buying and selling of goods and transportation is commerce. FORMALISM v. I) II) III) Shreveport v. DRAWBACKS: Predictability sacrificed b/c decisions made on case by case basis. HOLDING: MANUFACTURE OF GOODS IS NOT COMMERCE. but because the activity itself was “in” or part of “the current” of commerce. e. Is the holding consistent with Gibbons v. FUNCTIONALISM f.8 cents b.d. closer between LA and E.Tx than between Dallas and E. Knight case – not as clear of a conflict in Knight. 98% monopoly in manufacturing clearly effects commerce. spheres of state and federal power. 1. Knight has to do with mfg. Activity could be regulated under commerce power not because it had an EFFECT on commerce. Formalist – clear and separate boundaries between federal and state power. d. FACTS: Different railway carriers. Debate comes down to policy decision – let the political process decide the balance. Shreveport Rate Case (Houston E. Federal power may expand or contract based on circumstances & historical context. HOLDING: SHREVEPORT DOCTRINE – Extends the operation of those carriers are purely local because the power to regulate interstate commerce extends to local activities that have a close and substantial relationship to interstate traffic. control of local activities is necessary to control interstate commerce. v. Division of power is more flexible. b. Current or Stream of Commerce Theory – developed by Justice Holmes. Bright line rule that federalist prefer. v. a. & W. Darby) . Functionalist –grey area. based on federal or state. (E. TX regulates prices favorably for in-state companies so people will choose to use TX companies over LA companies. Ry. g. some based in TX. – 36. Counter Argument: Have to have manufacturing in order to have commerce. This approach leaves it to the political process to decide extent of Congressional power. Ogden? i. Co. United States) (1914) a. 2. From E. some based in LA. formal bright line categorical rules and no grey area. Tx. Dagenhart (1918) (later overruled by U. TX to Dallas is 1/5th of a cent per mile. a. Strict textual reading of Constitution generally applied. SUBSTANTIAL ECONOMIC EFFECTS TEST . e. Federal power trumps when there is a conflict.S. Yes. Tx to LA (was 56cents) it was more than 1 cent per mile. Nothing would be intrastate commerce if manufacturing is not. Hammer v. Congress has much less power to decide if its federal or state power under formalist theory and interpretation of commerce clause power is much narrower. There needed to be a close and substantial relationship to interstate traffic with the local activity in order for it to be regulated. No commercial intercourse taking place in Sugar case that met the definition of commerce put forth under Gibbons.

U.Some hard areas of state and federal power. allowed president to adopt “codes of fair competition”. case (Sick Chickens) (1935) a. Boundary is more flexible and might fall in favor of expanded state power OR expanded federal power. Case by case rules.h.effects on commerce were indirect. USED A FORMALIST APPROACH – feds have to point to something specific in the constitution that says they have the power to regulate. what was the feds’ was theirs. not direct or substantial. Facts: Local poultry slaughterhouse only bought and sold its products locally. Schechter company only bought and sold locally. Who should police the line. Holding: Court invalidated the law. No overlap. Schechter v. within NYC. not feds. b. FACTS: Congress passed law prohibiting transportation of goods produced using child labor. Strong role for the court. Used the commerce clause. Formalism a. Functionalism vs. and do things such as prescribe minimum wages and prices.S. bright lines. Framework for Commerce Clause l. St k. lesser role for the courts. c. Reasoning: I) (1) Congress’ power went beyond regulation of interstate commerce .local activity was not within the current of commerce. less deference to Congress. Formalist . j. Functionalist . Hard boundary between state and federal power. but there is a grey area in between the two. saying that goods made by children are shipped through interstate commerce. New Deal Era Cases – Court was hostile to FDR’s New Deal Legislation. II) (2) Not affecting commerce . b. and more deference to congress in those gray areas. Who is better to regulate commerce. collective bargaining. Issue: validity of the National Industrial Recovery Act (NIRA). i. where states have that power. they didn’t think the country’s poor economic condition gave cong a new/unlimited slate of power k. Labor laws are normally police power sphere. . What belonged to state. d. HOLDING: Child Labor Act is unconstitutional – Congress’ motivations were to reach too far into the state sphere to regulate intrastate. was theirs.separate spheres of state and federal power. state or federal government? m. b. the court or the political process.

f. Jones & Laughlin Steel Corp (1937) Turning point in the Court's jurisprudence. Looks at the circumstances. 10 people fired at PA plant. Reasoning: (1) Plants are spread out all over the country. Functionalism v.that Congress may regulate a local activity if it substantially affects interstate commerce. Uses the test in a FUNCTIONALIST. Foundation for the modern test -. Facts of the case tell us where the line should be between state and federal power. The act was constitutional on its face. shipping. Consequence of NLRB decision – irrelevant whether activity occurs before. ISSUE: Does the National Labor Relations Act (NLRA) go beyond Congress’ power to regulate interstate commerce? a.. Must have a close and substantial relation to interstate commerce that their control is essential to protect commerce from burdens and obstructions and it can be regulated. n. . Effect on interstate commerce must be substantial o. a labor dispute at a manufacturing plant would have a SUBSTANTIAL EFFECT on interstate commerce. NLRB stated company needed to reinstate them. etc. Court abandoned the old direct/indirect effects test -. Activity can occur before or after the interstate commerce b. J&L was a steel corporation owning operations involving steel mining. not just contained w/in PA. (2) Substantial Effects test – Jones’ business manufacturing would have a substantial or profound effect on interstate commerce because they’re a national company. e. Court wanted to move New Deal programs forward. No. during or after interstate movement (does not have to be in the “current of commerce”) as long as the regulated activity has a SUBSTANTIAL ECONOMIC EFFECT on interstate commerce. a. HOLDING: For industries organized on a national scale.Commerce Clause (Shift in Approaches) NLRB v. the question is whether it is substantial c.the question is not whether the effect on interstate commerce is direct or indirect. claim fired b/c they belonged to a union. looked to a functionalist application of the Commerce Clause d. manufacturing. Formalism: a. FACTS: Jones & Laughlin is a nat’l corp. a.

agriculture. flour. Darby (1941) DARBY REVERSES HAMER a. how is growing own wheat and feeding it to own cows commerce? III) What is local? Too broad of an expansion of federal power to commerce. feed for livestock and for seed . Established the principle of “aggregate effects” test. otherwise nothing is off limits to federal power. RULE: AGGREGATE/CUMULATIVE EFFECTS TEST . it should come under Congress’ power regardless of whether the power is purely local b. rejects manufacturing is not commerce formalist approach and the direct/indirect effects test. a. United States v. Consumption has market effect – farmers as a class or as a whole – Consumption locally reduces the amount of wheat entering market. if anything is left for state regulation.Should be example of completely local activity – stuff that Marshall talked about in Gibbons. Agriculture Adjustment Act limited how much wheat could be produced and consumed – set quotas. Is not a 10th Amendment issue – is irrelevant in this case. FUNCTIONALIST APPROACH d. Darby felt the government was too intrusive. FACTS: Farmer (local activity). they can be regulated. PRO WICKARD ARGUMENTS: I) If Congress can’t regulate local activities that completely messes up interstate commerce. b. Aggregate/Cumulative effect . Wickard v.No category beyond federal regulation if it can be connected to interstate commerce via substantial effects. if those activities are intermingled with interstate commerce.. thus effecting commerce of the wheat market. harvested double his quota. but the TOTAL effect of all farmers going over the quotas has a substantial effect on interstate commerce. it can regulate everything. it is purely local activity and should be out of Congress’ reach II) Slippery Slope argument – if Congress can regulate this type of activity. CON WICKARD ARGUMENTS: I) Too Intrusive . REASONING: a. Congress’ power limited to interstate commerce. Labor unrest will have a direct effect on interstate commerce even if the labor unrest on interstate commerce in a different industry with a different economy would not have the same effect. p.plaintiff’s violation itself did not effect interstate commerce. then they can’t exercise their regulation of interstate effect. even if manufacturing could be seen as commerce. HOLDING: Wickard’s activity did amount to interstate commerce because the aggregate activity of others “similarly situated” had a substantial effect on interstate commerce. . refused to pay the fine c. whatever approach used. grew own grain to use for food. manufacturing. If it has a substantial effect on interstate commerce. a.b. Filburn (1942) a. Relied on Shreveport Doctrine (stream of commerce argument – intermingling of transportation. b. (2) The motive of the regulation doesn’t matter as long as the regulation itself conforms with the Commerce clause c. r. b. Facts: Fair Labor Standards Act – prescribed minimum wages and maximum hours for employees engaged in the production of goods to be traded in interstate commerce. Holding: (1) Prohibition on movement of certain goods in interstate commerce clearly falls within the power to regulate interstate commerce. Reasoning: q. Substantial effects can be found through taking together the local non-commerce activities of “many others similarly situated”.

b. Katzenbach v. . RATIONAL BASIS STANDARD for enforcing interstate commerce actions under Title II – court says as long as its rational to think that there is a substantial effect by local activity on interstate commerce. HOLDING: The commerce clause covers for regulation of intrastate activity such as the renting a room to someone within the state? a. McClung (Ollie’s Barbeque) – Black’s could only order takeout.Heart of Atlanta Motel v United States (1964) a. etc. NEEDS TO NOT VIOLATE SOME OTHER PART OF THE CONSTITUTION. Very limited role for the court. because if they employ Blacks or others of color. D refused to rent rooms to African Americans. What was the effect on interstate commerce? Racist policies make it less likely that businesses will locate in Birmingham. those people won’t want to work there. food moving in interstate commerce. that is good enough for the courts. b. Supreme Court disagreed. because of traveling people across state lines. Court held that a substantial amount of the food had moved in interstate commerce. Congress can regulate this activity (Actually used discrimination in places of public accommodation under the Civil Rights Act of 1964) c. P’s arguments – any time a room is rented. it becomes interstate commerce. highly deferential standard of review. whereas whites could eat inside a.

Three categories of activities Congress can regulate under the power of interstate commerce: I) Channels of Interstate Commerce – (i. Which would ensure that firearm possession affected interstate commerce through case-by-case inquiry. v. 922(q) doesn’t have a specific jurisdictional element (This section was the Federal power to regulate firearms). .. u. c. Government’s Argument’s: a.e. also the dampening effect on interstate travel. which means poorly educated students. a railway as in Shreveport case) Local activities that have a SUBSTANTIAL relation to interstate commerce (Shreveport case) or that substantially effect interstate commerce. medical care. Darby – prohibition on shipping goods on highways and waterways – would be this type of regulation) II) III) Instrumentalities of interstate commerce and things or people in interstate commerce. i. Rich for Changes in commerce clause power) CURRENT COMMERCE CLAUSE ANALYSIS U. If we did have it. REASONING: a. which means students less prepared for the job market and THAT has a substantial effect on interstate commerce. which guns in school zone is. Nothing in the statute that requires the government show that this particular firearm shows a connection with commerce ii. b.S. MOST IMPORTRANT (greyer) category 1. Are there Congressional Findings/Rational basis? -To Sweeping? Swallow-up local control? 4. HOLDING: Possession of firearms near a school – no substantial effect on interstate commerce.e. Specific jurisdictional element 2. Link between the effect of guns on schools and interstate commerce is too tenuous and indirect and there’s no logical stopping point.. (overlapped with the first a bit) (i. (1) violent crime effects interstate commerce (costs of injuries. Is the activity economic 3. Lopez (1995) – Gun Free School Zones act. societal costs of death). Also violates state’s police power. (3) Violent crime is ordinarily left to the states to regulate through their police powers. What is the link between the activity and interstate commerce? Is there a stopping point? s. Have reasonable cause to believe or know it’s a school zone. (2) Link b/t education and the possession of a firearm in a school zone means a less effective learning environment. that would be a JURISDICTIONAL ELEMENT OF THE STATUTE.aggregate effects test (Wickard) – Can’t rely on this test if Congress is trying to regulate a non economic activity. a. NO WHERE is there an element that requires the prosecutor to prove federal jurisdiction in every case – do not have to prove it substantially effected interstate commerce. II) Is the activity economic . wanting to make it federal crime to a knowingly possess a firearm in a school zone.Commerce Clause LIMITING CONGRESS’ COMMERCE CLAUSE POWER(need to add Gonzales v. t.

d.Congress passed law providing federal civil remedy for victims of gender motivated violence. schools could fall on the “commercial side” of that line. II) Amended Lopez statute not yet challenged United States v. If there were Congressional findings setting forth the link between the two. This adds the jurisdictional hook. Jurisdictional element – Court says there’s no jurisdictional element. Suggested by both Lopez & Morrison this would change outcome. would help the court’s analysis and might help the law meet the RATIONAL BASIS test. i. Amend to include use of a weapon moved in interstate commerce in a crime of violence against women. Plaintiff would have to prove that her assailant used a weapon that moved in interstate commerce. Morrison (2000) sexual assault case . Weapon is secondary to the crime trying to be regulated. connections to interstate or foreign commerce than school violence. Congress Enacts under: (1) Section 5. III) . it would have been helpful to the court to decide the case. but would not necessarily change the court’s analysis. More persuasive Congressional findings to support findings (Court didn’t think it was enough in Morrison) i. Dissent’s Arguments/Reasoning – used the rational basis test for whether Congress could have found a significant or substantial connection between school violence and interstate commerce.what Congress is regulating in Morrison is a further step removed from Interstate Commerce than what was regulated in Heart of Atlanta. but if they had. Link is more tenuous. a. I) Congress put in the same jurisdictional hook used in almost all other federal gun laws and all these laws haven’t been overturned. workforce mobility.Congress is not required to make formal findings. Plaintiff doesn’t have to show intent. Congressional purpose of a statute under Lopez – motive is irrelevant c. There is nothing economic about the activity b. look to the language of the statute. 1. Is the change sufficient? NO. Congress later amended the statute to put in a jurisdictional element and congressional findings. but the use of a weapon in a crime against women.Congressional findings . COURT HOLDING: Local activity. Threatens legal certainty (stare decisis) c. i. not trying to regulate the possession of a weapon. IV) Link between activity/interstate commerce – Congressional regulation of guns in school zones would be a taking of the police power that is reserved to states – is there then a logical stopping point for federal power? b. Step further removed from interstate commerce. need to look at Category 3 – substantial effect on interstate commerce a. Heart of Atlanta not applicable . violence against women effects commerce by deterring women from interstate travel. e. I) Majority opinion runs contrary to cases upholding Congress’ power under Commerce Clause despite less signif. Non-jurisdictional element – nothing that requires a direct to the Interstate Commerce Clause. costs. Aggregate test is NOT applicable to a non economic activity c. b. Rational Basis/Congressional Findings – Congress has many of them. 14th Amendment (2) Commerce Clause b. II) Rejected majority’s distinction between commercial/non-commercial activity – line too hard to draw.

and the 10th Amendment v. Jurisdictional Hook DOES NOT HAVE TO BE ECONOMIC 1. Counter Argument: This doesn’t apply in every case. See political process as way of determining where the divide between state/federal should be. Local Activities that Substantially affect Interstate Commerce (4th Element) Must ask whether the activity is economic? 2. Doesn’t matter what Congress’ motive is as long as they fit it into one of the three parts of the standard for the Commerce Clause. Sees more flexibility in the divide of federal and state power. The activity Congress is trying to regulate itself is what has to be economic. functionalist approaches. jurisdictional hook is that the assailant crosses state lines himself. Section 9. More like the Formalist approach – rigid. enforceable by the courts. Dual Federalism .1. State Autonomy (10th Amendment) I) Some limits expressly stated in Art 1. “Different Jurisdictional Hook . this is only in cases where assailant crossed state lines with the intent..sees 10th Amendment and structure of government as a constitutional concept that Congress may not invade the powers reserved to the states. External Limits on Federal Power: State Autonomy.A person…who crosses state lines with the intent to commit a crime of violence motivated by gender shall be liable…” a. iii. court has the power to void the legislation and enforce the divide between the national and state governments i. Courts can enforce the “rigid divide” II) Cooperative Federalism . (Criminal statute used this jurisdictional hook) d. Is the “one step removed” problem avoided using this? Same local activity. 10th Amendment – serves as the primary constitutional. II) Federal regulation of state regulation of private parties III) Encouraging & providing incentive vs. activity has questionable impact on it) Focus is on the local activity that is actually being regulated. are reserved to the States respectively. Jurisdictional Hook STILL might be too far removed from interstate commerce. Generally encourages policy innovation and flexibility. Usery (1976) (Dual/Formal) a. Federalism.” c. It’s the person who is committing the act of violence. serves as a defense against too much change. (i. Government tried to increase state and local employees min wage and max hours. textual limit on Congress’ power. nor prohibited by it to the States.acknowledges division of authority between two levels but does not construe it as a hard and fast limit on federal power. ii. b. Separation of Powers – formalist v. power. I) When Congress enacts legislation that encroaches on state powers. b.e. i. c. a. Compelling & Coercing (anticommandeering) National League of Citites v. ii. I) “The powers not delegated to the United States by the Constitution. or to the people. . It is not a judicially enforceable restraint on Fed.

HOLDING: Congress can regulate it (overrules National League of Cities) – Court uses the political process to justify. (anticommandeering principle). Extension said to be an interference w/ gov’t functions of the state & local gov’t left to them under constitution. Idea behind act was each state responsible for its own waste. Provisions of the act at issue: . RULE: Congress cannot commandeer the legislative process of the states by directly compelling them to enact and enforce a federal regulatory program. Little would be left to the states’ d. x.b. FACTS: radioactive wastes and states dealing with own problems. FEDERALISM. Don’t know which are and aren’t the traditional state functions. a. Says forcing states to regulate is not ok. Whether it violates the external limit of federalism. c. d. Monetary & Access incentives are okay/constitutional. (Issue: Is city ownership of mass transit system = to a “traditional government function”? ) b. States interests are protected by procedural safeguards inherent in the structure of the federal system. Limited to whether the political process inadequate to protect state interests. Courts deciding where the line is would violate federalism w. GARCIA v.no commandeering of state legislature a. There are not good rules that we can use to divide them. Dissent – modern political process does not protect state interests New York v. Court decided that the political process. d. don’t participate in decisions of the courts c. alters/displaces state’s ability to structure employee/employer relationships in such areas involving its police power. c. Separation of Power Argument . San Antonio Metropolitan Transit Authority (1985) (Cooperative/functional) a. our structure of government is a limit that VOIDS THE REGULATION. not the court is the appropriate vehicle to decide the division between state and federal spheres because the PP affords states most protection they participate in it. Questions Created a. c. HOLDING: 10th Amendment bars the extension: b/c Congress can’t exercise power in any way that impairs the State’s integrity or ability to function. REASONING: a. b. Federal government trying to regulate state regulation of private parties. c. Very similar to National League of Cities. The federal regulation is removing the power of the state to decide how to spend their resources and what problems they want to focus on. a. Even if the regulation seems like it should be upheld under the commerce clause. Court should only act when the political process fails. United States (1992) . Federal interest may be greater in certain cases. 3. inappropriately intrude on states sovereignty b. or giving the states the choice to regulate the way congress wants or go their own way. e. Does it fall within the scope of congresses delegated power in Commerce clause? b. Blackmun’s concurrence – more of a cooperative federalist approach – balancing test in each test to determine where the divide should fall.Courts are otherwise making policy decisions akin to legislating if make decisions about which policies it likes or dislikes. Private companies created the waste. Limited Role for the Court: a. Brennan’s dissent – should be left to the political process. States retain the “police power” function b. (Application of FLSA). b.

Not a REAL CHOICE to states. but you still don’t have that power. State could shut out another state from bringing radio active waste into their dump site. b. ANTI COMMANDEERING PRINCIPLE: Fed. Government/Court’s Arguments/Counter arguments a. MONETARY INCENTIVES – State charge for other states bringing waste in. iii. don’t have authority to pass a law forcing state to take title. Same as trying to control the state treasury. If waste transferred to state. Gov’t argument #3 . HOLDING: ALLOWABLE. So why not make the legislature abide by federal law. there is not constitutional authority that would allow Congress to require states to regulate in a certain way. the two choices really aren’t choices at all. c. TAKE TITLE PROVISION State would have to take title to all radioactive waste generated in the state and be responsible if the state did not comply with the act. Court responds that the link wasn’t really there. just encouraging. states that accept waste could not comply with those who are trying to 1. gov’t is commandeering state treasury. HOLDING: ALLOWABLE. 1. Court says that these are plainly constitutional. REASONING: c. Court said – no balancing of federal and state interests. Commandeering allows Congress to escape “political heat” for unpopular decisions. Can’t force states to pass legislation. and thus state would be responsible for waste 1. b. HOLDING: TAKE TITLE PROVISION VIOLATED THE 10TH AMENDMENT. (choice on its face but turns out it really isn’t) Careful this might be a test quesiton iv. Court responded courts ability to bind state judges comes directly from the constitution in Art. Goes to the essence of state sovereignty d.i. Still has to stay within the bounds of the constitution.Strong federal interests should overcome the state sovereignty interests (in disposing of radioactive waste) 1. state will have to pay to get rid of it and the fed gov’t will be telling state to spend its resources to get rid of the waste. Regulate the way we want you to or we will regulate it ourselves. a. equitable for all states to take responsibility for disposal of own waste within their borders. 1. Nothing is stated about the legislature. ACCESS INCENTIVES – longer state fails to comply with the act.Congress should be able to act as a referee to the states. Govt argument #2 – state judges are required to apply and uphold federal law. 2 Supremacy Clause (mentions state judges specifically). “That’s great. ii. controlled by the state legislature. Okay for Congress to enforce the compromise made by state’s reps in Congress 1. No matter how strong federal interest. Crosses the line from encouragement to coercion. 6 sec. No constitutional provision to enforce the compromise. Gov’t argument #1 . 4. fees go into fund that rewards states for solving own waste problem. which is allowable. Increasing costs of disposal would be authorizing states to REGULATE ACCORDING TO FEDERAL STANDARDS OR BE PREEMPTED by federal law and federal government would exercise its commerce power.” .

being mad at state when fed is directing the state officials to perform ideas. benfitted from it. the court is compromising the sovereignty of other states in order to uphold NY’s sovereignty b. We should let the political process work in this way. but that didn’t constitute approval by the state. U.) by conscripting state officers directly to administer or enforce a federal regulatory program. state judges are special because they’re mentioned in the supremacy clause . I) Garcia Majority – federal government can tell a state how much it should pay the state employees unless flaw in process. (similar to new york even though dealing with state executive officials instead of stat legislatures) e. Fed gov is forcing the people who execute policy. Court doesn’t understand all of the political and policy arguments GARCIA should control in this case. States are allowed to meet the requirement however they see fit. Gov’t argument #4 . II) BUT NY Majority – federal government cannot force state to take responsibility for privately created radioactive waste in their borders. consistent? Yes. White’s Dissent – says that the law the court invalidated is a perfect example of cooperative federalism (Garcia). III) Synthesis Garcia (fed gov acting as employer) doesn’t raise the same kind of issue that New York does. HOLDING: Temporary provision is not constitutional. 6.Y. United States (1997) federal commandeering of executive officials a. Printz v. not the state officials. a. 5. instead of the legislatures who make the policy = not good.d. ISSUE: Does forcing local law enforcement to conduct temporary handgun background checks commandeering the state executive branch by compelling/forcing state officials to execute federal laws. Government argues: early congressional laws that seemed to say Congress could order states to execute 1. it’s supposed to do. firearms dealer 5 day waiting period. but otherwise leave it to Congress. MAJORITY OPINION IS AN EXAMPLE OF STRICT FEDERALISM/SOVEREIGNTY. b. States coming together to reach a compromise to address the national problem of the disposal of waste. Garcia court said the role for the court is to step in when the political process can’t be trusted. Court responds that NY may have voted for it. IV) It’s o. New York (fed gov regulating as a gov)is more intrusive into state sovereignty. Court protects the people. c. Majority Court’s Arguments) i. Court responds that those are just about state judges. Cannot trust the political process. FACTS: Brady handgun law. a.Y. REASONING: (Government vs. Whole idea hides political accountability.S. and now NY wants out of the law and its not fair. Commands are inconsistent with system of dual sovereignty.k to tell the states they need to regulate something. d. Are Garcia and N. c. Contact area chief Law enforcement officer. . Congress cannot circumvent the prohibition on making states enact a federal regulatory program (as in N. Congress can pass a law with the same effect/purposes if it bases it on the “threat of preemption” or the “monetary incentives”.NY’s reps agreed to the law as written. 1. v. the feds just cannot tell them how to it.

US.S. 27 had to do with original intent of the framers. inefficiency as protecting individual rights. (from O’Connor’s opinion in NY v. can be nullified through legislation. Three Branches – Checks and balances also come from the overlap of power. Souter’s dissent – can require states to implement regulation. Distinguish between state legislature and the state executive. Gov’t argues . checks and balances. Must not be ratified by the Senate. Specifically listed. This difference in language and in the structure of the constitution gives rise to the argument that the President’s powers are more expansive than Congress’ (i. Government argues .the political accountability isn’t at issue as it was for the majority in NY v. power is merely descriptive. These are just MINISTERIAL TASKS 1. Court responds . not that they have to enforce it. 2. a. because there is no way to read the passage as applying ONLY to executives. Executive Encroachment on Legislative Powers c. Fed. Gov’t argues (supported by dissenters in the case) Federalist 27 (Hamilton) – laws of federal gov’t as to enumerated powers will become the SUPREME LAW OF THE LAND to the observance of which all officers…. Unlike Congress. Framers were most concerned with concentrating too much power in the legislative branch Difference between Article I and Article II – 1. .) – key difference is political accountability (in coercion v.in each state will be bound by the sanctity of an oath.ii. Line would be too imprecise iii. President binds the United States. encouragement). iv. Court responds . President has authority to exercise unspecified powers. Easily repealed or overruled by another Exec. Agency and they have the force of law. 1. Court responds .the purchaser isn’t going to realize that its federal government making and implementing the law.what differences??? 1) Congress’ powers are enumerated. a. no meaningful way to distinguish between just execution and what is policy making. II) Executive Agreements . Executive Power I) Executive Orders . i. can’t read the passage as supporting this principle. Purpose? (1) kept one branch from becoming too powerful (undue aggrandizement) (2) Seen as a guard against tyranny.. Only means that they can’t obstruct federal law. Separation of Powers – gov’t less efficient. Grant of authority broader than what is in the Constitution. OVERLAP BETWEEN CONGRESS/EXECUTIVE . Executives are more analogous to state judges rather than state legislators.issued by the President or Exec. II’s reference to exec.between two nations.MAJORITY’s interpretation – state officers would have to take a role in implementing federal policy. b. U. similar to a treaty. Everyone knows that it is a federal act. blending of the functions A. III) BOTH of the above criticized as an end run around law and treaty making. 2) The President has an unqualified “executive” power. 1. COUNTER: Art.a difference between regulating and requiring execs to implement policies. order.e. Not binding on the next President unless he consents. Congress must be informed. that the President has power not specified in constitution.. very tough to draw the line between making state policy and executing of the laws.this argument won’t work because not a clear line between execution and policy making.

This wasn’t about a theater of war. REASONING: (Justice’s Black): FORMALIST APPROACH a. c. Order was not pursuant to any Congressional authorization or a statutory authorization (TaftHartley Act) f. HOLDING: War effort is in Korea. PLUS the zone of twilight where Congressional and Presidential power overlap. Truman just needed 51% of the votes to support his decision. Note: Justice Jackson’s concurring opinion became most relied on. Employees strike. Key Difference w/ Majority: Acknowledges that President could have powers beyond a strict reading of Article II.Youngstown Sheet & Tube Co. act on his own. Powers are not fixed. President can rely on maximum authority. if his action is way outside of federal authority or it falls within. a rare. III) Commander in Chief power . ii. but that a presidential policy be executed in a manner prescribed by the President. HOLDING: No. congress trying to give the power to declare war). only Congress has power to do what President did. a. 3 categories of executive decisions. which ones may have applied? I) Vesting of Exec. that he has PLUS all of the power that Congress can delegate to the President. Constitution. Issued Exec. b. but fluctuate. 3 i.Art II sec. Was no express Congressional authorization. (congress is silent) leaves a twilight zone for congress to maybe accept. even in the absence of authorizing legislation. Certain powers of Congress cannot be delegated to the President and only when President acts under a non-delegatable power can it be found unconstitutional. II) Take care – “faithfully executed” Art II Sec. Does not direct that a Congressional policy be executed in a manner prescribed by Congress. . ISSUE: was the seizure a valid exercise of Exec. Power? g. Policy – if congress would have upheld Truman’s decision. 2 – i. . Justice Jackson’s Concurrence (More followed than Majority) FUNCTIONALIST APPROACH a. Government will argue that there is IMPLICIT AUTHORIZATION. i. e. Truman felt steel was necessary to the war effort in Korea. (2) Congress is Silent/Concurrent Authority . c. and employees. Sawyer (The Steel Seizure Case) (1952) d. Three categories of authorized Presidential Action: (His power + Congress approval/implied) a. HOLDING: the order is akin to legislating. of Commerce to take control of steel mills and keep in production. Blending of powers.precedent in the Constitution or in statutory law passed by congress + president’s powers. i. FACTS: Labor dispute b/t steel co. Court held that if it is not expressed in the Constitution under Article II or allowed by some authorizing federal legislation. not US so this isn’t a theater of war. Order ordering Sec. k. only way his actions are unconstitutional: 1. power in President Art II sec. max power.the President has all the power that belongs to the Exec. h. Pres acts against the will of congress.(ie. iii. Pres acts pursuant to express or implied consent of congress b.(hasn’t said one way or the other) . (1) Express or Implied authority . President has anything that is in the overlapping zone when Congress is silent. (where this case fell from) j. The Exec. non-delegable powers of congress. b. President’s authority is at its strongest in this category. it would have taken 2/3 vote to overturn it (amendment) with this decision. Pres. the President (executive) does not have that power. v.

embassy seized. President only has those powers delegated in the Constitution. (general idea of the legislation gave president broad power and implied the power) 4. more functionalist. Facts: Iran hostage crisis.i. President only has the powers that are expressly delegated under Article II. We don’t know whether Congress would or wouldn’t prohibit or allow Presidential authority. There is (1) Express (IEEPA act from carter admin) Congressional authorization for freezing of assets and (2) Implicit Congressional authorization for submitting pending claims to the International Claims tribunal. Holdings: YES. d. Issued Executive Orders Freezing Iranian assets in the U. his exclusive power to act. but because of the refusal to include the seizure power in the Taft Hartley Act. ii. a. Middle sections are the overlap. Zone of overlap is much smaller than in the first category.(min authority). EXPRESS AUTHORIZATION. D&M/P’s claim – President exceeded constitutional and IEEPA authorization (2) Denial of Due process by imposing decisions of claims tribunal 2. a. meant that Congress meant President shouldn’t have the seizure power i. White in circles are Congress’ non-delegable powers. Only way its constitutional for pres to act is if it is expressly stated by const. Potential Problems: i. Regan (1981) 1.. Presidential power at height. (3) Express or Implied PROHIBITION from Congress – President acting on his own.S. Could be prohibited if Congress’ statute was unconstitutional in the first place. D&M contracted with Iranian government to inspect Iranian nuclear plants. President left circle. not a series of bright line rule. Issue 1: Freezing the assets and removing them from the reach of the courts was authorized by Congress in the IEEPA. provided claims should be settled at the International Claims Tribunal (binding arbitration) . Pink is “twighlight zone”. Reasoning: (Uses Jackson’s concurrence framework from Steel Seizure case) modified jackson’s opinion executive power IS NOT CATEGORICAL and is more like a SPECTRUM or CONTINUM of power ranging from express authorization (max authority) to express prohibition. Actions are presumed to be constitutional. Presidential authority is at its weakest under this category. No overlap in express prohibition. hadn’t paid D&M to terms of the contract b. IT DEPENDS. . A sliding scale. President had authority to do both. Issue: Did President have authority to (1) Freeze Iranian assets (2) Require all claims to be sent to binding arbitration of the Claims Tribunal 3. as part of the hostage release. Dames & Moore v. Jackson could have interpreted Congress’ actions as silence.

Political Process between the President and Congress is a sufficient protection for cases involving the separation of power. Court holds that neither at issue here. Can’t sue a legislator for his legislative act. Basis for Legislative Immunity – Article I. Similar to the attorney/client privilege. 6. Because of all specific Constitutional safeguards about federalism. This matter was clearly about Foreign Policy. Rejection of Formalist approach – how different if used Black’s analysis from Steel Seizure case? Where may Black have found authorization? a. (Pg. Sec. what it DOESN”T do is make unconstitutional acts constitutional) 1. No way they can be sued for any legislative act they introduce or pass. i. b. iii. but this power belongs EXCLUSIVELY TO CONGRESS and Congress can’t delegate it to the President. ii. Steel case wasn’t a true emergency compared to this case. Claims Tribunal – no federal legislation that expressly authorizes. b. THERE IS IMPLICIT AUTHORIZATION BY CONGRESS. Look then to the Constitution. cl 1 . Why does Functionalist approach make more sense in D&M case? a. its absolutely protected. Difference between Privilege and Immunity a. “History indicates that Congress has tacitly approved similar acts” (Pres has done this b4 and congress hasn’t complained so they don’t mind. 347) Court looks to (1) The International Claims Settlement Act (other federal legislation – IEEPA and Hostage Act – imply broad scope for appropriate presidential action) (2) History – prior court cases and legislative history. as long as it falls within sphere of privilege or immunity. Immunity . Exam: when it looks like silence.ii. argue both implied authorization and implied prohibition. but there’s nothing in the standard makes one think it turns on whether or not its an emergency or dependent on it being a foreign affairs question. Falls into Category 1 above of action. so this is okay. Executive Privileges and Immunities l. Privilege – cannot force a legislator to testify about the legislative process. b. 3. 9 – to Constitute tribunals inferior to the S. OR The Commerce Clause – regulate Commerce with Foreign nations.Speech & Debate Clause – Members of Congress shall in all cases be privileged from arrest during attendance in chambers or speech and debates. Perhaps under Article I.exemption or protection from being named a party in a case or other proceeding. there are not detailed. m. i. Court may have found differently than steel seizure because Congress’ silence: 2. This information cannot usually be introduced in a court proceeding. b. Absolute Immunity– blanket. Makes more sense in dealing with foreign affairs or a National Emergency. Little tougher in a true emergency the court will give more deference to president’s authority. i. . specific. Issue 2: Terminating claims in federal court and requiring them to be adjudicated in claims tribunal: NO FEDERAL STATUTE that expressly authorizes this action by the President. absolute protection.C. but its less clear than in the first Issue. 8. cl. 2. constitutional checks in these instances than it is with separation of powers. If Congress has the power and can do it itself. Can’t sue a legislator for passing a law. not domestic policy as in the Steel Seizure case 1. Sec. Role in overseeing Presidential action is limited to the Congressional approval standard.

break-in of DNC headquarters. or is it particularized (not turn over this specific information for this specific reason) (i. and (2) Type of case involved is important. has the immunity) b. not spend all time in court defending against lawsuits. and other things that you can’t. Qualified Immunity – Limited. Holding (1) This is a justiciable issue (2) Absolute Executive Privilege does not apply. d. . Executive Privilege or Immunity is implied (not stated) in the Constitution. i. iv. b. Could also impede court’s ability to achieve justice through the criminal system. military. because w/out it. Nixon (1974) i.a. Nearly all government officials from all levels (police officers. The public interest in a criminal trial out weighs the public legislative interest. Determining type of privilege that applies depends on (1) circumstances and the basis of the claim of privilege – is it generalized. Need for info in a criminal proceeding will always trump the qualified privilege. President couldn’t function. He merely said that he shouldn’t have to because they were privileged communications between he and his staff members. Want Congress to be able to engage in vigorous debate and to take action w/out fear of personal liability or suit. branch to decide? (2) If not a political question. He gave a general reason not specific. An Absolute privilege would aggrandize the President and his power at the expense of the judicial and legislative branches. Court did not believe that the possibility of infrequent subpoenas for conversations (like the one at issue) would have an impact on the candor of discussions the President has with his advisors. ii. c. Some things they can be sued for. Some things are protected under some circumstances. but only in certain instances and it is qualified.e. b. Reasons for Executive Immunity . ii. to high ranking officials) enjoy QUALIFIED IMMUNITY. not absolute or blanket protection.Same Reasoning might apply for the President – (1) want him to be able to concentrate on governing (foreign & domestic affairs) without fear of being sued for an unpopular decision. a. does Executive Privilege apply to the case so president can avoid presenting the tapes? (3) Does the Constitutional silence in Article II on grant of Executive Privilege or Immunity mean a Qualified or an Absolute Privilege (if one exists)? iii. Reasoning: a. Issues: (1) Is this a justiciable issue or a political question best left to the exec. etc. Interest of confidentiality cannot trump over the interest of due process in the fair administration of criminal justice. the pres has the greatest scope of official immunity. c. It is silent on the matter. for national security reasons). Facts: Watergate scandal. Nixon refused to turn over some of the audio tapes and documents that implicated his involvement in the plot to the special prosecutor on the claim of Executive Privilege. Debate on a bill is absolutely protected from a civil action for introduction of a bill or debate on a bill for certain statements. c. United States v. not absolute. and this was a criminal proceeding and not a civil proceeding. d. Key is the reasonableness of the official’s actions. (2) Separation of Powers . (why we know pres.being subject to civil liability means the judiciary is making pronouncements on the official actions of the President in his executive branch duties. Even the qualified privilege may be outweighed by need to develop facts in a criminal proceeding but may be upheld if it involves matters such as national security. (3) Time Constraints – want President to govern. Nixon did not claim a sufficient basis under either of the above circumstances to prevent the court from ordering him to turn over the tapes. There is no coordinate textual protection of the President in the Constitution. (3) Executive Privilege or Immunity exists.

iii. . or national security. Could turn into a power struggle between two branches.) and the political process (constitutional process of impeachment) to decide. Theoretical – not really concerned about separation of powers argument. If court doesn’t review then pres. Holding: No. c. c. Court said that he may have had a better claim had the claim been based on a matter of foreign affairs. no danger Court would become too powerful. 1974. what good is the court? b. b. (2) Bad – can be argued that this was a political matter best left to the coordinate branches (exec. Clinton’s reasoning included: a. Court usually defers to President on military and national security matters. Jones (1997) i. because its bad for the country. there is a problem because the courts are deciding whether the tapes actually contain military secrets and that might be out of the scope of their power. Nixon was either going to be impeached for (a) obstruction of justice or (b) disobeying the Supreme Court’s order to turn over the tapes Nixon resigned on August 9. Hypothetical 2 – Congress rather than court ordered President to submit to an In Camera review of Presidential documents. could always just say that there were military secrets and it would never get reviewed so tough.-court could work around his schedule. do discovery without him. protected country’s interest. v. h. If it is clear from external evidence that a “state secret” is involved. but claimed TEMPORARY IMMUNITY from having to defend against the suit while in office. Practical reasons: Wouldn’t even be necessary for him to be there . (1) Good – prevented political upheaval and uncertainty.e. Reasoning: (for no temporary qualified immunity just while President is in office) a. g. a. Does it seem like Congress could force President to turn over Presidential documents and Congress would determine whether anything in the documents could be kept secret? Clinton v. The President can be sued for unofficial act or conduct and does not have any even temporary privilege of immunity – the suit cannot be postponed until the President leaves office if the conduct/action is “unofficial” in character. If they are not satisfied that a “state secret” is involved.Potentially there would be a lot of suits like this or in different cases. Practical considerations – want the President while sitting as President to spend time with his official duties. ii. Facts: Sexual harassment claim against Clinton from before he was elected President in 1991. Courts decision helped avert a potential constitutional crisis. court may grant the privilege without examining the information. Then. f. not defending against lawsuits. the House had voted on the two passed articles of impeachment. Flood of Litigation . Hypothetical – what if Nixon had claimed tapes contained military secrets? Would court have decided differently? a. Clinton did not claim absolute immunity or that the President couldn’t be sued for private conduct not related to his official duties. Separation of powers with the judiciary applies. b. the military. Issue: Does the President have a temporary qualified immunity from being sued while in office for even unofficial acts or conduct? iv. and legisl.

12. 50-50 on obstruction charge. Bush v.c. d. in regards to the Jones suit. Court’s decision could apply to unofficial conduct that happened while Clinton was President. Separation of Powers j.. iii. the President motivated by politics. courts know how to deal with it. Counter argument – see Clinton’s arguments to postpone the suit. Breyer’s Concurring – (1) more of a functionalist approach – didn’t see a problem with postponing the suit until President out of office and does cite the “flood of similar litigation” argument. Counter: Political Process of impeachment can take care of public’s “need to know” if his actions are bad enough. because it might affect our votes and not protect him until he leave office b. 1. i. 1st article of impeachment – perjury ii. III – obstructing justice. To the extent this raises any kind of National Security issue. vi. Why would postponement be inappropriate? (1) Violates Jones’ due process rights. President is not above the law. Gore . Unlikely that there would be a flood of litigation of this type and even if we did. (2) Lawsuits could have political motivation (3) District courts might not be equipped to handle suits vs. ii. delay. they respect the sphere of the president in that matter. there are all types of structures in the courts that can dispose of them and weed them out early on in the litigation. II) Suit was dismissed because settled out of court. December 11. 1998 – House Judiciary committee approved four articles of Impeachment resulting for Clinton’s depositions about Lewinsky. unofficial actions are subject to courts. I) ANALYSIS OF MAJORITY APPROACH (PRO MAJORITY) i. (2) Because we want to know if it actually happened and if it is true. Capstone: 2000 Presidential Elections i. conceal and cover up evidence regards to the Jones lawsuit. February 1999 – Clinton acquitted 55-45 on Perjury. Judicial Review. a. a. Federalism. Most concerned about protecting official decisions and conduct.

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