COURSE: Constitutional Law: Federalism and the Separation of Powers
SEMESTER: Fall 2014 TIME: Tuesdays and Thursdays from 3:30 p.m. to 5:00 p.m. LOCATION: Room 107 PROFESSOR: Chad DeVeaux
I. REQUIRED TEXT. The required text must be brought to all classes. Choper, Fallon, Kamisar & Shiffrin, Constitutional Law: Cases, Comments, Questions (11th ed. 2011). II. OPTIONAL TEXT. Christopher N. May & Allen Ides, Examples and Explanations: Constitutional Law: National Power and Federalism. III. CLASSROOM PARTICIPATION. Legal education is a cooperative venture. You must be prepared to participate in each class. You will not be down-graded for venturing an incorrect answer. One of the best ways to learn how to think and analyze like a lawyer is to take chances, put your ego on the line, and venture a reasoned view of how a matter should be resolved. Nevertheless, if you pass or if you are demonstrably unprepared, you will lose 0.1 grade points (on a 4.0 scale) on your final grade. 1 See IV. Attendance, infra. Moreover, when you pass or are demonstrably unprepared, I will call on you in each succeeding class until you satisfactorily demonstrate you are prepared. IV. ATTENDANCE. Attendance and participation are required for all classes. 2 Being on time for class is a simple courtesy to your fellow students. Coming late to class counts as a class absence. 3 Leaving early or leaving for a prolonged period of time during class without prior permission also counts as a class absence. Students may have no more than four class absences (out of the twenty-eight class periods we meet). Students who miss more than the permitted number of classes will be administratively dismissed
1 See footnote 3, below. Because the schedule and class coverage of reading assignments is relatively fluid, you may be responsible for material we cover during two succeeding class periods. It is your responsibility to keep track of how far we have gone each week and be prepared for cases that you may have read a week or even two weeks before. See XI. 2 Each student, however, may be excused for any reason (or no reason at all) from participating in an attended class once during the semester by requesting an excuse from me prior to commencement of class that day. If you request an excuse by email, you must send the email by 6:00 p.m. the day before class. Unless I confirm your request before class, however, you will not be excused. This one free pass does not allow you to take an extra absence. 3 In addition, you will be the first person I call on. I f you are unprepared, you will also lose 0.1 grade points (on a 4.0 scale) on your final grade. See I I I , above. 2 from the class. You alone are responsible for keeping track of your absences. You will not receive a warning that you have reached the allowed number of absences. V. GRADING. Course grades will be based on two elements: (1) Class Participation (your grade may be reduced based on class participation, as described in III. Class Participation, above); and (2) a Final Examination, given during the final examination period. Absent adjustment for class participation, the final exam will comprise 100% of your final course grade. The final exam will be closed book. VI. COURSE HOMEPAGE. I have set up a course page on TWEN (a course web page). I will post course information on that site, including announcements of assignments, updates to the Syllabus, handouts and practice questions and exams. We will also be able to conduct further class discussion on-line. Everyone must enroll in the on-line course. I regularly email students with information relevant to the course. You are responsible for signing up with a valid email address that you check regularly. I will distribute instructions for enrolling by Week #2. Each of you will be responsiblefor signing up for the course and checking the page on a regular basis. In addition to the Constitutional Law web page, everyone must enroll in my Appointments web course, which will enable you to sign up for office hours. See VII, infra. VII. OFFICE HOURS. My office hours are Tuesdays and Thursdays from 1:00 p.m. to 3:00 p.m. To make an appointment during these times you will need to enroll in my Appointments web course. For appointments during non-office hours, you must arrange with me directly. You can leave messages at 208-639-5406. Please leave your name and phone number. You can also reach me by email at cdeveaux@cu- portland.edu. VIII. EMAIL POLICY. I do not answer substantive questions via email. I am more than happy to answer questions before or after class, during reviews, and during office hours or by appointment. Experience has taught me that what students think of as a simple question often involves a lengthy and nuanced discussion that is not easily done via email. Nor do I respond to questions about matters that have already been addressed in this syllabus, in class, via email or, posted on the web-course page. If you ask such a question, do not expect a reply, as it would take just as much time to explain that the information sought has already been provided as it would to provide it again. If after due diligence, you cannot find the information sought, you should ask a classmate. IX. TAPING CLASSES. Taping of classes is strictly prohibited without the express permission of the professor. Taping classes without permission inhibits classroom discussion. Your classmates are less likely to participate in class if they fear their comments are being recorded for posterity. X. PREPARING FOR CLASS. Please note that the Course Schedule on the following pages is divided into five columns: Week, Dates, Pages, Topic and Contents. The first, second and fourth columns are self-explanatory. The Pages (third) column gives you the range of pages within which the specific reading assignments are contained. The last column sets out the minimal reading you must do for each class, including the notes after the main cases that you need to read and consider.
3 XI. COURSE SCHEDULE. Please note that class coverage of reading assignments is fluid, i.e., we will not always cover all of the assigned material during the scheduled class periods. It is your responsibility to keep track of how far we have gone in the previous class and make sure you are prepared. If you have additional preparation time, it is better spent reviewing the material for the next up-coming class. I strongly urge you not to read more than one week ahead.
W E E K DATE(S) 4
PAGES 5 TOPIC
CONTENTS
1 8/26 1763-64; 1-24 (24 pgs)
JUDICIAL REVIEW JUDICIAL REVIEW (1763-64; 1-24): U.S. CONST. art. III; Marbury v. Madison (SCOTUS possesses the power to say what the law is)
1 8/28 24-47 (24 pgs)
JUDICIAL REVIEW; POLITICAL QUESTIONS JUDICIAL REVIEW, contd. (24-29): Martin v. Hunters Lessee (SCOTUS has power to review state ct opinions re: fedl law); Cohens v. VA (SCOTUS review of state criminal convictions); POLITICAL QUESTIONS (29-47): Nixon v. US (matters textually committed to coordinate branch); Gilligan v. Morgan (Natl Guard operations); Pac. States Tel & T. v. OR (determining what constitutes a republican form of govt); Baker v. Carr (malapportionment of electoral districts); Goldwater v. Carter (determining whether the President can unilaterally terminate treaty)
4 The dates indicated are estimates only. 5 All page references are to the Choper & Fallon casebook unless otherwise indicated. 4 2 9/2 & 9/4 1764-64; 1760-60; 47-64 (18 pgs)
CONGRESSIONAL REGULATION OF JUDICIAL REVIEW; DISCRETIONARY REVIEW; PREREQUISITES TO FEDL JURISDICTION & JUDICIAL REVIEW CONGRESSIONAL REGULATION OF JUDICIAL REVIEW (1764-64; 1760-60; 47-55): U.S. CONST. art. III, 2, cl.2; U.S. CONST. art. I, 8, cl.9; Ex parte McCardle (Congress has limited power to revoke SCOTUSs jurisdiction); US v. Klein (Congress cant use control over jurisdiction to alter a rule of decision); Boumediene v. Bush (Congress cannot strip Gitmo detainees of habeas rights w/o invoking habeas suspension clause); DISCRETIONARY REVIEW (55-61): MD v. Baltimore Radio Show (denial of certiorari cannot be interpreted as anything other than sign that Justices deemed it undesirable to review opinion); PREREQUISITES TO FEDL JURISDICTION & JUDICIAL REVIEW (61-64)
3 9/9 & 9/11 1700-33 (34 pgs)
LIMITATIONS ON JUDICIAL POWER; ADVISORY OPINIONS; STANDING
LIMITATIONS ON JUDICIAL POWER (1700-02); ADVISORY OPINIONS (1702-06); STANDING (1706-1733): Allen v. Wright (citizens do not have standing to sue fedl agency b/c of influence its determinations have on others); US v. SCRAP (environmental damage); Heckler v. Mathews (Equal Protection); LA v. Lyons (redressability); Lujan v. Defenders of Wildlife (congressional power to create standing); MA v. EPA (State standing); VT Agency of Natural Res. v. US (qui tam actions); Frothingham v. Mellon (taxpayer standing); Flast v. Cohen (taxpayer standing); Valley Forge Christian Coll. v. AUSCS (taxpayer standing); Raines v. Byrd (legislators standing)
5 4 9/16 & 9/18 65-78; 1760-60; 82-85 (18 pgs)
MOOTNESS; RIPENESS; LEGISLATIVE POWERS; COMMERCE POWER MOOTNESS (1734-38): DeFunis v. Odegaard (mootness exceptions); US Parole Commn v. Geraghty (class actions); RIPENESS (1738-43): United Pub. Workers v. Mitchell (fedl employees challenge to statute barring them from participating in political campaigns was not ripe b/c they had not participated in a campaign in violation of the act); LEGISLATIVE POWERS (65-78): McCulloch v. MD (Necessary and Proper Clause); US v. Comstock (Necessary and Proper Clause); COMMERCE POWER (1760-60; 82-85): U.S. CONST. art. I, 8, cl.3; Champion v. Ames (upholding fedl ban on trafficking of lottery tickets)
5 9/23 & 9/25 88-103; 103-08; HANDOUT (27 pgs)
COMMERCE POWER; USE OF COMMERCE POWER TO ENACT SOCIAL-JUSTICE LEGISLATION COMMERCE POWER, contd. (88-103): Hammer v. Dagenhart (striking down fedl child-labor ban); NLRB v. Jones & Laughlin Steel (upholding fedl power to intervene in steel strike); US v. Darby (upholding fedl minimum wage); HANDOUT: Wickard v. Filburn (activities that substantially affect interstate commerce); USE OF COMMERCE POWER TO ENACT SOCIAL- JUSTICE LEGISLATION (103-08): Heart of Atlanta Motel v. US (public accommodations laws); Katzenbach v. McClung (public accommodations laws)
6 9/30 & 10/2 108-26; HANDOUT (29 pgs)
CONTEMPORARY VIEW OF COMMERCE POWER CONTEMPORARY VIEW OF COMMERCE POWER (108-26): US v. Morrison (striking down Violence Against Women Act); Gonzales v. Raich (upholding fedl marijuana ban; reaffirming Wickard); HANDOUT: Natl Fedn of Indep. Bus. v. Sebeliusexcerpt 1 (Commerce Cl. cant be used to conscript unwilling purchasers into engaging in transactions)
TAX POWER; SPENDING POWER; FOREIGN-AFFAIRS POWER TAX POWER (1760-60; 132-36): U.S. CONST. art. I, 8, cl.1; Bailey v. Drexel Furniture (striking down child-labor tax); SPENDING POWER (136-48): US v. Butler (striking down processing taxes as violative of 10th Amend.); Steward Mach. v. Davis (upholding unemployment compensation law); Helvering v. Davis (meaning of general welfare); SD v. Dole (upholding law making fedl hwy funds conditional on state drinking age); HANDOUT: Natl Fedn of Indep. Bus. v. Sebeliusexcerpt 2 (upholding public mandate under tax power, but striking down Medicaid expansion as abuse of spending power); FOREIGN-AFFAIRS POWER (148-52): MO v. Holland (upholding Migratory Birds Act under foreign-affairs power); HANDOUT: Bond v. US (limiting Congresss ability to use foreign-affairs power to regulate purely intrastate criminal acts)
8 10/14 & 10/16 1762-63; 176-94; (23 pgs)
PRESIDENTIAL POWERS; WAR POWER PRESIDENTIAL POWERS (1762-63; 176-90): U.S. CONST. art. II; Youngstown Sheet & Tube v. Sawyer (striking down Presidents seizure of steel industry); Dames & Moore v. Regan (zone of twilight); WAR POWER (190-94): US v. Curtiss Wright (foreign-affairs power vests President w/ plenary powers in the foreign-affairs field)
9 10/21 & 10/23 202-06; HANDOUTS (41 pgs)
WAR ON TERRORISM WAR ON TERRORISM (202-06): Hamdi v. Rumsfeld (detention of enemy combatants); Hamdan v. Rumsfeld (striking down executive order authorizing military trials); HANDOUT: Ex parte Milligan (open ct rule); HANDOUT: Ex parte Quirin (military cts have jurisdiction over enemy combatants); HANDOUT: DeVeaux, Rationalizing the Constitution, 42 AKRON L. REV. 13
RELATIONSHIP B/T LEGISLATIVE & PRESIDENTIAL POWERS; APPOINTMENT OF OFFICERS; EXECUTIVE PRIVILEGE; IMPEACHMENT RELATIONSHIP B/T LEGISLATIVE & PRESIDENTIAL POWERS (220-32): INS v. Chadha (legislative veto prohibited); Clinton v. NY (line-item veto prohibited); APPOINTMENT OF OFFICERS (232-45): Morrison v. Olson (independent counsel); EXECUTIVE PRIVILEGE (249-59): US v. Nixon (compelling Pres. Nixon to produce Watergate tapes); IMPEACHMENT (1757-58; 259-62): U.S. CONST. art. I, 2-3
11 11/4 & 11/6 263-82; 306-07; HANDOUTS (36 pgs)
DORMANT COMMERCE CLAUSE DORMANT COMMERCE CLAUSE (263-69): HANDOUT: DeVeaux, Lost in the Dismal Swamp, 79 GEO. WASH. L. REV. 995excerpt 1; Gibbons v. Ogden (genesis of DCC doctrine); Cooley v. Bd. of Wardens (state may enact regulations addressing local peculiarities); PROTECTIONISM (269-82): Baldwin v. G.A.F. Seelig (protectionist laws); Dean Milk v. Madison (public-safety pretext wont save protectionist law); Philadelphia v. NJ (per se rule of invalidity); ME v. Taylor (compelling local interest); EXTRATERRITORIAL REGULATION (306-07): HANDOUT: Brown-Forman Distillers v. NY State Liquor Auth. (striking down law regulating out-of-state beer sales); HANDOUT: DeVeaux, Lost in the Dismal Swamp, 79 GEO. WASH. L. REV. 995excerpt 2
DORMANT COMMERCE CLAUSE OBSTRUCTIONIST LAWS (295-302; 307-14): Hunt v. WA State Apple Adver. Commn (striking down product-labeling law); MN v. Clover Leaf Creamery (incidental benefits to in-state enterprises); S. Pac. v. AZ (striking down train-length law); Bibb v. Navajo Freight Lines (striking down mud-flap law); HANDOUT: Pike v. Bruce Church (balancing test for obstructionist state laws); CONGRESSIONAL AUTHORIZATION OF STATE REGULATION (282-84): Prudential Ins. v. Benjamin (state may enact regulations discriminating against out-of-state commerce when authorized by Congress); HANDOUT: Hillside Dairy v. Lyons (authorization to regulate construed narrowly)
STATE AS MARKET PARTICIPANT; PRIVILEGES & IMMUNITIES CLAUSE; STATE POWER TO TAX; STATE IMMUNITY FROM FEDL REGULATION STATE AS MARKET PARTICIPANT (322-28): Reeves v. Stake (market-participant exception); STATE POWER TO TAX (335-46): Complete Auto Transit v. Brady (DCC limits on state power to tax); PRIVILEGES & IMMUNITIES CLAUSE (1768-68; 328-35): U.S. CONST. amend. XIV, 2, cl. 2; United Bldg. & Constr. Trades v. Camden (Priv. & Imm. Cl. applies to municipalities); STATE IMMUNITY FROM FEDL REGULATION (156-157; 165-75): MD v. Wirtz (Congress can require payment of fedl minimum wage to state employees); Print v. US (anti-commandeering principle)