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NATURE AND SCOPE OF JUDICIAL REVIEW I. Origins of the Power of Judicial Review – The power of the courts to review legislation to determine if
it’s consistent with the Constitution. a. Art III, § 2, Cl. 2 – “The judicial power shall extend to all cases, . . . arising under this Constitution. . . . In all Cases [where state is a party or affecting foreign officials], the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." b. Marbury v. Madison (1803) – power of judicial review to declare acts of Congress uncon'l. i. Background: The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4 end of his term, Adams appoints a bunch of federalist judges. Marbury’s commission is signed and sealed, but it’s never delivered (by Madison, secretary of state). Once he took office, Jefferson tells Madison not to deliver the commission. Marbury sought a writ of mandamus to get the commission delivered. [Took a long time to hear the case b/c Congress suspended the Supreme Court for a term – Art III, Congress can regulate Judiciary (but not tell them how to decide)]. ii. 1st Issue: Is Marbury entitled to the commission? Marshall says yes, the Pres granted it to him via an act of Congress (Organic Act). His right was vested once it was signed and sealed. a. Note: but it was never delivered – Prob Marshall does this so he can get to Judicial Review. iii. 2nd Issue: Does Marbury have a remedy at law available? Marshall says yes, the essence of civil liberty is that there is redress to every denial of a legal right. a. Prof says not always true – but again Marshall prob says this just to get to judicial review. rd iv. 3 Issue: Is Marbury entitled to the remedy he seeks? – Yes. 1. Nature of the writ of mandamus – an order to compel a lower ct or govt official to do his duty. Madison has a duty to deliver the commission. Since it was signed & sealed, it’s vested, so there’s a legal duty here. Therefore writ of mandamus is a proper remedy. 2. Note: Pres doesn’t like this – ct is undermining authority of executive by telling them what to do. But if Marshall decided otherwise, would be undermining authority of Congress. Either way, still undermining. th v. 4 Issue: What’s the source of the court’s power to issue the writ of mandamus? 1. The Judiciary Act 1789, § 13: “"The Supreme Court shall also have appellate jurisdiction [from lower & state courts], in the cases herein after provided for; and shall have power to issue . . . writs of mandamus . . . to any courts appointed, or persons holding office, under the authority of the United States." a. So, Judiciary Act is interpreted to mean that since Marbury is person holding office under authority of U.S., this give SC power to issue the writ. Interpreted to mean that this is a source of original jurisdiction. b. But there are other possible ways it can be interpreted: i. “Appellate jurisdiction”- so court has jurisdiction to hear a writ under appeal.
This is an available remedy only when the SC would otherwise have jurisdiction. 1. If read this way, court would need to still have original jurisdiction. But the SC doesn’t have original jurisdiction b/c it’s only where state is a party or in cases against foreign officials. 2. But Marshall then says the Judiciary Act is unconstitutional b/c it goes against Art III, § 2 of the Constitution, therefore, there is actually no jurisdiction per Art III, § 2. a. Art III, § 2, cl. 2 - Lists the issues for which SC would have original jurisdiction. All other cases, SC has appellate jurisdiction. Writ of mandamus not listed there. b. But it also says “with such exception, and under such regulations as the Congress shall make.” So, Congress added this original jurisdiction in the Judiciary Act. i. Marshall says that Congress can't do this. If drafters had intended that Congress could add original jurisdiction of SC later, they wouldn’t have listed specific instances of original jurisdiction. Marshall is interpreting it as setting a ceiling to the SC's original jurisdiction. An affirmative grant implies a negative of what’s not granted. ii. However, prof points out differing interpretations: 1. The list of original jurisdiction written out to set a floor (min) of when SC has original jurisdiction – guarantees these powers. Prob here is it may allow Congress to give SC too much work to do – SC becomes overwhelmed & may impinge on SC's power & destroy its authority. 2. Distribution for court to follow, but Congress can change it. 3. Note: Judiciary Act written by drafters of the Constitution, so it’s most likely not unconstitutional. More likely that Marshall read the Judiciary Act wrong. 5th Issue: Can the court declare an act of Congress unconstitutional? So Marshall explains judicial review. So the question is WHO DECIDES whether an act of Congress is unconstitutional. Marshall makes six arguments in support of judicial review: 1. Written Constitution – It’s important that we have a written constitution. What’s the point of having it if it couldn’t be enforced? Therefore, SC has power of judicial review to enforce it. a. Prof Criticism – ok, but why the court & not another branch? WHO DECIDES? It’s not clear that framers intended for court to have absolute power of judicial review b/c they gave legislature power to take away court’s jurisdiction over certain cases. i. Still, if legislature had this power, may be problem b/c self-regulation. But the check would be the general public; we can vote ppl out (accountability). 2. Judicial Role or duty - (textual argument) Court has a role or duty to say what the law is, & when laws conflict to determine which law governs. a. Prof Criticism – Marshall is lumping the 2 roles of the court together as the same thing. Just b/c there’s power of JR to act as CL court doesn’t mean there is JR to act as a Const’l court. Roles: i. Interpreting the law (acting like CL courts); fill in statutory gaps. Here, Leg can just go back & make changes (by maj vote) to the law if they don’t agree. ii. Saying what has legitimacy as law (acting like a Const’l court). Here, Leg can’t just change the law, they have to make a const’l change (amendment) 3. Checks & Balances / Separation of powers – (structural argument) if no judicial review, the legislature would police itself - & this means nothing, b/c they do whatever, & just decide it’s const’l. Power must be checked. a. Prof Criticism – But here the court is doing the same thing. Court deciding how much their power extends, and so is policing itself. So also begs question, who decides? 4. Grant of jurisdiction to Judiciary in Art III – (textual argument) Art III, § 2 grants the court power of judicial review to hear cases arising under the Constitution. So there’s an implicit grant of jurisdiction, b/c the grant would be meaningless if court couldn’t examine all parts of the constitution when reviewing one part of it.
a. Prof Criticism – Question of statutory interpretation. Art III could also be viewed as a simple grant of jurisdiction - courts can examine the Constitution, but other branches are not precluded from doing so. If Congress passes a law, then means Congress thinks it’s constitutional. Doesn’t mean judiciary has power over another branch to tell it what to do. 5. Judicial Oath to the Constitution (textual argument) – Art VI, § 3 requires judges to take an oath to uphold the constitution. So they must rule on the constitution, b/c they’d be disobeying the oath if they ignored it. a. Prof Criticism – Every federal employee takes that oath – doesn’t mean they have this power. So this cannot be the source of the power. 6. Supremacy Clause – Art VI, § 2 requires that an act of Congress be made in pursuance with the Constitution, b/c it is the supreme law of the land. So if inconsistent with Constitution, then legislation is void. a. Criticism – Yes, but WHO DECIDES? Still doesn’t answer why the judiciary gets to. The holding in Marbury can be interpreted broadly or narrowly: 1. Most broad – SC has power to rule on constitutionality of everyone – State & federal courts, legislature, executive, individuals. 2. Broad – SC has power to rule on constitutionality of acts of other branches of federal gov’t 3. Narrow – SC has power to rule on constitutionality of acts of Congress 4. Most Narrow – SC has power to rule on constitutionality of acts of Congress only when it pertains to powers of the judiciary 5. –Marbury understood to give a limited power of JR (most narrow). Then Dred Scott broadened the scope of JR, interpreting Marbury to give the narrow power (all acts of Congress). But since that case supported slaver, it’s not cited, and Marbury instead is cited. Today, we have the “most broad” interpretation. a. Martin v. Hunter's Lessee (1816) - power of judicial review to review decisions of state courts. Background – Martin’s a British citizen who owns land in VA. State confiscated land owned by British citizens, & gives this piece to Hunter. U.S. has treaty with Great Britain where we wouldn’t do that. State appeals court found for Hunter, b/c (1) they found that the state’s title to the property was perfected before the existence of the treaty, and (2) VA state law settled ownership for Hunter. SC reverses, holding that the title wasn’t perfected before treaty enacted, so the confiscation violates the treaty, and treaty is the supreme law of the land (Art VI). SC remands back to VA appeals to enter judgment for Martin, but VA refuses, arguing that SC doesn’t have power to review state court decisions. 1. Note: SC doesn’t talk about the state law at all – no FSMJ, but can get in under suppl. jurisdiction. Usually SC will decide just not to hear the case. But they do & ignore this. Issue: Whether SC has power to review decisions of state courts. Arguments in support of Judicial Review 1. ***Art IV - Supremacy Clause – “This Constitution, and the laws of the United States . . . and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby…” a. Per Art IV, Federal law is supreme over state judges. Therefore, state courts will deal with federal question. Since state courts may hear federal questions, then SC should have power to review them. Otherwise, the SC would never have appellate jurisdiction as per Art III, § 2 (b/c at that time no lower federal courts, just lower state courts). Therefore, SC can decide on the constitutionality of the decisions of state court judges. i. Furthermore, since Congress has power to create federal courts, wouldn’t make sense for Supreme Court to review state court decisions, but not lower
II. Judicial Review of State Actions
i. ii. iii. iv.
federal court decision. Therefore, Supreme Court has power of judicial review for both state & lower federal court decisions. 2. Art III, § 2 – Textual Argument – Art III say, judiciary power extends to all cases arising under the Constitution. So all federal questions, including the ones that start in state court and are in SC under appellate jurisdiction. Argues that jurisdiction is over the case not the tribunal – but Prof says this doesn’t fly b/c federal court doesn’t have authority to review int’l court decisions, even if a federal issue (treaty). 3. The Spirit of the Constitution argument – It’s the spirit of the Constitution to limit state’s powers. State sovereignty is curtailed by the Constitution. 4. Uniformity – necessary to have uniformity in constitutional interpretation across the nation. Need SC to do this, b/c state’s only look out for own interests. But we don’t necessarily need uniformity – a lot of other laws are diff across states and that’s ok. 5. State bias problem – Conflict between states (bias for own state) so we need a neutral party. 6. Historical Precedent – Historically, SC has told state courts what to do, and states listened. 7. Argument of original understanding – everyone, incl. framers understood that SC has power to review state court decisions. 8. Judiciary Act - Authorizes exercise of jurisdiction in the specific case. Since framers of Constitution also wrote Judiciary Act, they intended what they said in the Judiciary Act. This argument not used in Marbury b/c Marshall was arguing that Judiciary Act and Constitution are in conflict, and this argument would defeat what he was arguing. 9. Art I, § 10 – Limitations on State Sovereignty b. Other Possible Arguments SC not politically accountable (life tenure) – no political bias, & can freely interpret Constitution. But criticism – free to interpret as they see fit, they might place personal bias into decisions. Framer’s intent – clear that Court would have this power b/c of the structure of the gov’t Necessity – Someone has to be able to give the last work – finality. But who? SC more constant (life tenure), they don’t change as often as Pres & Legislature (4 yrs). More consistency, uniformity & stability. Criticism – not necessarily a bad thing if what is constitutional changes often. Voice for the people – somewhere to go. Criticism – can also go to legislators.
III. Problem with Judicial Review
i. ii. a. Is it a good idea for the Supreme Court to be the “Final” Arbiter of what is Constitutional? Good idea – for efficiency. If SC wrong, amend the Constitution. But, uniform laws may not work for vastly different cultures across the states. 1. Counter-Majoritarian Dilemma a. Supreme Court not answerable to the people like Congress & President, b/c not elected by ppl & hold position for life. So we have a minority telling the majority what to do, which creates a counter-majoritarian dilemma.
IV. Different modes of Constitutional Interpretation
a. Structural Argument – certain things implied b/c of the structure of the gov’t set forth in Constitution. Problem here is that you have to be skeptical about what’s implied – might go too far. b. Textual Argument – rely on the text. Problem is there’s a lot of room for interpretation. c. Framer’s Intent Argument – look at the legislative history. Problem is that this is hard to define. Framers had diff ideas, and they voted, etc. So whose intent should govern? Also, some things were not contemplated back them (air force). d. Argument of Original Understanding – Public’s understanding at the time it was written. Ppl wrote books/articles about what they thought it meant; Dictionaries from the time of what things meant.
i. May have been wrong to begin with. Limits on SC jurisdiction largely to protect SC from being swamped with cases But sometimes Congress will impose limits b/c they didn’t like what the court did. & one provision authorized SC to hear appeals when circuit courts denied application for the writ. Court already decided how it’s interpreted. by super majority. not all. Since no one questioned it.i. g. Only white men had a say when Constitution adopted. e. Policy Argument – Constitution must embody good policy & promote justice. f. and he appeals it to SC (under the 1867 Act).Congress grants federal courts power to grant writs of habeas corpus. Problem is who decides what these fundamental values are. ii. this is contractual – we decided.Ppl not really aware of this stuff today. and we shouldn’t change that unless we get another super-majority. alleging unlawful restraint by military force. Problem is they don’t represent the majority. Constitution formed during time of heightened political awareness. so they pass a repealing act before case is decided. 1 . § 2 – says that SC's appellate jurisdiction is "subject to such exceptions as the Congress shall make. Judicial review – the court decides. V.” So Congress has power to create lower federal courts. we have changed/evolved. Functional Argument – argument of necessity. Only one source of habeas corpus review was foreclosed by Congress. Need a fixed point of agreement. They have here own bias. Judicial Precedent – Stare decisis. back then. instead. c." b. It has always imposed limits on the appellate jurisdiction of the SC. h.this is very hard to do. & we would be stuck with how ppl understood it 200 yrs ago. i. These are called "jurisdiction-stripping bills. public now not as aware. not any other jurisdiction SC had before. Repealing act only took away jurisdiction from the SC that was granted by the Congress in the 1867 Act." Since Congress first granted. Go back to see how understood – but look at overall purpose of ho gov’t was established. Consensus Interpretation – Today’s majority. The Exceptions Clause . repeal of jurisdiction was only for hearing it on appeal from circuit court.Art III. i. Congressional Regulation of Judicial Power a. McCardle imprisoned by military gov’t for publishing material tending to incite violence & impede Reconstruction. shouldn’t change that.is the leading case on the stripping of SC jurisdiction a. Also. but ppl back then had a heightened awareness of political issues. Problem . so SC wouldn’t have jurisdiction to hear the appeal –stripping SC of its jurisdiction to hear this case. but now stripped the SC's jurisdiction to hear this appeal. Art III also says judicial power vested in Supreme Court. decide what’s fundamental b/c of what they believe. Congress can limit jurisdiction of SC (to not hear certain cases). Congress has never given lower federal courts the max jurisdiction that Constitution allows. History – rely on historical practice/precedent. & in “such inferior courts as the Congress may from time to time ordain or establish. but Congress doesn’t like this. We’re relying on what the gov’t has always said. SC hinted it wants to hold military Reconstruction unconstitutional. Background: Act of 1867 . Problem is that just b/c they’ve been doing it all along doesn’t make it right. Circuit court denies it. Note: SC could still hear an original writ of habeas corpus under the Judiciary Act. So. the SC no longer has jurisdiction. Holding: Art III says that SC's jurisdiction limited "under such regulations as the Congress shall make. not judicial review. he sought habeas corpus. must have been right. The dead hand problem. Only way to overturn SC decision is to amend the constitution . b. The Congress is the majority consensus." 1. as a country. Ex Parte McCardle (1869) .
Maryland v.iii. depriving Δ of an impartial jury. i. discretionary power to prescribe & limit the lower federal court’s jurisdiction. or has decided a federal question in a way that conflict with the SC precedent. you are eliminating due process. It’s a controversy that is not appropriate or proper for judicial consideration or resolution. Not b/c of jurisdiction. Can be denied for technical reasons. Habeas Corpus Jurisdiction – The Suspension Clause of Art I. Therefore. The issue is given to someone else. per 1st and 14th amendment. it also has broad. Therefore. 1. Prerequisites to Federal Jurisdiction and Judicial Review i. There are other Constitutional provisions that limit Congress’ ability to manipulate the judicial branch. 1. . Congress can manipulate SC's jurisdiction. If state court decision conflict with another state or federal iii. § 9. b. but there are limits to what they can do. Court denies writ of certiorari. INS v. a. the public safety may require it. a. Congress has never given them the full jurisdiction allowed by the Constitution. Baltimore Radio Show . 2 provides that “the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion.” 1. Also if record or issues are unclear. Nonjusticiability . Ex Parte Yerger (1869) – same issue as McCardle. Parties asserting constitutional challenged must have standing. in violation of the Constitution. Classical Rule – Court has a duty not to decide. v. Art III gives Congress power to establish the lower federal courts. or if one court diverges significantly from accepted & usual course ii. iv. would still have jurisdiction. Rule of 4 – takes 4 judges to grant certiorari LIMITATIONS ON JUDICIAL REVIEW I.Limitations on access to the court. VI. Cyr (2001) – writ of habeas corpus has served as a means of reviewing the legality of executive detention. St. Court of appeals says reverses. SC will decide only those issues whole resolution will have immediate importance far beyond the particular facts and parties involved. and claims may only be asserted when they’re ripe. 2. cl. Art III – federal judicial power extends only to cases & controversies.Crim court found Δs guilty & imposed fines for broadcasting over radio matters relating to a criminal trial b/c it was an obstruction of the administration of justice. Disagreement between holdings in various courts. not the 1867 Act. b/c petitioner sought review based on the Judiciary Act. or b/c the issue can't muster support from 4 members of the court. If you take away all avenues for someone to bring a case of civil rights (by taking away jurisdiction from all courts). Reasons for granting certiorari i. b. Suspension Clause bars Congress from banning judicial review of executive detention – they can't suspend writ of habeas corpus unless in times of rebellion… etc. Discretionary Review – Have to apply for writ of certiorari for SC to hear your case. but for other reasons will not take the case. When a state or federal court has decided an important matter of law that should be decided by SC. courts precluded from giving advisory opinions or deciding moot cases. 1 i. ii. Although lower federal courts have general jurisdiction to hear cases arising under the Constitution. i. but court upheld jurisdiction.
and (iii) unnecessary interference with state court processes. it won't. The qualifications for membership in the house are specifically listed in the Constitution. shall guarantee to every state in this union. Senate invokes its own impeachment rule. a Republican Form of Government (a representative democracy). there are exceptions to this. So it violates the guarantee clause.but it does limit access to the courts) a. Amending Process 1. court in Nixon said that here it was diff. II. This avoids (i) unnecessary constitutional decisions. Pacific States v. § 2. 1 i. Up to Senate to decide impeachment process b/c they have sole power to try all impeachments. You can then appeal to federal courts. a. piecemeal review. House can't add. and creates a committee of senators to receive evidence & take testimony. Art I. Charlow says: Court. 1. and they’ll prob take the case. Even if court has power to get involved. ii. and then presents this to entire Senate to decide. Senate votes Nixon out of office. not the court. it would show disrespect to the other branch. is basically saying what Senate was constitutional. and he argues that the impeachment rule violated constitution b/c it prohibited entire Senate from taking part in the evidentiary hearings. (ii) inefficient. 3. cl. Even if fed courts say nonjusticiable. The Amendment process. Prudential Rule – Not required by the Constitution. adjudicate cases & controversies. Only thing House can do is decide who is qualified for membership based on those qualifications. Court says nonjusticiable b/c it’s a political question. If judiciary were to hear it. But nowadays. Oregon (1912) – an initiative goes to ballad for the public to decide. SC would have intervened. 5: "The Senate shall have the sole Power to try all Impeachments. How do you reconcile this with Nixon? Well. Exclusive Textual Commitment (Classical Rule) – Constitution gives jurisdiction to another branch of gov’t.” 2. § 4): U. . Also. “U. Art V. 3. d. 2. So really decision on merits – it’s constitutional. 2. Political Question (some disagree whether it’s a justiciability doctrine . b/c it doesn’t want to leave decision of constitutionality to state courts. We want courts to play a limited role – Art III. iii. There are limited resources.S. Courts have always said that Guarantee Clause questions are always political questions – but they might change this later (like if NY Gov declares himself King – Court would definitely intervene). Congress has control over this matter. This is direct lawmaking – a democracy not a representative democracy (republican form of gov’t). shall guarantee” – U.ii. have an interest will make better arguments & will represent that side better. Court uses own prudence & imposes on itself as a policy requirement to limit access. Judicial Review limited to issues of federal law. c. United States (1993) – House of Rep impeaches Nixon. Nixon v. means Congress.S. Issue of separation of powers. Ppl who care. by saying it’s a political question. and want the best possible use of those resources. Functional Rule – just not possible for Court to decide the issue. If Senate behavior was egregious & unconstitutional. (Ex: 3rd party standing). Impeachment 1.” Court here says it’s not a political question & decides on merits. a district court Judge.S. b. Court says it’s a political question b/c exclusive textual commitment. can still take it to state courts. Judiciary can't step outside enumerated power. b/c other branch can handle it. Powell v. McCormack (1969) – Art I § 5 says "each house shall be the judge of the qualifications of its members. & nothing outside of this can serve as a qualification. Guarantee Clause (Art IV. a. Final judgments or decrees – court ordinarily only reviews final judgments or decrees of highest state court.
can't do it w/o Congress. Same # of reps for 2 towns. 4 justices said political question b/c no standard – the Constitution only says how to make a treaty. Every state gets same representation. Vieth v. Congress says no & since you need ¾ Congress to pass a treaty. Absence of Standards (Functional Rule) – lack of judicially discoverable & manageable standards.2 ways to do this: (1) 2/3 of both houses of Congress. Proposed . And once Pres acts. not how to get rid of it. a. must wait until next election to take effect. May be argued that this amendment is invalid. Either by ¾ of state legislature or ¾ of state convention. Yes . Jubelirer (2004) – Plurality – Scalia . there’s a need for finality b/c other countries depending on us. c. d. Coleman v. 2. Prof says this is weird – we can't figure out standard now but may be able to in the future? Malapportionment 1. Miller (1939) – the issue was whether a proposed amendment lapses if not ratified within a reasonable time. Regulating the Militia 1. Congress decides when to propose and which to propose. If court doesn’t get involved. Morgan (1973) b. Ppl elect legislature. Court defines standard as one man. So it’s impractical to decide – either court would act as a lawmaker. Should the court have gotten involved in the apportionment of state legislatures? i. c. Goldwater v. ii. but rather nonjusticiable b/c of prudential considerations – not ripe/ready for judicial review. or it would be inappropriate to decide. Usually finality question will involve foreign matters. 2. But up to states to ratify. i. What usually happens with regards to treaties? Court won't take it. This doesn’t truly reflect the will of the ppl b/c no super-majority at any given point in time. Court said political question – exclusive textual commitment. no constitutional ban on it. d. Gilligan v. where Pres acts first.(no majority) says it’s a political question b/c no judicially manageable standard exist to decide when gerrymandering violates the Constitution – no standard for figuring it out. but it happened slowly over 200 yrs. Carter (1979) – Pres wants to terminate a treaty. ¾ of states eventually ratified it. Congress decides how they will be ratified. one vote. Court says it’s not a political question b/c there is a standard to apply – the Equal protection clause. Foreign Relations 1. i. Carr (1962) – apportionment of reps never changed even though population increased. Thesis: No such thing as political question 1 .iv. Can't change by amendment. Ratified – by ¾ of the states. So how much lapse of time is too much? 3. a. Court shouldn’t second-guess another branch b/c there’s this need for finality. but rely on finality.Ppl’s vote is being diluted here & they can't do anything about it. b. ii. or (2) 2/3 of state legislators apply to Congress to propose an amendment. An Example: Amendment XXVII (1992) – If Congress wants to give itself a pay raise. Higher populated town says their power is diminished. Can't deny state of seat in senate (2 per state) – so more populated states don’t overwhelm. so it’s their duty. Judicially Manageable Standards 1. Baker v. Powell (concurrence) decides the case – says not a political question. a. b/c Congress has exclusive power of amending process. even though one has higher population. and asks Congress to call a Convention. No – this is legislature’s duty. Concurrence (Kennedy) says not standard but doesn’t agree it’s a political question b/c a standard may emerge in the future. Finality (Prudential Rule) – there’s an overriding need for finality over a decision already made by another branch of gov’t. will never change.
i. but here it’s inadequate b/c it’s not sufficiently personal . 1. and each claim is separate. *** A Π must allege personal injury fairly traceable to the Δ's allegedly unlawful conduct and likely to be redressed by the requested relief. Separation of powers & concern of the proper role of the judiciary. Allen v. 2. iii. Claim #3: The IRS's policy resulted in their children being unable to receive an education in a desegregated school. Claimants couldn’t prove that even if tax-exempt status was taken away. that children from private schools would move to public schools. Court says this is a personal injury. not going to be redress (usually tied together. So this implies that what the court is doing is really just deciding on the merits by declaring an issue to be a political question. so public schools would become more desegregated. Also can't be redressed . Court says this claim is not sufficiently personalized to these Πs – called a generalized grievance. court will still take it. Claim # 2: Being stigmatized as African-Americans by policies that support the discrimination. even though otherwise would be political question. Judiciary can’t step outside their enumerated powers). 1 iv. The unfairness of holding later litigants to an adverse judgment in which they may not have been properly represented c. 3. Don’t want judiciary usurping powers of other branches. . Each party is separate. Dissent: there is a direct causal relationship. a. Usually. but exception: the Lyons case). Court says it’s mere speculation that this injury was caused by the government's actions. Constitutional Standing . when no causation. Requires that party asserting the claim has a personal stake in the outcome. Standing (Classical Rule – Separation of power. Harms them b/c interferes w/ children’s right to desegregated public schools b/c gov’t basically encouraging private schools (& thus the segregation). ii. c. they will take the case. v. Court holds there’s no standing. Standing to sue in state court – governed by state law/constitution b. must look at merits of claim. The importance of placing control over political processes in the hands of the people most closely involved. Wright (1984) – Parents of black school children allege IRS did not adopt sufficient standards to fulfill obligation to deny tax-exempt status to racially discriminatory private school. but no causation. But sometimes to determine standing. Sometimes when clearly a political question. you must consider it for each party and each claim. Claim #1: Gov’t act was illegal & they suffered as a result of that act. 1.we don’t know if granting the relief will cure the problem. and they’ll go ahead anyway. III.imposes 3 requirements: Injury in fact. Stigma injury could be ok. Art III confines the federal courts to adjudicating actual cases and controversies. But court not ruling on the merits. Sometimes there’s a compelling reason to decide. 2. Everyone has right to have gov’t act legally.i. If they really thought it was unconstitutional. so only going to decide when absolutely necessary to vindicate some individual right. Basically. but it's not fairly traceable to the government's conduct. The smooth allocation of power among courts over time b. & redressability. causation. their saying that whatever the complaint about is constitutional. Injury in fact. b. i. common sense that elimination of taxexempt status would make private segregated schools more expensive.Generalized grievance. and each one is separate. a. So we bar adjudication of generalized grievances that are more appropriately addressed in the representative branches. When you consider standing. Nature & Purposes of the Standing Doctrine Standing focuses on the particular party and whether they can sue for that particular claim. Why restrict judicial review to cases brought by concretely harmed individuals: a. and whites would move to public schools.
police dep’t allows police to apply this life threatening choke. Class action on behalf of indigents – they argued they would be harmed b/c hospitals would no longer provide those services to them Court said no standing b/c harm too speculative for causation. Court says no standing b/c the redress would only be for future injury. Prudential Standing: 3rd party Standing Rule This is a prudential rule – the court imposes limit on itself. and this can be remedied by providing equal treatment. Eastern Kentucky Welfare Rights (1976) – IRS eliminated requirement that hospitals receiving favorable tax treatment had to provide care for indigents. 1 . Matthews (1984) – law gave large social security benefits to women than to men. court says there’s standing b/c interest was equal treatment. Heckler v. Injury in Fact (Constitutional injury) – Π must have suffered an actual or threatened injury as a result of Δ’s conduct. Jacksonville (1993) – affirmative action program gives preference to minority business owners in winning gov’t contracting bids. so may use more natural resources which may be taken from the area. Note: If Simon just re-characterized the injury as impairment of opportunity. 1. but that he was deprived of the chance to compete for every place. But court said there’s still standing b/c the injury he suffered wasn’t that he was rejected. Northeastern v. if he did he would have his past injury redressed. resulting in more waste in area. based on his race. & too speculative whether Π would be injured again. Regents of the University of California v. Los Angeles v. Argument is that if freight costs increase. But Prof says the causation here is very attenuated. Court upholds standing where injury is noneconomic. Π didn’t ask for damages. Causation b/c injury was not that he lost the bid. only remedy available if found unconstitutional (per statute). Injury claimed is that their recreational interest. Don’t know if change in IRS action would change hospitals treatment of indigents – hospitals may just decide it would cost more to serve poor w/ tax benefit. The remedy will solve the claimant’s injury. Discrimination itself is the noneconomic injury. i. 1. recreational interest. but needs to be pleaded with sufficient specificity. which interferes with their recreational interest. Causation – Injury suffered must be fairly traceable to the challenged action against the Δ. was lowering the women’s benefits to be same as men. SCRAP (1973) – law makes cost if freight rates to be more expensive. but that he lost a chance to fairly compete. Why? (1) higher rates increase cost of recycling. a. c. Injury and the Equal Protection Clause a. Lyons (1983) – Π choked by police after being stopped for traffic violation. Bakke (1978) – not clear if affirmative action program was what caused a white applicant’s rejection. (2) Injury may not be abstract or conjectural. iii. (3) Injury must be concrete & particularized. this may have worked.ii. than to just not serve the poor w/o tax benefit. The Δ’s action must have caused the particular injury you’re asserting. Non-economic Injuries – Courts have accepted that non-economic injuries can satisfy the constitutional requirements. so it can waive it whenever it wants. United States v. There’s a general prohibition on a litigant’s raising another person’s legal rights. 1. So there is causation for that. 2. Redressability – Injury must be likely to be remedied by a favorable court decision. iv. Ways to describe this: (1) Injury must be distinct & palpable. there might be more discarded trash in the park. So even though Πs wouldn’t benefit if they won a lawsuit. Π sues for injunctive relief (stop this practice). Simon v. 2. i. b. ii. (2) increased rate will lead to use of non-recyclable goods. a. Re-characterize the injury to show causation a.
Nexus satisfied – Πs alleged that the spending violates the 1st Amendment (which operates as a specific constitutional limitation upon the exercise by Congress their spending power). Ullman (1943) . Recourse is the political process when there are general grievances – go to Congress & complain about spending.the constitutional challenge is made to Congress’s exercise of their spending power (general welfare) & and the challenged program involves a lot of federal spending from tax funds. Boren – statute says women can buy beer at 19. 1st claim: this burdens Π by increasing future taxes. Don’t know if program will affect how much she pays in taxes. 1. 3. 2nd claim: it’s a taking of her property w/o due process of law. Logical link satisfied . b/c they don’t have a personal stake. a logical link between the status and the type of legislative enactment attacked ii. Court recognizes right to bring action on behalf of a 3rd party when 2 criteria met: a. Generalized grievance.iii.denied standing to a doctor to assert his patient's rights in challenging a state law prohibiting use of contraceptives But not always prohibited. So person asserting a 3rd party’s right may not properly represent the injured party. 1. Frothingham v. ii. Craig v. There’s not hindrance but court allows standing. This interest in Congress’ spending money is an interest shared by everyone. they will fight better & the decision will be a better quality. Litigant must have a close relationship to the 3rd party c. not particular to the Π. then decides how to spend. Usually gov’t just collects taxes. They don’t collect more just for a specific funding.giving him a sufficiently concrete interest in the outcome of the issue in the dispute b. Criteria for determining when 3rd party claims can be brought: 1. Not fair to hold later litigants to adverse judgment when not properly represented in the first place. Storeowner permitted to assert equal protection rights of the men. However. a. 1. but not always). d. Mellon (1923) – federal taxpayer challenged a federal statute that provided funds to states that create programs to reduce maternal & infant mortality. i. Power v. Status-based Standing Issues Taxpayer Standing – Taxpayers generally don’t have standing based on that status alone. Litigant must have suffered an injury in fact . a. A nexus between the status and the precise nature of the constitutional infringement alleged. 1. Tileston v. Court says no standing b/c no direct connection. Reasons for the rule – right-holder not asserting his right. b. Court says no standing b/c no injury. to not be discriminated against. Test as applied in Flast: i. There must exist some hindrance to the 3rd party's ability to protect his or her own interests (usually.upheld standing of a criminal Δ to assert the rights of a prospective juror not to be dismissed from the panel on account of race. Π has a close relationship – his customers 3. ***Court develops a test to determine taxpayer standing – in order to ensure satisfies reqs of Art III. Also. Ohio . Π suffered an injury – less business (men are would-be customers) 2. Flast v. i. issue of allocating judicial resources to best use – when someone has a personal stake. iv. Cohen (1968) –federal taxpayers challenge federal spending on religious schools under the religious clauses of the 1st amendment (gov’t money can't go to religion). Difference between Frothingham and Flast: 1 . but men not until 21. i. Effect on her is too remote & uncertain. 2. Flast makes an exception when the taxpayer attacks an expenditure under Congress’s Taxing & Spending Power which violates a specific constitutional limitation on that power. b.
not limited by the establishment clause. In Frothingham. not legisl. Richardson . But. Congressional Power to Create Standing Congress can legally recognize by statute for someone to have a claim not otherwise recognized. but instead that it stems from personal constitutional rights (discrimination) b. but only if their votes would have changed the outcome of the legislation.the interest of a taxpayer of a municipality in the application of its money is direct and immediate.ii. there was no nexus between the status & the precise nature of the constitutional infringement alleged. i. They say that can’t have taxpayer standing to sue over everyday exec action affecting religion. Too generalized – everyone aggrieved. 4. Court holds that there’s no logical link between the status and the type of legislative enactment attacked. but rather a CIA statute. b/c too impractical. Prof . She alleged Congress has exceeded its general power delegated. b. e. Valley Forge Christian College v. (1982) – taxpayers challenge fed giving surplus federal property to religious organization. Same if either Exec or Legisl. Maybe issue is not whether grievance is widely shared. in Rained v. d. United States v. c.But what's the problem with just letting anyone sue? . Applying the Flast test a. Generalized Grievances – some cases say not appropriate for JR – go to political process a.held that there's an exception to this rule for municipal taxpayers . Dissent would apply Flast and uphold standing. 2. Diff from Flast b/c here the challenged action is not a congressional action limited by establishment clause. Coleman v. Kadish (1989) . it's creating an injury that didn’t otherwise exist. Voter Standing – more likely to find voter standing than taxpayer standing. 5. Asarco Inc. Still contradicts the purpose of having the establishment clause (prevent gov’t giving $ to religion). because you have this right & injury. ii.no standing because challenge didn’t address a constitutional power. Too generalized – everyone aggrieved when gov’t violates this clause (accountability clause – public accounting of how our money is spent). iii. Frothingham . Claims it violates 1st amendment establishment clause. But. Local and State taxpayer a. but Executive. even though involving diff clauses. 1 .no standing because exec action. Inc.it must be important enough for them to spend the time and money in pursuing the lawsuit. Schlesinger v. i. If Congress gives a specific right for something. but rather an agency action under the property clause. 6. v. Prof says so what? Why should it make any diff. b. too many lawsuits (prof says not talking about standing though). the 1st Amendment’s Establishment clause specifically limits Congress’ spending power – can't spend on religion. a. Incapability clause violated – can't be member of 2 branches of gov’t (in Congress & hold an office). Hein v. Byrd. Miller – Congress members have standing over constitutionality of a law Congress enacted. but doesn’t identify a specific limitation. But in Flast. not considered a generalized grievance Standing of Legislators – Lack standing unless there’s a personal injury 1. Congress members lack standing to challenge constitutionality of legislation passed b/c the # of ppl who sued wouldn’t have changed the outcome of the legislation to begin with.in that it doesn’t apply to state taxpayers unless there's proof of a direct injury. So now you would have standing. Reservist committee to Stop the War . Americans United for Separation of Church and State. Freedom from Religion Foundation (2007) – Expenditures here not made pursuant to an act of Congress.
Violates Separation of powers – it would transfer the power of the executive to the court. an actual case or controversy – also applies to declaratory judgments. It’s not certain that fixing this will solve the state’s problem.ii. no standing for lack of ripeness. others just wanted to. Pursuant to Art III. it’s moot. even if a generalized grievance. Congress can't confer standing. EPA (2007) – court found standing when state is challenging EPA’s refusal to issue regulations on car emissions. There’s redressability b/c regulations on emissions would reduce the effect of global warming. But only one of them actually violated the act. Otherwise judiciary intruding on powers vested in another branch. it may sometimes be difficult for Πs to prosecute a legal challenge to its conclusion before the statute has ceased to apply to them.when a statute directly applies to particular Πs only for a short period. No matter what Congress does. and school said he wouldn’t be affected regardless of outcome of the case. 1. and always evade review. In cases involving actual injury. litigant has to show he was injured. but too late now to sue. Ripeness – claim not ripe if it’s too soon to sue i. already been cured. Mootness – claim may have been good. Your claim is moot. Mitchell (1947) – Act prohibited federal civil service employees to participate in certain political activities. Congress may confer standing. Separation of powers – Courts can't decide on the constitutionality of acts of Congress unless an individual interest is violated and requires it to be redressed by the courts. ii. Congress had impliedly created standing for a litigant that is accorded a procedural right to protect his interest. Capable of repetition. Court said no standing b/c Πs weren’t personally affected by a violation of this act. Doesn’t exist anymore. Judicial economy iv. Bunch of them sue – violates 1st amendment rights. Lujan v. But still. Ex: Assert right to abortion. & soldiers quartered in your home. Lujan rejects the notion that Congress may confer standing wherever it choose. No case or controversy anymore 3. iii. Natural disaster. But Π admitted into school already. V. By time issue goes through court no longer pregnant & can't have abortion – so no longer have a claim. iii. Like a bar against advisory opinions 2. soldiers are out. there are so many sources of global warming. Possible bases of mootness doctrine 1. Determination by the court is no longer necessary to redress his injury. and there is no injury in fact. IV. But where no injury. Person suing must be aggrieved (personal injury) a. Have to redress with the political process. United Public Workers v. 1. still have to meet constitutional requirements. The injury was the loss of the state’s coastal land by rise in sea levels. Standing only for the one that violated the act. rather. DeFunis v. since the others faced no direct threat. Massachusetts v. in his final year. The Act (Congress) created standing so any person can sue. Courts don’t give advisory opinions. Timing of Adjudication: Mootness & Ripeness (Classical Rule – Separation of power. which was exacerbated by lack of emissions standards. i. & by the time case comes to SC. 2. b. Advisory Opinions 1 . 1. But criticism – Don’t really know that this is the cause. but distinguishes. Odegaard (1974) – law school special admission policy violates equal protection. Ex: Law says gov’t can't quarter soldiers in your home during peacetime. Judiciary can’t step outside their enumerated powers) a. ii. His case is moot. By the time case comes before the court. There must be a concrete legal issue. But it would re-occur. Defenders of Wildlife (1992) – Endangered Species Act required federal agencies to consult with Secretary of Interior to insure that funded projects don’t threaten endangered species. yet evading review .
" unless individual rights were at issue b.i. iii. Judicial power is limited under Art III to the resolution of "cases or controversies. Virtues of limiting judicial review in this manner: Provides concrete factual framing that both narrows the issues presented for resolution and ensures that the issue is being argued by someone who has a stake in the matter Separation of Powers . iv. ii. i. 1 .It keeps the judicial role within historically accepted bounds and preserves the separation of powers by preventing the judiciary from broadly interfering with the actions of the legislative & executive branches." Protection is vested or legal rights The province of the Court is solely to decide on the rights of individuals Judicial review limited to the protection of identifiable and concrete personal rights (like CL courts) Courts don’t have the "special function" of "policing or advising Legislature or Executives. ii. a.
Power expressly given to the states by the Constitution c. Maryland (1819) – MA taxing any bank operating in the state without state authority. State .Diff cultural interests can express themselves in forming government accordingly 2. McCulloch v. nor prohibited by it to the States. are reserved to the States respectively. or to the people. b.Closer to the people. States stop the federal from acting. Article I vests all legislative powers “herein granted” in Congress. stop operating within the state. Implied Powers – The Constitution’s structure suggests the existence of implied powers beyond those enumerated in the Constitution. Why have state and federal governments? i. Congress’s powers are only those that the Constitution grants. § 8 enumerates the legislative power b. Benefits of having both – creates a system where each can check the other 1. Line separating who can act for what. ii.Like a laboratory . Then."The powers not delegated to the US by the Constitution. and federal would get too powerful. If the power isn't listed in the Constitution. The Vesting Clause: Federal government power is granted by the Constitution a. determine whether the federal government has the power to act in the first place: 1. But if federal doesn’t have the power to act. Art I. Limitations a. State . This might operate by cutting federal power before it reaches the full extent of its breach. 1 ." i. Government more representative/responsive to the people ii. The Commerce Clause – source of most of federal’s power today c. They thought federal bank was an intrusion.based on what people want 3. state law trumps II. Or it might operate by reserving for the states the particular sphere where only states are allowed to act. State . The 10th Amendment . look to see if there’s a constitutional limit or bar to the power to act 1. State trying to tax them out of existence. Federal government says they have a right to create a bank & not be taxed. The Necessary and Proper Clause ii. First. Congress cannot act. and penalized a federal bank located in MA for not paying the tax. Federal grants of power a. Another constitutional provision that explicitly bars b. If this happens. Division of power between state and federal government a. Conflict exists between what the federal and state governments wants 1.NATIONAL LEGISLATIVE POWER SOURCES AND NATURE OF LEGISLATIVE POWER I. When does the federal government have the power to act? i. III. federal law trumps state law – Sovereignty Clause 2. by exercising the power – Checks & Balances scenario. a.
So Congress needs to be the one regulating. Plenary Power – this power is strictly vested with Congress. This makes sense b/c each state would have diff laws and it wouldn’t work. so must be included. it is implicit that if certain powers are given to Congress. raise & support army/navy (the powers of the sword & the purse) a. iii. § 8. there has to be conflict between state & federal. . cl. : 1. borrow money. this just violates the Guarantee Clause – guaranteed to a Republican form of government. Congress has plenary power over interstate commerce. b/c the State just doesn’t have the power. Need bank to collect taxes. Congress can't go too far. if no conflict. cl. or in any Department or Officer thereof. it gives Congress the sole power to regulate interstate commerce. But. . Although Guarantee Clause usually political question. Court defers to Congress. 2. Full & complete. among the several states.Ogden has an exclusive right to navigate steamboats between NY and NJ. Court takes broad view of commerce. Supremacy Clause . Since The Commerce Clause grants Congress the power to regulate “commerce among the several states. § 8. But court is not going to decide whether it’s necessary & proper. regulate commerce. court doesn’t really care if this is the true purpose of the bank. Development of Basic Concepts i. 3: Congress shall have the power to regulate commerce . It’s not the sale of tickets that’s being regulated (which is done only in one state). and all other Powers vested by this Constitution in the Government of the United States. 1 ii. all that matters is that Congress has the power to do it. The constitution does not explicitly grant this right. given to him by NY state.” the state statute is unconstitutional. but it doesn’t matter b/c it’s proper. I. There are other ways to carry out these functions.” 1. it is implied. 18 – Power of Congress “to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers. but also have the implied powers necessary for carrying them out. under Art I. As long as it’s an efficient & useful way to do it. it is necessary and proper to create the bank. a. Can't have commerce w/o navigation. THE NATIONAL COMMERCE POWER Art I. & he makes $ by transporting ppl. The Necessary and Proper Clause Art I. Congress has plenary power over interstate commerce Gibbons v. This power cannot exist concurrently with state power. But this is not a case preemption though. Federal government has the power to create a bank. Who decides what’s necessary & proper? – Congress – they decided when they took action. a. Also. If they created a bank in a way that would destroy the states. § 8. 1. you’ll have to establish an agency to do it. Congress has the express powers. 1. Which enumerated powers? Specifically. Ogden (1824) . b. Commerce – court says commerce includes navigation – it’s intuitive. Court would prob step in. a.For there to be federal preemption under the supremacy clause. b/c it was necessary & proper. Even if no necessary & proper clause. so Ogden seeks an injunction. then have to comply with both. Among the several states – between NY and NJ. . ii. as long within the realm of rationality that the act is useful.i. not going to ask questions. In order for Congress to carry out its enumerated powers. Gibbons also navigating per an act of Congress. exclusive.
then it’s ok. Commerce clause as source of national police power a. but prohibiting it. 1. An insurance contract is an intangible contingent contractual right. interstate buying and selling 5. is the interstate commerce. 2. 3. ii. i. 1. and general welfare of a nation" Channels of interstate commerce: 1. And Kidd v. so its regulation is within state power. Manufacture takes place within the state.held that issuing a policy of insurance is not a transaction of commerce. they’d be taking jurisdiction away from states – too much power. Held that Congress can regulate the traffic of the lottery tickets. interstate shipment/movement 2. Court says prohibition is a form of regulation. and has nothing to do with the Commerce Clause. even if issued in one state and shipped to another. b. . and insurance contracts are not articles of commerce. But Congress not regulating. to be sold. Constitution doesn’t say Congress can't regulate by prohibiting. this will affect interstate commerce by inhibiting it (much more expensive. but to the health. not the buying & selling). Meaning of “Commerce” – normally. a. iv. The cases are inconsistent. iii. when its purpose was to transport goods destined for other states. how do you reconcile these cases? a. from one state to another.Both are intangible contingent contractual rights – the right to get money if something happens. so more favorable to just distribute goods intrastate). Congress has power to regulate intrastate activity to protect the common instrumentalities of interstate commerce The Shreveport Case (1914) – Texas railroads were discriminating in the rates they charged interstate traffic as opposed to intrastate traffic (favoring intrastate). interstate transportation 3. Congress has power to regulate channels of interstate commerce The Lottery Case (1903) – Federal Lottery Act prohibited interstate buying & selling of lottery tickets. 2. if Congress is allowed to regulate everything transported from state to state. Paul v. So. Virginia (1869) held that insurance policies are not commerce. Congress regulating this b/c gambling is immoral. Commerce clause probably not intended by framers to regulate moral activities as well as economic ones. Virginia (1869) . Congress later used Commerce clause to regulate commodities and activities "injurious. Foundations for Extending The Reach of Congressional Power i. iv. If only moral. Lottery probably based on the morality issue. this means buying & selling. The movement of tickets. Insurance policy vs. not to that commerce or to any of the agencies or facilities thereof. only a piece of paper. 1. interstate flow of intrastate commerce b.iii. morals. 1 II. interstate navigation 4. Box of lottery tickets gets shipped from TX to CA. so not commerce. Pearson (1888) held that manufacture & commerce are different. The Daniel Ball (1871) – a ship navigating exclusively within a state can be commerce among the states. Paul v. But still. if there’s an economic reason as well as the moral one. Dissent: Says lottery tickets like insurance policies – contingent Ks. creating a centralized government. “Among the several states” a. Gibbons broadened this to include navigation. Congress can regulate to prevent the common instrumentalities of interstate & intrastate commerce from being used in their intrastate operations to the injury of interstate commerce. then it wouldn’t fly. Congress decides to fix both rates via the Interstate Commerce Commission. Also. Congress is regulating the shipping of the lottery tickets (only that’s being done interstate. lottery tickets . There’s a need for uniformity of the rates for interstate & intrastate. safety. The ship was part of a bigger commerce – part of the flow of interstate commerce. it’s a quintessential local activity.
III. these Judges will agree with Roosevelt. The regulated conduct had no direct effect on interstate commerce. If it substantially affects interstate commerce. . It’s the proximity to interstate commerce that determines this. Congress has power under the commerce clause. 4. Darby (1941) – The Federal Labor Standards Act regulated employment conditions. Constitutional Struggle: The New Deal v. Limitations on Commerce Power Through 1936 Hammer v. But then. but the actual activities regulated all done in NY. 1. Close & substantial means there’s a direct connection. 3.beyond commerce clause power. 3. Jones & Laughlin Steel (1937) – upholds the National Labor Relations Act of 1935. saying it’s not within the purpose of the commerce clause to equalize competition. even if indirectly. where 96% of poultry came from other states. Here it’s an indirect effect. But court disagrees. The Shreveport court said that Congress has power to regulate intrastate activity when there is a close and substantial relationship to interstate commerce. 2. United States (1935) – struck down a code adopted under the National Recovery Act. So President Roosevelt packs the Court – he appoints his own people for every Judge over 70. But this court packing ended up not being necessary. this activity . At first. But the coal will be used outside the state. Wallace . Court reasoned that the regulated activities. Congress would have too much power. & they’re going along with the President. a. a. NLRB v. The Lottery reasoning doesn’t apply b/c nothing is wrong with the goods themselves. it’s the activity behind it that’s bad. So this reasoning isn't so great. Carter Coal (1936) – Used Schechter’s direct effect test. what’s actually wrong with the lottery tickets? Just a piece of paper. This is a regulation of manufacturing done in the state. Otherwise. cars. i. & it doesn’t matter why Congress did it. 2. Schechter Poultry v. etc. 1. c. justices changed sides to agree with President (the switch in time saves nine). Another argument is made that using the advantage of child labor (current of commerce idea) gives the state an unfair advantage. to regulate the NY poultry slaughtering market. Dagenhart (1918) – Court held that Congress exceeded its commerce power when it prohibited interstate transportation of products from factories using child labor. The Great Depression The New Deal legislation sought to give the federal government more powers in order to get the country out of the depression. This is a purely economic regulation. Expansion of Commerce Power after 1936 d. Stafford v. The interstate regulation here was that it prohibited shipment of goods manufactured in violation of the Act – this is within Congress’s plenary powers. Carter v. b. Congress has power to regulate intrastate commerce when it substantially affects interstate commerce United States v. even if just for a moral reason. Regulation of National Economic Problems i. Congress has this right. Court opens scope of what's close & substantial. all using same tracks. also “Stream of Commerce” 1. so Congress doesn’t have power to regulate. a. 1 i. court wasn’t having it. while intrastate. and held that the Commerce Clause didn’t give Congress the power cannot to regulate labor in coal production. 1. because of "current of commerce" . But court distinguishes btwn manufacture & commerce. The NLRB case broadened the scope of the commerce power. 1. Upheld Congress’s power to regulate under the commerce clause. "Current of commerce" concept.ii. it’s just Congress wants to curtail child labor done intrastate. Common instrumentality – the railroad.the acts would probably create a direct and undue burden on interstate commerce.upheld federal regulation of rates and practices in local buying and selling. ii.
After Interstate commerce ends 1. and this affects interstate commerce. Now. 1 . b. See how diff it is with the Dagenhart case. 2. it has a substantial affect. But that reasoning won't work here b/c the container itself never traveled interstate – just the pills. Sullivan (1948) – pills are bought in bulk and resold in smaller quantities. In another case. They discriminate based on race. so argument is that it’s unconstitutional as applied in those circumstances. 4. majority of guests from out of state. But it’s still constitutional. The pills themselves traveled in interstate commerce. Congress has very broad power. Wickard v. the effect may be trivial. Doesn’t matter if each instance is trivial. everything can come under the commerce clause. VERY TENUOUS connection. There has to be a substantial effect on interstate commerce. Organized crime affects the whole nation. If in the aggregate it’s a substantial affect. But it’s for Congress to decide whether this is the case – whether intrastate regulation is appropriate in order to advance some legitimate commerce clause reason. institutions shut down. a. all locally. Inc. Upheld regulation under the Commerce clause a. because in the aggregate. But also another argument that it’s unconstitutional as applied to a specific circumstance. in the aggregate it can be a substantial effect. Well. same access to public accommodations – defined as place that serves transient guests and whose operations affect commerce. by a retail druggist. Facial challenges – where the act in itself if challenged. Reasoning is if you don’t pay ppl enough. c. Heart of Atlanta Motel. Filburn (1942) – allows Congress to regulate wheat production intended solely for consumption on the farm – they weren't selling it. regardless of race. the local activity has to have a substantial affect on interstate commerce. IV. v.Although each instance will only trivially affect interstate commerce. United States (1964) – Π motel by interstate highway. United States v. so unable to regulate under commerce clause. for each individual instance. Criticism . if not working. The Act entitled everyone. they reasoned that it’s impractical to regulate while in interstate travel. the Congress can regulate. Congress is regulating the goods going out of state. Reasoning is that if you grow it yourself. Federal regulation violated for not labeling pills properly.ii. Maryland v. Wirtz (1968) – Federal minimum wage law for any business engaged in interstate commerce. you’re not buying it. Perez v.But it’s not the pills being regulated it’s the packaging. Substantial Relationship = Substantially affects – Also called affects power (really the necessary & proper clause power). In the Aggregate . and Congress will control everything. 3. violating the Federal Civil Rights Act. Substantial affect in the aggregate. The court will aggregate the entire class of activities and decide whether in total it affects interstate commerce. so must regulate while actually on the shelf in a state. and if we allow such a tenuous connection. 1. Issue is how this applies to local schools. they strike. Civil Rights Protection through the Commerce Clause a. but court allows it. Intrastate Regulation – because the goods being produced locally will be sent into interstate commerce. even though purely local activity. a. & fewer goods bought from interstate commerce. i. b. where court said manufacturing is done strictly within the state. But we don’t want Congress to be able to regulate everything. iii. 1. United States (1971) – upholds federal regulation of loan sharking. So under the Commerce Clause.
ii. i. divorce). If this connection is allowed. Equal Protection Clause (14th Amend) – Couldn’t be used here b/c it only protects ppl from states. 1. b/c it should be the political process that protects states from overreaching federal power. ii. b/c intrastate activity has a substantial effect on interstate commerce. Court also says it’s up to Congress to decide if the regulations they impose are necessary to protect commerce. McClung (1964) – Civil Rights Act applies to restaurant using discriminatory practices. The reasons Congress gives are too remote in a causal connection. The violence only has an “attenuated” and indirect effect on commerce. it does have a substantial affect (woman who are beat up can't work. & interstate commerce. Although in this instance. 10th amendment . Raich (2005) – upheld Congress’s power to ban marijuana use & cultivation. Court will defer. then under the same reasoning. they can regulate the intrastate b/c so closely linked. not a direct and substantial one. Discrimination also discourages those discriminated against from traveling. United States v. federal law trumps the state law that allowed it. Substantial Effects – like proximate cause. Morrison (2000) . Katzenbach v. V. iv.There must be limits to using the commerce power to regulate b/c then it would obliterate state sovereignty/autonomy.Violence against Women Act provided civil remedies for victims of gender-motivated violence. Also.i. Concurrence invoked the Necessary & Proper Clause – In order to affect the larger interstate activity. iii. b. Court struck down federal law making it unlawful to possess a gun near a school. trivial. Concurrence talks about how a broad use of the commerce power is inconsistent with the original understanding of it – when it had a much narrower definition. b. Since federal can regulate the interstate. In the aggregate. The cultivation & personal use of marijuana here – court says this is an economic activity (? Maybe). creating a centralized government. Gonzales v. It doesn’t matter that Congress was only trying to legislate against moral wrongs. New Limitations at the end of the 20th Century: Commerce Clause power is limited again a. i. so within scope of the commerce power. 1. United States v. affecting interstate commerce. No state representation in court. Gibbons) 1 . & so less goods bought from interstate commerce. Therefore. which could make its way into the illegal interstate market. becomes substantial in the aggregate. Cl. Affected interstate commerce b/c less was consumed b/c they didn’t serve minorities. Relationship between regulated activity & interstate commerce must be strong enough or close enough to justify federal regulation. not productive – affects interstate commerce).First case since the new deal that Court overturned Congressional power via the commerce clause. Congress more likely to protect state’s interests. § 8. not the courts. even when states approve it for medical use. Congress can regulate virtually anything. so it doesn’t prove there’s a substantial effect. c. Lopez (1995) . not from other individuals. located close to interstate highway (although served mostly local clientele). Congress must be able to regulate the local activity. So focus is on whether the regulated activity has a substantial affect on interstate commerce – Court says no. Question of boundaries of commerce clause is up to Congress to decide. Plenary power over interstate commerce (Art I. Dissent: Big problem with gender-motivated violence that Congress should be able to address (like Civil Rights Act). including powers normally designated to the states (crime. Evidence that the discrimination impedes interstate travel. Basis for Congress’ power under the Commerce Clause: 1. Congress more accountable to ppl & to the states (state’s reps represented in Congress). 3. as long as there’s a rationale basis for it. No interstate commerce involved in gender-based violence.
imposts and excises. but by the dep’t of labor. Employer subject to inspection. If they care about whether person being taxed knew what they were doing. b/c the public will back you up on it – even if purpose is to raise revenue. Also. Evidence that Congress is actually regulating rather than just collecting taxes: 1. To protect the common instrumentalities of interstate commerce (Shreveport) 4. but to punish by imposing a penalty – to regulate by controlling behavior. Bailey v. duties. The taxing is a pretext for the actual regulation. ii. Doremus (1919) – Congress imposes $1 tax and requirement to register with feds anyone selling/manufacturing narcotic drugs. United States v. under the commerce clause. i. so tax cigarettes. But this limitation has been rejected more recently. they didn’t really use the taxing power for regulatory purposes. So to get around it. The more detailed the class of activity required to impose the tax. At first. 2. Specific activity being targeted is a very narrow class that subjects you to the tax/fine. Clearly the purpose was to regulate the activity (only $1) – how much can really be raised.followed the Bailey reasoning. Drexel Furniture Co. b. b/c it infringes on state power. United States v. Heart of Atlanta) 3. But it really does look like a regulation considering the history.grants Congress power "to lay and collect taxes. But court upholds it. Jones & Laughlin) THE NATIONAL TAXING & SPENDING POWER Art I. i. most offenders were illegally trading – so the purpose was to be able to put ppl in federal jail for violating it. 1 . Constantine (1935) . Channels of interstate commerce (Lottery. (1922) – (Child Labor Tax) First. 1 . Congress imposes a tax on people violating those regulations. c. Always target tax on bad things. courts say you can't use it as a pretense for regulating.2. Need knowledge of worker’s age (scienter) in order to be taxed. no other federal tax has been invalidated because deemed a regulatory motive outside federal power. However. Looks more like regulation – they don’t want this being done at all. a. 1. Darby. 3. No proportion between number of violations and amount of tax due. shows that Congress actually more concerned about the behavior. Dep’t of labor is a regulatory agency – shows intent to regulate behavior. Regulation through taxing: Purpose of the taxing power is to raise money. cl. 4. where court first overturns the regulation. because of the broad powers Congress' got for regulation via the Commerce clause afterwards. court decides that Congress doesn’t have the power to regulate child labor." I. Intrastate regulation when it substantially affects interstate commerce (Darby. and found that Congress was attempting to usurp police powers by taxing liquor businesses operating contrary to state law 10-40 times more than other liquor businesses. the less likely you’ll impose the tax – and the less likely you’ll actually collect money. And since Constantine. to pay the debts and provide for the common defense and general welfare of the United States. not just by tax collector. Criticism – We want to raise money. § 8. Court says this is unconstitutional b/c its purpose is not to raise money.
& if state wants to make own laws. State loses a policy option b/c federal law took over. b/c the spending is being used to regulate agriculture. Federal taxing takes away some ability for states to tax (b/c ppl will only allow gov’t to tax us to a certain amt). the restriction been abandoned. v. courts held that the spending power cannot be used to purchase a compliance which Congress is powerless to command (looked to see if states are being coerced into behaving in a certain way). Court says yes. & Congress’s power is cut off by the 10th amendment. c. but it’s arguable how related the drinking age is to highway safety. Broader view . a. federal law would preempt. States don’t have t adopt the program. a. More recently. Clear – 5% of federal highway funds will be taken away 3. e.II. Court imposes a germaneness requirement – federal spending cannot be conditioned on something unrelated. it will not affect whether the state has to comply with federal standards. ii. a bit too attenuated – Dissent said not reasonably related. Employers will want state to comply. Spending power being used to promote for the general welfare.agriculture reserved to the states. Congress can make it a crime to bribe a state or local official whose gov’t agency receives at least $10K in federal funds in any year (even if the bribe & federal funding has nothing to do with each other).spending limited to the exercise of other enumerated powers. under the spending power. ii. Congress says the source of their power to act is the spending clause. But court says it’s unconstitutional. 4. Regulation through Spending – Purpose of spending power is to provide for the common defense & general welfare. United States (2004) – Spending Power used very broadly. Has to be related to a federal interest a. Court will normally defer to Congress on this issue. ii. There isn't another constitutional provision that bars it (like 10th amendment) a. so states know what will happen if they don’t comply. Almost anything can constitute spending for the general welfare. in an area reserved to the states. The Spending Power i. Purpose was to help unemployment (during Depression). At first. Machine Co. i. Court holds that the Act is fine. but they can get 90% credited back if they pay taxes to a state unemployment fund. i. Steward v. Court said law is valid – no coercion.Taxing & spending is limited only by the general welfare. Individuals are being coerced into acting how the federal government wants them to – This is taking power away from the state to decide how to regulate farming within the state. so farmers will comply. Must be in pursuit of the general welfare a. i. b. spending power becomes more broad. but there’s a tremendous incentive to join the program (gov’t giving you money to do nothing). a. Limits of Congress’s spending power: 1. Held that. but only if the state unemployment fund complies with federal standards. Davis (1937) – Employers must pay money towards federal tax. Clear that it is – make highways safer by reducing drunk driving by young adults 2. United States v. 1. & redistributes the funds the farmers who promised to reduce their acreage (the prices were too low & farmers can't make it. b. 1 . Sabri v. doesn’t intrude on state’s power . That’s b/c whether or not the employers paying into the state unemployment fund. i. Butler (1936) – Congress taxes agricultural commodities. d. so it sought to raise prices to help farmers). Prof says not necessarily coercion – a farmer may not comply & end up making more money b/c the price just went up but he still produces same amount. It’s a voluntary program & amount of money is not too significant to coerce states into complying (only 5%). Dole (1987) – federal law withheld 5% of federal highway funds from states that didn’t adopt a 21 yr old minimum drinking age. Prof says still can be coercive. Must be unambiguous. Coercion – it’s not mandated. Narrow view .no coercion. 10th amendment not being violated – b/c no coercion. South Dakota v. but the state doesn’t have to.
Possible policy argument . b. Treaty here is not self-executing. Treaties as a source of legislative power Art. provided two thirds of the Senators present concur…" Art VI: "This Constitution. So House is more parochially tied. closer for the people. II § 2: "[The President] shall have power. 2. and it is necessary & proper to enforce this treaty. Congress has power under the Spending Clause to appropriate money to promote the general welfare. i. But still not involved here. It infers the right for it to be self-executing (automatically become domestic law). The treaty clause only gives right to make treaty. Missouri v. b/c treaties always trump. b/c of the Supremacy Clause. th 10 Amendment 1.i. this is a valid treaty. to make treaties. and the laws of the United States which shall be made in pursuance thereof." i. so how can they become valid domestic law? 1. Court says it doesn’t matter b/c it’s within Congress’s power to prohibit all bribes to all federally-funded organizations (b/c proving the exact connection would be impractical). Only issue is whether this is forbidden by the 10th amendment.senate in better position to get involved in international matters than House.Treaty with Canada which protects certain species of endangered birds. There is a national interest here in the protection of these birds. under the authority of the United States. FOREIGN AFFAIRS POWER I. Federal can use it as a means of regulation.S. Congress has the power to use this measure to make sure that the federal funds are going where they’re supposed to (not given away as bribes).made by President. by and with the advice and consent of the Senate. Under the Necessary & Proper Clause. or which shall be made. Treaty-making power . outside of the power they actually have. and it’s not sufficient to rely on the states. Judiciary limiting treaty power 1. shall be the supreme law of the land. anything in the Constitution or laws of any State to the contrary notwithstanding. House more accountable to people. It needs an act by Congress to make it domestic law – which it does. and more representative of the people. But the House is not involved with making treaties. the federal funds weren’t being given away as bribes – bribe has no connection to federal funds. and the judges in every state shall be bound thereby. Limiting it to only matters of international concern. and all treaties made. . but under Art VI. treaties are the supreme law of the land. Under Art II. a. and the government can enact a law just by entering into a treaty. b/c it’s enforcing an express power of the federal government. Scope of treaty power – The scope of treaty power can be very broad. But here. binding only between U. But they still have to be constitutional. 1. & other countries. so good for making domestic laws. Treaty power is also limited in that it has to be made pursuant to the Constitution 1 ii. Holland (1920) . with advice and consent of 2/3 of Senate.
1 .S. § 8 (Scope of legislative power . in that it applies to everybody (state. Some Justices want a broader state immunity b/c tax may be interfering with the State’s functions. State Immunity from Federal Taxes – There is no absolute state immunity from federal taxation.only pertaining to foreign affairs) To regulate commerce with foreign nations Define and punish piracies and felonies committed on the high seas. even if the proceeds from the activity go to essential state functions. The law is non-discriminatory. It’s not practical to make a treaty every time government has to deal with foreign affairs. States were immune from federal taxation. 1. Bank is immune. and doesn’t apply just to the states. McCulloch v.a. & offenses against the law of nations To declare war. it would also have the power to control it. Federal government can tax revenue generating activities of the state that are of the same nature as those of private enterprises. this immunity was reciprocal. and make rules concerning captures on land and water. Maryland (1819) – held that MA’s taxes on Federal bank was invalid. and it was like state was taxing the federal government. Congress was regulating to prevent tension risked by citizens participating in the political or governmental affairs of another country. United States (1946) – court upholds federal taxes on NY’s sale of mineral waters. Brownell (1958) – federal statute mandated loss of citizenship for voting in a political election in a foreign state. iv. As long as Congress taxes a source of revenue that is not uniquely capable of being earned only be the state (like deriving income from taxation). Federal Immunity from State taxes a. the Constitution does not forbid it merely b/c it falls on the state. State revenue may be taxed by the federal government if the revenue from the state activity is not uniquely capable of being earned by the state. Day . b/c for government to function effectively. A tax on the federal government would give the state the power to destroy it. The state and its entities are generally immune from federal taxation. INTERGOVERNMENTAL IMMUNITIES I. Here. a. ii. and doesn’t allow this. which were bottled & sold by the state to provide funds for a state health resort. i. a. Perez v. 2. States cannot have this power. with some exceptions. iii. Other bases for legislative power over foreign affairs i. airspace. they have to be able to affirmatively deal with foreign affairs. Upheld. therefore. private individual) that has aircraft. b/c there’s an implied constitutional power to enact legislation on an issue affecting foreign affairs. It's not a law in effect only to destroy state power. grant letters of marque and reprisal. Massachusetts v.Early on. i. b. This was abandoned in 1938. i. Art I. i. United States (1978) – upheld tax on all civil aircraft that fly in navigable U. b/c it’s owned by the federal government. 1. Collector v. like the reciprocal. ii. not targeted at government operations. The Constitution is the supreme law of the land. New York v. including aircraft owned by state and used it exclusively for police functions. Federal government is immune from state tax. Dissent says just b/c state enter into private enterprises doesn’t mean federal can tax them. Raise and support army and navy b. II. II. Cannot be inconsistent with any specific constitutional provisions.
This is not a role for federal Judges – instead for state policy makers 2. is procedural only. RULE: The states will be able to protect themselves in the political process. even if it interfered with state functions. Federal government can't impose obligations on state officers b/c it violates the separation of powers Prinz v. saying that the commerce power cannot dictate how a state operates its essential state functions. 1. Also. each case will come out different. Reasons why the court changes its mind: a. Reasons why federal can't impose obligations on state officers: a. b. federal government can tax revenue-generating activities of the states that are of the same nature as those of private enterprises. Just b/c run by the state for benefit of their citizens doesn’t exempt them. If not. 4. so they are not being burdened by the tax. Test was unworkable – doesn’t make sense to stick to something just because/c it was decided if it’s unworkable. Impossible to draw a clear line on whether something is a traditional state function c. Judiciary is making decisions that should be done by the legislature. Held unconstitutional b/c federal government can’t impose obligations of state officers. B/c states pay wages from the state budget. No textual provision or historical practice covers it i. So basically. The political process is adequate to protect the states. Wirtz (1968) – upheld Fair Labor Standards Act as applied to state schools and hospitals. Maryland v. and also the states are represented in the political process by Congress. Court says the commerce power cannot dictate how a state should operate its integral operations (overruling Wirtz). b/c it only interfered with state functions to the extent that the activity affected commerce. If we allow the law to change whenever. and this opens up the door for political manipulation.Usery (1976) –. Then the Court overrules Usury and upholds the Fair Labor Standards Act Garcia v. It’s good for court to change their minds b/c times have changed. until federal government could build its database. United States (1997) – federal law said that state & local law enforcement officers had to do background checks before guns could be purchased. 1. and this interferes with the state’s ability to structure its integral operations in areas of traditional governmental functions. letting unelected federal Judges decide which policies were important and not. then there won't be any stability in the law. i. Dissent – state sovereign power is severely being tampered with and being potentially crippled. 1. b. if possible. federal telling them how to spend it. Problem: But we need consistency in the system. c. 3. i. San Antonio Metropolitan Transit Authority (1985) – court upholds application of the Fair Labor Standards Act wage and hour provisions to a municipally owned and operated mass transit system. Federal minimum wage law applies to state employees. but these arguments have always been around. even if proceeds from activity go to essential state functions. Therefore. Court later overrules this in Usury. State Immunity from Federal Regulation a. and political process will enforce that. III. ii. b. Court gave federal government power to regulate the states via the commerce power. Now that the state can't decide how to spend their money. 1 . National League of Cities v. Are these good reasons for Blackburn to change his mind? a. The only limits in the constitution on the federal government impinging on states powers. 3.2. it doesn’t impinge on important governmental objectives. Recognition of State Autonomy – Early on. Courts will not enforce it. Same reasoning as the dissent in Wirtz – The economic burden is now placed on the states by the federal government.
b. the state police do. Also a policy argument – there’s no accountability. Both separation of powers argument are a structural argument – violates the presupposed structure of the government (b/c it doesn’t directly violate anything in the Constitution) 3. b/c state governments can't do this themselves. federal government doesn’t get blamed. telling them what to do to enforce a federal program. 4. So maybe you can do this in emergencies. 2. Violates the separation of powers vertically between state and federal government. Congress using state police power for its own use. Upsets balance between Congress & Executive. 1 . If program fails. c. Dissent – But what about emergencies? There the federal government will try to co-op state resources to solve emergency situations. b/c they’re administering it. Violates the separation of powers horizontally within the federal government – by taking away power from the executive and giving it to state officials.
Const’l authority as Commander in Chief to see that all laws are faithfully executed – but this power only extends over the military. If this is the case. Youngstown Sheet & Tube Co. President is acting under his lowest ebb of power. Congress had given him the power to seek an injunction against such strikes. b/c Congress (IEEPA) gave President this power. i. and Dames sues for payment of work completed. but rejected permitting government seizures. 2. They get this power from the Necessary & Proper Clause (support army). and decided not to give the president this authority. Iranian gov’t terminates contract with Dames (business). President issues order that froze Iranian assets in the U. Congress has sole authority to order seizures. (Dames-Moore v. plus those powers delegated by Congress. and terminated all present litigation. Internal Matters: Domestic Lawmaking i. This was a plurality decision – so what happens is that courts follow the least common denominator. or whether they’ve acquiesced. In response to the crisis. i. 1 . Mid Spectrum: President acts under his constitutional powers. Dames & Moore v. Sawyer [The Steel Seizure Case] (1952) There are three categories of circumstances in which the President may act: 1. and the Commerce Clause (substantial effects doctrine on interstate commerce in aggregate). 2. But then U. Dissent: Argues there’s an implied authorization for this power. maybe President has overstepped its authority. Regan (1981) – Iran takes American hostages. v. Regan) 3. Executive has power only to enforce laws. Whether President’s actions are constitutional is unclear – so one way is to look at history to see if Congress has been a persistent objector. 3.SEPARATION OF POWERS PRESIDENTIAL ACTION AFFECTING “CONGRESSIONAL” POWERS I. Court says he cannot use his constitutional powers to seize private property. President has burden to prove otherwise (Youngstown case) During Korean War President seized most of the nation’s steel mills so that steel workers don’t strike (expected). there is a strong presumption that President’s actions are constitutional. So heavy presumption this is constitutional. Highest ebb of power: President acts in accord with Congress. b/c a strike would have jeopardized the national defense. a. not private property. Statutory authority (given by Congress) – can’t be implied b/c Congress specifically considered it previously. 1. Does President have these powers? Power to nullify rights to Iranian assets – This falls under Youngstown’s first category. and Congress is silent. and go instead to arbitration.S. So lower courts would interpret Youngstown as standing for the proposition that the constitution and congressional statutes are two sources of Presidential power b. Dames sues b/c he can't recover. ii. only legislature has power to create them.S. Part of the agreement was that it nullified rights to Iranian assets. where he is using his independent powers. Maximum authority b/c acting under his congressional powers. a. Lowest ebb of power: When President acts in ways contrary to Congress. Here. negotiates with Iran to get hostages back. b. but contrary to Congress.
Absence of standards – no clear way for Court to decide what constitutes war 2. therefore Congress would have had to enact it to make it domestic law. c. U. Curtiss-Wright Export Corp (1936) – Curtiss conspires to sell weapons to Bolivia. Plus President has expertise in foreign affairs that Congress doesn’t. orgs. but they didn’t. citizen. c. so Pres gets power b/c he can act quickly. 1. Functional necessity argument –Need the President to be the unified voice for foreign affairs. and orders the TX court to release him. Medellin is a Mexican national convicted of a crime in TX. 1 .S. but Congress says no (pursuant to WPR). who was involved in the Chaco war. the non-delegation doctrine doesn’t even apply.The phrase "war powers" does not appear in Constitution. Although constitution gives Congress the power to declare war. & Congress decides whether to to go to war. & sign/negotiate treaties. they must be notified of their right to use embassy. Therefore. Terminating litigation and requiring arbitration – This falls under Youngstown’s second category. but here Congress was silent. b/c by Congress not enacting it. Gov’t says pursuant to AUMF.S. was seized in Afghanistan when the military went there. Conducting war needs speed. if not troops come back. Campbell v. Congress takes too long. Also. held him but never charged him with anything. & says WPR is unconstitutional b/c it takes away Pres’s powers. so no presumption of assent b/c of historical practice. power to act given to Pres 3. His father files writ of habeas corpus.ii. The treaty was no self-executing. tell Congress. Hamdi v. Curtiss says this violates the non-delegation doctrine. b/c there Congress had rejected giving the President this power. ii. Pres vetoes Congress. III. “War Powers” . the President is acting at the lowest ebb of power pursuant to Youngstown. or persons he determines planned/authorized/committed/aided attacks. President asks TX court to comply with the int’l treaty. and prohibited what Curtiss did. Congress (AUMF) authorized Pres to use all necessary & appropriate force against nations. Rumsfeld (2004) – After 9/11. iii. Individual Rights and the War on Terrorism a. Court dismissed for lack of standing. Congress wasn’t silent. but describes a cluster of powers exercised by Congress or the President i. Need for finality – Pres ant leave just b/c Congress said no. & it’s custom for President to have this power Therefore. Mexico goes to ICJ for a judgment against the U. But court says this is constitutional. Textual Commitment – Power to declare war given to Congress. Congress enacts War Power Resolution which says Pres can send troops. United States v. Pres wants to declare war. so it’s a mixed power. Also violated non-detention act (can't imprison or detain citizen except by act of Congress). Diff from Youngstown. there’s no unlike Dames. But they can also say non-justiciable b/c of political question: 1. Medellin v. External Matters: Foreign Affairs and War a. but TX refuses. Clinton (2000) – After Vietnam Way. they can hold him indefinitely w/o bringing any formal charges. Texas (2008) – Treaty specifies that when nationals are abroad & accused of crime. gov’t holding Hamdi in violation of 5th amendment. b. but Congress still has final say on war. Implicit consent here. There was a joint resolution of Congress that gave the President broad foreign affairs power. b/c Pres already had this power. President trying to keep the peace. Held that President’s power doesn’t stretch so far. II. Hamdi. b/c Congress is silent. i. decisively and efficiently. the President has foreign powers to receive/appoint ambassadors. they explicitly denied authorization. Court looks at history and sees that President has done this before and Congress had acquiesced (agreed passively). The Constitution implicitly grants the President the power to conduct foreign affairs.
only then it will. but only if authorized by Congress. b/c everything is going on in one branch. Boumediene v. (Thomas) – Ok to detain Hamdi. Delegation of Rulemaking Power a. Congress cannot delegate its powers to another branch. but telling the agency what it has to do. Congress has stated it’s legislative objective. Concurrence adds this isn't an emergency. it must be read narrowly. and b/c Congress is accountable. c. Congress can delegate some of its authority to agencies.S. Once that status is established. i. (Scalia) – Unless Congress suspends the writ of habeas corpus. You would think they would be narrow.WWII emergency price control act authorizes presidentappointed administrator to carry out act’s purposes. (Souter) – disagrees with O’Connor. So it’s sufficiently narrow. & sets up standards/rules for the agency to follow. In reality. detaining a bunch of foreign nationals designated as enemy combatants. & if they decide DC court can review. Policy i. Dissent says it is constitutional. Court says this is fine. Yakus v. b. Congress is not actually giving away its power. (2) separation of powers supposed to avoid this exactly.S. Why Congress? – Congress most closely tied to the ppl. consistency. AUMF is not a clear authorization to detain. (3) implies that if there was some great exigency. Due process requires a trial so he can rebut his status as an enemy combatant. b/c delegatee is merely executing. There is no presidential power. Also. United States (1944) . So the theory is. Delegation to agencies However. they didn’t. you can't detain a citizen indefinitely w/o charges. Another concurrent opinion (not in book) talks about (1) the risk of tyranny. & laid down standards to guide the administrative determination. 1 ii. it would be an unchecked power for Pres. citizen. Hamdan v. Majority says this is unconstitutional. the standards Congress sets forth when delegating are extremely broad. Bush (2008) – U. . Otherwise. c. but not a U. though. There could be emergency powers to hold someone w/o trial. Law gives DC district court habeas corpus jurisdiction to review lawfulness of those detained. courts of habeas corpus jurisdiction of Guantanamo detainees. § 1 grants the power to make law to Congress. Congress then sets up CSRT (dept of defense) to review the cases. Congress' delegations will be upheld if Congress furnished an "intelligible principle" that rulemakers are bound to follow 1. prescribed a method for achieving it. Non-delegation doctrine Art I. But there’s a constitutional due process problem. The Agency is simply implementing Congress’s statute. ii. iv. Congress also enacted MCA to strip all U. Rumsfield – Same situation as Hamdi. ii. so although Congress could authorize it. Congress can do this b/c it enacts a statute that delegates that power to an agency. Pres is acting within his inherent powers of foreign affairs and emergency (war). b/c there is a judicial court that can review it. The detention is not authorized by the AUMF. b/c it’s not authorized by Congress. he can be held indefinitely. 1. then maybe. CONGRESSIONAL ACTION AFFECTING “PRESIDENTIAL” POWERS I.i.S. implying you don’t need Congress’s authority if there’s an emergency. iii. b. we want our views to be represented. Plurality (O’Connor) – Congress authorized Pres to do this pursuant to AUMF.
Congress may not be able to deal with the specification of specialized and complex issues Congress may delegate b/c it doesn’t want to be held accountable for the details. Accountability (also prevent tyranny) c. Reasons for delegation Need for efficiency and expertise in the administration of government programs. b/c the real purpose of separation of powers is not implicated by Congress taking this power. it’s the same as if Congress was making those decisions. Note – point of the line item veto was to take away accountability from Congress. so Pres not getting a lot of power. Chadha (1983) – Immigration & naturalization act authorized Attorney general to suspend deportation of an alien if he met a specific condition & would suffer extreme hardship if deported.i. Function Argument – there’s just no problem of tyranny by doing this a. Concurrence: (Powell) Court needs to decide this. but reserving a check on the delegated power – so it was their power to begin with. However. Held that the House veto is unconstitutional. Formalist Argument – look to see if that branch of gov’t is acting as allowed by constitution. The provision of the act authorizing either House to veto decision was unconstitutional. ii. b. When Congress gives power to delegatee. Berger says the legislative veto was lawmaking – b/c legislature is giving power away. Legislative and Line Item Vetoes a. Pres signing a diff law than Congress actually agreed to. Concurrence makes a Functional Argument – Exec has too much power by making law w/o Congressional approval. And that was made with bicameralism & presentment. Clinton v. Even if letter of the constitution is violated. delegation enhances accountability. Delegation may lead to arbitrary decision-making. Prevent tyranny b. which outlines a specific practice for enacting a statute. II. . ii. if they can delegate. Presentment – the process of bill-making wasn’t there when they vetoed it a. so if needs to be changed. iii. INS v.Held that this violates the Presentment Clause. the less danger of tyranny. and he doesn’t have much discretion (Congress gives an intelligible standard) and so there’s no real risk of tyranny. a. Congress can only do so much. New York (1998) – Line Item Veto act gives Pres power to cancel in whole certain provisions enacted by Congress & signed into law. Functional argument – we may not want this b/c it muddies the water when it comes to accountability. senate & house) – b/c act only requires one house of congress to veto 2. Maintain consistency/stability 2. Attorney Gen suspends Chadha’s deportation & House disagrees. & giving power to an agency will remove the check on arbitrary rule. 1. Promotes efficiency (experts in each branch) d. Violates bicameralism (having 2 legislatures. Also authorized either house of Congress to invalidate those rulings. Purpose f the separation of powers. not legislature or exec. i. iv. d. 1 i. ii. Pres doesn’t have this unilateral power. Power may lead to tyranny. 1. must be done same way. iii. Separation of power – the more you divide. ii. Can't have a trial by legislature. 3. with the intelligible principle guiding the agency. Majority makes a Formal Argument . Basically. so ppl don’t get mad at them & let Pres veto instead. & also violates bicameralism. i. This power given to judiciary. it may not matter. No real danger of tyranny here b/c Congress is not giving itself more power than it already had. Dissent makes a Functional Argument – Pres line item veto power is limited to budget cuts. more can be done. Usually laws decided by diverse group of ppl (Congress).
can be removed by Pres. and not much of a worry of tyranny. 1. and hinder efficiency. But this is a very small invasion. Olson (1988) – Act calls for appointment of an independent counsel to investigate. But acting in a legislative function. § 2. . Congress enacted the balanced budget in this way instead of the traditional voting b/c of accountability. even though it’s a legislative function. b/c he doesn’t only work for the Pres. c. Appointment and Removal of Officers i. 1. if he wanted. a. If they’re working for him. So now if Pres wants to remove. can't do this. Pres will fire someone if they’re doing something wrong.III. Humphrey's Executor v. Officers of the United States. Court found that the power to remove appointed officers is vested in the President alone. & if appropriate. even though intruding on Congress’s power. Mistretta v. Concurrence: Sys it’s a legislative function. but he had previously had that power. disconnected from exec. They don’t want to be the one doing this. If public disagrees. but pres needs to have authority to remove ppl performing exec functions." but nowhere does the Constitution address the power to remove officers. or in extreme cases. 2: states the President's power to "appoint . Bowsher v. B/c Judiciary is not gaining any power – they’ve always had this power. . The treat of tyranny is very little here. and it not only performs exec function. impeachment. can only do so by the specific criteria set. this is a functionalist argument – not too much invasion. United States (1935) (formalist opinion) – Congress limits the grounds by statute for the removal of federal trade commissioner. Pres removes postmaster w/o senate approval. ii. Since Comptroller is part of legislative branch. One reason for separation of power is to prevent tyranny. United States (1926) – law says postmasters to be appointed & removed by Pres with advice & consent of the Senate. United States (1989) – law puts the sentencing commission in the judicial branch. Especially b/c of reason behind the law – want a neutral person investigating so there’s a check on prosecutorial power. not accountable in public’s eye. Commissioners appointed by Pres. But Court finds it constitutional. Pres has authority only over those solely working for exec. making laws. Dissent (formalist) – exec has sole exec power. Court upholds the law (Functionalist argument) This is an exec function (law enforcement) & takes away Pres’s power to stop investigation. Art III. so Pres should control his ppl. and made up of federal judges (+ others). Majority says its exec (Formal argument) –. and this check does the same thing – prevents tyranny. but also makes rules & laws. He must be able to control the ppl acting on his behalf. i. or not let it proceed. therefore quasi-legislative. Myers v. which it the function of the executive. 1. The commissioner executes the law. He doesn’t have that authority for those working for other branches as well. So why doesn’t Pres can control to remove him? a. They would set up guidelines & restrict judge’s discretion. Dissent makes the formalist argument. So ok for Congress to limit Pres’s authority to remove him. b/c it makes the public unhappy. (Formalist opinion). 1 ii. b/c Pres is responsible for their actions. no one else. 1. they’ll vote him out. Otherwise may intrude on confidentiality. but no bicameralism or presentment 3. He is only removable by Congress. & performing exec functions. So they pass it along. Morrison v. One branch won't get too much power just b/c comptroller exercising this power. Ppl act on behalf of Pres. 4. Synar (1986) – held that a congressional provision that allowed Comptroller to make automatic budget cuts was unconstitutional. Dissent (Functionalist) – doesn’t care about bicameralism or presentment. cl. 2. . under his authority. B/c the commission is independent. prosecute high-ranking gov’t officials violating federal crim law (not pres – impeachment). Basically. b. 2. iii. Comptroller making law. so he must be allowed to remove them.
EXECUTIVE PRIVILEGE. who sues. this lawsuit usurped the President's time for months. Pres will be hindered whenever making any decision. President is immune from suits arising from him carrying out his executive duties (too cumbersome) i. so no immunity. not in execution of exec duties. too burdensome on the efficiency of executive office. Subpoena requires Pres to give up tapes of recorded convos in the oval office (Nixon recorded everything). because he'll always be in court. Johnson (1867) – want to sue Pres for injunction against the Reconstructive Act. Even litigation issue is too burdensome on efficiency. II.can lead to tyranny. The argument for why there should at least be temporary immunity.you have to worry about efficiency. IMMUNITY & IMPEACHMENT I. Executive Privilege and Immunity a. becomes more clear after this happened. so immune from suit. United States v. But Fitzgerald says Nixon fired him for being a whistle blower. because of fear of being sued. Pres says not that you can't sue. Nixon v. 1. Court holds it’s not privileged. Pres indicted as conspirator. Negative – too much power concentrated in one person is dangerous . no one is checking his power. Impeachment of the President 1 . It conflicts with the Judiciary’s duty to conduct the criminal trial. and only disclosed selected. Purpose to have these particular jobs done by Pres . e. But court gives special solicitufe to Pres – Judge reviews tapes (neutral party). Executes laws. 1. Appoint Judges to Supreme Court and lower executive officials. 1. he gets some special solicitude b/c he’s Pres 2. Otherwise. d. Jones (1997) – Jones sues Pres acts done before he was President. Clinton v. Pres carrying out exec duties. Impliedly. b/c it’s an unacceptable burden on time & energy. But Court holds Pres does not have immunity. b/c it doesn’t relate to his job as president. Court says trial court can take Pres’s schedule into account b. but just not while I’m Pres. Court has a responsibility to protect constitutional rights of Δs and the taps may have information that would uphold those rights 2. President’s Powers . Since no threat to energy of President. because he's doing his job. then Pres can become too powerful. etc. so it won't chill his acts as President (for fear of being sued). President’s “private” acts i. 3.can't have Pres subject to suit when exercising his core functions. Court balancing danger of tyranny vs danger of hindering exec from conducting his duties. Suits for Injunction i. Court holds there’s an absolute immunity of the Pres from being sued from performing his job. Mississippi v. relevant parts. Even if outer perimeter of his duties.Foreign affairs. But in actuality. so no privileges information disclosed. because someone will always be looking over his shoulder (confidentiality) b. Pres says those tapes are privileges – everyday running of the gov’t. can’t sue. But the lawsuit is cumbersome & time consuming a. Pres has immunity . totally unrelated to his Presidency. i. Nixon (1974) – Pending criminal prosecution stemming from Watergate. No threat to tyranny. Supervises executive branch. This did significantly impede on President's ability to function as President.promotes efficiency. a. But if you have very narrow Pres immunity/privilege . If there's a broad Pres immunity. convos w/ subordinates. Fitzgerald (1982) – Nixon fires Fitzgerald. c.
1 . ii. This doesn’t just mean statutory crimes (like refusing to defend against foreign invasion) 2. It’s really what Senate thinks is a high crime or misdemeanor 1. Bribery. Definition of impeachable offense . or other high Crimes and Misdemeanors.i.Art II. § 4 provides that "all Civil Officers" may be impeached for "Treason. not necessarily all crimes – like private crimes (tax evasion). Also." Impeachment is the charge the House brings against the President. Maybe high crimes & misdemeanors only means political crimes. Then Senate votes at the impeachment trial whether or not to throw him out. 3. a.
there is no doubt that states are preempted from acting. i. interstate commerce viewed as exclusively federal. Miln (1837) –Court says state regulation of interstate transportation is permissible. Statutory Preemption: Concurrent – Some powers are concurrent where both state & federal have the power. ii. Willson v. Is the Commerce Power Concurrent or Exclusive? . But what happens when Congress’s power lays dormant? a. but state law conflicts with purpose of the federal law. The purpose was to improve local health and property values – so not economic power. b/c states would be constitutionally preempted. Field preemption – Congress intended that federal law occupy the field 1. This only occurs when there’s actually a federal law in place – when Congress is asserting its power. b/c the regulation has a police power purpose – regulating immigrants coming in & out of the state. Criticism – It is a regulation for an economic purpose! It ends up burdening out-ofstaters instead of the in-staters. 1 . (1829) – upheld state statute authorizing a dam which ended up impeding interstate commerce. When Congress asserts its Commerce Clause power.STATE POWER TO REGULATE THE DORMANT COMMERCE CLAUSE I. There’s such a pervasive federal regulation of the field. the Court said that some commercial powers are exclusive in their nature and others are not (concurrent). ii. states couldn’t either. so any state regulation represents a contrary intention. Black-Bird Creek Marsh Co. & using state’s welfare services. Federal commerce power is very extensive. or else pay into local pilot fund.S. This conformed with a federal act that said U. court was divided whether the power was exclusive or concurrent. so it may not be a good idea for the power to be exclusive. Constitutional preemption: Exclusive – There are certain powers that are given exclusively to Congress by the Constitution. Conflict preemption 1. ports/harbors shall continue to be regulated in conformity w/ state laws already in place or later enacted. Cooley v. But the state’s power to protect its citizens might sometimes affect commerce (so it looks concurrent). d. c.A grant of authority to Congress necessarily implies a withdrawal of some regulatory power from the states. so even if Congress never got involved. 1. b. i. Purpose preemption – you can comply with both.. If so. b/c since the commerce clause gives Congress power to regulate interstate commerce for economic reasons. Early on. Supremacy Clause says federal law trumps if there’s a conflict. Ogden (1824) – State can only regulate for non-economic reasons. and wouldn’t be able to do a lot that they need to in order to benefit their citizens. Up until now. City of New York v. 1. i. the state law would be unconstitutional b/c it infringes on Congress’s commerce clause power. Court avoided the exclusive-concurrent commerce clause power issue by invoking the state’s police power to regulate. clear that Congress intended to cover everything in it. but police powers. Actual conflict of performance – it’s impossible to comply with both state & federal law 2. and states may not act. Exclusive Gibbons v. even though it impinges on interstate commerce. Criticism – isn't protecting property values an economic purpose? 2. Board of Warden (1852) – State law requires ships using state port to hire a local pilot. In 1852.
This happens when the regulation has a neutral purpose & effect. while others are not. Since Congress has the constitutional grant of power to regulate this and b/c of the supremacy clause. II. Facially discriminatory – it discriminates. so this type of regulation is desirable. As a practical matter . The focus is on whether state regulatory action is actually state economic protectionism. Court divides up the commerce clause into exclusive/concurrent: a. b. Congressional Authorization of State Regulation a. So there is a danger that states will fight with each other. Benjamin (1946) –court upheld Congress’s power to authorize state taxes that discriminate against interstate commerce (thus insulating it from challenges that it’s violating the dormant commerce clause). Congress made it clear with the federal act that they though diversity here is important. Congress can still come back and say the state can regulate – This is called Congressional validation (or authorization). 2. Concurrent . Congress can always come back & take away that power to regulate interstate commerce. Here. rather than national uniformity. But the court finds it constitutional. 3. then uniformity of regulation is necessary. ii. states retain regulatory power under the commerce clause. stating that some commercial powers are exclusive in nature.When Congress’s powers lay dormant and the power is not exclusive. If states discriminate against one another. federal law trumps. Prudential Ins. even if court holds a state regulation to be unconstitutional. III. between in-staters and out-of-staters. Co. Even if Court has held that it’s a concurrent power. v. Why is state economic protectionism forbidden by the commerce clause? 1. it’s per se illegal unless there’s some extraordinary justification. then state can act. Local pilots know the local waters. when Congress’s power lays dormant.2. on its face. The Quest for an adequate Standard . However.When diversity of regulation is desirable. ii. and this is bad for the national economy. saying it’s up to each state to figure out how to regulate (act is just proof of this) So. the adversely affected state will retaliate. Prof says the reasoning behind this too complicated. But what standard to apply to determine if state regulation is constitutional (can’t violate the dormant commerce clause) when Congress’s powers lay dormant? a. so it was taken out of the book. Economic protectionism – this is when regulatory measures are designed to benefit in-state economic interests by burdening out-of-state competitors. State is promoting an inefficient industry. court says it’s ok. then this will trigger judicial balancing. i. we want diversity of regulation. When state regulation burdens interstate commerce. Also. ii. i.Permits an inefficient state business to compete against out of state efficient state businesses. 1. if the power is concurrent in nature – meaning. 1 . other than economic protectionism (strict scrutiny). Exclusive – When national uniformity is important (when national subject matter). i. Although the reasoning runs directly contrary to Marbury (court says when something is unconstitutional via power of judicial review). then want local regulation. 1. when diversity of regulation is desirable. then that commerce power is exclusive to Congress. Impedes national unity and national economic development. but still imposes a burden on interstate commerce (although this burden is equivalent to that imposed on in-staters). b. b. The Pike Test: But where the regulation only “incidentally” restricts flow of interstate commerce. But if national uniformity of regulation is necessary. Modern formulation of the standard i.
d. there is discrimination on interstate commerce. legitimate state interest. only out-of-staters. .because the milk must be pasteurized in city of Madison. ii. ii. Everyone who voted for the law was protected. But we don’t know this. iii. So use Pike balancing test: State Interest Interstate Burden 1 i. which would more likely achieve their legitimate local interests than the actual regulation. There is a legitimate state interest. Local interest to make sure milk is healthy & those plants have more rigorous sanitary standards. & evidence of a protectionist purpose. so it tends to infer its purpose was economic protectionism. Criticism – does it really matter that there are less discriminatory ways? Still going to have the same benefit. this is no good b/c there is. but since there are reasonable less discriminatory alternatives to promote that interest. i. WA apples used WA grade which were viewed as equivalent or superior to USDA. i. But court says it’s the effect of the law that invalidates it. but Prof disagrees: 1. Local businesses don’t need to go door-to-door. v.F. IV. were burdened by the law. but burdens those that cannot vote for the law. Fort Gratiot Sanitary Landfill. in effect. The Pike balancing test – balance the burden on interstate commerce against the benefit of the regulation to the state. Regulation will be upheld unless burden on out-of-state outweighs the local benefit. The law is invalidated. Criticism – Court is making a big factual assumption that VT milk prices are lower than NY milk prices. b/c they don’t have a local base. then it is suspect. there’s a burden on out-of-staters. v. Therefore. Effect of intrastate discrimination . Dean Milk Co. However. Michigan Dept of natural Resources (1992) – Can only use in-state landfill if garbage was generated in-state. Alexandria (1951) – upheld ordinance forbidding door-to-door sales. and no less restrictive alternative was available. so no one cares that much. 2. and looks like protectionism. Inc. The out-of-staters. Not facially discriminatory – neutral on its face. 1.A. & burden on out-of-staters only incidental. Washington State Apple Advertising Comm'n (1977) – NC barred from the state closed apple containers bearing any grade marked except USDA. b. then the regulation doesn’t change anything. & the supply may be put in jeopardy if in-state farmers can't earn a living & also that farmers who are underpaid may cut corners on sanitary precautions. Breard v. Regulations that burden out-of-state supplies seeking in-state markets a. But although it’s not facially discriminatory (everyone forbidden). Madison (1951) – Madison city ordinance prohibits sale of milk within city limits that wasn’t processed at approved pasteurization plants within 5 miles (in-state). Inc. everyone treated the same. ii. NY says purpose was to make sure there’s always a regular & adequate supply of milk. &. The fact that the court looks at this shows that they aren’t really balancing. Court says this is irrelevant. Court will also consider if there are less discriminatory ways to achieve the local purpose. Court also says there are nondiscriminatory alternatives. Held unconstitutional as violating the dormant commerce clause. When a state/locality enacts a law that benefits only those that can vote for the law. and health reasons just a pretext. if not. No facial discrimination – Min price same – both being burdened. but allowed those not graded. G. the industry is not really important like milk. Baldwin v. NY has attempted to project its legislation into VT by regulating prices to be paid for milk acquired there. it’s a valid exercise of police power. Also. i. Seelig. who couldn’t vote. Hunt v. but actually looking for a protectionist motive. c.Court didn’t take into consideration that some intrastate commerce was also being discriminated against . 1.1. & prohibited sale of milk in NY bought outside of state at lower prices. Court says there was a legitimate purpose of protecting the important social interest of residential privacy. in effect. (1935) – NY act regulated minimum milk prices in NY. 1.
but it has the effect of discriminating by basically taxing out-of-state producers in a roundabout way – Tax everyone. Heald (2005) – state regulation allows in state wineries to sell wine in state to consumers. This is a clear case of facial discrimination against interstate commerce. Not facially discriminatory. b/c what the grading means well-known these are good apples 1. OH denies tax credit for ethanol produced in IN. because they are only a regulation of intrastate commerce 1. e. IN provided direct subsidies to IN ethanol producers. b. Subsidies are only a regulation of intrastate commerce. Still. i. Linkages are unconstitutional . f. Healy (1994) – statute taxed all sales of milk (in-state & out). 21st amendment gave right to state to control alcohol within its borders. everyone is fighting for the money. court held it unconstitutional. b. of Ind.State can't collect a nondiscriminatory tax which goes into an earmarked fund that will the specifically be disbursed as subsidies to only in-staters . but prohibits out-of-state wineries from doing so. Subsidies and Linkages Subsidies are constitutional even if they have a negative effect on interstate commerce. Also. So it doesn’t matter that it has a negative effect on interstate commerce. 1 .Roundabout way of just using a discriminatory tax. But if coming from a general fund. then give back tax to instaters. 1. public might oppose subsidies b/c they’re paying for them. This tends to show that court really is just looking for a protectionist purpose. Also. 2. But if coming from general fund. subsidies come from the state. NC didn’t meet its burden to justify the interstate burden in terms of local benefit & unavailability of nondiscriminatory alternatives. along with WA grades. ii. not outside (from taxes collected from citizens). Limbach (1988) – OH law gives tax credits to users of ethanol produced in OH. alternative that would actually promote this interest is to require USDA grades on containers. b/c it allows apples with no grading. they may not mind. it’s already determined that the money is going to a specific place. Looks like it had a protectionist purpose. Inc. a. or in a state that gave a reciprocal tax credit. a. So its purpose is discriminatory. ii. and industries will just have to show they need it more.i. i. v. Doesn’t matter that it doesn’t discriminate against all out-of-staters. New Energy Co. a. v. Prevent fraud – use uniform system so Regulation takes away WA’s advantage no one gets confused & everyone knows of using their own grading system. Also. so they would be exempt from the dormant commerce clause. saying that this would serve the legitimate interest of keeping alcohol out of the hands of minors. 1. but the tax went directly to fund subsidy payment to in-state producers. States are allowed to provide benefits to its citizens. Purpose and effect – is it really balancing. Regulation doesn’t eliminate problems of fraud. OH statute is facially discriminatory – deprives certain ethanol producers of the tax credit by virtue of what state they’re from. or is it the Court’s purpose to get rid of protectionist motivation by using the balancing test to achieve their conclusions? Granholm v. IN subsidies are constitutional. but Congress had actually authorized this. West Lynn Creamery. Also if subsidies coming from an earmarked fund. but no reciprocal tax credit. Court says it would be ok if subsidies just came from a general fund (but still has same effects on out-of-staters!). If they know those funds are coming directly from taxes from out-of-staters.
(1970) – AZ law says that all cantaloupes grown in AZ must be packed in AZ. Regulations that burden out-of-state interests seeking in-state resources a. i. i. Court says regulation has to be even-handed between in-staters & out-of-staters. there’s no such check. 1. NY is isolating itself by discriminating against the out of state market. Court says this is a per se violation of the commerce clause. Court held that the law. But court says still invalid. and there won't be enough milk for NY. To get the license. Constitution b/c it has a negative effect on local commerce as well as out-of-state – everyone pays more for milk (min price). with AZ label on the box. i.need to show treatment is different). on its face. Court says this is constitutional. Court says unconstitutional. b/c it affects local markets just as well. Even if there’s a legitimate state interest in protecting the environment. a. Eisenberg Farm Products – upheld PA law that set a minimum price of milk in PA. this would be unconstitutional. Pike v. v. violated the commerce clause. b/c it’s clearly discriminatory (no balancing). Reasoning is that local citizens will fight & make sure the minimum price is at a reasonable level. even though it curtails volume of the commodity going out of state in order to protect local economic interests. it’s that the packaging industry is being moved to AZ. So it limits how much producers can sell. 95% of total goes out of state. So what AZ is doing is forcing business into AZ by requiring the packaging industry to be moved there. This creates a danger of retaliation. 1. the regulatory action cannot. and thereby bringing revenue to the state. Inc. Need more information like whether they’re giving license to in-state sellers instead (then looks protectionist . Effect on interstate commerce – It’s not the volume of cantaloupes that’s being affected. Brown (1943) – CA wants to raise price of raisins to help the industry by limiting the supply. State’s purpose is to protect the environment in NJ. 2. Hood & Sons. so it could be done more efficiently outside AZ. NY law requires Commissioner to find that it will not create destruction in competition in a market adequately served.P. 1 . but which also ended up raising the price of milk shipped out of state. Dissent says the court is not balancing & that there is nothing that shows the measure was protectionist. if they were. b/c they’re being deleted. no matter who buys or where it’s sent. Inc. Commissioner denied license b/c by doing this. New Jersey (1978) – NJ forbids out of state waste from coming into NJ landfills. treat everyone the same. But if you limit the actual supply. The measure is overtly discriminatory against out-of-state interests. Bruce Church. Curtailing volume of interstate commerce by also curtailing intrastate commerce Parker v. c. Criticism – they are not balancing here. But this is unconstitutional. Hughes v. Although there is the health & safety interest of making sure everyone has milk. v. 1. Preserving Natural Resources for In-state Use 1. Regulation to Protect the Environment and Preserve Natural Resources for in-state use i. or for public interest. court will uphold when there’s a legitimate state interest. Oklahoma (1979) – law limits catching minnows in natural waters. ii. Can't curtail the volume of interstate commerce to aid local economic interests. b. as applied. b. Court says that even though the purpose is legitimate. Even if facially discriminatory. it’s still invalid b/c it’s facially discriminatory. This is b/c it’s not discriminatory. where each state will keep resources for itself. and won't give out unless state is satisfied. more milk will be sent to Boston. H. VI. However. Philadelphia v. Du Mond (1949) – Hood seeks license for a depot to ship NY milk to Boston.V. Milk Control Bd. Rather. But the limitation is that it prohibits out of state shipment of them. be discriminatory. it’s ok to create a minimum price – and thus raising both in-state& out-of-state prices. thereby effectively limiting the amount of it going out of state. But AZ doesn’t have such packaging plants. and there are no less discriminatory alternatives ii.
Arizona (1945) – AZ law limits the # of train cars for safety concerns. May still find state protectionism b/c all containers now banned come from out-of-state. Even if there’s some evidence of protectionism. i. v. tended to work fraud or deceit on offerees. and burdened out-of-state transactions. hurts the environment. v.uniformity is very important. which it’s not). no other way to get rid of it. but instead look to see whether it’s discriminatory. i. ii. Court says it’s constitutional. There is a legitimate purpose. it’s not unique to the state. but not bait fish from ME.When it comes to transportation . CTS Corp. This also show court is not really balancing. i. But this rule is controversial. But if a problem gets big enough. Reasoning is b/c pulpwood is biodegradable. However. Although this is a per se violation (facially discriminatory). even if it burdens interstate commerce. Dynamics Corp. and the laws apply to everyone the same. i. New York State Liquor Auth. State Regulation of Tender Offers a. court won't even balance. IX. Not facially discriminatory – applies to everyone. Maine v. The discrimination is the entire extraterritorial effect and intent (not because its facially discriminatory. there is an overriding justification. However. Congress will and should step in. The state has a very important purpose not related to economic protectionism and there are no other less discriminatory alternatives. Even if not facially discriminatory. while pulpwood mostly from in-state. Doesn’t matter if it hinders interstate commerce. b/c it controls conduct outside of the state. pulpwood can be made everywhere. b/c they’ll be less appealing after this ordinance. Also. ii. Although it’s not facially discriminatory. So since it hinders tender offers. Plus no other reasonable alternative to the state’s interest – plastic container just won't decompose. Clover Leaf Creamery Co. but not non-returnable pulpwood containers. Court held that this provision violated the commerce clause . Mite Corp (1982) – law authorized secretary of state to adjudicate fairness of tender offers and to deny the required registration if found inequitable. while plastic is not. The law applied to corporations outside of the state. ME says out of state bait fish may contaminate ME waters (parasites). as long as it’s not discriminatory. a. but this doesn’t outweigh the burden – it costs more money (but 1 . b. Statute applied to all corporations. there are some problems that the Court can't decide (which is a better mud flap). We can't have national unity. if we have diff rules on transportation in diff states. Extraterritorial Regulation – If the state law has an extraterritorial effect and intent. VIII. and the legislature hasn’t decided either. a. Regulation of Transportation . 1. VII.i. Edgar v. it’s going to burden interstate commerce. but majority owned by out-of-staters. v. Minnesota v. 1. law will be valid if it’s not facially discriminatory. A state may not project its legislation into other states by regulating the prices to be paid for in those states. (1981) – state bans non-returnable plastic milk containers. Brown-Forman Distillers Corp. Taylor (1986) – court said it was permissible for ME to ban importing bait fish. (1987) – tender offers are subject to state law. Southern Pacific Co. b/c ppl will not make tender offers across state border. – NY requires liquor distillers selling wholesale in state to sell at the lowest prices the distiller charged in any other state for the same month. and hurt the fishing industry. court says it’s still unconstitutional. it’s unconstitutional as violating the commerce clause.a state may not require out-of-state producers or consumers to surrender any competitive advantage they may have. b/c it treats both in-staters & out-of-staters the same. c. there is a legitimate interest. and there’s no less discriminatory means. so still within state province. Court accepts that state objective is environmental protection. you can use the plastic for something else. States can regulate tender offers.
Why allow states to prefer their own at all? – B/c the point of having states is to help their citizens. Stake (1980) – scarce supply of cement. it is limited to the market it’s buying into. But problem is that there are multiple inconsistent burdens imposed on interstate transportation. Navajo Freight Lines (1959) – Ill requires all trucks to have a new innovation of mudflaps. it’s trying to help its citizens. b. Inc. who is allowed to buy and sell to whoever it wants. So it decides it will sell cement to SD first. then to other states. 1. smaller trains cause more traffic. When the state acts as a market participant. it looks like a private party acting in the market. There’s a substantial burden on interstate commerce.Prof argues how do you balance efficiency against safety – like apples & oranges.actually retaliation is less likely. i. ii. so not much safety gained. and anyone can compete (b/c acting like a private party). state can prefer its own when it creates something. determining which trains are better – longer or shorter. v. so it effectively has power over the entire market (like it would if it were regulating). So they can do 1 . Prof says court is really looking for the protectionist purpose – not economic protectionism. The Market Participant Exemption: A state can discriminate against interstate commerce when they are acting as a market participant. iii. b. Market participant is when the state is acting as a buyer or seller in the market. thus more traffic. but court says unconstitutional. State is concerned about safety. it’s not exactly acting like a private party. Reeves . And the state cannot regulate the processing like this (like the Pike cantaloupe case). But not to the point where it goes so far that states will retaliate and we will no longer have a united nation. c. as long as it doesn’t have a monopoly over it. Rationale for the market participant exception (even though it has the same effect) i. you must process it in AK. but protectionism by sending the large truck traffic out of the state b/c of the wear & tear on the roads. When state is in the market. Prof criticism – when state acts as a market participant. SD owned the limestone necessary to make cement (limited natural resource). Consolidate Freightways Corp. Anyone can open up a plant and make it. rather than regulating. But the Dissent argues that the court is acting like a legislature here. as a private party would. so it should be treated like a private party. but court says it doesn’t matter b/c the state is not limiting the access to the limestone. On the other hand. Bibb v. and you can't comply with all of them. When state acting as a market participant. so we must allow them to. Court says you can't regulate further downstream than the market you are actually participating in. X. i. so it actually looks very protectionist. it can affect the entire market. d. Kassel v. but not for the processing of the timber. Limiting a natural resource is the kind of thing that states would retaliate for – and so states not permitted to limit this. Also. i. For the processing part of it then. B/c there are 2 separate industries here – AK is a market participant in the sale of timber. v. The trucks would have to keep changing the mudflaps at each border. and SD controls all the cement in the area. etc. b/c it’s a forced relocation of processing into the state. But court says this is unconstitutional. and won't necessarily make the best economic choices. and requires that if you buy timber in AK.) Court then says that actually. the state is acting like a legislature. They invoke the market participant exception. Inc. when the state is regulating as a legislature. (1941) – IA law prohibits the use of certain large trucks within the state. Court said it can do this b/c state is acting like a market participant. and the state’s purported purpose is illusory – not necessarily safer by having smaller trucks & also b/c there are exemptions for certain in-state truckers. c. Inconsistency with other states i. But SD controls the entire market. Wunnicke [aka Alaska Timber] (1984) – AK owns the timber. But Court reasons that SD doesn’t have a monopoly on cement. Also. South-Central Timber Development. a. State retaliation? – Not really .
. 1 . 2. 1 provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. iv. they have to be afforded to foreign citizens as well. AK is regulating to far downstream from what it is allowed to regulate. P&I applies b/c foreign citizens treated differently from instate in a fundamental right (employment). Art. use the courts of the state. iii. etc. Common purpose – to promote national unity. Modern View – states can treat in-staters & out-of-staters differently. NO exception for market participant to P&I clause . not a corporation Issue is the effect on interstate commerce Issue is Π’s treatment by foreign state Market Participant Exception No such exception c. ii. i.When a state has a policy that ‘facially’ is not discriminatory but has the effect of burdening out-of-staters. Is it a fundamental right? Fundamental rights bear on the vitality of the nation as a single entity. so effect alone is not usually enough. Aimed at discrimination against out of staters. a. Differences Dormant Commerce Clause Privileges & Immunities Clause Subject matter is interstate commerce Subject matter is an individual’s treatment in a foreign state Anyone can bring claim. Hicklin v. equal taxation.this with higher education. e. Virginia – Only natural people can raise claims under the privileges and immunities clause. Privileges and Immunities Similarities 1. but only when there’s a valid reason for the discrimination. it can be a violation of the clause. i. and not just b/c they’re out-of-staters. The Substantial Purpose Test – discrimination had to serve a substantial purpose in fixing the problem caused by the out-of-staters. 1. § 2. Orbeck – AK statute says any person engaged in business of any sort even remotely related to buying & selling AK oil or gas must hire locally. Toomer Test 1. Usually requires a showing that there is a discriminatory intent. Must be a nexus between the discrimination and the solution to the problem trying to be solved. XI. IV. Is there a substantial reason for the discrimination? The out-of-staters need to be a peculiar problem. police. 3. v. inc. Dormant Commerce Clause vs. Once created. Early View – states create rights. Dormant Commerce Clause vs. Court remands under Toomer to determine whether there was a substantial reason for the city to prefer its own. 2. Lyons . habeas corpus. if fundamental. But they can't do this with regards to courts. and so it’s a monopoly. Unconstitutional under P & I – it goes beyond transaction where state is buying and selling its own gas. but must be an Only out of state citizens can bring a claim individual." It prohibits state govts from discriminating against citizens of other states in favor of resident citizens. cl.White vs. Paul v. Mayor of Camden – Municipal ordinance requires 40% of contractor employees to be Camden residents. What privileges are basic to national unity? – access to courts (not higher education). Mass United Building & Construction Trades Council v. to be hired for city funded construction projects. b/c anyone can open up a school. No market participant exception with P&I. and right to purchase property. Used to invalidate a state regulation. the Privileges and Immunities Clause i. Rights include to trade. Hillside Dairy. d. 2. ii. b/c the only the state can act. b.
Illinois. i. 304] i. Right of assembly 3. There are some in the constitution and some that are not explicitly called out in the constitution. LA law prohibited any act in the state to effect a contract for marine insurance on state property with a company not licensed to do business in the state."In mere private contracts. liberty & property). 5th amendment – no punishment w/o due process of the law. 14th amendment only protects those P&I that are owed by the federal government: 1. a.first reasoned Supreme Court decision to hold that the substance of economic legislation violated the 14th Amendment Due Process.” But Iredell disagrees . Diff from 4th amendment P&I clause. Chase expressed a willingness to strike down legislation without regard to explicit constitutional limitation based on “natural law. liberty & property. this is not a deprivation of property within the meaning of the 5th amend. government can't take property w/o just compensation II. (1876) . Fourteenth Amendment – The Privileges & Immunities Clause of the 14th Amendment a. Substantive Due Process – 5th Amendment – starts out as procedural limit (procedures affecting life. Πs claiming state taking away right to earn a living." ii. b. Allgeyer v. Treaty rights 5. ii. and it doesn’t include the right of employment (only under 4th – can't raise claim under 4th b/c in-state citizens). guaranteed by 14th amendment. Slaughter-House Cases (1873) – LA legislature passes law allowing New Orleans to create a corporation that centralized all slaughterhouse operations in the city. Right to use interstate waterways. Substantive Due Process of Economic Interests a. THE LOCHNER ERA AND ITS ABANDONMENT I. The Road to Lochner [p. 14th protects federal citizens. Early Expressions of the Notion that Governmental Authority has Implied Limits .SUBSTANTIVE PROTECTION OF ECONOMIC INTERESTS ORIGINS OF SUBSTANTIVE DUE PROCESS I.There are substantive rights that limit gov’t power. but later evolves to where it limits the substance of laws. 1. But no. Right to petition the government 2. Purpose was to restrict dumping of remains & waste in waterways & have it all done in one place. the 14th amendment was not the same rights as those given under the 4th amendment. The court is in no position to declare an act void when it was within congress’s power to enact it. Right of hebeous courpous 4. 1 . Munn v. relating to matters in which the public has no interest.the theories of natural justice are regulated by no fixed standard. what is reasonable must be ascertained judicially. Bull (1798) – Natural Law Right. Louisiana (1897) . i. can't be deprived of life. b. Calder v. Also.
2. rationale. Substantive due process . Court said statute exceeded the police power of the state and deprived the Δs of their 14th amendment liberty to contract for insurance. Purpose of the statute – make sure farmers made a decent living. Economic rights no longer considered fundamental rights. but they did in Lochner. b. Legitimate.2. 2. so why diff conclusion? Court said here they can't second-guess the legislature. and therefore ensuring an adequate supply of milk. ii. reasonable) purpose for interfering with it. 1 .does own fact analysis. Court says this is rationale too. Also.upheld a NE statute fixing max fees for employment agencies. the state must have a rationale (legitimate. So Court. The right to contract is a substantive liberty interest covered by the due process clause. is that the court won't second-guess. it infringed on the constitutional right of due process Rationale Basis Test: Rationale Purpose. i. Rationale Means 1. Help farmers by making sure they make money. Reason it comes out diff from Lochner. If the state's regulation infringes on your life. d. 1. Olsen v. Shows how far Court has moved away from Lochner i. they go out of business. 3 characteristics of rationale basis analysis used in Lochner 1. and unless there’s a clearly arbitrary & unreasonable. need new prescription. then its rationale.upheld OK law regulating opticians and optometrists – if you want new glasses. If farmers making enough (by setting min price) they'll continue to supply milk. liberty or property interests. iii. New York. Nebraska (1941) . The Court. (1905) – court held invalid NY statute forbidding employment in a bakery for more than 60 hours a week or 10 hours a day – b/c violates the 14th Amendment. So when the state interfered with this right to contract. Costs consumers money – looks like specficially protecting eye doctor. Court is willing to second-guess the state's asserted purpose. Same right is at issue here as in Lochner. does a lot of scrutinizing of the stated purpose of the measure. after. it only look to see if its rationale. Also achieve the purpose of ensuring an adequate supply of milk because if farmers don’t make enough money. but also substantive. when looking at whether purpose is rationale. almost never overturns a state legislation on these grounds (economic liberty). iii. it is willing to question the legitimacy of the asserted purpose. In addition. Must be a rationale way for state to accomplish that rationale purpose. b. ii. and says you won'8t get much help in having the regulation. Unless it’s clearly arbitrary and unreasonable. the state must use rationale means to achieve that purpose. They will defer if rationale. Means chosen – set a minimum supply of milk. then it’s reasonable. State’s rationale is health – make sure prescription is right & this is a rationale means of achieving this. Lee Optical of Oklahoma (1955) . Not just a matter of procedural protection.idea that there is substantive protection of economic rights and interests. Court uses the same test as Lochner – Rationale basis test a. Do we really think this measure adopted by the state will further the stated purpose (health benefit)? Court second-guesses them again . & ensure an adequate supply of milk. i. Refined balancing (not gross balancing) of the substantive due process 2. Lochner v. c. So Court second-guesses state's determination. New York (1934) – state interfering w/ right of milk sellers to contract with buyers of milk. Court engages in a legislative fact-analysis. The Abandonment of Lochner Nebbia v. Court so deferential. Court defers to the state's determination that it had a rationale reason for the law. Rationale. Williamson v. 3. Court uses rationale basis test & finds it fine.
Give them away. Kelo v. c. Parker (1954) – federal government confiscates land in a blighted area. Where regulation renders the property completely. Dissent – public use vs public benefit. or else it won't make sense. Only bought property to build house on the beach. Court held this was a taking for public use. Must be taken for a public use. b. Purpose of the takings clause . Hawaii Housing Authority v.because it's reminiscent of confiscation. the owner no longer has the right to possess the occupied space itself or to exclude others. When is Regulation a Taking? a. i. but there is a great public benefit. Per se taking. As thought government actually took the land. because even though you can't sale them. and what is private property? a. Prof says real rationale . intending to build houses there. which are basic property rights.leads to more taxes. still can do other things with property. Purpose of "Taking" a. so not rendered completely valueless. whether it’s for public use. New London – Public use here . i.to promote economic development . to develop it into something nicer. a permanent physical invasion is a per se taking. Loretto v. the court will defer. So there was a public purpose for taking the land. Not taking. create jobs . or admire them.TAKINGS I. you cans still do other things with them.the developer needs to take over the entire area in order to redevelop it.because the land given to a private party . Because even in Lucas. but for private use . Now. economically valueless (Lucas) i. It doesn’t matter.Prevent government (majority) from exploiting the minority. basically. iii. II. Court says this is a constitutional taking.Court prohibits resale of eagle feathers. What's the point of owning beachfront property if you can't build on it. This is b/c by having all land in hands of few. and must be just compensation. As long as there’s a rational reason for the government exercising its power of eminent domain. 5th Amendment – limits the federal government’s power of eminent domain: "nor shall private property be taken for a public use without just compensation. which at the time was zoned for single-family dwellings. But store itself was not blighted. South Carolina Coastal Council (1992) . increase property value. and sell it back. and unconstitutional. but only temporarily? 1 . but law renders it economically valueless . This is a benefit not a use. b. i. ii. a. Midkiff (1984) . There was only a small intrusion. But still economically valueless. Telepromptor (1982) – NY law allowed cable company to put box on building. injuring the public welfare." But the question comes up. for the benefit of everyone. But Court says it is a public use.is the public use. 1. so what's the purpose of taking this non-blighted store .government didn’t redevelop the land. Court says per se taking.can't sell it either.upheld the use of eminent domain to take away property owned by the very few (b/c of past feudal system). What if government takes property. But store owner says not taken for public use.economic benefit to the public . Redeveloping a blighted area is in the public's interest. III. 1. Berman v. i. it inflated land prices. Must to take over the whole thing.Lucas bought property on the beach. Then state law prevented Lucas from building any permanent habitable structures on his lots. There is just compensation. because it no longer has any economic use. whether a regulation is a taking. Where there is a permanent physical invasion (Loretto) 1. Per se takings – where government regulations are per se takings. Prof doesn’t like this. Andrus . Lucas v. the turns it over to a private developer. b/c it renders it economically valueless.
still get it back. v.Substantial public purpose for this law . and the permit condition itself.rough proportionality . Conditioned that Nolan allow an easement across her beach. The easement won't change the appearance of beach access. He can no longer do anything with the land. Condition . No investment backed expectation. Still can't actually see the beach.require landowner to give up property without compensation 1 . Dolan v.) 1. all easement does is create access to the beach.Dolan wants permit to expand store. Does this look more like a classic appropriation of property. which was adjacent to a creek. iv. There's no nexus between the bike path dedication and the flood plain purpose. i. Pennsylvania Coal Co.1.invested in property with expectation of building a home. or regulation we see everyday. "Extraction" cases or Conditions on development cases / Permit Condition Cases i. or everyday regulation? 2. c. b/c it’s an uncompensated taking of your property ii. Court says not a taking. So it fails the essential nexus requirement. a. 1. They had an investment backed expectation. Mahon (1922) . This is actually a physical permanent invasion of your property . Tigard (1994) . Not rendered valueless . Unconstitutional. d. Still had value of land that it always had. not a taking.so just a regulation. Held to be an uncompensated taking. Contributes to the sense that land still has value .make sure houses are stable to prevent disaster. then state interfered with this. Economic impact of the regulation on the Π b. If state comes along and changes the law so he can't build. A physical invasion. But they say its not balancing a public benefit. California Coast Comm'n – Nolan seeks a permit to expand house. Stated public purposes for the condition maintain a flood plain for safety purposes b. Owner says the law has taken the property – can’t build a profit-making structure. Test the court uses: a. Nature of the government action or regulation i. Must also be a certain degree of connection . Now he is left with nothing . Court still finds this is a taking. a.still has value as train station as it always had. a. where government adjusts the benefits and burdens of economic life for the public good c. b. and that was taken away. d. In Penn. Tahoe case . Stated public purposes for the condition ease traffic ii. Penn Central . b. Must be an essential nexus between the state's interests that its trying to promote by the permit condition.the right to property he has is economically valueless. Justified public benefit. Nollan v.not allowed to build because of a landmark law. The permit condition (easement) has no relation to the governmental purpose (maintain appearance of a beach). Is there any inference of this regulation with the π's investment backed expectations? i.more than rationality necessary. Condition – public greenway. Court says still an unconstitutional taking. after looking at those factors. Like Lucas case . 1. and pave parking lot. and get value from it. All other regulatory takings will be analyzed under the Penn Central test i.pedestrian/bicycle path.not per se. Π only had the reserved right to mine.
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