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Section 7, Clause 2: Presentment Clause & Presidential Veto iv. Section 8: Powers of Congress v. Section 9: Limits of Congress vi. Section 10: Limits on State Power b. Article II- Executive Power i. Section 1: Electoral Power and Presidential Election ii. Section 1, Clause 6: Presidential Succession iii. Section 2: Presidential Powers iv. Section 3: Duties and Powers of President c. Article III- Judicial Power d. Article IV: Full Faith & Credit Clause, Privileges & Immunities Clause e. Article V: Procedures for Amendments f. Article VI: Supremacy Clause 1. Article III allows suits involving public ministers (meant to apply only to foreign dignitaries) 2. Article III could be a floor, but not a limit on Court·s original jurisdiction 3. Standing requirement derives from Article III·s ´cases and controversiesµ requirement g. THE CONSTITUTION·S FUNCTIONS i. Creates National Government and Separates Power The Constitution specifies the term of each office among the three branches, the qualifications necessary to hold office, and the manner by which the office is to be filled. 1. The length of office terms and the manner of selecting officeholders are crucial in defining the character of American government: 2. The framers intentionally chose a scheme where one body of Congress, the House of Representatives, was popularly elected and all citizens were represented equally; the other body, the Senate, was selected by state legislatures, and every state had two senators. 3. The president is chosen by the Electoral College, not by majority vote, and the result has been that four times in history a president has been selected who received fewer popular votes than an opponent, most recently in November 2000. 4. Federal judges have life tenure so as to enhance the likelihood that their decisions will be based on the merits of the case and not on political pressure. ii. Divides Power Between the Federal and State Governments The Constitution divides power vertically between the federal and state governments. ´Federalismµ is the term often used to refer to this vertical division of authority. 1. Tenth Amendment which states: ´The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.µ 2. Supremacy Clause found in Article VI of the Constitution. It declares that the ´Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.µ 3. Finally, federalism limits the ability of states to impose burdens on each other. For example, since the country·s earliest days, the Supreme Court has held that the grant of power to Congress to regulate commerce among the states limits the ability of states to regulate or tax commerce in a manner that places an undue burden on interstate commerce. (Dormant commerce clause) iii. Protects Individual Liberties
1. Article I, sections 9 and 10, respectively, say that neither the federal nor state governments can enact an ex post facto law or a bill of attainder.7 2. Article III, section 2, ensures trial by jury of all crimes, except in cases of impeachment, in the state where the crime occurred. 3. Article IV provides that the ´Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.µ This provision, which is discussed in detail in Chapter 5, limits the ability of a state to discriminate against out-of-staters with regard to what are called ´privileges and immunities. 4. Bill of Rights a. Of the 12 amendments, the states, of course, ratified ten. One that was not ratified would have provided a formula for the apportionment of the House of Representatives. b. The Twenty-seventh Amendment: The other amendment that was not ratified by the states provided: ´No law, varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.µ Only five states ratified this amendment between 1789 and 1791 when the first ten amendments were approved by the states. Between 1973 and 1992, 33 more states ratified it and it became a part of the Constitution in 1992, even though the ratification process extended over a 200-year period. 5. Two characteristics about the protection of individual rights in the Constitution should be noted. i. ´State action doctrineµ: First, the Constitution·s protections of individual liberties apply only to the government; private conduct generally does not have to comply with the Constitution. b. Second, the Bill of Rights provisions protecting individual liberties initially were deemed to apply only to the federal government and not to state or local governments. Not until this century did the Supreme Court decide that most of the Bill of Rights apply to state and local governments through the due process clause of the Fourteenth Amendment. h. WHY A CONSTITUTION? i. A Constitution Is Unique Because It Is Difficult to Change 1. Framers chose to create their government in a Constitution deliberately made difficult to change as a way of preventing tyranny of the majority, of protecting the rights of the minority from oppression by social majorities. 2. Thus, a constitution represents an attempt by society to limit itself to protect the values it most cherishes. 3. Important implications: a. First, the Constitution needs to be understood as an intentionally antimajoritarian document. Simple claims that American democracy is based on majority rule ³ such as in criticizing the judiciary for being anti-majoritarian ³ should be viewed suspiciously. b. Second, the Constitution should be appraised from the perspective of whether it has succeeded in restraining the majority, especially in times of crisis, and successfully protecting minorities· rights. c. Third, viewing the Constitution as a way of protecting long-term values from short-term passions poses a basic problem in constitutional interpretation. i. The Addition of the Bill of Rights ² several states approved the Constitution, but with a request that the new government immediately create a bill of rights. j. Amendments i. They fit into three major categories. 1. One type of amendment overrules specific Supreme Court decisions. Four amendments have been adopted to overrule the Court·s interpretation of the Constitution. The Eleventh Amendment overturned Chisholm v. Georgia and provided that states could not be sued in federal court by citizens of other states or citizens of foreign countries. Section one of the Fourteenth Amendment overturned the Court·s decision in Dred
Scott v. Sandford and made it clear that slaves are persons and that all persons born or naturalized in the United States are citizens. The Sixteenth Amendment 22 overturned the holding in Pollock v. Farmers· Loan & Trust Co., permitting Congress to enact a personal income tax. Most recently, the Twenty-sixth 23 Amendment overturned Oregon v. Mitchell and provided anyone aged 18 or over the right to vote. 2. Second, some amendments were adopted to correct problems in the original Constitution. For example, the Twelfth Amendment, ratified in 1804, changed the procedure whereby the runner-up in a presidential election would become vice president. 3. Third, and most commonly, amendments have been added to the Constitution to reflect changes in social attitudes. The Thirteenth Amendment, adopted in 1865 after the Civil War, prohibits slavery and involuntary servitude. The Seventeenth Amendment, adopted in 1913, provides for popular election of senators. a. Of all the amendments since the Bill of Rights, the Fourteenth Amendment is the most important. It bestowed citizenship on the former slaves, prohibited states from denying any person equal protection, ensured that no person could be deprived of life, liberty, or property without due process of law, and empowered Congress to adopt legislation to implement it. It is through the Fourteenth Amendment that the Bill of Rights has been applied to the states. b. The Twenty-seventh Amendment states: ´No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened. The Twenty-seventh Amendment was drafted by James Madison when he was a member of the House of Representatives in 1789 and was one of 12 amendments passed by the Senate and sent to the states for ratification. Ten of the amendments were ratified and became the Bill of Rights, but only five states ratified this amendment. The amendment, however, contains no ´expiration clause,µ that is, no requirement that it be ratified by a specified date in order to be effective. Therefore, in 1873, one additional state ratified the amendment. The amendment never was the focus of much attention, but from time to time legislators in various states were successful in having it approved. From 1873 until 1992, 32 additional states approved the amendment. In 1992, Michigan was the thirtyeighth state to ratify it, providing the requisite approval of three-fourths of the states. The amendment is now a part of the Constitution, even though it took over 200 years for it to be ratified. Thanks to Gregory Watson. k. WHO SHOULD BE THE AUTHORITATIVE INTERPRETER OF THE CONSTITUTION? i. Approach 1: No Authoritative Interpreter ² issues solve through political process and compromise between branches with equal interpretive power ii. Approach 2: Each Branch Is Authoritative in Certain Areas ² the one that best describes the current system of constitutional interpretation. For example, the courts frequently have held that challenges to the president·s conduct of foreign policy ³ such as whether the Vietnam War was constitutional³pose a political 8 question not to be resolved by the judiciary. By declaring a matter to be a political question, the Court states that it is for the other branches of government to interpret the constitutional provisions in question and whether the Constitution is violated. 1 iii. Approach 3: The Judiciary Is the Authoritative Interpreter ² Arguably, Marbury v. Madison endorses this approach in Chief Justice John Marshall·s famous declaration: ´It is emphatically the province and duty of the judicial department to say what the law is. Similarly, in United States v. Nixon, the Supreme Court held that it was the judiciary·s duty to determine the meaning of the Constitution. Federal Judicial Power a. Article III covers seven important topics concerning the federal judiciary. i. The initial words of Article III ³ ´the judicial Power of the United States shall be vestedµ ³ created a federal judicial system. Although there was substantial disagreement about the appropriate structure and authority of the federal courts, there was consensus that a national judiciary was necessary. ii. Second, Article III vests the judicial power ´in one supreme Court and in such inferior courts as Congress may from time to time ordain and establish.µ
and those in which a state shall be a party. But it did anyway. Marshall knew that ruling in favor of Marbury was futile. Adams enacted the Circuit Judge Act. both as to law and fact. other public ministers and consuls.µ vi. Jefferson instructed his new Sec of State to not deliver the rest. vii. some were not before Jefferson took office. A week before Adams presidency was over. it was the least he could do for Marbury. b. and created 16 new judgeships on the Circuit Courts. subject to ´such Exceptions and under such regulations as Congress shall make.) 1. iii.1. Sixth. reducing SC justices from 6 to 5. Marbury filed suit in US SC seeking writ of mandamus to compel Madison to deliver the commission based on Judiciary Act of 1789 which authorized the SC to grand mandamus in a proceeding filed initially in the SC. v. 2. Marbury v. except in cases of impeachment. Holding: Could not hear case as a matter of original jurisdiction the Judiciary Act of 1789 was unconstitutional because Congress cannot allow original jurisdiction beyond the situations enumerated in the constitution. §2. Court may not have been allowed to consider any of the issues that it dud because jurisdiction is the first question the court must address. A major dispute at the Constitutional Convention was whether lower federal courts should exist. Jefferson would ignore it and that would undermine the authority of the court. Madison a. Adams appointed John Marshall as Chief Justice of SC (he was also Sec of state at the time). shall be by jury. iv. 1. Sec of State John Marshall signed the commissions and gave to his brother to deliver them. by statute. probably because it was Marshalls way of chastising Jefferson for not delivering the commissions. the Supreme Court is granted appellate jurisdiction. Furthermore. defines the federal judicial power in terms of nine categories of ´casesµ and ´controversies. it requires that the trial shall occur in the state where the crime was committed. Article III ensures the independence of the federal judiciary by according all federal judges life tenure.10 Some contend that this makes federal courts uniquely suited for the protection of constitutional rights. Article III states that the Supreme Court has original jurisdiction over cases affecting ambassadors. Congress repealed this statute in 1802. abolished the June and Dec terms of the SC. eliminated Circuit Riding by SC justices. SC did not hear the case until 1803 b/c congress. Federal Judgments 1. 2. In all other cases. Most were delivered. Article III prescribes that the trial of all crimes. b. The fifth major topic covered in Article III is the allocation of judicial power between the Supreme Court and the lower federal courts. Facts: Jefferson (a republican) elected as 3rd president over incumbent Adams (a federalist). state court judges are subject to some form of electoral review. A crucial lasting difference between federal and state court judges is the electoral accountability of the latter.µ (two major types. Federalists were determined to exercise their influence before a republican took office. ´during good Behaviour. 1. Article III. resolving disputes between states and their citizens. One set of clauses authorizes the federal courts to vindicate and enforce the powers of the federal government.µ and salaries that cannot be decreased during their time in office. Authority for Judicial Review i. he enacted the Organic Act of the District of Columbia. and senate confirmed. Third. Finally. including one to William Marbury. Article III provides that treason shall consist only in ´levying war· against the United States or giving aid or comfort to the enemy and that no person shall be convicted of treason except on testimony of two witnesses or confession in open court. i. appointing 42 justices of the peace. Fourth. 4 . A second set of provisions authorizes the federal courts to serve an interstate umpiring function. In 42 states.
Marbury argued that the Supreme Court had original jurisdiction to hear his suit for mandamus pursuant to section 13 of the Judiciary Act of 1789. the federal judiciary can provide a remedy. c. including a writ of mandamus. can never be made in this court But where the head of department is directed by law to do a certain act affecting the absolute rights of individuals (ministerial acts ² duty to perform)« it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual. no person ³ not even the president ³ is above the law. The Court answered this by declaring that ´[t]he government of the United States has been emphatically termed a government of laws. and not of »14 men. but the Court would have avoided the question as to whether the statute was constitutional and thus would have lost the opportunity to announce its power to declare statutes unconstitutional. Does Mandamus on Original Jurisdiction Violate Article III? 1. The Court agreed. Do the Laws Afford Marbury a Remedy? 1.µ In other words. and those in which a State shall be Party. Establishes the power of the judiciary to review the constitutionality of executive actions. Under either of these approaches. Marshall prob shouldn't have even been able to participate in the decision because of conflict of interest (he signed the commissions). Marbury still would have lost. in their nature political. As to the first question. The judiciary could provide remedies against the executive when there is a specific duty to a particular person. The Court concluded that Article III enumerated its original jurisdiction and that Congress could not enlarge it. ´Questions. v.µ The Court said that Congress (a) could not add to this list cases seeking a writ of mandamus. or which are. Rationale: i. Does Marbury Have a Right to the Commission? 1. for example. submitted to the executive. vi. a close reading of section 13 of the Judiciary Act raises doubts as to the Court·s conclusion. Does the Law Authorize Mandamus on Original Jurisdiction? 1. Some matters ³ such as whether to veto a bill or who to appoint for an office ³ are entirely within the president·s discretion and cannot be judicially reviewed. Article III authorizes original jurisdiction for suits ´affecting Ambassadors.µ a.ii. Yet. but not when it is a political matter left to executive discretion. Can the Supreme Court Issue This Remedy? Is Mandamus an Appropriate Remedy? 1. that the Constitution imposes limits on government powers and that these limits are meaningless unless subject to judicial enforcement. YES under Judiciary Act of 1789 . ii. the Court concluded that Marbury had a right to the commission because all appropriate procedures were followed. YES. But where the executive has a legal duty to act or refrain from acting. by the constitution and laws. iii. 5 . other public Ministers and Consuls. Can the Supreme Court Declare Laws Unconstitutional? 1. iv. Marshall argued.
Virginia ² a. Those who apply the law must determine its validity c. Supremacy clause f. Article III gives Court power to hear cases arising under the Constitution d. Constitution has written limits that would be meaningless without judicial review b. e.µ iii. Cohens v. except for the few fitting within its original jurisdiction.µ4·7 The Court thus declared that criminal defendants could seek Supreme Court review when they claimed that their conviction violated the Constitution. Chief Justice Marshall also defended judicial review on the ground that judges take an oath of office and that they would violate this oath if they enforced unconstitutional laws. b. Creates authority for judicial review of executive actions 1. The 3 Accomplishments. but is taken indiscriminately by every officer of the government. or control. or be supposed to obstruct or control.sets up judicial structure of federal government b. not discretionary acts ii. then the Supreme Court would be powerless to hear any cases.2. can be sued only where the government has duties with respect to individual rights (non-political/ministerial acts). state prejudices. Justice Gibson stated: ´[The] oath to support the constitution is not peculiar to the judges. d. Judicial review of state judgments established in Martin v. Hunters Lessee a. Article VI. Oath of office ´to protect the constitutionµ. Article III. State Judgments 1. Marshall·s Reasons for judicial review (class): a. Separation of powers ² judiciary must have check on executive and legislative power. unless it could review state court rulings. Congress cannot expand the original jurisdiction of Supreme Court 2. i. and is designed rather as a test of the political principles of the man.µ c. Constitutionality of state laws and the actions of state officials. the regular administration of justice. Furthermore. Also says that The Constitution is based on a recognition that ´state attachments. Congress cannot authorize federal courts to hear cases beyond what is specified in Article III iii. The Court emphasized that state courts often could not be trusted to adequately protect federal rights because ´[i]n many States the judges are dependent for office and for salary on the will of the legislature. In a famous state court dissenting opinion that argued against judicial review. than to bind the officer in the discharge of his duty. But if Congress chose not to establish such tribunals. Justice Story observed that Supreme Court review is essential to ensure uniformity in the interpretation of federal law. Authority for judicial review in Constitution a. and state interests might sometimes obstruct. Establishes Article III is ceiling of federal court jurisdiction 1. Story argued that the Constitution creates a Supreme Court and gives Congress discretion whether to create lower federal courts. a. Section 2. Establishes authority for judicial review of legislative actions 2. 6 . 2.µ 3. Justice Story persuasively argued that the Constitution presumed that the Supreme Court could review state court decisions.supremacy clause ii. state jealousies.
inevitably in constitutional law. The claim is that judicial review is a ´deviant institution in American democracyµ because it permits unelected judges to overturn the decisions of popularly accountable officials. Competing Theories of Constitutional Interpretation i. i. Originalists: Judges should only protect values clearly stated in the text of Constitution or clearly implicit from framers· intent.· ´due process of law. 2. following his originalist philosophy. using phrases such as ´commerce among the states. a. rather.µ ´liberty. if any. nonoriginalists believe that the Constitution·s meaning is not limited to what the framers intended.µ ´taking. In contrast.µ and ´cruel and unusual punishment. courts must face the question of what. 2. Aaron in 1958 c. Third. May states adopt laws that place a substantial burden on interstate commerce? b. 4. Limits on Federal Judicial Power i. Originalism: follow framers· intent 1. Advantage: Democracy is Majority Rule ² it is desirable to limit anti-majoritarian nature of Constitution ² desirable to constrain the power of unelected judges in a democratic society. If there is to be a right to use contraceptives or a right to abortion. Disadvantage: Originalists mis-define democracy (concerned with protecting rights of minorities. Why interpretation complicated? a.µ ´necessary and proper. Originalists and nonoriginalists also disagree over how the Court should decide the meaning of particular constitutional provisions: Justice Thomas. the disagreement between originalists and nonoriginalists is basically over how the Constitution should evolve.judicial restraints by the judges themselves 1. Second.µ ´equal protection. it is impossible to apply since text often vague. Originalists explicitly state that amendment is the only legitimate means for constitutional evolution. federal courts also have the authority to review the constitutionality of state laws and the actions of state officials. Simply stated. The Supreme Court. decided the issue by considering the law as of 1791 when the Fourth Amendment was adopted and concluded that knock and announce is generally required because it was part of the law at that time. framers intent often unknowable (who are they. countless problems arise that the Constitution does not expressly consider. is not limited to reviewing state court decisions.µ ´freedom of speech. 3. originalists would say that the Constitution must be amended. government justifications are sufficient to permit the government to interfere with a fundamental right or to discriminate.drafters or ratifiers?). Interpretive Limits.µ How should the Court decide the content and meaning of these and other similar clauses that are found throughout the Constitution? c. desirable to have evolving Constitution (what if framers intended this?) 7 . First.1. of course. Don't constrain the judges from implementing an anti-majoritarian document. it is minority rule). even where there are constitutional provisions. the meaning and application of constitutional provisions should evolve by interpretation.11 Nonoriginalism allows constitutional interpretation to include norms and values not expressly intended by the framers. This was resoundingly reaffirmed in Cooper v. much of the Constitution is written in open-textured language i. Also.
but not to original expected application. but also allows Constitution to evolve 3. a. and to its underlying purposes. Original Meaning: text and practices 1. 2. iii. preserves control over value choices in polity 3. Disadvantage: court should be involved in issues of substantive values. intent. Although the constitutional text and principles do not change without subsequent amendment. Advantages: courts have special expertise in process issues. facilitates majority rule. don't know framers real intent cause they are dead.. assumes framers wanted to enshrine practices of times. Process-based theory: 1. Aspirationalism 8 . Advantage: constrains courts in interpreting. Court should protect a right only if there is a tradition of social recognition and protection 2. but courts in each generation can create their own. Likely would argue that the Court was correct in ordering school desegregation because it advances the general purpose of the equal protection clause even if it does not follow the framers· specific views. but lets constitution evolve 3. My favorite because: Constitutional interpretation requires loyalty to the original meaning of the Constitution and to the principles that underlie the text. Advantage: true framers· general goals. at high enough level of abstraction virtually anything can be justified v. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. Disadvantage: American traditions are indeterminate. 2. Follow framers· general. etc. but are significant achievements of our constitutional tradition. Constitution limited to text and its original meaning as reflected. Disadvantage: methodology is indeterminate.ii. Advantages: like originalism limits power of court to act in antimajoritarian fashion.). sexism. some traditions are odious (racism. This approach is faithful to the original meaning of the constitutional text. but avoids need for determining intent 3. Tradition 1. It explains. impossible to draw a line b/w process and substance vi. every constitutional provision has an underlying concept. Court·s role is to create fair processes of government and let polity make substantive value choices 2. their application and implementation can. Disadvantages: assumes consensus at time provision ratified. but not specific. Modified or Abstract Originalism: follow framers· general intent 1. why these transformations are not simply mistakes that we must grudgingly accept out of respect for settled precedent. 4. doesn·t allow constitution to evolve iv. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. no real constraint. as other versions of originalism cannot.
precedent. Sophisticated Collective Rights Interpretation: individual right to keep and bear arms so long as possession reasonably relates to militia service iv. 554 U.1. On the one hand. Court decides its view based on tradition. Court·s task is to identify and define values important to be protected from majority. Disadvantages: no constraints on court. history. corresponds with what the Supreme Court has done in many areas 3. social needs. Individual Rights Interpretation: recognizes right of individuals to keep and bare arms d. some believe that the Second Amendment means only that Congress cannot regulate firearms in a manner that keeps state governments from protecting themselves.µ i. Heller. State·s Rights/Collective Rights Interpretation: recognizes the right of a state to arm its militia (Silveira) iii. This view does not read the Second Amendment as creating a constitutional right for individuals to own guns. On the other hand. some believe that the Second Amendment safeguards a right of individuals to keep and own firearms. 570 (2008). From this perspective. Advantages: allows Constitution to evolve by interpretation. 9 . EXAMPLE: Second Amendment c. being necessary to the security of a free State. inconsistent with democracy as defined by majority rule b. shall not be infringed.S. the right of the people to keep and bear Arms. federal laws that infringe this right are at least presumptively unconstitutional. District of Columbia v. ii. content of Constitution·s open-textured provisions 2. ´A well regulated Militia.
and those in which a State shall be Party. Congressional Limits on Federal Judicial Power 1. 2. Legislation restricting jurisdiction. Exceptions and Regulations Clause (jurisdiction stripping) a. other public Ministers and Consuls. UNSETTLED LAW i. the supreme Court shall have original Jurisdiction. Article III Exceptions and Regulations Clause: In all Cases affecting Ambassadors. In all the other Cases 10 .ii.
ii. Congress imposed military government on many former Confederate States by authority of the Civil War Reconstruction Acts. 3. Yes. This is an area of unsettled law. After the Civil War. both as to Law and Fact. but from the Constitution.µ Thus. The Court must always determine first if it is has jurisdiction to review a case. 1. and under such Regulations as the Congress shall make. Holding and Rule (Chase) 1. The Constitution gives the Supreme Court appellate jurisdiction. The circuit court denied McCardle¶s habeas corpus writ but the Supreme Court sustained jurisdiction to hear an appeal on the merits. Must the Court always first determine if it is has jurisdiction to review a case? iv. v. The court held that when Congress enacts legislation that grants the Supreme Court appellate jurisdiction over final decisions 11 . 1. Rationale 1.before mentioned. Does Congress have the power to make exceptions to the Supreme Court¶s appellate jurisdiction in cases in which it has already granted jurisdiction? 2. After arguments were heard however. Congress passed an act on March 27. Some believe Congress has broad powers to remove matters from Sp Ct·s review. McCardle filed a habeas corpus writ claiming that Congress lacked authority under the Constitution to establish a system of military government. Case law: i. Recently congress has cut off the court·s ability to hear challenges to the Defense of Marriage Act and cases involving judicial review of the constitutionality of the Pledge of Allegiance. Yes. No Definitive Answers to Congress·s Power. The term ´Exceptionsµ in Article III only modifies the word ´Fact. repealing the portion of the 1867 Act that allowed an appeal to the Supreme Court and the exercise by the Supreme Court of jurisdiction on any such appeals. with such Exceptions. and is conferred with such exceptions and under such regulations as Congress shall make. Others believe that Congress is limited in its ability to control Sp Ct jurisdiction. Ex Parte McCardel: valid exercise of exceptions & regulations clause ii. 2. Issues 1. b. the supreme Court shall have appellate Jurisdiction. McCardle (D) was a Mississippi newspaper editor held in military custody on charges of publishing libelous and inflammatory articles. The court held that appellate jurisdiction of the Court is not derived from acts of Congress. but it gives Congress the express power to make exceptions to that appellate jurisdiction. They argue that framers of the Constitution intended such Congressional control as check on judiciary·s power. iii. past or present. 1868. The Act authorized federal courts to grant habeas corpus to persons held in violation of their constitutional rights and granted the Supreme Court the authority to hear appeals. Congress can create exceptions to Sp Ct·s jurisdiction for review of matters of fact but NOT matters of law. The power of Congress to make exceptions to the appellate jurisdiction of Supreme Court. i. This is ´Oringalismµ view of the clause. Facts: 1. ii. 2. unlike original jurisdiction must be before the case has been decided. c.
80 U. The judgment for Klein is affirmed because Congress overstepped its bounds and violated the principle of separation of powers in the United States Constitution. U. When a legislative act is repealed. Additionally. Congress could permissibly limit the ability of the Supreme Court to hear certain cases on appeal. Some scholars have argued that McCardle is distinguishable because only one "path" to the Supreme Court was repealed by Congress in McCardle. at 147. This is an impermissible extension of Congress's power and is thus unconstitutional. Congress also exceeds its powers by limiting the effect of a presidential pardon³a distinctively executive act. Specifically. When Congress passed a law that had the effect of prescribing the rule of decision in a particular cause. In this case. Not infringing on separation of powers. The essence of the argument is one of separation of powers: that the Constitution vests the judicial power in the judicial branch. Read more broadly. Applies in situations where Congress directs the judiciary as to decision making under an existing law and does not apply when Congress adopts a new law or amends a law. it is as if it had never existed except in transactions past and closed. Thus. in this case.) Under the Constitution's grant of power to Congress to make "such exceptions to appellate jurisdiction" as it deems appropriate.S. nor may Congress impair the power and effect of a Presidential pardon. However. but does not state. C. the repeal of the act necessarily removed jurisdiction. it prescribed the rule of decision in a particular case. Therefore.J. that Congress may not use the Exceptions Clause to cripple the Court's ability to be the final arbiter of what the Constitution means. not all "paths" were closed. This effectively required the Supreme Court to reach a certain result. it operates as a negation or exception of such jurisdiction in other cases. Klein suggests. Congress's 1870 law did more than just make exceptions to the Court's appellate jurisdiction. the constitutionality of the Military Reconstruction Act (the issue McCardle was challenging) was eventually decided on habeas petitions that took a different "path" to the Supreme Court a few years after McCardle. and that neither the legislative nor the executive branch may interfere with the functioning of the judiciary. (Chase. vii. Klein: Congress can control appeals but it cannot dictate decision rules that control results of cases b/c infringement of judicial power 1. Without jurisdiction. v.2. the Court cannot proceed." Klein. In fact. in certain cases. vi. the only thing it can do is announce that fact and dismiss the cause of action.S. It went beyond that to actually require the Court to determine it was without jurisdiction if it found that a plaintiff was entitled to property rights based on a presidential pardon. As the Court says: "It is the intention of the Constitution that each 12 . Klein means that Congress may not direct the outcome of a case by prescribing the rule of decision. no judgment can be rendered in a suit after repeal of the act under which it was brought. 2. b. a. Congress "inadvertently passed the limit which separates the legislative from the judicial power.
Thus. In fact. They cannot be told how to rule on an issue. i. Against: Bill of Rights modifies congressional power. not all "paths" were closed. only applies to SC appellate jurisdiction) of lawsuits challenging the constitutionality of the new prohibition on campaign spending by corporations? (No. The Court developed. passes new legislation prohibiting such ads. Although all of these requirements for federal court adjudication were judicially created. in response to President Obama's criticism of the Citizens United decision that held that corporations have a First Amendment right to spend unlimited funds on election ads. Some scholars have argued that McCardle allows congressional jurisdiction stripping because only one "path" to the Supreme Court was repealed by Congress in McCardle. (case law supports).of the great co-ordinate departments of the government ³ the Legislative. The court found the new law was constitutional. Klein only applies in situtations where Congress directs judiciary as to decision making under an existing law and does not apply when Congress adopts a new law. could undermine the supremacy of federal law. not to change the outcome of litigation. and the Judicial ³ shall be. Arguments: i. Supreme Court rejects argument that Congress is telling the court how to apply an existing law. that would be a violation of separation of powers. e. Discussion Question: Suppose that Congress. According to McCardel ² congress can repeal an act that gives the supreme court jurisdiction. Supreme Court rejects argument that Congress is telling the court how to apply an existing law. d. however. the Executive. and even pass acts that take away supreme court appellate jurisdiction. 1.Article III·s case and controversy requirement 1. a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. independent of the others. (IMPORTANT) i." Id. Therefore. clear violation of separation of powers). desire for majoritarian check on Court. ii. Justiciability Limits. the constitutionality of the Military Reconstruction Act (the issue McCardle was challenging) was eventually decided on habeas petitions that took a different "path" to the Supreme Court a few years after McCardle. Klien limits this by saying they cannot dictate the decisions of a court. they are changing the law and therefore it is the court's job to apply the law. viii. undesirable to have majoritarian check on judiciary. Environmental groups were excited because the fact that there were pending cases and Congress then passed an appropriation bill saying they were complying. Claim that the Bureau in Land Management were not complying with the laws. Seattle: Distinguished from Klein: Congress changed law simply to legalize timber sales. For: gives Congress the power. 3. to use the "exceptions clause" of Article III to prohibit all federal judicial review (no. they are changing the law and therefore it is the court's job to apply the law. iii. Robertson distinguished from Klein: Congress adopted a new law simply to legalize timber sales. Not infringing on separation of powers if the court can still rule on the issue in some way or another. 2. for its own governance in the cases confessedly within its jurisdiction. the Supreme Court has distinguished two different sources for these rules. Robertson v. in its sphere. fearful that the new legislation also would violate the First Amendment. 2. 13 . not to change the outcome of litigation. Would it be constitutional for Congress.
Court said ´sorry. a suit was initiated. Third. but the Supreme Court ruled that it was not justiciable. Chief Justice Warren explained that the ´words [cases and controversies] define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. but we can·t.µ The justiciability doctrines define the judicial role. but not constitutional. United States.3. restrictions. Muskrat. Section 2) b. i. but from prudent judicial administration. THIS DOCTRINE HAS BEEN USED TO FIND STATUTES UNCONSTITIONAL THAT ALLOW OTHER BRANCHES TO DISREGARD JUDICIAL DECISIONS). The Court has stated that it will avoid deciding constitutional issues where there are nonconstitutional grounds for a decision (last resort) b. i. Other Limits: a. In certain instances wise policy militates against judicial review. the justiciability doctrines conserve judicial resources. ii. The distinction between constitutional and prudential limits on federal judicial power is important because Congress. d. Finally. the Supreme Court held that a suit brought by the plaintiff at the request of the defendant. Constitutional limits ² are a result of its interpretation of Article III of the United States Constitution: ´casesµ and ´controversies. Where the record is inadequate to permit effective judicial review c. Where the federal issue is not properly presented. 6. the justiciability doctrines also promote fairness. especially to individuals who are not litigants before the court. 8. Pursuant to this statutory authorization. Jefferson·s Request ² for opinion on neutrality in war between Britain and France. The justiciability doctrines generally prevent the federal courts from adjudicating the rights of those who are not parties to a lawsuit. b.µ 4. ´Mootnessµ conserves judicial resources by allowing the federal courts to dismiss cases where there no longer is a live controversy. e. c. There must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect (NOT LIKE REDRESSABILITY. Policies of Justiciability Doctrine: a.µ d. No Colluded Suits: United States v. No statutes created to allow advisory opinons: Muskrat v. the justiciability doctrines are intended to improve judicial decision making by providing the federal courts with concrete controversies best suited for judicial resolution. i. Prudential Limits ² not derived from the Constitution. (1) Prohibition of Advisory Opinions a. Second. In order to facilitate resolution of constitutional questions about the law. by statute. Congress adopted a statute expanding the participants in an allotment of land that was made to certain Native American tribes. Congress subsequently adopted a statute permitting the filing of two lawsuits in the Court of Claims to determine the validity of the earlier law. the justiciability doctrines are closely tied to separation of powers. Johnson. may override prudential. The interests of 14 . There must be an actual dispute between adverse litigants (no hypothetical) Johnson. 7. separation of powers. had to be dismissed. who also financed and directed the litigation. c. they determine when it is appropriate for the federal courts to review a matter and when it is necessary to defer to the other branches of government. Requirements: to not be an AO i. ´Case or Controversyµ requirement (Article III. allowing the federal courts to focus their attention on the matters most deserving of review. First. 5.
Congress surely could amend the law to overturn the decision and also could provide retroactive effect for the new statute. the Court upheld the power of federal courts to issue declaratory judgments. L. For example. not a hypothetical. if the Court ruled that a group of plaintiffs could not obtain relief under a particular civil rights law. i. Was a case in which the Supreme Court of the United States held that Congress may not retroactively require federal courts to reopen final judgments (Therefore the first opinions would be rendered advisory if Congress allowed final judgments to be reopened). Congress simply had adopted a statute authorizing the federal courts to issue an advisory opinion on the constitutionality of a statute. &St. Plant v.µ v. controversy. f. j. The secretary could refuse to follow the court·s recommendation. (2) complainants must show that they engaged in or wish to engage in specific conduct and that the challenged action poses a real and imminent danger to their interests iii. 1. explained. The judges of these courts were to inform the secretary of war of the nature of the claimant·s disability and the amount of benefits to be paid. Declaratory Judgment Act of 1934 ² authorizing a federal court to issue a declaratory judgment in a ´case or actual controversy within its jurisdiction. 1. ii. Nashville. however. The Supreme Court explained that because the matter would have been justiciable as a request for an injunction. Justice Stone writing for the majority. C.. V. In the Court·s view. The Supreme Court upheld the constitutionality of the Act. even if the courts previously ruled that none existed.1995 i. A company sought declaratory judgment that a tax was an unconstitutional burden on interstate commerce.µ The Court emphasized that the focus was on ´substanceµ and not with formµ and that the case was justiciable ´so long as the case retains the essentials of an adversary proceeding. Haworth 1. Spendthrift Farm. Aetna Life Insurance Co. is predicting in advance whether there is a substantial enough chance that a federal court decision will have an effect so as to avoid being an advisory opinion.the Native Americans and the government were not at all adverse. h. 2. ´The Constitution does not require that the case or controversy should be presented by traditional forms of procedure. Justice Scalia asserted that such action amounted to an unauthorized encroachment by Congress upon the powers of the judiciary and therefore violated the constitutional principle of separation of powers. ´the finality or lack of it in judicial judgments is rather a matter of degree. Ry. As Professor Bickel expressed. (1) are justiciable so long as they meet the requirements for judicial review ii. Must be likely to have effect: g. The Court concluded that ´[w]here there is such a concrete case 15 . Declaratory Judgments i. involving a real. so was the suit for a declaratory judgment capable of federal court adjudication. v. Wallace. But it is not clear why Congress cannot give individuals a cause of action.µ iv. Five of the six Supreme Court justices found the assignment of these tasks to be unconstitutional. Writing for the Court. The difficulty. invoking only traditional remedies. Hayburn·s Case 1792 ² Congress adopted a law permitting these veterans to file pension claims in the United States Circuit Courts. Inc.
V.is this the proper party to litigate the issue? a.must suffer INDIVIDUAL HARM 1. My summary for Advisory Opinions: i. Ry. two circumstances must be present for a case to be justiciable in a federal court.admitting of an immediate and definitive determination of the legal rights of the parties in an adversary proceeding upon the facts alleged.who also financed and directed the litigation.) Declaratory judgments are generally distinguished from an advisory opinion because the latter does not resolve an actual case or controversy. Constitutional Standing Requirements. is predicting in advance whether there is a substantial enough chance that a federal court decision will have an effect so as to avoid being an advisory opinion. They are justiciable so long as (1) they meet the requirements for judicial review and (2) complainants must show that they engaged in or wish to engage in specific conduct and that the challenged action poses a real and imminent danger to their interests. First. Remember. just that people have reasonable concerns about effects of problem being sued 16 . In Plout the SC held that Congress may not retroactively require federal courts to reopen final judgments ( b/c therefore the first opinions would be rendered advisory if Congress allowed final judgments to be reopened). Five of the six Supreme Court justices found the assignment of these tasks to be unconstitutional. if the Court ruled that a group of plaintiffs could not obtain relief under a particular civil rights law. the court is concerned with ensuring that the ruling by the court is actually binding and forces some sort of action or consequence as a result. As a result. (2) Standing. ii.) (The difficulty. even if the courts previously ruled that none existed. INJURY: P must allege that he/she has suffered or imminently will suffer an injury. In Hayburn·s Case 1792 ² Judges were reduced to an advisory role and The secretary of war could refuse to follow the court·s recommendation. (stems from ´case or controversyµ requirement) b.Congress cannot override them i. ´the finality or lack of it in judicial judgments is rather a matter of degree. Nashville. 9. so any law allowing them OR invalidating/overriding judicial decisions (thus making them advisory) must be held as UNCONSTITUTIONAL. Wallace exemplifies this. As Professor Bickel expressed. Congress surely could amend the law to overturn the decision and also could provide retroactive effect for the new statute. This extinguishes the possibility of Colluded Suits as in Johnson. Laidlaw standard: don·t have to show injury. the judicial function may be appropriately exercised although the adjudication of the rights of the litigants may not require the award of process or the payment of damagesµ k. there must be an actual dispute between adverse litigants. where a plaintiff brought a suit at the request of the defendant . however. &St. The second requirement is that there must be a substantial likelihood that a federal court decision in favor of a claimant will bring about some change or have some effect. (For example. But it is not clear why Congress cannot give individuals a cause of action. L. C. the prohibition against advisory opinions is a constitutional restriction. The prohibition of advisory opinions stems from the ´Case or Controversyµ requirement of Article III. Section 2. The redressability requirement for standing is more concerned with ensuring that the court will be able to solve the problem with some sort of remedy (not whether the remedy will actually be binding). This is different from the redressability requirement in standing ² here.
about (ex: people are afraid to use their telephones b/c of Bush surveillance plan) ii. court said SC had no standing. lets just give them standingµ. usually have to show affected those affiants' recreational. 1. the members themselves would have standing to sue in their individual capacity 2. b. Black parents and children have been harmed because of segregation in public schools. ´Vocational Nexusµ: people with a professional interest in animals have standing to challenge actions that harm species d. Then on remand they changed their complaint to allege actual injury. Court ruled aesthetic injury can serve as a basis for standing but P must still allege actual or threatened injury in fact. 1.The first basis for standing alleged by respondents. ´Animal Nexusµ: people with an interest in studying or seeing endangered animals have standing to challenge actions that harm species c. did not constitute a judicially cognizable injury and second basis. and economic interests. Organizations have standing to assert the interests of their members so long as: 1. although a judicially cognizable injury. Wright (1984): P representing black schoolkids ² nationwide class action. Who is the real voice of the trees? Who knows how they feel? c. Standing theories used by environmental groups: a. Sierra Club v. Laidlaw standard: deterrent impact of penalties enough to satisfy redressability requirement c. It is not enough standing to simply say the government is violating a law. Justice William O douglas: ´lets get real. Morton (1972). even though members used the area. Defenders of wildlife. iii.Disney wanted to build ski area. that they were harmed directly by the mere fact of government financial aid to discriminatory private schools. ´Ecosystem Nexusµ: people who use a contiguous ecosystem adversely affected by challenged action have standing even if the action takes place a great distance away b. Lujan v. that their children were being deprived of an opportunity to receive an education in racially integrated schools. (Causation/Redressability) Allen v. CAUSATION: There must be a causal connection between the injury and the conduct complained of. For injury in fact. were just saying trees should have standing. the interests the organization seeks to protect are germane (connected) to the organization·s purpose ii. Complaint didn't allege actual injury. aesthetic. Case law/RULES: i. DISSENT: redressability prong satisfied easily because 17 . so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court. Organizational Standing i. Environmental Groups: 1. REDRESSABILITY: P must allege that a favorable federal court decision is likely (not speculative) to redress the injury. Why not? a. How do you know what the extent of injury is. ii. 2. Where do you draw the line (blade of grass?. was not fairly traceable to the government conduct that respondents challenged as unlawful (redressability prong not satisfied as well).
Court rejects these types of standing: a. v EPA ² Standing issues Court upheld idea that state had standing base on their capacity as quasi-sovereign. U.Cannot base standing on use of portions of ecosystem not affected by challenged action. just ´reasonable concernsµ about effect of pollution . however. Mass. that Lyons had failed to allege a sufficiently plausible threat of future injury to have standing for an injunction. Defenders of Wildlife: court said plaintiffs lacked standing in issue of whether Endangered Species Act should apply to actions of U. v. Redressability: Very interesting.b/c insufficient showing of injury and failure to show redressability. Animal nexus and vocational nexus . have standing for his damages action. Agencies only supply small portion of funding for the projects (that hurt wildlife). viii.(injury prong) don·t have to show actual harm to the environment. since this was retrospective and the injury--being subjected to the chokehold--was concrete and particular. Akins: right to information is sufficient for standing x. economics of tax exemptions can be easily linked to the segregation of students. Unclear if they would be bound. v. Court says that you do not have to redress the entire problem through the suit. Friends of the Earth v Laidlaw ² changed the game . Hayes: P·s who do not live in racially gerrymandered district do not suffer sufficient harm to challenge reapportionment ix. the Court held.S. They don't specify when. (Redressability) City of Los Angeles v.S. but instead it is purely speculative DISSENT: This is ´code pleadingµ formalism. b. (Redressability) . pure speculation and fantasy to find any appreciable harm. Also. iv. Ecosystem nexus. xi. Injury in fact and causation met because greenhouse gases present widespread harm and have already caused reduction to the Mass shore line.The agencies funding the projects (that are hurting wildlife) abroad are not parties to the litigation. 5-4. v. vii. Following Lujan some lower courts sharply restricted standing. P said members travel to places in past and plan to travel again to see these animals. b.While people interested in studying specific species or those with professional vocation to study certain animals may face perceptible harm. Lyon ² chokeholds in prison. so they may continue anyway. a. agencies outside the country. Federal Election Commn. Concurring opinion ´all they would have to do is buy plane tickets!µ ² to show injury.iii. (redressability prong) deterrent impact of penalties enough to satisfy redressability requirement even if penalties do not go to plaintiff. U. Lyons did. 1.S. If you can redress the problem 18 .Writing for the majority. In an opinion authored by Justice White. The decision helps establish the principle that a plaintiff must meet a standing requirement for each form of relief sough (Injury/Redressability) Lujan v. or show actual proof of plans to do back. Ginsburg said injury to the plaintiff came from lessening the "aesthetic and recreational values of the area" for residents and users of the river because of their knowledge of Laidlaw·s repeated violations of its clean water permit. vi.
The Chief Justice concludes by accusing the majority of lending the Court as a convenient forum for policy debate and of transgressing the limited role afforded to the Supreme Court by the U. Discussion Question: f.´ On February 16. Roberts in dissent maintains that global warming is a problem but that it is too big to be redressed by the court in this situation. Georgia v Tenn Copper ² P·s best case for standing in Mass. the dissent maintains that redressability of the injuries is even more problematic given that countries such as India and China are responsible for the majority of the greenhouse-gas emissions. Doctrines of standing are essential for the judiciary to provide adequate. This would essentially fray the lines of separation of powers and almost mandate advisory opinions. Roberts Dissent: First. (INJURY) Roberts then argues that the alleged injury (i. Just because it is huge global problem it is NOT automatically denied standing. c. the states of Alabama. Is this a ´generalized grievanceµ??? xii. It is not enough to 19 . 2010. the dissent condemns the majority's "special solicitude" conferred to Massachusetts as having no basis in Supreme Court cases dealing with standing. Why should we have standing? Isn¶t it enough that suits are expensive. controversies. The dissent compares the majority opinion to "the previous high-water mark of diluted standing requirements." United States v. as will occur in this case. and anyone willing to pay should be allowed to go to court? i. Not clear whether this case creates new rule for standing for states but the majority does seem to hint that there may be different standards. the effect of obliging the EPA to enforce automobile emissions is hypothetical at best. It also emphasizes the need for separation of powers between the braches of government. i.e.S.at all. there is not a traceable causal connection between the EPA¶s refusal to enforce emission standards and petitioners' injuries. SCRAP (1973). that is enough to meet redressability. xiii. d. efficient relief to parties in a case by reserving resources. (CAUSATION) According to Roberts. v epa e. Massachusetts' loss of land because of rising sea levels) is too speculative and without adequate scientific support. EPA found that six greenhouse gases ³in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. Constitution 3. Texas and Virginia sought judicial review of EPA's determination in the United States Court of Appeals for the DC Circuit. 2. which essentially could be policy issues better left to Congress. On remand. (REDRESSABILITY) The dissent also finds that even if there is a possibility that the state may lose some land because of global warming. ii. Without standing.. would be over-judicialized.
I do not think that everyone would have standing to challenge the government under the Clean Air Act to provide a remedy for green house gas emission and global warming. iii.Not based on Art. I can imagine much of the information presented about the effects were pulled from data which the EPA itself put out at the time of the case. they cannot show a traceable injury to which the court can grant a remedy. causation. ´next friendµ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate (requires some significant relationship) b. h. I think that the framers understood that the federal government cannot. Environmental Protection Agency is a great case showing the fine line that the judiciary must be cognizant of in terms of hearing a case in a matter to not go beyond their constitutional limit of power into Congressional boundaries of policy making. and (3) some 20 . I think this continues to be the case today. I think there is an over-arching inclination by the federal court system to encourage Americans who think they have been injured in some way to look toward their state governments for a remedy. This is because though people may have a vested interest in this matter. For example. (1) Litigant must suffer injury in fact. or be decided by the courts over issues better suited for Congress. III . Massachusetts v. nor should it step into the shoes of Congress to make regulatory/policy assertions. Prohibition of Third Party Standing . Prudential Standing Requirements. I believe the outcome would have been different. if Massachusetts was seeking a specific form of remedy or regulation on ³how to remedy the injury´. and should not. V. redressability for an individual than for a ³quasi-sovereign´ state« ii. Would I have cause of action against the government for effects of hurricanes. and the doctrines still serve an important purpose in distinguishing states' rights from federal obligations. The judiciary is not in the position to tell the EPA how to regulate vehicle emissions.g. this injury to which Mass. Doctors may assert rights of their patients b/c of closeness of relationship (Singleton v. did? i. Wulf) 2. as the dissenting opinion suggests. was simply looking for a duty to be imposed on the EPA is enough to establish adequate standing.a party may not assert only his/her own rights and cannot raise the claims of third parties not before the court 1. scientist believe that global warming is a partial cause to the increased severity in hurricanes (due to increased water temperatures). I think they exist as artifacts of the Constitutional compromise between the Federalists and anti-Federalists. Also. iv. In Mass. (2) must have close relationship to third party. because it would be harder to prove injury. Would anyone who is a ³member of the class´ be able to sue as Mass. Though small. ´Next Friend Standingµ: must explain why real party in interest cannot appear on his own behalf. I am too far removed and my ³injury´ (be it damage to my house or a cancelled flight) is not exactly traceable or directly linked to global warming. be looked to as the salvation to everybody's problems. EPA it was traceable because an entire state brought suit based on loss of land. because this would allow for a flood of cases to enter the courts. Probably not. to which I could seek a remedy from the EPA? Probably not.can be overridden by Congress i. simply have an interest in a case. rather than throw all their problems at the doorstep of the federal courts and seek a magic elixir that will make their pain go away. Exceptions: a.
Exceptions: 2. Craig v. Other Decisions on Third Party Standing a. Utah (1976): Mother cannot pursue habeas for son on death row who has voluntarily waived right to seek it. b. Court Rules: Doctors do have standing. i. c. Singletary v. Doctors bring suit on behalf of patients. i. Unless the government has allocated funds in a way that violates the Establishment Clause found in the First Amendment of the Constitution 21 . Elk Grove (2004): no standing to challenge inclusion of words ´under Godµ b/c P does not have custody of his daughter who must recite pledge ii. but not men to buy beer at 18. The Court has consistently found that the conduct of the federal government is too far removed from individual taxpayer returns for any injury to the taxpayer to be traced to the use of tax revenues. Boren (1976): Sex discrimination challenge to law allowing women. iii. Vendors and those in like positions are permitted to resist efforts at restricting their operations by acting as advocates for third parties who seek access to it. It would be difficult if not impossible for the blacks to present the grievance to the court.µ Even though one cannot be denied standing just because you have the same injury as everyone else (clearly if gov is aiding severe pollution of the entire country. Based on the closeness of relationship between litigant and person whose right litigant seeks to assert. 1. Basically. 1. I have been injured because the government has failed to disclose spending of CIA budget.hindrance must exist to third party·s ability to protect own interests (ex: doctor has special/close relationship with P and P has difficulty asserting rights b/c of privacy issues) 3. Gilmore v. Prohibition of Generalized Grievances. may proceed with bartended P after the named P turns 21 during litigation. Barrow v. question if Docs have standing to do so. b. (hard for women to bring suit.you just can·t say that you are injured because you are a taxpayer and the government is not doing what they are supposed to do.P may not sue as a citizen or as a taxpayer who shares a grievance in common with all other taxpayers with an interest in having the Gov. Privacy concerns and mootness if they have baby before adjudication). Wulff (1976): Ps wish to challenge Missou state law denying Medicaid benefits for abortions not medically indicated. Jackson (1953): White D who signed racially restrictive covenant may raise right of blacks to be free from discrimination. The difficulty of party to assert its own rights. i. d. Case law: a. you cannot say that ´as a taxpayer. 4. follow the law. ii. you will have standing) .
Clear violation of Constitutional provision that gov must not keep secret accounting books (Art I Section 9 cl 7). b. Zone of interests requirement says competitors is not protected for standing within the zone of interest 10. Schlesinger v. b. only that they are not showing the spending of the funds. Again. Case law: a.taxpayers do not have the right to challenge the constitutionality of expenditures by the executive branch of the government. Zone of Interests 1. Reservists Committee: taxpayer lacks standing to challenge service of members of Congress in military reserve. Cohen) a. 5.. or The party must be within the zone of interest protected by the statute or constitutional provision 2. iv. and their competitor is complying with the law and alleges that they are being hurt financially by complying with the law as opposed to the company that is not complying. i. Ex: a company is violating the environmental laws and making a lot of money. Thus. and property transfer was not exercise under tax and spending clause. Taxpayer must show that challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power. Must show Congress exceeded its specific constitutional limits on its taxing and spending power. Richardson: taxpayer lacks standing to challenge secret appropriations for CIA activities. no spending (under taxing and spending clause) in violation of specific constitutional limitations imposed upon the congressional taxing and spending power. d. U. Valley Forge: unlike Flast b/c challenge was not to a congressional act but a decision by Department of Health. taxpayer is only the proper party to challenge constitutionality if it involves exercising congressional power under taxing and spending clause. Taxpayer standing is permitted in cases involving the Establishment Clause of the 1st Amendment.S v. Court says ´take your grievance to the polls. (3) Ripeness. Must establish nexus between taxpayer status and precise nature of the constitutional infringement alleged.is judicial review premature? a. Must establish logical link between taxpayer status and the type of legislative enactment attacked. Hein v Freedom From Religion . Main question: when may a party seek pre-enforcement review of a statute or regulation? (Can you go to court to challenge it or do you have to violate it and wait for the government to prosecute you?) 22 .3. i. The injury must be the kind of injury that Congress expected might be addressed under the statute. Court says no claim that appropriated funds are being spent in violation of const. 4. the provision that prohibits Congress from making any law respecting the establishment of religion. Two Part Nexus Test for Taxpayer Standing (Flast v.µ c.
b. Underlying question: Whether waiting for an actual prosecution is an appropriate restraint by the court or whether it is undesirable avoidance of a constitutional issue? c. Values of doctrine: i. prevents courts from premature adjudication entangling them in abstract policy disagreements ii. protect agencies from judicial interference until they have made final decision iii. allow issues to crystallize so courts can gain understanding of true consequences of law d. Today, most of the regulatory statues authorize pre-enforcement review e. Case law: i. Poe v. Ullman: court said challenge to contraceptive law not ripe b/c law is never enforced & P do not have realistic fear of prosecution. ii. Abbott Laboratories v. Gardner (the classic Ripeness case ² good to know): issue ripe b/c FDA regulation would cause hardship to parties (very costly to label drugs) 1. ´Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to (1) prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies (fitness), and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties (hardship). The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.µ 2. 2 step process: a. Evaluate the fitness of the issues for judicial decision b. Evaluate the hardship to the parties of
withholding court consideration
iii. United Public Workers: challenge to law preventing federal employees from engaging in political activities not ripe b/c they had not actually engaged in the political activities yet, but later when they make more specific what activities they want to engage in, courts did find it was ripe iv. Lake Carriers Assn. v. MacMullan Case is ripe: Plaintiffs challenged the validity of a statute prohibiting discharge of sewage from boats and Court found issue was ripe b/c although officials had announced law would not be enforced until land-based pump out facilities would be available, it was inevitable that the law would be enforced and that as a result the boat owners had to begin installing new facilities on their boats in anticipation of the time when the law was implemented 11. (4) Mootness- is there still an actual controversy b/w adverse parties? a. CAN BE RAISED AT ANY STAGE OF LITIGATION b. Examples: i. someone dies ii. parties settle iii. if a challenged law is repealed or expires c. Think of mootness as standing in time. If you had standing at one point, you may or may not pass mootness. d. Exceptions: i. Wrongs capable of repetition but evading review
1. Something about the nature of the parties/injury ² the case becomes moot b/c no redressability or injury is compensated or doesn't occur. 2. Moore v. Ogilvie: challenge to law that required a petition to nominate candidates for general election for new political party be signed by 25,000 voters not moot even though election ended b/c capable of repetition. He can Run again, would restart whole suit. 3. Roe v. Wade: pregnancy ² she can get pregnant again, everyone gets pregnant. 4. DeFunis v. Odegaard: challenge to law school affirmative action program moot b/c law school said student was allowed to graduate because he was a 3L by then. Difference here because there was no possible remedy, a ruling for student wouldn't change anything, and it was not possible for repetition because he would never have to do law school again. If similar case gets raised, it will go through courts faster because of familiarity. ii. Voluntary Cessation of Illegal Conduct 1. Doesn·t bar deciding case unless there is no reasonable chance D can resume challenged behavior. ´a case might become moot if subsequent events make it absolutely clear that the alleged wrongful behavior could not reasonably be expected to reoccur.µ ² Heavy burden lies with party asserting mootness. 2. Ex: Friends of the Earth: Laidlaw·s compliance with permit and facility closure are not conclusive evidence that there is no reasonable chance it will resume challenged behavior. The Doctrine of Standing exists, among other things, to ensure the courts resources are devoted to cases where parties have something at stake. But, because this suit has been ongoing for years now, it would be more of a waste than frugal to dismiss it. iii. Class Actions 1. A properly certified class action suit may continue even if the named plaintiff claims are rendered moot. The court has reasoned that the ´class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by the plaintiff, and thus so long as the members of the class have a live controversy the case can continue.µ 2. U.S. Parole Commission: action brought on behalf of a class does not become moot upon expiration of the names P·s substantive claim even though class certification has been denied; the proposed representative retains ´personal stakeµ in obtaining class certification sufficient to assure that Article III values are not undermined. (The appeal for class certification must go on to see if the class actually deserved certification) e. Discussion Question: What is the difference between mootness and standing? i. As colleagues have mentioned, the relationship between standing and mootness are intertwined. Their general description could be stated as the parties· personal interest (i.e. their live controversy) in the matter. The difference between the two, however, is the timing when each takes place. Standing is the interest which is needed at the beginning of the litigation in order to determine whether a specific person is the appropriate party to bring the matter to court. Mootness is maintaining the interest or actual controversy at all stages of the litigation (appears to
be a more flexible doctrine). My understanding of their relationship is that without having initial standing the case could not be heard in court, therefore, mootness could not be determined. I do not believe that mootness is another way of saying that there is no standing. ² If the court determines that there is standing then they are accepting the party as appropriate to bring forth an issue to be decided, and an actual controversy exists. If a court deems a case moot, then it means that the live controversy no longer exists between the parties, or the issue is not likely to occur again in the future, and the court can dismiss the case. Although I believe standing and mootness go together, I do not think one doctrine distinguishes the existence of the other. When a case is moot it no longer has an actual controversy to be tried, but it does not appear to negate the fact that the party originally had standing to have the matter brought to court for adjudication ² I do not believe the appropriateness of the party has changed. My analogy for this relationship« Standing is your key into the doorway, and mootness is your right to remain inside the door for further instructions from the voices high above. 12. (5) Political Question Doctrine- is this is a dispute best left to the political branches to resolve? (Doesn·t mean it ´involves politicsµ, just a label given to describe incidences where the judiciary decides that a dispute is better left to be decided by other branches). a. Criteria for Political Question (Baker v. Carr) i. Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department? OR ii. Is there a lack of judicially discoverable and manageable standards for resolving it? OR 1. In Baker ² one person one vote. iii. Is it impossible to decide without making an initial policy determination for which the judiciary is ill-suited? OR 1. Foreign Policy 2. Climate Change? iv. Is it impossible to resolve without showing a lack of respect for a coordinate branch of government OR 1. Impeachment v. is there a need for unquestioning adherence to a political decision already made OR 1. President sends troops ² ´must speak with one voice on foreign affairsµ vi. Potential embarrassment if the various branches differ? b. Issues that are PQ·s: i. Challenges under the Article 4 §4 Guarentee Clause (Guaruntees to the States a Republican Form of Government). 1. The Court held that challenges to a state's republican character are non-justiciable political questions, and that the decision of whether a state is "republican" in conformance with the guarantee clause may be decided only by Congress. 2. Baker v Carr - The Court has treated the guaranty clause as not a repository of "judicially manageable standards which a court could utilize independently in order to identify a State's lawful government." 3. Luther v. Borden: Guaranty Clause challenges are non-justiciable political questions- Congress and not the courts should decide what established government is in Rhode Island ii. Malapportionment and political gerrymandering ² but not when challenged as a denial of equal protection.
Lines of how to determine gerrymander do not currently exist and therefore is must be political question. the claim would require legal determinations that would interfere with the powers solely reserved for the executive and legislative branches. Colgrove v. c. The district court 2005 . No binding decision. 4 say it is NOT and Kennedy splits them saying it may not be justiciable but we need a standard with which to judge such questions. a. 2. Vieth v. ii. Baker v Carr is good example of process based theory of interpretation . unless violation of equal voting rights act (which is a dif course). 3.1. Jubelirer: (2004: Gerrymandering) a. LULAC v Perry ² same result. 26 .Court·s role is to create fair process of govt while leaving substantive value choices to polity. Discussion Questions: Should Bush v. 2) Abesnece of rules to limit and confine judicial intervention. Two obstacles to dealing with gerrymandering for Kennedy. polit speech. but Kennedy does not find them satisfactory. 4. Is Climate change a non-justiciable political question? 1. i. Alaska case ² town must move b/c climate change causing sea level rise ² Also dismissed for being a NPQ . Room left for other cases. Comer case: Katrina was worse b/c of climate change ² judges were split that this was provable ² dismissed at DC for lack of justiciability. 6. 1) Lack of comprehensive and neutral principles for drawing electoral boundaries. Connecticut v AEP. 5. Scalia majority says that Davis was wrongly decided and polit gerrymandering cases are nonjusticiable. 4 justices say political question.non-justiciable political question a. environmental. Black letter law? ² Because no agreement. 4. i. procedural due process). Other justices proposes tests. and national security interestsµ of a ´transcendently legislative nature. Court justified in intervening to perfect process of decisionmaking (voting rights. Should legality of Bush Administration·s warrantless surveillance program be considered a political question? iii. 2. Gore been treated as political question? Depends on interpretation of the Equal Protection Clause . Green: challenge to mal-apportionment under Article IV Guaranty Clause is non-justiciable political question ² Overruled. Exact same issue decided differently in Baker v Carr . foreign policy.the recount was unfair due to lack of recounting standards from one county to the next.On appeal. all cases really just get tossed out.racial gerrymander challenge under equal protection clause justiciable (Baker) b/c it had to do with 14th amendment and nothing to do with Congress or the President. b. 1. 3. B/c required ´identification and balancing of economic.µ In other words.
pre-emption would no longer exist. a task that arguably falls within the purview of the political branches. the US Court of Appeals for the 2nd Circuit reversed the decision. (Also. each of whom has to be evaluated individually. The Court does not need to make a regulatory determination on permissible GHG levels. . Since EPA has now decided to regulate GHG·s. plaintiffs could seek recourse using the common-law public nuisance argument: a. Percivals take: Court will say it is not a political question. Court will rule that it is pre-empted by CAA and EPA regulations. based largely on the fact that EPA does not currently regulate carbon dioxide under the Clean Air Act. Article I. It·s nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that·s crossed the border.5. which is to make those policy choices in the first instance. and they say that the courts can do this because the courts have done this in prior nuisance cases." but then immediately states that each House has the authority to 27 . that had regulatory authority over the entire country.S. 9. The Court was very specific in Massachusetts about what its role was and what it wasn·t. and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here. only assess what the five defendant companies can reasonably do to reduce GHG levels on their own. the court said. Section 5 (for Congress ´to be the judge of the Qualifications of its own Membersµ) is not a political question b/c this specific case deals with unconstitutional expulsion of member of Congress and Constitution does not vest in Congress a discretionary power to deny membership by a majority vote a. it is a nuisance case. iv. 2009. the EPA. Congressional self-government 1. section 5. of the U. In this case. but this case is nothing like any of the prior nuisance cases this Court has held. injury). qualifications of its own members. ´Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change. . This may be subject to change. see them through ² they will likely lose on their merits (Proximate cause. However. but its role there was to compel the agency to adhere to the statute as the Court interpreted it. 7. EPA. Still. Percival says tort nuisance cases rarely fail for standing since what they are alleging and must prove is the cause and injury. McCormack) Challenge under Article I. thus. 8. Constitution states that "Each house shall be the judge of the . (Powell v. STANDING: REDRESSABILITY/CAUSATION?) they were suing a defendant. Until such regulations are enacted. Here they·re suing five separate defendants. The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA. Percival believe that you should not ´wish these cases away. its should be left to EPA. the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. since bill in House and Senate to strip EPA of its ability to regulate GHG·s. 6.
Challenges to the conduct of foreign policy 1. Goldwater v. Often when dispute between executive and legislative branch ² court says ´figure it out yourself and only come to us as a last resort. while agreeing that the case did not merit judicial review. the Court so did. was the only method for a House to give effect to its power to determine the qualification(s) of its members.expel a member "with the Concurrence of two thirds." The Court found that it had a "textually demonstrable commitment" (Criteria of Baker) to interpret this clause. under Article II. Challenges to impeachment and removal are political questions (Nixon v.S. b. Constitution. And. Challenges to impeachment and removals from office 1.Court held that states cannot set term limits for members of Congress.µ 3. 2. The issue concerned how foreign affairs (President·s power to break a treaty) were conducted between Congress and the President. Carter: political question b/c Constitution is silent as the Senate·s participation in the abrogation of a treaty so should be determined by other branches of government. therefore. and was essentially political. President Carter had acted beyond the powers of his office.S. U. This would have turned the case into a constitutional debate between the executive powers granted to the President against the legislative powers granted to Congress. 2. Made in the USA foundation v US vi. As the case stood. and that.S. there is no official ruling on whether the President has the power to break a treaty without.language and structure of impeachment clause 28 . (Cook v. in the instant case. Inc). The Court's interpretation was that the subject clause meant that the process leading to the expulsion of a Member. Article II. believed that the issue itself. thus it would be unconstitutional for state to change that. Term Limits. but not voted upon it). by not doing so. c. (The Senate had drafted such a resolution. As it stands now. it was simply a dispute between the executive and legislative branches of government. duly sworn and enrolled upon the body's rolls. (U. 3. Section 2 of the Constitution merely states that the President cannot make treaties with out a Senate majority two thirds vote. Art. Powell. not judicial. however. Gralike) Term limits: states can regulate election procedures but they cannot require labels indicating whether candidates favor term limits v. Goldwater and his co-filers claimed that the President required Senate approval to take such an action. it was not eligible to be heard by the Court. the powers of the President to break treaties without Congressional approval.). I sets out only permissible qualifications for members of Congress. a. Goldwater was challenging the right of President Jimmy Carter to unilaterally nullify a treaty. Section II of the U. political in nature. would have been arguable had Congress issued a formal opposition through a resolution to the termination of the treaty.
because the word "try" was originally understood to include fact-finding committees. so that judicial involvement in impeachments might violate the doctrine of separation of powers. although four separate opinions were published) held that the courts may not review the impeachment and trial of a federal officer because the Constitution reserves that function to a coordinate political branch. Blackmun and Souter concurred. a United States federal judge named Walter Nixon was convicted of committing perjury before a grand jury. 29 . Also. they were concerned that the Court should have the power to review cases where the Senate removed an impeached officer summarily without a hearing. The doctrine accords the federal judiciary the ability to avoid controversial constitutional questions ii. Justices White. The Court further ruled that involving the judiciary would prevent finality without clear remedy. or through some arbitrary process. such as "a coin toss". While they found that the Senate did all that was constitutionally required. and the matter was referred to the United States Senate for a vote on Nixon's removal. The Senate appointed a committee to hear the evidence against Nixon." b. 3 of the Constitution gave the Senate the "sole" power to "try" impeachments. Because of the word "sole" it is clear that the judicial branch was not to be included. c. the judicial branch is "checked" by impeachments. Sec. Holding: The majority opinion (the court's decision was unanimous. iii. Facts: In this case. but refused to resign from office even after he had been incarcerated. allocates decisions to the branches of government that have superior expertise in the area. and bias post-impeachment criminal or civil prosecutions which the Constitution explicitly allows. Article I. but voiced concern that the Court was foreclosing this area for review. Nixon contended that this did not meet the constitutional requirement of Article I that the case be "tried by the Senate. The Senate then heard the report of the committee and voted to remove Nixon from office. d. f. e.are reveling: ´Senate shall have sole power to try all Impeachmentsµ (meets first test of Baker v. Concurring in Nixon (Justice Souter) talks about the need for judicial review in bad faith impeachment proceedings c. Carr) a. there was a textually demonstrable commitment to give broad discretion to the Senate in impeachments. and then report to the body as a whole. limits the courts¶ role in a democratic society. Nixon was subsequently impeached by the United States House of Representatives. Furthermore. Arguments in favor i. Furthermore the Framers believed that representatives of the people should try impeachments and the Court was too small to justly try impeachments.
v.µ ii. Is it something Congress has the power to do (expressly or implicitly)? 3.µ Additionally. TWO QUESTIONS TO ASK when deciding on constitutionality of a congressional act. generally referred to as the Necessary and Proper Clause. Congress and the States i.µ This means that Congress may rely on the Necessary and Proper Clause as a means to execute all constitutionally granted powers. Congress provides a ¶necessary and properµ means through which the President can a exercise his Article II duty to see ´that the Laws be faithfully executed. through the creation of administrative agencies. and all other Powers vested by this Constitution in the Government of the United States. Minimizes judicial intrusion on separation of powers grounds by d. i. or to the people. or in any Department or Officer thereof. III. Are they using means which are plainly adopted to that end? iii. Article I of the Constitution. Mode of Analysis. i. 10th amendment ² ´powers not delegated to the US by the Constitution. whereas states may act unless the Constitution prohibits the action. This clause does not vest regulatory or supervisory authority over any particular subject matter. does the law violate another constitutional provision or doctrine. nor prohibited by it to the states. Mode of Analysis. are reserved to the states respectively. nor prohibited by it to the States. Necessary and Proper Clause: 1. The Necessary and Proper Clause ensures that the particularized grants can be exercised completely and effectively. §8.µ d. the Tenth Amendment declares: ´The powers not delegated to the United States by the Constitution. Maryland) 1. Thus. Basic principle of American government is that Congress may act only if there is express or implied authority in the Constitution. Criticisms include i. but also to ´all other Powers vested by this Constitution in the Government of the United States.18 (slides). §8. or in any Department or Officer thereof. The Necessary and Proper Clause applies not only to the powers described in Article I. ii. Federal Legislative Power a.2. it guarantees a latitude of discretion in the exercise of all other granted powers (including those granted in other parts of the Constitution). b. It is inappropriate to leave constitutional questions to the political branches of government ii.iv.3. If so. are reserved to the States respectively.TENTH AMENDMENT 1. Clauses 1. Section 8) ii. which creates the federal legislative power. Does Congress have the authority under the Constitution to legislate? (this requires defining the scope of Congress· power under Article I. such as by infringing separation of powers or interfering with individual liberties? c.µ b. the federal courts¶ self-interest disqualifies them from ruling on certain matters. It confuses deference with abdication. In other words. It grants Congress the power ´To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers. begins by stating: ´All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives. Enumeration of Leg Powers ² Article 1 Sec 8. The final clause of Article I.NECESSARY AND PROPER CLAUSE (use McCullough v. TWO VIEWS: 30 . rather. The federal courts¶ credibility is robust and there is no evidence that particular ruling would diminish it iii. Is Congress pursuing a legitimate end? 2. or to the people.µ a. including those vested in the executive and judicial branches. the clause empowers Congress to provide the coordinate branches with the means to carry out their respective constitutional responsibilities.
Thus. Congress has power to incorporate bank: 3 main reasons: (necessary & proper clause) a.) b.µ Quote is most famous. for the execution of the powers conferred on the government. must also be entrusted with ample means for their execution. 2. Holding 1: YES. and treaties made by the United States with foreign nations as "the Supreme Law of the Land". The first question to be resolved was whether the Constitution granted Congress the power to charter the bank. Holding 2: NO.µ (this is a constitution were talking about. state power) 31 . and not as being confined to those single means. In so concluding. to borrow money. If a power exists. Supremacy clause of Constitution Article VI. but could not describe the details or the future contingencies to which the granted powers might be applied. entrusted with such ample powers. Maryland 1. The Court began its discussion of this issue by affirming the principle that the national government may act only pursuant to an enumerated power. 10th amendment protects state sovereignty from federal intrusion. and to raise and support armies and navies. The second component of Marshall·s argument focused directly on the Necessary and Proper Clause. therefore. McCullough v. it would have to be ridiculously detailed to include every power that congress was allowed to exercise.This clause asserts and establishes the Constitution. the first structural and the second textual. Clause 2. he rejected the state·s argument that the Necessary and Proper Clause was designed to limit Congress to the choice of those means that were the ´most direct and simple. to general reasoning.µ The Necessary and Proper Clause was. Specifically at issue in McCulloch was the constitutionality of a state law that taxed the activities of the Second Bank of the United States. a textual affirmation of that general reasoning. without whmich the end would be entirely unattainable. the Court upheld the authority of Congress to do so.µ Marshall observed. to declare and conduct a war. to regulate commerce. OR b. (We are a government of enumerated powers.a. Yet despite the absence of any specific constitutional grant of power to charter a bank or a corporation. that the Constitution vested Congress with the authority to select reasonable means through which to exercise its constitutional responsibilities. a government. Although all powers are not enumerated does not mean they are prohibited there are implied powers to execute express powers c.state of Maryland cannot tax US Bank (federal vs. a. a federal!y chartered financial institution. The structural argument described the Constitution as a foundational charter that created a system of government designed to address problems of national concern. He reasoned. but they don't have to be expressly enumerated. 10th amendment is not a separate constraint on Congresss. ´To employ the means necessary to an end. Necessary and proper clause: the beneficial execution/exercise of the express powers of Congress cannot be accomplished if the ´necessary and properµ clause is interpreted too narrowly 5. the federal laws made in pursuance of the Constitution.) (´let the end be legitimate«. but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. you must have the means to execute the power. b. Marshall premised his conclusion on two lines of reasoning. The specific grants of power marked the outlines of that government·s authority.µ Necessary did not mean absolutely necessary. 3. after outlining several granted powers that implicated monetary concerns ³ ´the great powers to lay and collect taxes. according to Marshall.10th amendment is a key protection of states· rights and federalism iv. ´But the constitution of the United States has not left the right of Congress to employ the necessary means.) 4. is generally understood as employing any means calculated to produce the end.
how important is the protection of state sovereignty and federalism? a. e. Allowing states to be laboratories for new ideas. and transportation of those goods. should it be the role of the judiciary to protect state prerogatives or should this be left to the political process? a.a. SECTION 8. The key phrase is ´commercial exchange. But the assumption that states· interests are adequately represented in tithe national political process is questionable. The modern Court has tended to give the commerce power a broad interpretive sweep. 3. i. §8. Those who oppose judicial protection of states as a limit on Congress·s power argue that national legislation is needed to deal with national problems. Enhancing democratic rule by providing government that is closer to the people iii. vesting Congress with substantial authority to regulate private economic activity in the domestic sphere. WHAT ROLE SHOULD CONCERN OVER PROTECTING STATES HAVE IN DEFINING CONGRESS·S POWERS? 1. Abuse of power by one state: the people of the USA will lose confidence in the federal government if a state (controlled only by the people of that state) are able to exercise power over something which affects people of the whole country and which is controlled by the whole country v. a central issue has been the extent to which concern over protecting the prerogatives and institutions of state governments should matter in defining the scope of Congress·s legislative power. those who favor judicial use of federalism as a constraint on Congress·s power usually identify three benefits of protecting state governments: i. The word ´commerceµ embraces any activity involved in the commercial exchange of goods and services. The interests of the states are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty. but they do not have the power to tax an instrument of the federal government b/c the Constitution does not allow a state government to control the measures of the federal government. purchase. From this perspective. On the other side. Article I. and among the several States. 109) b. CLAUSE 3) f. violation of principle of federalism: states have the power to tax. 2. It seems unlikely that the voters. thus making it unnecessary for the courts to enforce federalism as a limit on Congress. i. Commerce Power (ARTICLE I. Throughout American history. while the production of those goods is not. the power to destroy may defeat and render useless the power to createµ (pg. i. Today. which is considered supreme to the states i. Decreasing the likelihood of federal tyranny ii. provides that ´The Congress shall have Power « To regulate Commerce with foreign Nations. in choosing representatives and Senators. First. weigh heavily the extent to which the individual legislator votes in a manner that serves the interests of the state as an entity. but it is not part of the process of exchange. the Court should not circumscribe the scope of Congress·s authority or use the Tenth Amendment to invalidate federal laws. a. It is important to recognize that there are two key underlying normative issues. 32 . with popular election of Senators. it is harder to argue that the states· interests as states are adequately protected in Congress. Production may affect exchange. b. 4. One view is that judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state government interests. cl.µ Thus the sale of goods is a classic instance of commerce. in contrast. At the time the Constitution was written states chose Senators and thus were directly represented in Congress. including the marketing. b. ´power to tax involves the power to destroy. 3. 1. Second. and with the Indian Tribes. The Commerce Clause.
Ogden a. Court has recognized three broad categories of activity that Congress may regulate under its commerce power. Throughout these eras. Is it limited to instances where there is a direct effect on interstate commerce. and with which it is not necessary to interfere. and to those internal concerns which affect the States generally. or does it include all aspects of business³-even life in the United States? 2. What is ´Commerce:µ? a. whenever Congress is attempting to regulate an activity that does not itself constitute interstate commerce or an instrumentality of interstate commerce. the Court is considering three questions. Congress may regulate the instrumentalities of interstate commerce such as railroads.2. EARLY DAYS OF THE REPUBLIC TO 1890 1. a sale that begins in one state and ends in another is interstate commerce. a. not too surprisingly.µ 4. that its action is to be applied to all the external concerns of the nation. Second. the commerce power also includes the authority to regulate any economic activity that has a substantial relationship with interstate commerce or that substantially affects that commerce. for the purpose of executing some of the general powers of the government. Finally. Does the 10th amendment serve as an independent limit on Congressional power? a. For example. 2. by using the Necessary and Proper Clause in connection with the Commerce Clause. The foundation for the modern interpretation of the commerce power was laid. 4.e. NOTE: Whether or not the Court is careful to point this out. 1. a. Maryland. Second: What does ´among the several statesµ mean? a. 3. which do not affect other States. or does any effect on interstate activities suffice? 3. Commerce is more than buying and selling. Next. the power to ´regulateµ this interstate commerce is the power to prescribe the rules under which that commerce shall be transacted. airlines. Third. Congress may regulate the use of the channels of interstate commerce. ii.. can a law be declared unconstitutional as violating the Tenth Amendment? iv. This embraces the power to prescribe the rules of conduct to be applied to any activity that can rationally be characterized as constituting interstate commerce. Congress was using commerce clause extensively to regulate businesses b/c of Industrial Revolution 3. but not to those which are completely within a particular State. iii. 1. since these activities are the conduits through which interstate commerce occurs. interstate commerce ³ includes those commercial exchanges that involve activity occurring in more than one state. while a sale that is consummated entirely in one state is not. Congress may on this basis regulate the terms and conditions on which goods or services are sold interstate and may restrict the types of goods that can be shipped from one state to another. including the power to prohibit particular transactions. If Congress is acting within the scope of its commerce power. what is at issue is the reach of the Necessary and Proper Clause as it augments the Commerce Clause. Is it one stage of business. First. Gibbons v. The Court sometimes refers to this extension of the commerce power to activities that are not themselves part of interstate commerce as the ´affecting commerceµ rationale. by Chief Justice John Marshall. and trucking companies. commerce ´among the several statesµ ³ i. In Gibbons decided only five years after McCulloch v. the Chief Justice described that power as vesting Congress with a plenary authority over commerce that affected more states than one: a. 3. federal commerce power broadly defined by court but narrowly used by Congress 2. The genius and character of the whole government seem to be. it means intercourse which includes movement of people and navigation 33 .
The law provided for local coal boards to be established to determine prices for coal and to determine.C. 1. . The requirement that there be a direct effect on interstate commerce. Constitutional law since 1937 has very much been a reaction to this earlier era. hours of labor and working conditions. held that Congress violates 10th amendment when it regulates matters left to state governments 3. c. Mining brings the subject matter of commerce into existence. Facts: The law contained detailed findings as to the relationship between coal and the national economy and declared that the production of coal directly affected interstate commerce. Among the states includes commerce into the interior of them (not purely intrastate activity though) c. This era of constitutional law is extremely important. Courts were doing 3 main things: (court committed to laissez fair. unregulated economy) a. Shreveport Rate Cases the Court upheld the ability of the Interstate Commerce Commission to set intrastate railroad rates because of their direct impact on interstate commerce. The Court held that commerce was to be narrowly defined as one stage of business. Court·s narrow view of commerce: a. It was the first time that the Supreme Court aggressively used its power of judicial review to invalidate federal and state laws. applied restrictive conception of what is ´among the statesµ c. manufacturing. ii. The Court did not invalidate another law as exceeding the scope of the commerce clause until 1995 and has generally very much deferred to federal and state economic regulations. and production.µ Plainly. narrowly defined commerce b. separate and distinct from earlier phases such as mining.b. A shareholder in the Carter Coal Company sued it to stop it from complying with the law. Carter Coal Co. 1890·s to 1937 1. the bargaining in respect of these things³whether carried on separately or collectively ³ each and constitute intercourse for the purposes of production. Carter v.Court declared unconstitutional the Bituminous Coal Conservation Act of 1935. What Does ´Among the Statesµ Mean·? i. ii. not of trade«. Knight the Court held that the Sherman Antitrust Act could not be used to stop a monopoly in the sugar refining industry because the Constitution did not allow Congress to regulate manufacturing. i. United States v. Rationale: ´[C]ommerce is the equivalent of the phrase ´intercourse for the purposes of trade. after collective bargaining by unions and employers. The employment of men. wages and hours for employees. the incidents leading up to and culminating in the mining of coal do not constitute such intercourse. Commerce disposes of it. court narrowly defines scope of commerce power. Whether power to regulate commerce is exclusive or concurrent is not resolved (but state law should yield to federal law) v. the fixing of their wages. b. 2. uses 10th amendment as a limit a. The Court was controlled by conservative justices deeply committed to laissezfaire economics and strongly opposed to government regulation. 34 . E.µ b. Was also following a policy of dual federalism which was the view that the federal and state governments were separate sovereign and that each had separate zones of authority ² it was the judicial role to protect the zone of activities reserved to the states 2.
1. Yet. manufacturing. and by establishing a 40 hour workweek and a minimum wage. 1. the Court was no more consistent in applying this test. the Code was designed to ensure quality poultry by preventing sellers from requiring buyers to purchase the entire coop of chickens. Pursuant to this law. Why did intrastate railroad rates have a direct effect on interstate commerce. The key point is that the Court interpreted direct effect on interstate commerce. a key piece of New Deal legislation. Facts: The National Industrial Recovery Act. The Court said that Congress could not use its commerce power to require a pension program for railroad employees. but practices at poultry farms not part of that stream? c. Congress still could not regulate if it was intruding into the zone of activities reserved to the states. Alton R. Dagenhart: 10th amendment is a limit on Congressional Act banning interstate transport of products made with child labor because act does not regulate commerce. prohibiting child labor. and production to the states.SC declared a federal law unconstitutional based on an insufficient effect on interstate commerce. rather.R. the Court declared unconstitutional the Railroad Retirement Act of 1934. the Court said that the code was not regulating the interstate transactions. the Court never formulated a clear or consistent way to distinguish direct from indirect effects. it regulates how local production is 35 . v. because the law was only to help ´the social welfare of the worker. The Court emphasized that Congress only could regulate when there was a direct effect on interstate commerce. of course. Does State Sovereignty Limit Congressional Power? i.µ v.A. Why are prices at stockyards in the stream of commerce. However. which provided pension system for railroad workers. Co.µ iv. Railroad Retirement Board v. One approach that the Court often used was to allow Congress to regulate to protect the stream of commerce. and the Court had upheld other federal regulations of railroads. the president approved a Live Poultry Code for New York City. Even federal laws regulating commerce among the states were unconstitutional if they sought to control mining. Rationale: The Supreme Court declared the Code unconstitutional because there was not a sufficiently ´directµ relationship to interstate commerce. Yet. and production. including sick ones. and therefore [was] remote from any regulation of commerce. A. 2. the code concerned the operation of businesses within New York. Hammer v. The difficulty. Although the Court acknowledged that virtually all of the poultry in New York was shipped from other states. The Court concluded that the Tenth Amendment reserved control of activities such as mining. the Court held that even if an activity was commerce and was among the states. while regulations designed to limit the shipment of sick chickens in interstate commerce have only an indirect effect? The stream of commerce approach was sometimes used during this era to evaluate whether an activity was among the states. Railroads obviously were part of the stream of interstate commerce.iii. manufacturing. The Code also regulated employment by requiring collective bargaining. In part. authorized the president to approve ´codes of fair competition· developed by boards of various industries.L. Schecter Poultry Corp. is in drawing a meaningful and useful distinction between direct and indirect effects. United States . ii. Finally.
or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce. vii. provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another?µ (Also. Term affecting commerce means in commerce. In both The Child Labor Case and The Lottery Case the federal law prohibited the shipment of a specified item ³ goods made by child labor or lottery tickets ³ in interstate commerce.µ (They are trying to achieve a prohibitive end on manufacturing inside the state). Jones & Laughlin Steel Corp. 10th amendment is but a truism. A federal law prohibited the shipment in interstate commerce of goods produced in factories that employed children under age 14 or employed children between the ages of 14 and 16 for more than eight hours per day or six days a week. or its free flow. are within the reach of the congressional power. when considering legislation for the suppression of lotteries within its own limits. Court sustains application of federal labor law to manufacturing. may properly take into view the evils that inhere in the raising of money. 1. or burdening or obstructing commerce or the free flow of commerce. the Court made it clear that the power to regulate interstate commerce includes the ability to prohibit items from being in interstate commerce. Distinguished: In The Lottery Case. Darby (1941): Can Congress ban shipment of lumber in interstate commerce that is produced by employees who are employed in violation of FLSA (fed wage and hour laws)? a. whereas in the latter the Court upheld the federal law. Third Phase of Commerce Clause Jurisprudence: 1937-1990s ² Expands interpretation of commerce clause. v. Court on Commerce: Power of Congress over interstate commerce is NOT confined to the regulation of commerce among the states.National League of Cities v Usery (1976). No federal law was declared unconstitutional as exceeding the scope of the commerce clause. in the former the Court declared the federal law unconstitutional. but child labor would be banished because of competition).S. a. 2. iv. Yet. in that mode. The Court concluded that it was within Congress·s commerce clause power to stop lottery tickets from being a part of interstate commerce. b. U. why may not Congress. (1937): Decision is major shift in Court·s commerce clause jurisprudence.conducted. It extends to those activities intrastate which so affect interstate 36 . The Court declared: ´If a State. Although the law only regulated goods in interstate commerce. iii. Court on Commerce: It is familiar principle that acts which directly burden or obstruct interstate or foreign commerce. invested with power to regulate commerce among the several States. Important Decisions in Changing Commerce Power 1. lottery tickets would still sell in state. Are they truly distinguishable? Or do they simply reflect a conservative Court much more willing to defer to morals laws than to economic regulations? vi. the practical result would be different. Steel company violated Natl Labor Relations Act and company claims its relation with employees is completely intrastate. Congress obviously was seeking to stop intrastate activities: the use of child labor and gambling in lotteries. and not to give it authority to control the States in their exercise of the police power over local trade and manufacture. NLRB v. The Court declared that ´[t]he grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce. Only one unconstitutional b/c of 10th amendment restriction . the Court declared it unconstitutional because it controlled production. In both.
a. Use of chattels of interstate or foreign commerce which Congress deems as being misused. Court on Commerce: But even if appellees activity by local and though it may not be regarded as commerce. can regulate if affects interstate commerce) b. c. indirect effects on interstate commerce. b. it may still. Justice Douglas argues that Act should rest on § 5 of 14th Amend and not commerce clause. Cases interpreting Meaning of ´Commerce Among the Statesµ 1. c. Commerce Power broad and sweeping. Wickard v. Farmer who grows wheat for personal use sues and argues his growth cannot be regulated under commerce power. a. Dagenhart) b.There will be indirect effect on interstate commerce. Does not matter congress is responding to moral problem. (Dissent says loan sharking is no different than any other crime so in theory all crime affects interstate commerce) Court recognizes three categories of problems commerce clause can reach. including local activities in both the States of origin and destination. Is his better? 2. i. Action of Congress in adoption of Act as applied here to motel which concededly serves interstate travelers is within power granted it by the Commere Clause. Katzenbach v. 4. Maryland v. viii. 37 . the exercise of the granted power of Congress to regulate interstate commerce. Heart of Atlanta Motel.commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end. In this case. Court: Power of Congress to promote interstate commerce also includes the power to regulate thereof. BUT shipment of manufactured goods interstate is commerce and prohibiting that shipment is a regulation of interstate commerce. home consumption will have substantial effect on price and market conditions of wheat in commerce. Rejects distinctions between production and commerce and direct v. Perez v. Filburn (1942): Agricultural Adjustment Act of 1938 sought to limit amount of wheat grown to raise prices paid to farmers. (Court overrules Hammer v. be reached by Congress if it exerts a substantial economic effect on interstate commerce. United States (1964): Hotel challenged constitutionality of 1964 Civil Rights Act which prohibited discrimination. Manufacturing is not commerce. 3. v. Court: Ample evidence to support conclusion that discrimination affected interstate commerce particulary when cumulative impact considered. This is still good law even after Rehnquist court·s attempt to cut back commerce clause. Substantial amount of food served was procured out of state. McClung (1964): Companion Case to Atlanta. c. Wirtz (1968): Court upholds application of fed min wage to state govt employees. whatever its nature.S. Congress had rationale basis for its findings . Restaurant refused service to AAs. ii. U. (1971): Court upholds fed ban on loan sharking. a. which might have substantial and harmful effect upon commerce. (No matter how local. a. Court adopts narrow view of 10th Amendment³States but a truism. ii. Impact of Wickard: i. No claim that out of state travelers eat there. i. Inc. 3. Case established that even purely intrastate activities that don·t directly affect interstate commerce may be regulated by Congress if cumulative impact would affect interstate commerce.
i. FLSA impersibily interferes with integral state functions. Fry v. O·Connor: Essence of federalism is that states have interests fed govt is bound to respect. ii. ´address matters that are indisputably attributes of state sovereigntyµ. Intrastate activities substantially affecting interstate commerce. Court clarifies test for a fed law to violate 10th Amend. Concurring and Dissenting Opinons: i. i. Court rules that Commerce clause does not impower Congress to enforece min wage requirements against states in areas of traditional govt functions. 2. This test leads to inconsistent results. 3. National League of Cities v. Court: OVERRULES Usery. Powell: Court ignores state decisis. San Antonio Metro Transit Authority (1985): Whether city bus drivers are subject to fed min wage laws under FLSA. Protection of instrumentalities of interstate commerce or persons or things in interstate commerce. iii. ii. United States (1975): Rehnquist argued in dissent that Wirtz should be overruled. Usery (1976): a. directly impair states· ability to structure integral operations in traditional areas of govt functions. Court: Rules 5-4 that Congress cannot require states to pay their employees the fed min wage. b. Dissents: i. The States are already protected because their elected Congressman draw up the legislation and the political process is a better safeguard for federalism then unelected judiciary. c. Stevens Dissent: Threatens ability to apply wide range of fed laws to states. 5. b. Court had said that private sector could be regulated by Congress but not public under Usery. iii. Rehnquist bases argument on 10th Amend and says it bars Congress from regulating an undoubted attribute of State sovereignty in way that would displace the States· freedom to structure integral operations in areas of traditional govt functions. Brennan Dissent: Abstraction used by court to void law it does not like. Garcia v. State·s role in political process not sufficient protection. Hodel Cases: Court rejects 10th amendment challenge to Surface Mining Control and Reclamation Act. Cases Interpreting 10th Amend 1937-1990s 1. Dangerous to make fed officials sole judge of limits on their power. Distinguishing ´traditionalµ from ´nontraditionalµ state functions under test from Usery is unsound in principle and unworkable in practice. must NOT be such that nature of fed interest justifies state submission. a. b. Rehnquist courts attempts to relive limits on Congress· power 38 . Rehnquist: Will one day regulate commerce power. ii. Nothing in the overtime and min wage requirements as applied to SAMTA is destructive of state sovereignty or violative of any constitutional provision. a. iii. To violate the law must regulate the ´states as statesµ. ix. i. (4) 1990·s-present 1.x. Blackmun Concurs: Believes majority gives narrow balancing test that will not threaten fed power in other areas such as env regulation where fed interest is greater and state compliance essential. ii.
transit. Reasonable Basis that an activity affects interstate commerce should be sufficient. Guns are inherently a part of interstate commerce and guns near schools have an economic impact. After Lopez. Virtually ALL rejected. (one was fed arson statute struck down as not effecting interstate commerce). Thomas Concurrence urged a narrower view of congressional power as in the 1887-1937 approaches. If they can regulate gun possession near schools they can regulate anything (educational process. Reconsider ´substantial effectµ test. b. family law. (Thus the entire law was held unconstitutional. Only about 6 reversed. saying congress was regulating noneconomic activity that was traditionally left to the states. The majority justified this by arguing that otherwise Congress could regulate virtually any crime because the nationwide aggregated impact of any crime would have substantial effects on employment.µ 4. b. Persons or things in interstate commerce c. U. Kennedy and O·Connor Concurrence stressed federalism as well as the lack of necessity for the federal law since many states already had similar provisions.) ii.S. v. v. both of which are traditionally state governed) iii. ´While we need not adopt a categorical rule against aggregating the effects (cumulative theory) of any noneconomic activity in order to decide these cases. iv. i. Impact of Lopez and Morrison: a. Channels of interstate commerce b. thus far in US history our cases have upheld CC regulation of intrastate activity only when that activity is economic in natureµ. Congress·s argument that it may result in violent crime which affects the national economy is slippery slope. Can the Endangered Species Act constitutionally prohibit parties from harming endangered flies in two CA counties? Does it depend on what activity harms the fly? Whether it is construction of hospital or children riding dirt bikes? 39 . Rehnquist says prior case law was uncertain as to whether an activity must ´affectµ or ´substantially affectµ interstate commerce. the proper test requires determining whether the regulated activity ´substantially affectsµ interstate commerce. Rehnquist states that there are Three types of activities that Congress can regulated under the commerce clause power: 1) the use of the channels of interstate commerce (Heart of Atlanta).What Congress may regulate: a.S. Narrowing the federal commerce power: a.) Rehnquist rejected this. Chief Justice Rehnquist noted that nothing in the Act limited its application to instances where there was proof that the gun had been part of interstate commerce. v. Morrison (2000): majority rejected Congress's findings that gendermotivated violence has a substantial enough effect on interstate commerce to give Congress the power to create a federal cause of action to redress it. 3) those activities having such a substantial relation to interstate commerce. 2) to regulate and protect the instrumentalities of interstate commerce (includes persons and things in interstate commerce (Railways). or consumption. Congress used the cumulative theory (combined effects of assaults against women across the country had substantial effect on interstate commerce. Lopez (1995): Declared unconstitutional the Gun-Free School zones Act of 1990 which made it a federal crime to have a gun within 1000 feet of a school. REQUIREMENTS. Rehnquist is big on saying that they need to cut off commerce somewhere. production. Dissent criticized the majority as activism and abandoning sixty years of precedent. U. Activities that substantially affect interstate commerce 3. Court strikes it down saying that having a gun in a school zone does not substantially affect interstate commerce. D·s consistently used court·s decision to challenge convictions under certain statutes.2.
The prohibited activity that harms the object or activity? iii. Federalism Ironies: a.i. its application to the commerce clause gives a powerful tool to lawyers challenging the application of federal civil and criminal laws. Confusion Over Application of Commerce Clause Doctrine a. Rancho Viejo LLC v. c. and yet we find nothing approaching a clear statement from Congress that it intended §404(a) to reach an abandoned sand and gravel pit such as we have here. What Constitutes ´economic activityµ for its cumulative impact on interstate commerce to be considered and what must ´substantially affectµ interstate commerce? i. The government argued that the migratory bird rule was constitutional because ´protection of migratory birds is a ¶national interest of very nearly the first magnitude. iii. 5. i. they only need to show that the application of the law would raise ´constitutional doubts. Norton (DC Cir. Sees majority as saying because fly might at some later time have some medical value which might affect interstate commerce Congress can regulate anything that advances the pace at which it becomes extinct. Ginsburg says const as far as housing project effecting toad·s habitat but stepping on while hiking unconstitutional because not commercial activity.µ The Supreme Court never has explained how serious the constitutional doubts must be. Clear Statement Test: In order to challenge the constitutionality of a statute as a violation the commerce clause. 7. During same Term. The object or activity protected by regulation? ii. the court construed the Clean Water Act narrowly as not allowing federal regulation based solely on the ´migratory bird actµ. Raich (2005) 40 . Narrowly Interpreting Laws to Avoid ´Constitutional Doubtsµ a. 1997): Court said it was const because it protects current and future interstate commerce that relies on biodiversity and it controls adverse effects of interstate competiton. 1. Solid Waste Agency: the court said regulation over abandoned sand and gravel pit of Illinois would be a serious constitutional question b/c it might affect state·s traditional control over land use. 6. i. This is widely viewed as far greater intrusion on state prerogatives than the Violence Against Women Act in Morrison. nor has it indicated how plausible the narrowing construction has to be. To avoid the constitutional issue. They need not persuade the Court that a federal statute is unconstitutional on its face or as applied. Concurrence: Const because it affects land and objects involved in interstate commerce. and that. 2003): Endangered toad.C.µ Although interpreting laws narrowly to avoid constitutional doubts is not new. Dissent: Commerce power gives Congress power to regulate commerce not ecosystems. ´These are significant constitutional questions raised by respondents· application of their regulations. ii. These questions pretty much resolved by Gonzalez v. as the Court of Appeals found millions of people spend over a billion dollars annually on recreational pursuits relating to migratory birds. The regulatory program itself? (RAICH) b. NAHB v. Condon which prohibits states from disclosing information about drivers without their consent. Instead. 2. Court upholds fed Driver·s Privacy Protection Act in Reno v. Cir. there must be a clear statement by congress that shows their intent to regulate in the way that is considered unconstitutional. Babbit (D.
you can prohibit the intrastate activity if it is necessary and proper to the overriding federal legistlation. It is just as much economic activity if it is prohibited substance. but it could be invalidated as exceeding the scope of Congress·s powers under Article I of the Constitution or for violating another constitutional provision. a federal law never would be found unconstitutional as violating the Tenth Amendment. ii.c. He joins the idea that if it is necessary as larger fed regulatory program. nor prohibited by it to the States.µ b. 1. 8. Reviving 10th amendment limits on federal power: a. noncommercial use in compliance with state law allowing pot use for medicinal purposes. Gonzalez v. Pierce County: U. Under this approach. Two approaches: i. Raich (2005): Whether Congress has constitutional authority under commerce power to ban local cultivation and use of marijuana for medical purposes even if it is grown by cancer patients solely for private. Court: Says Wickard establishes that Congress can regulate intrastate activity if it thinks the activity will undercut regulation in that commodity. 2. Tenth Amendment is not a separate constraint on Congress. Lopez and Morrison probably not effected by this case. The Tenth Amendment reserves a zone of activity to the states for their exclusive control. i. Very broad view of Congress· power. 2. but rather is simply a reminder that Congress only may legislate if it has authority under the Constitution. ii. the Tenth Amendment is a key protection of states· rights and federalism.µ The key question about the Tenth Amendment is whether it is a judicially enforceable limit on Congress·s power can federal laws be declared unconstitutional as violating this constitution provision? b. Under this approach. so long as that overall program has effect on commerce. Upholding Federal Laws and Rejecting Commerce Clause Challenges a. or to the people. Tenth Amendment is simply a reminder that Congress must have authority under the Constitution to legislate. The Tenth Amendment states: ´The powers not delegated to the United States by the Constitution. and federal laws intruding into this zone should be declared unconstitutional by the courts. Gonzales v. 41 . (Uses the reasoning of Wickard) 9. are reserved to the States respectively. Yes it is proper exercise of Congress· authority because the legislation aims at improving safety ´in the channels of commerce and increasing protection for the instrumentalities of interstate commerce. Department of Transportation adopted Section 409 which protects information compiled or collected in connection with certain federal highway safety programs from being discovered or admitted in certain federal or state trials.S. Raich: The Court held that the regulation of marijuana under the CSA was squarely within Congress' commerce power because intrastate production of marijuana (a commodity) meant for home consumption that is sold in interstate commerce is economic activity and thus substantial effect can be based on cumulative impact. No difficulty concluding Congress had reasonable basis for this law because court feared it would harm controlled substances act. but endangered species act probably will be. but the Tenth Amendment is not a basis for invalidating laws that are within the scope of Congress·s legislative power. The alternate approach is that the Tenth Amendment protects state sovereignty from federal intrusion. Also significant that Scalia is in the majority in this case: 1.
a. 3. It is one of the happy incidents of the federal system that a single courageous State may. will enhance their opportunities to experiment and serve as laboratories. c. b. a. How important is the protection of state sovereignty and federalism? When the Court does speak of the values of federalism. and the personalities of the candidates. Enhancing democratic rule by providing government that is closer to the people. health care. Now. a. thus making it unnecessary for the courts to enforce federalism as a limit on Congress. without recourse to judicial review. The interests of the voters are the focus of attention. Congress does not have authority to compel states to enact or enforce a federal regulatory program ii. One view is that judicial enforcement of federalism as a limit on Congress is unnecessary because the political process will adequately protect state government interests. Yet. dissenting in Garcia. v. with popular election of senators (instead of when states chose senators). Decreasing the likelihood of federal tyranny 2. Interests of the states are represented in the national political process and that the nature of that process provides sufficient protection of state sovereignty. when something is being regulated in a ´generally applicable wayµ (applies to states and individuals) 42 . weigh heavily the extent to which the individual legislator votes in a manner that serves the interests of the state as an entity. a. in choosing representatives and senators. Elected representatives are thus more immediately accountable to individuals and their concerns. why believe that the states· interests as states are adequately protected in Congress? The assumption must be that the voters. Allowing states to be laboratories for new ideas. But the assumption that states· interests are adequately represented in the national political process is questionable.iii. government is brought closer to people and democratic ideals are more fully realized. When congressionally act conflicts with 10th amendment: i. if its citizens choose. Justice Powell. simple observation of congressional elections shows that the issues are usually basic ones about the economy. Yet. b. 2. iv. the notion of radically limited federal powers seems anachronistic in the face of a modern national market economy and decades of extensive federal regulations. lamented that ´the Court does not explain how leaving the States virtually at the mercy of the Federal Government. serve as a laboratory. A second major question is whether it is the role of the judiciary to enforce the Tenth Amendment and protect state sovereignty or whether it is an issue left t-ft to the political process (Blackmuns· Theory) 1. and try novel social and economic experiments without risk to the rest of the country. Congress cannot compel State·s officers to do something d. not the institutional interests of state and local governments. usually three benefits of protecting state governments are identified: 1. When congressional act DOES NOT conflict with 10th amendment: i.
Ogden (1824) adopted the view that the 10th Amendment is simply a reminder that Congress must have authority under the Constitution in order to legislate. People had been asking was there anything that Congress could not reach under the commerce clause? 3. If a few states allowed it goods produced there would be cheaper and pressure other states to allow child labor. The Court greatly circumscribed the scope of Congress·s powers. Expressly overruled Hammer v. Douglas saw a problem from the basic structure of the Constitution. when congressional act regulates state activities rather than seeking to control or influence the manner in which states regulate private parties. Harlan·s opinion said that there is nothing in the Constitution which says that when you enact a law you can·t apply it to states. Maryland v. The 10 1. Upheld it as a lawful exercise of Congress·s commerce clause authority and flatly rejected the claim that the law violated the 10th Amendment . Darby (1941) A challenge to the constitutionality of the Fair Labor Standards Act of 1938 which prohibited the shipment in interstate commerce of goods made by employees who were paid less than the prescribed minimum wage or who worked more than the prescribed maximum hours. 2. The Court flatly rejected it and said that the local control is important. Usery (1976) The only case in which a federal law was declared unconstitutional as violating the 10th Amendment. 3. e. ii. Declared unconstitutional the application of the Fair Labor Standards Act which required the payment of the minimum wage to state and local employees. National League of Cities v. The moment at which the following 10th Amendment cases came up was after Wickard (used aggregation theory). not as a judicially enforceable limit on legislative power. Dagenhart. The Court found that 43 . Once Congress is within the scope of its power.ii. For example. (1918) was the most significant case to construe the 10th Amendment this way. the Court found it unconstitutional as it controlled production. Hammer v.µ a. A federal law prohibited the shipment in interstate commerce of goods produced in factories employing children. th Amendment Between 1937 and the 1990s iii. Dagenhart and its view that control of production was left to the exclusive regulation of the states. The 10th Amendment from the Late Nineteenth Century Through 1937 1. the Child Labor Case. 2. Gibbons v. and held that the 10th Amendment reserves a zone of activities to the states for their exclusive control. a. Case law: i. it can legislate the same as if there were no states at all. but decision was later expressly overruled by Garcia (below). The 10th Amendment in the Nineteenth Century 1. Although the law was limited to regulating goods in interstate commerce. United States v. Wirtz (1968) Application of Congressional laws to state hospital workers.´The Amendment states but a truism that all is retained which has not been surrendered. particularly commerce powers. Defenders had argued that the protection of state autonomy was illusory because the national market restricted the ability of the states to choose whether to allow or prohibit child labor.
except that Justice Blackmun switched sides and this time voted to uphold the federal law. Hodel v. There is nothing wrong with a big commerce power and the Congress is better at figuring out what should be done and we will only step in when Congress has gone totally out of bounds. Thus. (Overuling Usery) Garcia v.· ¶integral. b. Dissents: 44 . Mississippi (1982) (Distinguished from usery) Challenge to the Public Utilities Regulatory Policies Act of 1978 which required that state utility commissions consider FERC proposals. c. Like. 2) The protection of states should be through the political process. Virginia Surface Mining & Reclamation Association (Distinguished from usery). Clause 3. in 1980. and thus there was no 10th Amendment violation.requiring states to pay their employees the minimum wage violated the 10th Amendment because the law operates to directly displace the States freedom to structure integral operations in areas of traditional government functions and are not within the authority granted Congress by Article I. 5-4 split was exactly the same as in Usery.· or ¶necessary· nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. No affirmative thrust from the 10th Amendment. the Court made it clear that Usery only applied when Congress was regulating state governments. b/c it would require state and local governments to either raise taxes or cut other services. Federal Energy Regulatory Commission v. was constitutional b/c it did not regulate the states as states. Blackmun offered two reasons for overruling National League of Cities: a. An unclear holding ² The Court did not attempt to define what is such a traditional function. The Court emphasized that the federal regulation only forced states to consider adopting the federal standards and did not force them to do so.Key fifth vote . 1) Unsound in principle and unworkable in practice ² a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular government function is ¶traditional· or ¶integral. the Court only held that forcing payment of the minimum wage was unconstitutional. National League of Cities it focused on whether the application of the Fair Labor Standards Act to state and local governments violated the 10th Amendment.· ´Any rule of state immunity that looks to the ¶traditional. 6. 5. San Antonio Metropolitan Transit Authority (1985) Blackmun joined the National League of Cities dissenters to create a majority. Justice Harry Blackmun . Upheld a federal law that regulated strip mining and required reclamation of strip mined land. 4.µ b. not when Congress was regulating private conduct.said that he saw the majority as adopting ´a balancing approach [that]« does not outlaw federal power in areas such as environmental protection. Section 8. Surface Mining Control and Reclamation Act of 1977. where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essentialµ.
Instead. The Court ruled that a federal law that imposes a substantial burden on a state government will be applied only if Congress clearly indicated that it wanted the law to apply. 1. the conservative·s position on the Tenth Amendment again would prevail. the law provided that states would ´take titleµ to any wastes within their borders that were not properly disposed of by January 1. The Tenth Amendment in the 1990s and Beyond i. 1. Congress may ENCOURAGE states to comply by grants in aid and cooperative federalism. not statesµ. United States (1992): Congress does the authority to compel the states to provide for the disposal of the radioactive waste generated within their borders b/c ´the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress· instructionsµ & ´Congress has the power to regulate people. ii. 1996. Justice O·Connor. Justice Rehnquist wrote a short dissent lamenting the majority·s approach. The Age Discrimination in Employment Act lacks such a clear statement. 45 . The Supreme Court ruled that Congress could regulate the disposal of radioactive wastes. to ensure effective state government action. Justice O·Connor·s dissent responded to the majority·s second major point and challenged the view that the political process would adequately protect the interests of state governments. The Act provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on radioactive wastes received from other states. the Court held that the ´take titleµ provision of the law was unconstitutional because it gave state governments the choice between ´either accepting ownership of waste or regulating according to the instructions of Congress. ii. discussed the importance of autonomous state governments as a check on possible federal tyranny and stressed the significance of the Tenth Amendment as a constitutional protector of state sovereignty. by a 6 to 3 margin.µ 2. Additionally. and most controversially. in time. However. New York v. and then would ´be liable for all damages directly or indirectly incurred. Gregory v.µ Forcing states to f. Powell argued that the Court could define the parameters of the Tenth Amendment just as the Court has defined numerous other ambiguous constitutional provisions. The Supreme Court held that a federal law will be applied to important state government activities only if there is a clear statement from Congress that the law was meant to apply.i. The Court did not use the Tenth Amendment to invalidate the federal law on its face or as applied. but predicting that. writing for the Court. the Court used the Tenth Amendment and federalism considerations as a rule of construction. Justice Powell·s dissent focused on the majority·s first major point as to whether it was possible to define ´traditionalµ orµ or ´integralµ government functions. and hence the Court refused to apply it to preempt the Missouri mandatory retirement age. Ashcroft in (1991) ² court ruled The federal Age Discrimination in Employment Act conflicts w/ Missouri constitution that set a mandatory retirement age. iii.
Scalia (majority) ² Structural ´Slippery Slopeµ Argument. 2. Reno v. Also. The Court explained that the law was constitutional as an exercise of Congress·s commerce clause power because ´Congress found that ¶Congress found that many States« sell this personal information to individuals and businesses and these sales generate significant revenues for the States. b. Justice Scalia·s majority opinion emphasized that Congress was impermissibly commandeering state executive officials to implement a federal mandate. and requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation.µ It directly regulates interstate commerce (the flow if info is commerce). Unlike the other recent cases. 4. The Court also stressed that the law is not limited to state governments. Political accountability of Commandeering: The Court explained that allowing Congress to commandeer state governments would undermine government accountability because Congress could make a decision. It does not require states enact any laws or regulatory programs. 1. When Congress exercises the powers delegated to it by the Constitution.accept ownership of radioactive wastes would impermissibly ´commandeerµ state governments. Congress may attach strings on grants to state and local governments and through these conditions induce state and local actions that it cannot directly compel. United States (1997): Brady Act commands state and local law enforcement offices to conduct background checks on prospective handgun purchasers and to perform certain related tasks. and a correct understanding of the basic structure of the Federal Government. iv. 3. in Reno v. The central holding of New York v. 1. Condon the Supreme Court rejected a Tenth Amendment challenge and upheld the federal law. Congress may set standards that state and local governments must meet and thereby preempt state and local actions. but the states would take the political heat and be held responsible for a decision that was not theirs. Condon: the Driver·s Privacy Protection Act of 1994 regulates the disclosure of personal information contained in the records of state DMV departments. Perhaps most importantly. (More than Articles of Confederation). Stevens (minority) ² Purpose of Constitution to give more power to federal government. a. it also regulates private entities that possess the drivers· license information. decisions of this Court. This conclusion is firmly supported by the text of the Constitution. United States is that it is unconstitutional for Congress to compel state legislatures to adopt laws or state agencies to adopt regulations. the Court said that the law did not violate the Tenth Amendment because it was a prohibition of 46 . 3. it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. iii. The Court held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States·s officers directly. the early history of the Nation. however. 2. The Court. Printz v. indicated that Congress was not powerless.
Duties. leaving all of us far more vulnerable to identity thieves. Taxing and Spending Power (Article I. Some critics claim that the Real ID Act violates the Tenth Amendment to the United States Constitution as a federal legislation in an area that.S. Real ID Act. Whether 10th amendment is a limit on it iii. v.32 The Court explained that ´[e]very tax is in some measure regulatory But [it] is not any less a tax because it has a regulatory effect Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts. The debate over the scope of the taxing and spending power goes back to a dispute between James Madison and Alexander Hamilton. is the province of the states. Two views: iv. Congress sought to ensure a fair price and thus is to encourage agricultural production. which sought to stabilize production in agriculture by offering subsidies to farmers to limit their crops. the conditions are unambiguous 3. Case law: 1. Section 8) i. and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals. much more expansive view. or does Congress have broad authority to tax and spend for the general welfare? In United States v. b. Real ID is an unfunded mandate that violates the Constitution's 10th Amendment on state powers. Capitol. to pay the Debts and provide for the common Defence and general Welfare of the United States. Anthony Romero. By restricting the supply of agricultural products.µ viii. Agricultural Adjustment Act of 1933.. Imposts and Excises.S. the executive director of ACLU. Butler . Thus. 3 Requirements when Congress· spending power cannot be limited: 1. ´It does not require the South Carolina Legislature to enact any laws or regulations. 47 . Article I. Representative Bob Barr wrote in a February 2008 article: "A person not possessing a Real ID Act-compliant identification card could not enter any federal building. the Court upheld a federal tax on firearm dealers. 2. Imposts and Excises shall be uniform throughout the United States..µ ii. states that ´Congress shall have Power To lay and collect Taxes. or an office of his or her congressman or senator or the U. Former Republican U. stated: ". United States and Printz v.S. U. Butler: a. under the terms of the Tenth Amendment.conduct.The Court adopted the latter. This effectively denies that person their fundamental rights to assembly and to petition the government as guaranteed in the First Amendment. §8 of the Constitution. not an affirmative mandate as in New York v. Is Congress limited to taxing and spending only to carry out other powers specifically enumerated in Article I. but all Duties.".µ v. The DHS rule does not attempt to rebuff the Tenth Amendment argument directly. vii. TWO ISSUES: 1. taxing and spending power just has to be for ´general welfareµ 2. In 1937. destroys states' dual sovereignty and consolidates every American's private information. vi. and the conditions bear a relationship with the purpose of the spending program v." vi. United States. A tax is not any less a tax because it has a regulatory effect (ex: tax on sale of guns is ok) 1. but says that the DHS is acting in accordance with the authority granted to it by the Real ID Act and that DHS has been and will be working closely with the states on the implementation of the Real ID Act g. Scope of Congress· taxing and spending power a.
One important issue involving the spending power concerns the ability of Congress to place conditions on grants to state and local governments. He Court unanimously upheld the constitutionality of a federal law which prohibits bribery of state. the Court upheld the constitutionality of the Social Security Act·s old age pension program. Modern view in Stone·s Dissent. which was supported exclusively by federal taxes. The claim was that Congress only could prohibit bribery as to those state. Sabri v. Chief Justice Rehnquist. Chas C.µ47 But the Court said that in this case. and tribal activities that actually got federal money. The Court emphasized that the condition imposed by Congress was directly related to one of the main purposes behind federal highway money: creating safe interstate travel.· c. Steward Mach. Co. v. Justice Benjamin Cardozo.40 An individual convicted under this law argued that his activities had nothing to do with the area of local government that received federal funds and that Congress exceeded the scope of its spending power. a. Congress has authority under the Spending Clause to appropriate federal monies to promote general welfare and has corresponding authority under necessary and proper clause to see to it that taxpayer dollars appropriated under that power are in fact spent for general welfare and not undermined by corrupt public officials. not an exercise of judgment Nor is the concept of the general welfare static. The Court upheld the constitutionality of the federal unemployment compensation system created by the Social Security Act. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation.i. vii. b. Madison: narrower view: Congress can only use power to tax and spend in exercise of its enumerated power ii. so long as it does not violate another constitutional provision. so long as the conditions are expressly stated and have some relationship to the purpose of the spending program. not a means for bringing federal economic might to bear on a State·s own choices of public policy. 3. What is significant about this is that court is taking a broad view of spending power saying its not limited to one of the enumerated powers. The Court recognized that at some point ´the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion. approved this condition on federal money.µ41 The Court expressly rejected the federalism challenge to the law and concluded that the criminal law was constitutional because Congress has the ´power to bring federal power to bear directly on individuals who convert public spending into unearned private gain. 2. stated: ´The discretion [to decide whether taxing and spending advances the general welfare] belongs to Congress. the Court explained: ´Money is fungible.µ 4. and tribal officials of entities that receive at least $10.000 in federal funds. bribed officials are untrustworthy stewards of federal funds. 1. Congress may spend in any way it believes would serve the general welfare. b. The Court has held that Congress may place conditions on such grants. a display of arbitrary power. Davis (1937). South Dakita v. writing for the Court. Congress conditions state receipt of federal highway funds on states· raising legal drinking age to 21. United States: a. local. rather. unless the choice is clearly wrong. Davis. and corrupt contractors do not deliver dollar-for-dollar value. Hamilton and Justice Story: can be used more broadly to promote ´general welfareµ c. local. Dole: a. the condition of federal highway money was a ´relatively mild encouragementµ and was constitutional ´[e]ven if Congress might lack the power to impose a national 48 . In an opinion by Justice David Souter. In Helvering v.
Background: Six days before Graydon Comstock was to have completed a 37-month sentence for receiving child pornography. In drafting this provision.. A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress. She takes issue with the Commonwealth's position that there is a legal distinction between penalties that serve regulatory purposes and other forms of revenue raising taxation. viii. Conditions must be unambiguous so that state choice is exercised knowingly.. Commonwealth of Virginia v. In the final version of the ACA enacted by the Senate on December 24. the term ´penaltyµ was substituted for ´taxµ in Section 1501(b)(1). Does Congress have the authority under Article I to authorize federal authorities to detain a 49 . The law that Attorney General Gonzales was applying was ruled unconstitutional by lower courts on the grounds it exceeded Congress·s constitutional authority. Restrictions on spending power 1. In her opinion. we conclude that encouragement to state action « is a valid use of the spending power. the Secretary defends the Minimum Essential Coverage Provision as a valid exercise of Congress's independent authority to lay taxes and make expenditures for the general welfare. Congress specifically referred to the exaction as a penalty. published in the Internal Revenue Code. 3. Earlier versions of the bill in both the House of Representatives and the Senate used the more politically toxic term ´taxµ when referring to the assessment for noncompliance with the insurance mandate. United States v. which is calculated by reference to income. because only the particular issue of Congressional authority was properly before the Court 2. the Secretary now states unequivocally that the Provision is a tax. i. Court ² It is not a tax 3. and enforced by the Internal Revenue Service. so they often know about the choice they have. 4. 2009. A decision by the Supreme Court of the United States. Contrary to earlier representations by the Legislative and Executive branches. Conditions should be related to federal purpose in particular program. Must be in pursuit of the general welfare ² here Court will defer to Congress 2. The practice. ´[T]here is hereby imposed on the taxpayer a penalty. States have representation in Congress. 2.µ 26 U. In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause. The decision did not rule on any other aspect of the law's constitutionality. h. NECESSARY AND PROPER CLAUSE i.S. introduced by the Adam Walsh Child Protection and Safety Act. § 5000A(b)(1). was upheld against a challenge that it fell outside the enumerated powers granted to Congress by the Constitution. Attorney General Alberto R.minimum drinking age directly. shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms ´penaltyµ and ´taxµ are synonymous. any such legal distinction has long been abandoned by the Supreme Court.C.µ The Secretary also cites projections that it will raise $4 billion annually in general revenue. the United States' position was that the "necessary and proper" clause gave Congress the power to enact the law. Argued in January 2010 by Solicitor General Elena Kagan. 1. Comstock was a sexually dangerous person. this Court's analysis begins with the unequivocal denials by the Executive and Legislative branches that the ACA was a tax. Is Affordable Healthcare Act constitutional? Is it a tax or a penalty? ix. Gonzales certified that Mr. Sebelius (get notes) 1. The Secretary notes that ´[i]ts penalty operates as an addition to an individual's income tax liability on his annual tax return.. which ruled that the federal government has authority under the Necessary and Proper Clause to require the civil commitment of individuals already in Federal custody. Each of these earlier versions specifically employed the word ´taxµ as opposed to ´penaltyµ as the sanction for noncompliance. Comstock (2010) 1.
. (2) The Court recognized that Congress has long delivered mental health care to federal prisoners. which is reserved to the states.g. And §4248 does not ´invadeµ state sovereignty. Moreover. a. and gives either State the right. but rather requires accommodation of state interests: Among other things. (5) The Court recognized that the statute was narrow in scope and did not confer on Congress a general police power.µ §4247(a)(6).µ including the powers delegated by the Necessary and Proper Clause. which will prompt the individual·s immediate transfer to State custody e. supports the conclusion that §4248 satisfies ´review for means-end rationality. Necessary and Proper Clause can be more than one step removed from an enumerated power. Agrees that congressional authority under the Necessary and Proper Clause can be more than one step removed from an enumerated power. United States. the Court pointed to five considerations that compelled its holding. e.µ b. has the constitutional power to act in order to protect nearby (and other) communities from the danger such prisoners may pose. would pose an especially high danger to the public if released. Congress· desire to address these specific challenges. New York v. taken together with its responsibilities as a federal custodian. it directs the Attorney General to inform the States where the federal prisoner ´is domiciled or was triedµ of his detention. (4) The Tenth Amendment does not reserve a zone of authority to the states in this context. Justice Kennedy·s Concurrence 1. sexually dangerous person beyond the date the prisoner would otherwise be released? The Supreme Court held that the Necessary and Proper Clause grants Congress authority sufficient to enact the Adam Walsh Protection and Safety Act Justice Breyer·s ´Five Considerationsµ 1. far from a ´general police power. (3) Congress had good reason to pass the statute as it has the power to protect nearby communities from the danger prisoners may pose. c. The 10th Amendment does not ´reserve to the Statesµ those powers that are ´delegated to the United States by the Constitution. are matters for congressional determination alone. Section §4248 has been applied to only a small fraction of federal prisoners. There are sound reasons for §4248·s enactment.mentally ill. Congress could have reasonably concluded that federal inmates who suffer from a mental illness that causes them to ´have serious difficulty in refraining from sexually violent conduct. §4248(d). as custodian of its prisoners. i. (´depends not on the 50 .µ d. With Justice Stephen G. Thus. (1) the Necessary and Proper Clause grants broad authority. i. the extent to which they conduce to the end. i. The statute accommodates states interest. the degree of their necessity. The Federal Government. Breyer writing for the majority. The Constitution ´addresse[s]µ the ´choice of meansµ ´primarily « to the judgment of Congress. at any time. and its reach is limited to individuals already ´in the custody of theµ Federal Government. §4248 is ´reasonably adaptedµ to Congress· power to act as a responsible federal custodian. i. §4248(a). to assert its authority over the individual.µ §4248 is a reasonably adapted and narrowly tailored means of pursuing the Government·s legitimate interest as a federal custodian in the responsible administration of its prison system. See. the closeness of the relationship between the means adopted and the end to be attained. If it can be seen that the means adopted are really calculated to attain the end. ii. And Congress could also have reasonably concluded that a reasonable number of such individuals would likely not be detained by the States if released from federal custody.
" 4. In the case. 2. a violation of the Free Exercise Clause. exceeding Congress·s power under the Commerce Clause. Challenges Patient Protect and Affordable Care Act as: a. e. Necessary and Proper Clause is not an independent fount of congressional authority. Judge Steeh found that. b. plaintiffs have made a choice regarding the method of payment for the services they expect to receive. they cannot opt out of this market. a violation of Equal Protection & Due Process 2. Justice Thomas·s Dissent 1. Thomas More Society v.µ 2. was unconstitutional. d. because ´[t]he health care market is unlike other markets. a violation of states· Tenth Amendment rights. Congressional findings: a. Obama (E.µ no one can ¶opt out· of it: a. As inseparable and integral members of the health care services market. 2010) 1. 3. Concerned that majority·s ´rational basisµ test might be confused with Lee Optical ´rational basisµ test used in due process analysis. This is not a market created by Congress. In rejecting this argument. as living. Expresses concern ´about the breadth of the Court·s language and the ambiguity of the standard the Court applies. 4. which enables them to become insured even when they are already sick. 2. an unconstitutional tax. . the plaintiffs argued that the individual mandate in the recent federal healthcare legislation. c. which requires that everyone either purchase health insurance or be subject to a monetary penalty. like plaintiffs. No matter how ´necessaryµ or ´properµ an Act may be to its objective. 3. The provision at issue addresses cost-shifting in those markets and operates as an essential part of a comprehensive regulatory scheme. The plaintiffs have not opted out of the health care services market because. benefit from the ´guaranteed issueµ provision in the Act. 3. shifting costs onto third parties (free riding). Newly minted 5-part test cannot be reconciled with plain meaning of Necessary and Proper Clause i. Congress lacks authority to legislate if the objective is anything other than carrying into execution one or more of the Federal Government·s enumerated powers. 5. c. The Act regulates a broader interstate market in health care services. This benefit makes imposing the minimum 51 . The Individual Mandate is ´and essential part of the larger regulation of economic activityµ and its absence would undercut Federal regulation of the health insurance market. Justice Alito·s Concurrence 1. Because no enumerated power in Article I sec. The uninsured. But agrees that statute was necessary and proper to carry into execution the enumerated powers that support federal criminal laws under which the prisoners were convicted. Agrees with dissent that Necessary and Proper Clause empowers Congress to enact only those laws that carry into execution one or more of the enumerated powers. 8 nor any other provision in the Constitution "expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons" it "does not vest in Congress the authority to protect society from every bad act that might befall it. who do not oppose medical services on religious grounds. because it represents an attempt to regulate a person·s mere existence within the boundaries of the U. b. Individual Mandate is ´essential to creating effective health insurance markets in which improved health insurance products can be soldµ 3. Concerned that majority too dismissive of Tenth Amendment. . Without the Individual Mandate people could wait to purchase insurance until they needed care. Mich. breathing beings.S. . Judge Steeh then found that Congress· passage of the health-care act was a rational expression of its power to regulate interstate commerce under the Commerce Clause: a.D.number of links in the congressional power chain but on the strength of the chainµ). it is one created by the fundamental need for health care and the necessity of paying for such services received.
The Judge·s decision represents a wholesale erosion of the concept of limited government. Do you think the requirement in the Affordable Care Act that individuals purchase health insurance or pay a penalty with their income tax returns is constitutional or unconstitutional? iii. iv. But can the failure to purchase medical insurance be treated the same? As much as I want there to be affordable and available health care for as many people as possible. The government's attempt to retroactively classify the penalty in the Individual Mandate as a tax cannot fly if one takes plain language interpretation of statutes and legislative history as serious tools to use for judicial review. On the issue of the Commerce Clause. 2. then HHS is obliged to follow that intent and not have its own interpretation. I find the construction of the mandate as an attempt to regulate ´inactivityµ as a novel. will need. All inactivity can be classified as an activity if viewed through the lens of choice. First. and functions much like a tax. because it allows for federal regulation of ´economic decisionsµ merely because Congress believes that the regulation is ´appropriate. they go to hospitals. Congress· power to regulate commerce is essentially unlimited. b. I think if the Supreme Court was able to justify a finding of interstate commerce activity in Katzenbach partly based on the ´cumulative impactµ theory. I think the Affordable Care Act comes dangerously close to the line by the political compromises struck regarding the language used in order to have the votes needed for passage. the mandate is regulating ´economic activityµ and is consistent with Wickard and Raich. sounds like a tax. The fact that HHS is trying to now spin it as a tax governed by the IRS shouldn't fly in court based on the clear and convincing evidence demonstrating Congress' intent and if the court can find such clear intent. instead telling people to purchase some form of private health insurance or pay a penalty for failure to do so. ii. that would be constitutional under the Commerce Clause since it would regulate a health care system reaching across state lines to millions of people. Again. Health insurance is an example of such an activity. I think the insurance mandate is constitutional under the Commerce clause because Congress has the authority to regulate activities that will have a substantial effect on interstate commerce. but unpersuasive argument. Most opponents of this mandate who are uninsured have made a choice not to purchase insurance. their costs are ´shiftedµ onto the rest of the system and the states share in this burden. when the uninsured get sick. I am very skeptical of the government's 52 . Chelsea Jones: 1. Sebelius. then there should be no reason why that same theory wouldn·t work here. In that view. eating up a significant and unsustainable portion of GDP. is a reasonable means of effectuating Congress·s goal. Brian Newman: 1. While a judicial "smell test" in most situations would label the penalty as a tax. Additionally. PPACA attempts to regulate this ´shiftingµ by allowing the government to compete in an insurance marketplace (also an interstate activity) and provide low-cost insurance to those who can·t afford it.µ In other words.coverage provision appropriate. and inevitably. 6. I doubt that anyone would disagree that purchasing medical insurance is a commercial act that under the Wickard aggregate test would have a substantial effect on interstate commerce. The mandate cannot fall under the Taxing and Spending clause of the Constitution because of this. The minimum coverage provision. I doubt that anyone would disagree that if the government set up a single-payer system along the lines of Medicare that would apply to everyone or would compete with private insurance companies. get treated and when they can·t pay. As Secretary Sebelius suggested in Commonwealth v. But the Affordable Care Act doesn't do that. since it looks like a tax. it·s important to remember why President Obama and the Democratic majority were so hard pressed to get comprehensive health reform passed quickly ² health care spending has grown over the years. which addresses economic decisions regarding health care services that everyone eventually. the fact that the government went out of its way to justify the mandate in the legislation under the Commerce Clause and to repudiate any association with it being a tax plainly shows the intent of Congress.
prohibits slavery and involuntary servitude. may Congress regulate private conduct under this authority. The Fifteenth Amendment declares that ´[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race. placed the constitutionality of the law into great question. adopted in 1868. However I think that if the mandate is found unconstitutional by the Supreme Court. by appropriate legislation. Congress only may provide remedies for rights recognized by the courts (or laws to prevent violations of those rights). the government regulation was upheld under the Commerce clause because there was "activity" in the form of people growing crops or drugs for their personal use. then I think a 6-3 decision upholding the mandate and law (same supporters as Gonzales) will result. Congress· Power Under Post-Civil War Amendments i. Congress may not create new rights or expand the scope of these rights (City of Boerne) a. This probable qualifies as one of the examples of acceptable federal compulsion. adopted in 1865. Two Competing Views of Scope of Congress· Power: 1. or property without due process of law or deny any person of equal protection of the laws. It also provides. I think the government is wising up to potential 10th Amendment issues as Obama this week has offered to modify the Affordable Care Act to allow states to opt out of the program when it takes effect so long as they can expand coverage without driving up costs. it could be argued that the choice to forego insurance to pay out of pocket is a form of economic activity and I can see the logic behind such an argument. two cases used by the government to justify the mandate.i. Section 5 of the Fourteenth Amendment states: ´the Congress shall have power to enforce. But if that argument is acceptable. The amendments: 1. (Katzenbach). by watering down the plan to avoid any form of government-backed public plan. the provisions of this article. Congress may use the power to expand the scope of rights and even to define the meaning of constitutional provisions so long as it is not diluting constitutional rights.µ Section again provides that Congress has the power to enforce it by appropriate legislation. or previous condition of servitude. provides that all persrsom born or naturalized in the United States are citizens and that no state can abridge the privileges or immunities of such citizens. For example. If Scalia shifts from Gonzales based on the distinction between acting and failing to act. what is the scope of Congress·s power under these amendments? a. In both Wickard and Gonzales. may Congress use this power to interpret the Constitution and even to overrule Supreme Court decisions? iii. there remains the question of whether the mandate is too strong a governmental intrusion under the 10th Amendment. in §2. Now. If he hews close to his Gonzales opinion. contention that the failure to act is an activity that substantially affects interstate commerce. ´Congress shall have power to enforce this article by appropriate legislation. except as a punishment for a crime. OR 2. the majority would hold narrowly and follow Commonwealth v. ii. liberty. I think Glenn's contention that Scalia could easily distinguish his stance in Gonzales because of the distinction is well-founded. I think it really is a toss-up if the mandate is constitutional. Thirteenth Amendment. or is Congress limited to regulating only government actions? 2. then the Court will probably find 5-4 against the mandate since I think he'll bring Kennedy along for the ride. The Fourteenth Amendment. which has not been called into nearly as much question. Sebelius in simply severing it from the rest of the act. How to determine whether Congress is altering or creating new rights: 53 . I think the government. the "You do it or we'll do it for you" approach. Not doing something is the opposite: inactivity. color. nor may states deprive any person life. An activity is something someone does.µ 3. Second. 2. 3. Two major questions arise concerning the scope of this power. In the end. 1. First.
Indeed.µ5 The Court made it clear that Congress·s authority was only over state and local governments and their officials. and the actions of State officers. The Court. 14th Amendment 1. purchase. .µ e. In fact. could not regulate private conduct. Case law: 1. Jones v.C. However.µ but it could not use its power under the Thirteenth Amendment to ´adjust what may be called the social rights of men and races in the community. Runyon. pursuant to the Thirteenth Amendment.i.. however. d. c. Congress could not use this power to eliminate discrimination. v. it prohibits people from being or owning slaves.Held that Congress could prohibit private discrimination in selling and leasing property. the Court broadly declared that the Fourteenth Amendment only applies to government action and that therefore it cannot be used by Congress to regulate private behavior. The Supreme Court greatly limited Congress·s ability to use its power under the Reconstruction Amendments to regulate private conduct. a. Congress cannot determine what is a constitutional violation under this amendment vi. but to provide modes of redress against the operation of State laws. 2. b. the Court continued to adhere to the holding of the Civil Rights Cases that Congress. The Court stated that ´the fourteenth amendment is prohibitory « upon the states. The Court also held that Congress lacked authority to enact the law under the Fourteenth Amendment. sell.S. hold and convey real and personal property. Prohibits only state action 2. For almost 80 years. the Court held that the The Civil Rights Act of 1875 was unconstitutional and adopted a restrictive view as to the power of Congress to use these provisions to regulate private behavior. Mayer Co. the Court said that Congress has broad legislative power under the Thirteenth Amendment: ´Congress has the power under the 54 . § 1982. The Civil Rights Cases remain good law in implicitly establishing that the provisions of § 1 of the Fourteenth Amendment apply only to government action. b. The Court stated that Congress could abolish ´all badges and incidents of slavery. the Court has overruled these earlier decisions and has accorded Congress broad power under the Thirteenth Amendment to prohibit private racial discrimination. 13th Amendment 1. there must be ´congruence and proportionality between the injury to be prevented or remedied and the means adopted to that endµ iv. As to the Thirteenth Amendment. in the last quarter of a century. [Individual] invasion of individual rights is not the subject matter of the amendment. The Court held that § 1982 applies to prohibit private discrimination and that 14 Congress had the authority under the Thirteenth Amendment to adopt the law. Alfred H. to be appropriate. not over private conduct: ´It does not authorize Congress to create a code of municipal law for the regulation of private rights. 2. the Court recognized that it applies to private conduct. and Patterson give Congress authority to prohibit private racial discrimination as part of its authority to eliminate the badges and incidents of slavery. 15th Amendment vii. not to private conduct. However. lease. which provides that all citizens have ¶the same right. in every State and Territory. Jones. By an 8 to 1 decision. An African American couple sued under 42 U. said that Congress·s power was limited to ensuring an end to slavery. The Civil Rights Cases (1883) a. the Court has held that Congress may prohibit private racial discrimination under the Thirteenth Amendment. as is enjoyed by white citizens thereof to inherit. The case involved a private real estate developer who refused to sell housing or land to African-Americans.
overrules a SC decision. not interpret or enforce it. Congress may enact remedial legislation to prohibit conduct that is not itself unconstitutional so why can·t congress provide a remedy against private actors. Is act constitutional? Court strikes down act ² says congress cannot reverse SC decision. Morrison: Court held that the federal Violence Against Women Act could not be upheld as an exercise of Congress's power under Sec. it furtherance of the amendment. There is more evidence of discrimination by generally applicable laws in the voting rights.µ 1. e. Is it plainly adapted to that end? ii. b.j. c. Congress used the act to provide a remedy for victims of gender-motivated violence. by enacting this legislature. SC says the act is a remedy for discrimination. Religious Freedom Restoration Act ² prohibited governments from substantially burdening religion unless it furthers a compelling government interest through least restrictive means (test used prior to Smith). Voting qualifications is State concern. US v Comstock (2010). Does this mean the Voting Rights Act might exceed Congress·s Power? 1. 6. and congress has broad powers under the 14th amendment.S. Fourteenth Amendment only governs state actions. 5. The RFRA tries to alter the meaning of the free exercise clause. Florez: a. Congress· Power to Authorize Suits against State Governments (11th Amendment) i.µ 3. This goes to the 2nd question ² the scope ² of this section (see above). and the authority to translate that determination into effective legislation. v. Court should not second-guess Congress. d. Courts says they are not overturning Katzanbach. 4. City of Boerne v. Morgan: a. Court rejects NY·s argument that English literacy requirements are constitutional so long as they do not expressly violate part of the 14th amendment itself. Thirteenth Amendment rationally to determine what are the badges and incidents of slavery. Court will uphold laws if ´plainly adaptedµ to legitimate end and consistent with the ´letter and spiritµ of the Constitution. f. How big a problem is this? (Congress·s findings) 2. b. U. Two Interpretations of 11th Amendment 55 . So how do we determine whether Congress is enforcing or changing a constitutional right? (Majority) i. a. § 5 of the 14th is like N+P clause. Justice Bryer agrees with basic premise of court (that 14th doesn't allow to regulate private conduct) but says that the origin of the act is that the state has not appropriately addressed the problem of women·s rights. 5 of the Fourteenth Amendment because it targets only private conduct and not state action. No. this decision threatens to erode separation of powers. Harlans Dissent: Congress now has power to overrule SC. This is important . To be appropriate there must be ´congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end. Congress may use the 14th amendment power to expand the scope of rights and even to define the meaning of constitutional provisions so long as it is not diluting constitutional rights (adding new rights). enough if it is able to perceive a rational basis for congressional judgment that measure remedies discrimination. Katzenbach v. The effect of the act is to prohibit NY from denying the right to vote to large segments of its Puerto Rican community and to ensure non-discriminatory treatment in public services (empowered by their right to vote). c. subject only to overriding federal constitutional provisions. It reverses the Lassiter decision.Congress.
vi. a state may waive 11th amendment immunity if it clearly consents to suit 4. Section 2. Section3: recommend legislation. Tennessee v. Nevada: Congress may authorize suits. Federal Executive Power a. Article I initially states that. Congress more power b/c sex discrimination subject to stricter scrutiny than age or disability discrimination 2. Purpose of language simply to confirm that Council of State idea rejected by framers.µ Article II then enumerates specific powers of the president. 11th amendment reflects broader principles of state sovereign immunity that extend far beyond its textual meaning 2. Article II. ´All legislative Powers herein granted shall be vested in a Congress of the United States. Section 7. 1. iv. supervise department heads. Seminole Tribe: cannot abrogate 11th amendment immunity acting pursuant to Indian commerce clause 2. Clause II: treaty power. ´The executive Power shall be vested in a President of the United States of America. can still sue state officials for injunctive relief or damages not paid by government 2. Florida PrePaid: nothing gives power to Congress to abrogate state sovereign immunity from patent infringement 3. Clause 1: Commander in Chief. 56 . Article II. Kimel: employment discrimination act invalid b/c its not congruent and proportional Rights Receiving Heightened Scrutiny 1. Strict scrutiny (must be necessary to achieve a compelling governmental purpose): race or national origin which is expressly mentioned in 14th amendment b. equal protection: basic concept is that there are different levels of scrutiny depending on what the alleged basis of discrimination is: a. v. iii. Executive Powers Under Constitution b. i. Madison v Hamilton Debate: 1. Madison: a. Does this give Pres power to do things not enumerated? ii. Congress can waive states· 11th amendment immunity if it clearly expresses an intent to do so and acts pursuant to commerce power (Pa Union Gas) ² COURT SPLIT REMEDY MUST BE CONGRUENT AND PROPORTIONAL Case law: 1.µ Since Article II does not limit the president to powers ´herein granted. ´take careµ clause c. pardon power iii. 11th amendment meant only to limit diversity jurisdiction of federal courts. not federal question jurisdiction Traditional Exceptions to 11th Amendment 1. Article II of the Constitution begins. United States government can sue a state 3. Lane: IV. The difference in the wording of Articles I and II reveals the framers· intention to create inherent presidential powers. Article 1. 2. Intermediate Scrutiny (must be substantially related to achieving a substantial government purpose) gender discrimination c. Clause 2: Presentment clause allows President to veto legislation 1. Congress can waive states· 11th amendment immunity if it clearly expresses an intent to do so and acts pursuant to a valid exercise of power (pursuant to section 5 of 14th amendment) 5. Inherent Presidential Power i. appointment power iv. Article 2.ii. Hamilton: a. Rational Basis: anything else like age or disability Case law: 1.µ it is argued that the president has authority not specifically delineated in the Constitution.
Frankfurter argued that Congress had explicitly rejected giving the president the authority to seize industries and that this was a clear decision to preclude such an action. b. Congress could not wore clearly and emphatically have withheld authority than it did in 1947. Interestingly.b. The secretary of commerce. Mar 24). Justice Robert Jackson found the president·s action unconstitutional because Congress had denied the president the authority to seize industries. although Justice Black·s opinion was a majority opinion for the Court. by a 6 to 3 margin. 3. 3. Congress may limit power. Usurpation/separation of powers model (Douglas: cant act if it usurps power of another branch) a. and the president reported this action to Congress. Justice Frankfurter declared: ´[NJothing can be plainer than that Congress made a conscious choice of policy in a field full of perplexity and peculiarly within legislative responsibility for choice. The president may take any action not prohibited by the Constitution or a statute. Charles Sawyer. ii. ¶[t]here is no statute that expressly authorizes the President to take possession of property as he did hereµ and ´it is not claimed that express constitutional language grants this power to the Presidentµ 2.µ c. For example. In formulating legislation for dealing with industrial conflicts. Article II was ´simply to s( settle the question whether the executive branch should be plural or single and to give the executive a title. b. declared the seizure of the steel mills unconstitutional. such unenumerated authority would be inconsistent with a Constitution creating a government of limited authority. Yet. it is conceded that the president has these powers. in slides): nothing express here that authorizes president to take possession of Steel Mills (First model above). issued the order. Justice Jackson·s concurring opinion is perhaps the most famous opinion dealing with presidential power because he delineated three zones of presidential authority. (Frankfurter: can·t act b/c Congress disapproved ² Compare Jackson?) a. Truman believed that the steel strike could endanger the national defense and the war effort in Korea because steel was indispensable for all weapons. c. President Harry Truman issued Executive Order 10340 which directed the secretary of commerce to take possession of the steel mills and to keep them running. Steel industry arguments v governments arguments (slides. thus be under his authority as commander and chief? d. This approach is premised on the belief that there is need for the president to exercise powers not specifically enumerated in the Constitution or not expressly granted by Congress. The seizure was unconstitutional because the president was forcing the expenditure of federal funds to compensate the steel mill owners for the taking of their property. a. The Supreme Court. the Justices in the majority gave several different answers to the question of when the president may act without express constitutional or statutory authority. indeed. nor has Congress ever granted such powers in a statute. Youngstown Sheet & Tube (important. Four Models on Limits on Executive Power (from Youngstown) 1. President has no powers that are not enumerated in Article II and. United Steelworkers Union announced a planned nationwide strike as a result of a labor management dispute. 57 . Seven different opinions were written. Can·t this be justified through the protection of national security. Congress took no action in response to the seizure. No inherent power (Black: cannot act unless statutory or constitutional provision authorizes seizure) a.µ b. the Constitution makes no mention of a presidential power to recognize foreign governments or to remove presidential appointees from office. A few hours before the strike was to begin.
he can only rely upon his own independent powers. a.µ Because the president is disobeying a federal law. Chief Justice Vinson·s dissenting opinion in Youngstown suggests such inherent authority when he approvingly invokes ´President [Theodore] Roosevelt[¶s]« ¶Stewardship Theory· of Presidential power. both in respect of their origin and their nature. Justice Sutherland wrote: ´The two classes of powers [domestic and foreign] are different. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution« is categorically true only in respect of our 58 .µ In other words. The Second zone covers circumstances ´[w]hen the President acts in absence of either a congressional grant or denial of authority. ii. his power is at its lowest ebb. under the Constitution. his authority is at its maximum. for it includes all that he possesses in his own right plus all that Congress can delegate. Jackson argued that ´[w]hen the President takes measures incompatible with the expressed or implied will of Congress. and the like. the president·s acts are presumptively valid. but disagreed as *to whether Congress had acted. 4.i. The second approach concerns inherent powers³where the president is acting without constitutional or statutory authority. rather.µ iii. The dissenting Justices in Youngstown appeared to agree with this third approach to inherent powers. First. In Youngstown. such presidential actions will be allowed only if the law enacted by Congress is unconstitutional. d. Jackson said that ´[w]hen the President acts pursuant to an express or implied authorization of Congress. c. Third. impoundment.23 The case involved a congressional authorization permitting the president to restrict arms sales to two warring Latin American nations.µ e. his first and third zones involve situations where Congress has acted. Chief Justice Vinson·s dissenting opinion argued. The strongest expression of this approach was in United States v. Vinson found no such disapproval. and thus the issue is the constitutionality of the federal law. or in which its distribution is uncertain. and. Analysis of presidential power often starts with Justice Jackson·s three-part test. but there is a zone of twilight in which he and Congress may have concurrent authority. Vinson.µ b. bound to serve the people affirmatively in cases where the Constitution does not explicitly forbid him to render the service. Curtiss-Wright Export. rescission of treaties. unlike these other Justices. stating that the executive as subject only to the people. in part.µ Jackson said that it is impossible to formulate general rules as to the constitutionality of actions in this area. Justice Jackson offered no criteria to guide the courts in dealing with these issues. that the president had notified Congress of the seizure and that Congress never acted to disapprove the action. Justice Jackson concluded that the president·s seizure of the steel mills fit into the third category because ´Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. removal of executive officials from office.20 He concluded that ´there is no evidence whatever of any Presidential purpose to defy Congress or act in any way inconsistent with the legislative will. constitutionality is likely ´to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. like Jackson and Frankfurter. looked to whether Congress had disapproved the president·s actions. Interestingly.µ Under such circumstances. In upholding a broad delegation of power to the president. Inherent power to respond to emergencies unless violates an explicit constitutional provision (may be greater in foreign policy matters). This is the situation in issues such as executive privilege. Corporation. executive agreements.
Supreme Court noted: ´[s]ecrecy in respect of information gathered« may be highly necessary.S. b. Since the tragedy of September 11. The Constitution does not mention such authority. the Court held that it is the role of the Court to decide whether the president has executive privilege and.µ24 Justice Sutherland argued that power to conduct foreign policy does not stem from the Constitution. diplomatic. As the Supreme Court explained: ´Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process. executive privilege is seen as necessary in order for presidents to receive candid advice. an absolute. in creating the office of the special prosecutor. there have been claims of broad inherent presidential power to protect national security and fight terrorism. Absent a claim of need to protect military.internal affairs. Facts i. Executive privilege refers to the ability of the president to keep secret conversations with or memoranda to or from advisors. unqualified presidential privilege of immunity under all circumstances does not exist. Special Prosecutor subpoenas tapes of White House conversations v. Pres Nixon claims executive privilege. Is case justifiable? Is it purely an inter-branch dispute and political question as the President counsel argues. DC says tapes must be turned over. a. 1972 ii. v. d. or sensitive national security secrets. and that the president alone had authority to control prosecutions? i. a.µ b. but instead is intrinsic to nationality.µ iv. 59 . Court says this is a criminal proceeding. Watergate Burglary at DNC HQ June 17. executive privilege is sometimes defended as important to protect national security. its scope. Holding: c. The Executive ´gave the special prosecutor explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties. EXECUTIVE PRIVILEGE 1. if so. Does sep of powers preclude judicial review of a Presidents claim of executive privilege? (Slides. as we have noted. U. and the p premature disclosure of it productive of harmful results. iii. Mar 24) i. c. Loses in dc and us appeals vii. Many decisions of this Court. but presidents have claimed it throughout American history. 2001. Within Judicial Powers.µ ii. Le Court said that the president had the authority to delegate this power and that he had so. In recent years. Richard Nixon (President) 1. through the actions of the attorney general. arising in course of federal criminal prosecution. vi. First. White house cover-up iv. In part. refuses to turn over tapes. Also. Supreme Court: ´The President·s counsel. Burglars from Committee to re-elect the President iii. Public Outrage forces appointment of new Special Prosecutor who subpoenas tapes. reads the Constitution as providing an absolute privilege of confidentiality for all Presidential communications. diplomacy is regarded as requiring secrecy. have unequivocally reaffirmed the holding of Marbury v. however. the Bush administration has claimed inherent power to engage in activities such as detaining suspects and warrantless eavesdropping of American·s conversations with those in foreign countries. Saturday Night Massacre Oct 20 1973 viii.
The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive·s Article II prerogatives. Justice Black concluded that in the absence of statutory authorization. This inquiry places courts in the awkward position of evaluating the Executive·s claims of confidentiality and autonomy. nor the need for confidentiality of high-level communications. iii. Cheney v US District Court (2004) ² while not resolving executive privilege. The Court concluded that the executive was not required to invoke executive privilege in order to seek to keep the information secret.µ ii. Second. The Court was concerned that ´once executive privilege is asserted.µ i.µ The Court said that the distinction between criminal and civil cases ´is not just a matter of formalismµ.1.S. v. Nixon does not leave them the sole option of inviting the Executive Branch to invoke executive privilege while remaining otherwise powerless to modify a party·s overly broad discovery requests.µ The need for evidence at a criminal trial outweighed executive privilege. which concerns respondents· requests for information for use in a civil suit. that ´·[it is emphatically the province and duty of the judicial department to say what the law is. ´The impediment that an absolute. unqualified privilege would place in the way of the primary constitutional duty of the judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III. It is in contrast with decisions. Justice Kennedy·s majority opinion explained that ´contrary to the District Court·s and the Court of Appeals· conclusions. Nixon thus recognizes executive privilege as an inherent presidential power. Nixon involves the proper balance between the Executive·s interest in the confidentiality of its communications and the ´constitutional need for production of relevant evidence in a criminal proceeding. while the discovery sought in Cheney was broad.Madison. v Nixon? Court says it is a civil case. The Court also explained that the subpoenas in Nixon were narrowly focused. not criminal. Sawyer. The Court recognized that the need for candor in communications with advisors justified executive privilege. while far from negligible. which reject any 15 nherent powers. United States v. court holds information can be withheld. b. such as Justice Hugo Black·s majority opinion in Youngstown Sheet & Tube Co. coequal branches of the Government are set on a collision course. without more. the Court recognized the existence of executive privilege. and 60 . 1. indeed.µ 1. the Court said that a need for confidentiality was ´too plain to require further discussion. How does Court distinguish U. can sustain an absolute.µ 2. however. the Court held that executive privilege is not absolute. As discussed above in §4. The Court explained that ´neither the doctrine of separation of powers. the ¶need for information for use in civil cases. Third. but rather must yield when there are important countervailing interests. unqualified presidential privilege of immunity from judicial process under all circumstances.µ An absolute privilege would interfere with the ability of the judiciary to perform its constitutional function. The need for information in civil cases does not share the same importance as it does in a criminal case. a presidential action must be based on some provision of the Constitution. Justice Kennedy·s majority opinion explained that ´unlike this case. a. does not re the urgency or significance of the criminal subpoena requests in Nixon.
the need for complex regulations seems better handled in a specialized agency than in Congress. Two views: 1. 2. (Clinton v. if two branches agree. The Administrative State 1. New York): The Supreme Court. Stevens wrote: ´In both legal and practical effect. and stressed the practical need for a line-item veto. Stevens·s majority opinion was highly formalistic in stressing the procedures prescribed in the Constitution for enacting laws and eschewing any consideration of the practical benefits of a line-item veto. The difference between the majority in Clinton v. Unconstitutional b/c the cancelling of appropriation bills is the President repealing a law a.pushes to the fore difficult questions of separation of powers and checks and balances. the final version of the law is different after the veto than what Congress passed. hundreds of sections. or to repeal statutes. Normatively. the national budget was $4 million and each appropriation could be in a separate bill. The Court remanded for further proceedings consistent with its opinion. the Court·s refusal to enforce a nondelegation doctrine can be criticized as undermining government accountability as political decisions are made by unelected administrative officials and as undermining the basic philosophy of separation of 61 .µ The procedures for enacting and vetoing laws contained in the Constitution must be strictly adhered to and any changes must come from a constitutional amendment. Sees separation of powers as constitutionally mandated and therefore envisions a crucial judicial role in enforcing its requirements ii. b. d.· There is no provision in the Constitution that authorizes the President to enact. Congress cannot divide such a bill into thousands. Line-Item Veto (Slides. there is a political dimension: Expansive delegation of legislative power to administrative agencies allows Congress to act. Authority of Congress to Increase Executive Power i. the sheer quantity of regulations exceeds the capacity of Congress. separately.µ Thus. the President has amended two Acts of Congress by repealing a portion of each. Additionally. by exercising the line-item veto. dissented. Today. In contrast. court only rarely should invalidate their actions 2. must conform with Art. or tens of thousands. Also. was changing a law adopted by Congress. but avoid the political heat that specific regulations might engender. Imposition of Tariffs: president may waive them e. to amend.31 Congress could overturn such a veto by a majority vote of both houses. in an opinion by Justice Stevens. He statute empowered the president to veto (or more precisely to ´cancelµ) particular parts of appropriation bills while allowing the rest to go into effect. of separate appropriations bills. Constitutional Problem of the Administrative State i. no less than enactment. joined by Justices O·Connor and Scalia. ´a typical budget appropriations bill may have a dozen titles. i. 2. or to veto. each one of which the President would have to sign. Justice Breyer. the Court said that secrecy issues could be raised without formal invocation of executive privilege by the president. ¶[R]epeal of statutes. and spread across more than 500 pages of the Statutes at Large. In many areas. For many reasons. iii. Justice Stevens explained that the president. City of New York is the difference between a formalist and a functional approach to separation of powers that reappears throughout the material in this chapter.5 trillion. Congress has delegated broad legislative power to administrative agencies. with a federal budget of $1. Sees separation of powers as appropriately resolved b/w the President and Congress. ii. declared this statutory increase in presidential power unconstitutional. though.µ c. not legislative action. mar 24) 1. Justice Breyer·s dissenting opinion emphasized the need for a line-item veto in light of the myriad ways in which the budget process has changed with the growth of government over 200 years. I. He explained that when the Constitution was written.
powers embodied in the Constitution. the president approved a Live Poultry Code for New York City. v. prohibiting child labor. have been upheld. ´Filling in the Blanksµ c. and establishing a 40-hour workweek and a minimum wage. In part. The National Industrial Recovery Act. if our constitutional system is to be maintained. the Code was designed to ensure quality poultry by preventing sellers from requiring buyers to purchase the entire coop of chickens. However. in 1935. Since these cases. have been upheld a.µ d. the broad delegations can be defended as essential in a complex world requiring technical and detailed regulations that probably exceed the scope and ability of Congress. this reflects a judicial judgment that broad delegations are 62 . and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate. ´The Court recognized the need for regulations to deal with the ´host of details with which the national legislature cannot deal directly. ALA: The National Industrial Recovery Act delegated to the President the power to regulate various industries by re-delegating to business groups and boards of the various industries authority to create codes of conduct for the industries. ´Contingency theoryµ b. ´Intelligible Principle Approachµ: delegated discretion OK if sufficient standards to control its exercise d. including sick ones. the Court declared unconstitutional a provision of the National Industrial Recovery Act that authorized the president to prohibit the shipment in interstate commerce of oil produced in excess of state-imposed production quotas. v. In Panama Refining Co. even without any criteria. Thus. Ryan.µ But the Court said that ´the constant recognition of the necessity and validity of such provisions. The Code also regulated employment by requiring collective bargaining. b. also in 1935. Undoubtedly. Courts also construe statutes to avoid non-delegation problems 3. On the other hand. UNCONSTITUTIONAL DELEGATION 4. Notion of strict separation of powers between branches: one branch may not delegate its power to another b. Forces a politically accountable Congress to make the policy choices. c. the statute itself did not prescribe standards to guide the creation of these codes. 2. Decisions holding delegations un-constitutional: a. authorized the president to approve ´codes of fair competitionµ developed by boards of various industries. the Court declared unconstitutional a regulation adopted under the National Industrial Recovery Act. The Court declared that ´Congress is not permitted to abdicate or to transfer to others the essential legislative function with which it is thus vested. a key piece of New Deal legislation. no matter how broad. a^ delegations. Shifting Rationales for upholding doctrine: a. Although the Court says that when Congress delegates its legislative power it must provide criteria ³ ´intelligible principlesµ ³ to guide the agency·s exercise of discretion. Non-delegation Doctrine and its Demise 1. Non-delegation doctrine: a. and the Court emphasized the lack of any standards in the Act to limit the president·s discretion. United States. rather than leave this to unelected administrative officials. all delegations. In Schechter Poultry Corp. Pursuant to this law. Congress may not delegate its legislative power to executive agencies b/c it would violate principles of separation of powers for an executive agency to perform legislative functions c. ii. The Court concluded that the law was an impermissible delegation of legislative power to the president.
passage by both houses of Congress. Most recently.. A typical form of a legislative veto provision authorized Congress to overturn an agency·s decision by a resolution of one house of Congress.. The court emphasized the lack of an ´intelligible principleµ to explain why the statute permits one level of pollution. when all amounts entail some risk to public health. Mistretta v. the Court unanimously rejected a challenge to the federal Clean Air Act as an impermissible delegation of legislative power. Congress does not have to pass new law. particularly as to ozone levels. 2. the Supreme Court declared unconstitutional a federal law that gave authority to review decisions of an airport authority to a Board of 43 Review that consisted of nine members of Congress. metropolitan area. The United States Court of Appeals for the District of Columbia Circuit declared unconstitutional the Environmental Protection Agency·s air quality regulations. Over 200 federal laws contained legislative veto provisions. Virginia and the District of Columbia created the Metropolitan Washington Airports Authority to operate Reagan and Dulles Airports in the Washington. c. Delegation of Executive Power to Congress and Its Officials 1. on the ground that there was an impermissible delegation of power. b. Eight of the nine members were to be members of Congress.µ iii.necessary in the complex world of the late twentieth century and that the judiciary is ill-equipped to draw meaningful lines.C. 3. the Court extended its holding to preclude legislative vetoes of agency rules. iv. not lower or higher than is necessary ³ to protect the public health with an adequate margin of safety. there must be bicameralism. and presentment. fits comfortably within the scope of discretion permitted by our precedent. United States: Court approved a broad delegation of power to the United States Sentencing Commission to promulgate sentencing guidelines to determine the punishments for those convicted of federal crimes. but not another. D. Justice Blackmun.INS v. Legislative vetoes also took the form of overturning agency rules by resolution of both houses of Congress or even by action of a congressional committee. Congress created a Board of Review with the authority to overturn decisions of the authority. in Whitman v. and legislative vetoes are unconstitutional. Anything less is legislative veto. Justice Scalia: congress must give ´intelligible principlesµ to guide the agency in its exercise of discretion and concluded that ´the scope of discretion [the|Statute] allows is in fact well within the outer limits on nondelegation precedentsµ. However. Chadha: a. giving the bill to the president for signature or veto. Virginia and the District of Columbia then amended their statutes 63 . He emphasized that the law does not permit the EPA to consider implementation costs in promulgating clean air act rules. Citizens for the abatement of Aircraft Noise. Justice Scalia concluded his majority opinion by declaring that the requirement ´that the ¶EPA« set air quality standards at the level that is ¶requisite· ³ that is. something that considerably narrows the discretion of the agency. stated that ´Congress may delegate to the Judicial Branch nonadjudicatory functions that do not trench upon the prerogatives of another Branch and that are appropriate to the central mission of the Judiciary. b/c violation of Presentment Clause. V. Legislative Veto and Its Demise 1. 2. Almost immediately after Chadha. requirement of bicameralism. DECLARED UNCONSTITUTIONAL. just provisions in statutes authorizing Congress or one of its Houses or committees to overturn an agency·s action. The Court has made it clear that Congress cannot delegate executive power to itself or to its agents. d. Inc. Legislative Veto: check on administrative agencies. writing for the Court. The Supreme Court unanimously upheld the delegation and the constitutionality of the EPA·s s air quality regulations. Metropolitan Washington Airports Authority v. American Trucking Associations.39 It is thus clearly established that if Congress wants to overturn an executive action.
whose Appointments are not herein otherwise provided for. Morrison v. the Court noted that the independent counsel is appointed for a limited tenure with its jurisdiction limited by the instructions from the appointing court. The Court recognized that although generally appointments are made by the president. Directive authority as an interpretive principle: Although pres doesn't have directive authority. the Court noted that the independent counsel possesses inferior power compared to the attorney general. or in the Heads of Departments. Chief Justice Rehnquist. but to refuse to allow Congress to delegate the executive power to the legislature. composed of congressional members as prescribed by Congress. Unitary Executive: as chief executive officer the President has the exclusive power to control the exercise of purely executive power b. §2. Olson in 1988.µ iii. in 1880. other public Ministers and Consuls. and all other Officers of the United States. Article II. the Court said that the independent counsel is an ´inferiorµ officer because. c. In several cases. and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers. d.to create this Board of Review. to the Courts of Law. Second. Section 2 a. who has broad authority and participates in formulating policy for the executive branch. president very influential but lacks directive authority 2. in the President alone. Eaton. The underlying question is whether it makes sense for the Court to allow Congress to delegate the legislative power to the executive. First. given removal authority. Who Are ´Inferior Officersµ? i. as a matter of law.µ c.µ iv. provides that the president ´shall nominate. Who Else May Possess the Appointment Power? 64 . writing for the Court. In United States v. ii. the Supreme Court ruled that Congress could authorize the federal c circuit courts to appoint election supervisors. as they think proper. Perhaps it is unjustified formalism and a refusal to allow the flexibility that is necessary to govern in the complex world of the late twentieth century. Similarly. Not-So-Unitary Executive: entrusting decisions to agency heads a useful check. Judges of the Supreme Court. he or she can be removed by the attorney general for sufficient cause. President may appoint heads of department and Congress may appoint inferior officers b. we should grant him such authority. in 1898. ´there is no absolute requirement to this effect in the Constitution. v. emphasized that it was permissible for Congress to vest appointment in the federal courts because the independent counsel is an ´inferiorµ rather than a ´principalµ officer. Three Views of Presidential Power a. Appointment Power. the Court upheld Department of State regulations that allowed executive officials to appoint a ´vice consulµ during the temporary absence of the consul. under the statute. The Supreme Court declared this unconstitutional as Congress impermissibly delegating an executive power to itself.Article II. the Court has held that Congress has the ability to determine who is an inferior officer of the United States. and by and wilvdth the Advice and Consent of the Senate.7 The Court concluded that a vice consul is a subordinate officer ´[because the subordinate officer is charged with the performance of the duty of the superior for a limited time and under special and temporary conditions. Checking Administrative Power 1. In Ex parte Siebold. 3. shall appoint Ambassadors. Or perhaps it is a reflection of a judicial judgment that there is less reason to be concerned when a branch of government is relinquishing its power than when it is assuming the authority assigned to another branch.
Therefore. in general. are Congress·s limits on removal constitutional? Congress cannot completely prohibit presidential removal. the analysis must be functional and contextual: Are there good reasons why the office should be independent of the president? ii. Second. iv. Removal Power a. 3. which specifies who may possess the appointment power. New twist: i. limits removal to instances where good cause is shown. Bowsher. Rather it comes from the experience of the impeachment of Andrew Johnson and from five Supreme Court decisions that have considered the removal power: Myers. and if the law does not prohibit removal but. Congress. Humphrey·s Executor. Free Enterprise Fund v. the heads of departments. Impeachment a. Valeo: The Court has made it clear that Congress cannot give the appointment power to itself or to its officers. i. e. authority comes from silence of Constitution and ´take careµ clause. Congress may limit the removal power. Black letter: i. Presidential Supervision of Executive Branch: a. i. and Weiner indicates that the judiciary may limit removal even in the absence of a statutory restriction. Buckley v. b. Congress cannot. First. f. Ultimately. is the office one in which independence from the president is desirable? If so. Public Company Accounting Oversight Board (2010) (slides March 31) 4. d. c. Section 3: President shall take care that the laws be faithfully executed Separation of Powers and Foreign Policy 65 . Article II. Article II. President·s authority to remove officers: NOT IN TEXT OF CONSTITUTION i. iii. Section 2: the president may require the opinion in writing of the principal officer of the executive departments upon any subject relating to the duties of their respective offices b. Congress may create independent agencies whose heads can only be removed ´for causeµ and who may serve terms that extend beyond the term of a presidential administration. however. the president may remove executive officials unless removal is limited d by statute. ii. or the lower federal courts. but it can limit removal to where there is ´good cause.f. The principle that has emerged from the cases is that. Weiner. The Court said that under Article II. Congress could vest the appointment power for inferior offices in the president. and Morrison. by statute. and it cannot give the removal power to itself (other than by exercising its impeachment power). A the text of Article II. in approaching an issue concerning the removal power. analysis can be divided into two questions. The speaker of the House and the president pro tem of the Senate are obviously none of these.µ Nor can Congress give itself the sole power to remove an executive official. Pres can remove officers without Senate consent. Executive officers cannot be appointed or removed by Congress except by impeachment. Article II. Heads of cabinet agencies who perform core executive functions are removable at will by the President. rather. and therefore the Court found that they could not possess the appointment power. may limit removal both if it is an office where independence from the president is desirable. completely prohibit all removal. No single case has clearly articulated this principle. Section 4 does provide for when president and VP can be impeached 5.
2. upheld the delegation to the president to stop munitions shipments and spoke generally of a fundamental difference between domestic and foreign policy. Inconsistent with a written Constitution that contains provisions concerning foreign policy. Moreover. Thus. 66 . by approving the Constitution. Critics of this broad inherent power in foreign policy say: i. bestowed power on the national government. The Court.i. In his view. all powers would exist automatically as part of national sovereignty. If Sutherland·s view were correct. like all branches of the federal government. states that the president ´shall have Power.µ Thority over domestic affairs was possessed by the states before the ratification of the Constitution and that they. ii. there would have been no reason for the Constitution to enumerate any powers in the area of foreign affairs. however. Article II.µ b. not the expansive inherent authority described in Curtiss-Wright. when may executive agreements be used instead of treaties? ii. Justice Sutherland maintained that the realities of conducting foreign policy require that the president possess much greater inherent powers than in the realm of domestic affairs. Are Foreign Policy and Domestic Affairs Different? Whether the president inherently has greater powers in the area of foreign policy compared with domestic affairs. ii. Rationale: i. complicated. (Curtis-Wright means executive is always right!) a. Facts: i. Second. Because of concern that United States· munitions manufacturers were arming both sides of a war in South America. Congress adopted a law that empowered the president to issue a proclamation making illegal further sales of arms to the warring nations. d. 1. The ´history on which [Curtiss-WrightJ rest[s] is ¶shockingly inaccurate·µ and not based on either the text of the Constitution or the framers· intent. the President alone has the power to speak or listen as a representative of the nation. have limited powers. the president has access to intelligence information that is generally unavailable to Congress. ii. Justice Sutherland: ´The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution. c. The Court explained: ´In this vast external realm. and such implied powers as are necessary and proper to carry into effect the enumerated powers. b. Holding: i. As to foreign policy. the framers intended that the presidency. Comes at a time when non-delegation doctrine was alive and well.µ4 For instance. delicate. however. §2. Two major issues arise: i. First. is categorically true only in respect of our internal affairs. to make Treaties. the power is inherently in the national government by virtue of it being sovereign. Executive agreements: a. Curtiss-Wright Corp. ii. provided two thirds of the Senators present concur. what limits. TREATIES AND EXECUTIVE AGREEMENTS 1. United States v. Executive Agreement: an agreement between the United States and a foreign country that is effective when signed by the president and the head of the other government. with its important. this decision was very meaningful. by and with the Advice and Consent of the Senate. and manifold problems. exist on the ability of the president to negotiate or rescind a treaty: c. if any.
iii. d. Holland: was decided in 1920.i. which is free from the restraints of the Constitution. Executive agreements. Anything that can be done by treaty can be done by executive agreement. the lower federal courts had declared unconstitutional a federal statute that attempted to protect such birds 28 Nonetheless. and all Treaties made. Justice Douglas. Missouri v. The opinions in all three cases were narrow. writing for the Court in Pink. Never in American history has the Supreme Court declared an executive agreement unconstitutional as usurping the Senate·s treaty approving function. the Supreme Court upheld the constitutionality of the Migratory Bird Treaty. If there is a conflict between a treaty and a federal statute. never has the Court invalidated an executive agreement for undermining the Senate·s role in ratifying treaties. then. ii. under the Authority of the United States. rather than broad. or on any other branch of Government. and Dames & Moore: i. However. and leave open the possibility that some future executive agreement might be invalidated as usurping the Senate·s treaty-approving power. Permitted unless they violate the Constitution. Executive Agreement Characteristics: i. and the Laws of the United States which shall be made in Pursuance thereof. Only need to be passed by simple majority in house and senate.µ ii. Article VI of the Constitution states that the ´Constitution. 1. 2. Earlier. it appears. Black letter: so long as the president is not violating another constitutional provision or a federal statute. treaties cannot be challenged as violating the Tenth Amendment and infringing state sovereignty. explained: ´A treaty is a ¶Law of the Land· under the supremacy clause [of Article VI] of the Constitution. ii. prevail over state law and policy. 67 . ii.µ c. that a federal statute may prevail if it were in conflict with an executive agreement. If the document is labeled ´treaty. or which shall be made. Covert: the Court held that American civilian dependents of military personnel in a foreign country must be accorded a trial that meets the dictates of the Constitution. 1. the one adopted last in time controls if they are inconsistent. there seems little basis for challenging the constitutionality of an executive agreement. b.µ no Senate ratification (2/3 vote) is necessary. Can be read narrowly as establishing only that executive agreements prevail over conflicting state law and ire permissible when authorized by federal statutes. Belmont. Characteristics: i. Pink. during an era when the Court aggressively used the Tenth Amendment to safeguard states from federal encroachment. f. e. Although there is no Supreme Court holding on point. If the document is tided ´executive agreement. Treaties: agreements between the United States and a foreign country that are negotiated by the president and ratified by the Senate. On the other hand.µ Senate approval is required. Justice Black explained that ´no agreement with a foreign nation can confer power on the Congress. Treaties: a. Reid v. shall be the supreme Law of the Land. 27Vhe United States and Great Britain entered into a treaty to protect migratory birds. like treaties.
Congress: a. just as it must approve the recision of a statute. Section 8. Executive agreements do not need Senate approval vi.iv. 1. President a.President authorized to use all appropriate/necessary force 2. The offenses are against the law of war and therefore cognizable before a military tribunal. Foreign Policy v. Has President acted under express grant of power from Congress or from implied power? 2. Case law: a. Carter: President Carter rescinded the United States·s treaty with Taiwan as part of recognizing the People·s Republic of China. Modes of Analysis: 1. Possible distinction b/w enemy aliens (who are detained) vs. individuals who are ´engaged in an armed conflict against the United Statesµ (def. Clause 11: Congress has the power to declare war b. Fitzgerald: broad grant of absolute immunity to President for acts that occurred while President 2. American citizens who aid the enemy are treated as traitors subject to the criminal process iii. Section 2: President is Commander in Chief b. by and with advice and consent of Senate. Authorization for the Use of Military Force. to make treaties with 2/3 vote of Senate iv. Clinton v. No congressional authority needed to detain those who qualify as enemy combatants a. Article I. Checks on the President i. Goldwater v. of enemy combatants) b/c these detentions are necessary as part of the exercise of ´necessary and appropriate forceµ 2. Suing and Prosecuting the President 1. Jones: the reasons for having official immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that 68 . Presidential Power and War on Terrorism i. Section 8. He president can rescind treaties in the future without worrying about judicial invalidation. Article I. Section 2. WAR POWERS 1.petitioners may be placed upon military tribunals. Article II. Justice Rehnquist: ´the basic question presented« in this case is ¶political· and therefore nonjusticiable because it involves the authority of the President in the conduct of our country·s foreign relations. Due process must be afforded to detainees 3. Ex Parte Quirin: YES. Rumsfeld: President may establish military commissions only for offenders triable under the law of war. Clause 2: President has. Article II. Section 8.µ iii. Detentions 1. Nixon v. Military Tribunals 1. War Powers 1. power. Senator Barry Goldwater sued contending that the Senate must approve recision of a treaty. President may establish tribunals as commander in chief exercising executive power pursuant to Articles of War established by Congress h. Article I. Clause 13: Congress has power to provide and maintain navy 2. g. Hamdi v. Does the war situation justify it? ii.Foreign Intelligence Surveillance Act 3. FISA. not before a trial by jury b. Treaties and Executive Agreements 1. Clause 12: Congress has power to raise and support armies but no appropriation of money to that use shall be longer than two years c. Domestic Affairs v.
ii. A key impetus for the Constitutional Convention in 1787 was the absence of any federal commerce power under the Articles of Confederation. Impeachment 1. Therefore. Preemption Because Federal Law Occupies the Field a. 1. What are ´high crimes and misdemeanorsµ? V. The commerce clause thus has two distinct functions. What Is the Dormant Commerce Clause? 1. Florida Lime: 2. Analysis: 1. If Congress has not legislated (or no preemption is found) .µ commerce clause. if state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress b. First. Preemption Because State Law Impedes Achievement of Federal Objective a. look at intent of Congress 2. Lorillard Tobacco: iii. ii. The second (discussed here) is in limiting state and local regulation. In other words. It is inferred from grant of power to regulate interstate commerce a. LOOK AT CONGRESSIONAL INTENT ii. Limits on State Regulatory and Taxing Power a. Should There Be a Dormant Commerce Clause? a. Congress could invalidate any state or local law that it deems to place an undue burden on interstate commerce. Dormant Commerce Clause i. This is the dormant. Express Preemption 1. PG&E: 3. Preemption of State and Local Laws (source: SUPREMACY CLAUSE) i. If Congress has legislated . b. Hines: b. iii. The crucial issue with regard to the dormant commerce clause is whether the judiciary. where scheme of federal law and regulation is so pervasive as to make reasonable the inference that Congress left no room for States to supplement it b. in the absence of congressional action.a particular decision may give rise to personal liability but this reasoning does not support immunity for unofficial conduct. Justifications for the Dormant Commerce Clause i. b. One is an authorization for congressional actions. 2.the question is whether the federal law preempts the state or local law (above). should invalidate state and local laws cause they place an undue burden on interstate commerce. The Principle that state and local laws that happen to place an undue burden on interstate commerce are unconstitutional. Congress always has the authority under its commerce power to preempt state or local regulation of commerce. Commerce among the states was obstructed as states charged other states for use of port facilities or for 69 . Conflicts Preemption a.the state or local law can be challenged on the ground that it excessively burdens commerce among the states. actual conflict b/w federal and state law where federal law does not expressly preempt and compliance with both federal and state law is physically impossible b. there is a historical argument for the dormant commerce clause: The framers intended to prevent state laws that interfered with interstate commerce. 1. even if its commerce power lies dormant ³ state and local laws still can be challenged as unduly impeding interstate commerce. 2. Implied Preemption 1. or ´negative.
Third.µ ii. Justice Thomas recently made this argument as well when he wrote: ´In my view. If a state acts to help itself at the expense of other states. there is a political justification for the dormant commerce clause: States and their citizens should not be harmed by laws in other states where they lack political representation. textual: The drafters of the Constitution could have included a provision prohibiting states from interfering with interstate commerce. 70 . the Supreme Court invalidated Maryland·s tax on the Bank of the United States. §2. In McCulloch v. ´Protectionism is inefficient because it diverts business away from presumptively low-cost producers without any colorable justification in terms of a benefit that deserves approval from the point of view of the nation as a whole. contains many restrictions on state power. in part. For instance. §10. there is an economic justification for the dormant commerce clause: The economy is better off if state and local laws impeding interstate commerce are invalidated. 1. a. because it was a tax that ultimately would be borne by those in other states who obviously did not have representation in the Maryland political process. ii. the other states are sure to retaliate with protectionist legislation of their own. The contention is that this should not be a task for an unelected federal judiciary. the framers included the privileges and immunities clause of Article IV. opponents of the dormant commerce clause argue that the Constitution gives Congress the power to regulate commerce and Congress can invalidate state laws that unduly burden interstate commerce. which limits the ability of states to discriminate against out-of-staters with regard to the privileges and immunities of citizenship. The resulting impediments of commerce are likely to stifle production and harm the overall economy. c. a limit on the ability to burden interstate commerce is not among them. the Court should confine itself to interpreting the text of the Constitution.shipping goods through the state. Maryland. which itself seems to prohibit in plain terms certain of the more egregious state taxes on interstate commerce« and leaves to Congress the policy choices necessary for any further regulation of interstate commerceµ. (Justice Stone).µ iii. in part. the political process cannot be trusted when a state is advantaging itself at the expense of out ofstaters who have no representation. Justice Clarence Thomas recently made this argument in urging the abandonment of the dormant commerce clause as an ´exercise of judicial power in an area for which there is no »13 textual basis. Rather. 1. Similarly. none of this policy-laden decision making is proper. Arguments Against the Dormant Commerce Clause i. Article I. Also. Second. Justice Robert Jackson expressed this view. It is inferred from this history that the framers meant to prevent such protectionist state legislation. The argument against the dormant commerce clause is. The argument against the dormant commerce clause is based partially on separation of powers ³ the task of reviewing state laws should be done by Congress and not by the courts ³ and partially on federalism ³ minimizing the instances where state and local laws are invalidated. 1.
If law non-discriminatory. Holding and Rationale: i. As Justice Jackson expressed: ´[T]hese restraints are individually too petty. then presumption is in favor of upholding the law. b. etc. Whether the State of New York could grant an exclusive monopoly for operating steamboats in New York waters and thereby prevent a person with a federal license from operating in New York. Rebuttal: i. and it will be invalidated only if its shown that the law·s burden on interstate commerce outweighs benefits and whether there is a less discriminatory alternative 3. Furthermore. iv. as well as laws for regulating the internal commerce of a State. 1. 1. However. If not. Is there facial discrimination? b. 1. even where Congress has not acted. Marshall explained that ´when a State proceeds to regulate commerce with foreign nations. used Gibbons as the occasion for broadly defining the scope of Congress·s power under the commerce clause.d. 2. quarantine laws. is there neutral discrimination. are component parts of this mass. it is exercising the very power that is granted to Congress. which embraces everything within the territory of a State not surrendered to the general government: all [of] which can be most advantageously exercised by the States themselves. Gibbons v. health laws of every description. Marshall also used Gibbons for considering the commerce clause as an independent limit on state power. or among the several States. and is doing the very thing which Congress is authorized to do. writing for the Court. Dormant Commerce Clause Before 1938 1. 71 . Does the law discriminate against interstate commerce? a. and those which respect turnpike roads. Does it discriminate against out-of-staters? a. ii. but does it have a discriminatory purpose or discriminatory effect? 4.µ 2. Marshal said that there is still a ´portion of that immense mass of legislation. Issue: i. then strong presumption against the law and will be upheld only if it is necessary to achieve an important purpose and no other reasonable non-discriminatory alternatives exist b. ferries. ii. Ogden: a. Marshall said that ´commerceµ refers to all stages of business and that ´among the statesµ includes matters that affect more than one state and are not purely internal. Defenders of the dormant commerce clause respond that it is unrealistic to expect Congress to review the vast array of state and local laws that might be challenged as burdening interstate commerce. Inspection laws. it is argued that judicial deference to the political process is unwarranted because those adversely affected by a state·s law are not represented in the state. and distinction for state police power. Cases followed this broad view of seemingly exclusive federal commerce power. Exceptions to the Dormant CC (slides April 7). Chief Justice John Marshall. too diversified and too local to get the attention of a Congress hard pressed with more urgent matters..µ He claim is that achieving the benefits of the dormant commerce clause necessitates judicial action. If law discriminatory.µ c.
but exceedingly various subjects. The Court rejected a challenge by the owner of a federally licensed ship because construction of the dam was a permissible exercise of the state·s police power. like the subject now in question. The problem with Marshall·s approach: i.i. d. imperatively demanding that diversity. The Court considered whether a state could construct a dam that obstructed an interstate waterway. Aldermen and Commonality of New York v. Local Subject Matter a. this could have been accomplished by requiring a license. the issue. unresolved in Gibbons. In Cooley the state·s obvious goal was to help local pilots at the expense of out-of-state pilots. Facts: i. c. based on experience or a test. 1. so long as the subject matter is deemed local. in order to pilot a ship into the Port of Philadelphia. d. b..µ The Court found that regulating pilots was a local matter both because of differences among ports and also because a federal law adopted in 1789 expressly allowed states to regulate piloting. and some. Problems with the Cooley test: i. A particularly important case in which the Court drew a distinction between subject matter that is national. The Court upheld a state law that required passenger identification lists for all ships arriving from other states or countries. operating equally on the commerce of the United States in every port. Mayor. in which event state laws are allowed. BlackBird Creek Marsh Co. Justice Benjamin Curtis (majority): ´Now the power to regulate commerce. The Court upheld the Pennsylvania law and said that the crucial question was whether the subject is (1) of a nature that requires uniform national regulation OR (2) diverse local regulation. Moreover. it allows state regulations. which alone can meet the local necessities of navigation. state laws adopted under the police power can place an enormous burden on interstate commerce. ii. Obviously. First. the concern for safety is belied by the 72 . Wilson v. Board of Wardens: National v. The case involved a Pennsylvania law that required all ships entering or leaving the Port of Philadelphia to use a local pilot or to pay a fine which went to support retired pilots. no matter how protectionist or how much they interfere with interstate commerce. in which event state laws are invalidated under the dormant commerce clause. is when state laws. If the goal was to protect safety. 1. including those adopted under the police power. It assumes two distinct categories ³ state laws adopted under the police power and state laws that regulate commerce among the states ³ that are not at all separate. quite unlike in their nature. embraces a vast field. 2. 1. containing not only many. Holding and Rationale: i. some imperatively demanding a single uniform rule. such as when a state offers a health or safety justification for discriminating against out-of-staters. Therefore. violate the dormant commerce clause because they unduly burden interstate commerce. Cooley v. Miln. 1. The Court said that law was ´not a regulation of commerce but of policeµ apparently because it was based on a desire to protect public safety by guarding against the arrival of undesirables. and subject matter that is local.
discriminatory effect d. and what is local. South Carolina State Highway Dept. Dissent: Justice Stone recognized this and criticized the direct/indirect test as ´too mechanical. there is not a clear distinction between what is national. Indirect Effects on Commerce a. and thus were invalid. c. The Court·s shift to a balancing approach in dormant commerce clause analysis is evident from comparing two cases. Pennsylvania: Direct v. Falsely assumes that there is a clear. If the Court concludes that a state is discriminating against out of-staters. The problem with a ´direct/indirectµ test: i. not legitimate local interests: i. Involved a state law that required a state-issued license in order to sell tickets for foreign travel. DiSanto v. Discrimination a. Contemporary Test for Dormant Commerce Clause 1. and too remote from actualities to be of value. Arizona. environmental protection 73 . regardless of the purpose with which it was passed. Facts: i. v. 3. In contrast. requiring diverse regulation.µ d. then the presumption is in favor of upholding the law and it will be invalidated only if it is shown that the law·s burdens on interstate commerce outweigh its benefits. Barnwell Bros. The Court rejected this justification and concluded that the law was unconstitutional because it had a direct effect on interstate commerce. The state claimed that the law was necessary to prevent fraud. difference between laws that directly burden commerce and those with only an indirect effect. then there is a strong presumption against the law and it will be upheld only if it is necessary to achieve an important purpose. ii. demanding local regulation. Three types of discrimination: i. c. discriminatory purpose iii. Emergence of new test: balancing the benefits of a law against the burdens that it imposes on interstate commerce 2. too uncertain in its application. The Court drew a distinction between state iws that directly interfered with interstate commerce. The reality is that burdens are a natter of degree. 1. facial ii. 1. in kind. Holding and Rationale i. The Court explained that a ´statute which by its necessary operation directly interferes with or burdens foreign commerce is a prohibited regulation and invalid. which had occurred in the ticket industry. ii.59 and Southern Pacific Co. b. v. and it seems inherently arbitrary. legitimate local interests: i. b. Second. if the Court concludes that the law is nondiscriminatory. Shift to a Balancing Approach a. 1. in almost any area there likely are some benefits from national uniformity and some gains from local diversity. as opposed to those that only had an indirect effect and were permissible.law·s allowing nonlocal pilots to be used if a fee was paid to a fund that benefited local pilots. economic protectionism e. Cooley articulates no criteria for making this determination. and the determination of whether something is direct or indirect is a choice about where to draw the line. i.µ c. b.
by contrast. Justice Scalia·s answer is to eliminate dormant commerce clause review where the state is not discriminating against out-of-staters. Ne Jersey (1978) f. imposes on interstate commerce. 4. Scalia contended ´This process is ordinarily called ¶balancing. the Court believed that the burdens on interstate commerce were outweighed by the benefits in terms of road safety. H. reasoning: Congress has power to regulate interstate commerce b. health and safety of your residents 3. Scalia. since the interests on both sides are incommensurate. The Court emphasized the state·s important interest in protecting highway safety and in preserving its roadways. v. Southern Pacific Co. Limiting the scope of the dormant commerce clause minimizes the judicial role and maximizes the deference paid to state and local governments.allowed b/c market participant iii.· but the scale analogy is not really appropriate. West Lynn Creamery. Inc. Hughes v. i. Cases (Slides April 7). and whether the relative weights of the state and national interests involved are such [as to make the law permissible]. i. DuMond b. and Thomas ³ have objected to this balancing test and have argued in favor of 42 upholding all state laws that are deemed nondiscriminatory. Exemptions to the Dormant Commerce Clause a. It is more like judging whether a particular line is longer than a particular rock is heavy. South Carolina State Highway Dept v. c. Barnwell Brothers.P. d. The Court upheld a state law. state may favor its own citizens in dealing with government ownedbusiness and in receiving benefit from government programs ii. adopted as a safety measure.µ b. Oklahoma g. Hood and Sons v. The Court in Southern Pacific expressly articulated a balancing test when it said: ´Hence the matters for I ultimate determination here are the nature and extent of the burden which the state regulation of interstate trains. Hunt (Washinton apple case) h. Arizona (1945) i. ii. some Justices ³ most notably Rehnquist. which imposed length and width requirements for trucks operating in the state.µ The difference is that in Barnwell. The Court declared unconstitutional a state law that limited the length of railroad trains operating in the state. and ill-suited to the judicial function. Governor of Maryland (1978). LIMIT: 1. allows state to impose burdens on commerce within the market in which it is a participant. 74 . ex: universities charging in state tuition. Facially Neutral Laws and Discriminatory Purpose i. a. Inc v Healy (1994). Heald (2005) e. Weighing the governmental interests of a State against the needs of interstate commerce is. whereas in Southern Pacific the Court decided that the burdens on interstate transportation were greater than the safety benefit o the state from its law. Market Participant Exception i. Congressional Approval i. (1938) i. but no further 5. City of Philadelphia v. Criticism of the Balancing Approach a. State of Minnesota v Clover Leaf Creamery Co (1981). There is less reason to distrust the political process when it is treating instaters and out-of-staters alike. Granholm v. a task squarely within the responsibility of Congress.ii. In recent years. Exxon Corp v.
entanglement: if government authorized.ii. but if they use 6 person jury then yes unanimous d. Is law discriminatory? VI. states not constitutionally required to use 12 person jury for criminal cases ii. 5th Amendment Right to Grand Jury Indictment 4. only protects individual citizens. P&I vs. State of Incorporation Today: i. and ensuring a free flow of commerce among the states is best achieved by eliminating these hindrances. 7th Amendment Right to Jury Trial in Civil Cases 5. Application of Bill of Rights to Private Conduct c. 8th Amendment Right Against Excessive Fines e. need not be unanimous. 14th amendment P&I only protects US citizenship. d. Application of Bill of Rights to States i. On the other hand. not corporations or aliens c. dormant commerce clause: 1. Roe (protects right to travel) b. except for: i. 2nd Amendment Right to Bear Arms 2. Constitution protects individual rights from state action. but it generally does not apply to private entities 1. 13th amendment directly regulates private conduct by not allowing involuntary servitude b. Is the interest asserted sufficient to trigger protection by the P&I Clause? whether a right is among those ³fundamental principles of liberty and justice which lie at the base of all our civil and political institutions´ 2. Section 2 i. no exceptions for congressional approval or market participant ii. can be considered equivalent of state action 75 . statues can apply constitutional norms to private conduct (ex: Civil Rights legislation) c. Analysis under Privileges and Immunities Clause: What are the Privileges and Immunities of Citizenship? 1. 14th amendment P&I used to invalidate state law in Saenz v. Privileges and Immunities Clause of Article IV. not state citizenship ii. Analysis applying black letter law: 1. right to acquire property. Even nondiscriminatory laws can put a significant burden on interstate commerce. Structure of Constitution·s Protection of Civil Rights and Civil Liberties a. public function: if private entity performing function traditionally done exclusively by government d. if a state uses 12 person jury in criminal case. State Action Requirement i. or facilitated conduct. Everything incorporated except: 1. P&I: a. employment pursuits iii. encouraged. 3rd Amendment Right not to Quarter Soldiers 3. Incorporated Rights are applied in the same manner at federal and state levels. requires discrimination against citizens of other states b. fundamental interests (enjoyment of life and liberty. Exceptions to state action: a. right to pursue happiness and safety) 2.
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