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Structure of the Constitution (broadly)
Social Policy And/Or Consequences of Decision
Mix of All of the Above (esp. history and text)
Words and placement
Mix of Opinion
Other Parts of Constitution
Less important to Originalists
Specific Intent At time Tradition
Natural Law Processes of Gov‟t Contemp. Values
Judicial Review & Marshall’s Opinion in Marbury v. Madison
Court’s Role in Interpreting the Constitution
Constitution is supreme law of land and SCOTUS is in charge of interpreting Political & Discretionary Acts
Political powers, actions respect the nation & not ind rights – conscience guides Directed to perform certain acts, individual rights, officer of the law
Review of EXECUTIVE & LEGISLATIVE
Limits & Restraints
Rights of Individuals Beginning of Political Question Doctrine
Textual Defenses Appellate review of decisions arising under the Constitution Judges take an oath to the Constitution & must uphold (hence review) Supremacy Clause – laws are made in pursuance of the Constitution
Issues “especially for the courts”
5 Powell v. sometimes just never enforced or too hypothetical – (a) probability that event will occur (b) hardship to parties if denied. policy question. it will be short lived (b) for individual – likely to find for the exception (c) unanswered for ind v. 5. EPA: Third party Lyons: Failure to show the possible future injury (D: Marshall) Mass v. Sec. Mootness (most flexible) Often occur together Political Question Final decision would lead to a political outcome (Both sides point back to Marshall‟s Opinion in MvM) Eval through Baker Factors Ripeness (like IIF) Rendering a decision is no longer possible or purposeful. or would be hypo Concrete. (c) fitness of record to determine legal issues presented As a whole. I. must look at terms of constitution to this factor Lack of judicially discoverable and manageable standards for resolution (competence) Goldwater: Not appropriate if only left to inferences. question left for executive. 4 = Guaranty Clause = always non-justiciable Pre-Enforcement Review of Statute or Regulation (Abbott Labs) Exceptions Factual Development: *the more facts that can be developed the less chance of a review Hardship for having to wait *generally economic hardship will allow CT to push through Textually Committed to Another Branch Art. but determined only as qualifications not power to not seat Goldwater: Rescinding a treaty. certain. and ripe for review – normally need violation. (c) personally injured Causation Redressabiltiy Washington Question to Justices: Refused to answer b/c advisory and not necessary consider Fairly traceable to the action of D.q‟s about causation & redressability (Allen v. Lujan: failure of Sec of Interior on endangered species) Separation of Powers Problems: Court not having the ability to determine law. generally measures Ps stake in the outcome Whether ruling would bind D and have an effect for P Aikan: Access to information was enough to meet standard Richard: Actual payment of child support not guaranteed Mass v. Ullman – no actual prosecution) . did give standards House/ Senate to act & would not be appropriate for SC to determine Voluntary Cessation: (a) no realistic chance that D will go back to harmful conduct Capable of Repetition yet Evading Review (a) every time that it comes up. EPA: Congress giving power to create IIF – weight of report & whether concrete injury is clear Lujan: Failure to purchase airline tickets… whether imminent enough of a threat (speculation) Triggers for Standing Problems Considered together generally Notes: -Only 1 need standing -State surrender of rights Generalized Grievance: Gov‟t failing to follow the law and bringing suit to do so (injury in fact) Third Party Actor: That gov‟t is failing to regulate some 3rd party . Sec. or deference to another branch Goldwater: If there would be multiple determinations from different branches of gov‟t Nixon: Const. concerns about overstepping Timeliness Tied to Const. of Def of a Supreme Court decision Necessary Injury In Fact (a) distinct & palpable. McCormack: House adjudicatory power of Art I. (b) not abstract or hypothetical. IV. dissent (Brennan) says that foreign relations can be det by SCOTUS Embarrassment Potential for another branch. Sec. Wright – IRS failure on tax exemptions for racially segregated schools.Judiciability Doctrine Advisory Opinions Standing Article III – “Cases & Controversies” Linked to Desirability of Judicial Review Broad & Narrow View – Policy Decision “Personal injury fairly traceable to the D‟s allegedly unlawful conduct and redressed by requested relief” Must Bring Some Change Plout Case: No overturn by C of a final judgment (yes to prospective & in litigation) Actual Dispute between Adverse Litigants “Real & not hypothetical controversy” Hayburn Case No override by Sec. class Class Actions: Selfinterested parties are still advocating Collateral consequences: Effect will be longer lasting even if seemingly decided (Poe v. the question is incapable of judicial review A.
Vertical Separation of Powers: FEDERALISM Enumerated Powers Rationale “All leg powers herein granted” Article I Generally Sec. Fillmore (1942): Broad interstate. statute defines “affecting commerce” .effect on commerce NOT the injury needed for inspection Darby (1941): Overturn Dagenhart. Ogden: Broad interstate. not injury itself More of a Spectrum Approach to Determining Congressional Power NLRB v. not direct 10 Amendment Limits: Next Page th Look at effect on commerce. MD: Marshall gives a very broad interpretation of Necessary & Proper Clause. but considered a broad sphere of independence . Commerce Bright Line Approaches Direct v. Depression Effect on interstate commerce generally Hodel (1981): Strip-Mining: Regulation permitted so long as rational basis by Congress for regulating Perez (1971): Loan-sharking. production.*when only affects 1 state”. 8 Necessary & Proper Clause (17) (must be tied to power in Sec 8) McCulloch v. started by G. I. but considered a broad sphere of independence *when only affects 1 state Commerce = „traffic‟ & „interstate‟. Indirect Stream of Commerce Carter Coal: commerce going elsewhere is NOT subject to regs when inside state TX Railway: intrastate cannot damage industry in another state (move to intra) ALA Schechter: not SOC among states. Congressional enactment and basis for regulation (even criminal) Broad “Among the States” Regulation Permitted Congressional Authorization Channels affirmed for reg Exclusively State Rights for Some Spheres & 10th amd back in action Not traditional state activity (fam. land) Congress should give expression of justification 10th Amd = Limit on commandeering and state acting for fed govt 1990s to Today: Shift Back – Cong. „intermingled‟ Area for Congressional Regulation = intermingled and sharing among state commerce Limits to C reg based on effect on 1 state = completely internal EC Knight: direct effects test – mfer is not commerce. disruptive effect that racial discrimination has had on commercial intercourse – means must be reasonably adapted to the end permitted by Const. not 10th amd Federalism protects individuals Madison‟s Double Security Historical Issues Historical Understanding of the Commerce Clause Art.the interstate nature of the restaurant permitted regulation Heart of Atlanta (1964): Moral wrong allowed for regulation. ed. „navigation‟. importance of Const in regulation of ppl not the states. Sec 8 Protection of States‟ Rights Senators no longer elected by state govt Early Interpretation Gibbons v. 1937 to 1990s: Broad Nat’l Power Very few limits on Congressional Power. implied/ inherent powers justified Commerce Clause 10th Amendment & States‟ Rights Rationales Prevent federal tyranny Enhance democratic rule closer to ppl States as laboratories for projects Effectiveness of the Federal Government Elections will be limit. Jones (1937): Steel production regs. Limits Noneconomic criminal will likely fail under Comm Cl Must be tied to Congress Authorization . no reg if w/ no effect on other state 1890s to 1937: State Sovereignty (1) Narrow definition of „commerce‟ (2) restrictive of „among the states‟ (3) Cong violates 10th when in area of states Manufacturing v. . disband ideas of directness. et al Katzenbach (1964): Within state = completely within and does not affect other States & not interfering with other goals of govt. intrastate which so affect interstate commerce or the exercise of power of Congress over to make legitimate end – w/in Cong power Wickard v.
fed is involved in other state areas (railroads. Internet. distribution. Waters. OR (3) not traditional function (family. irony of ignoring state desires. Cong did not clearly intend fed to include ponds Stevens/Souter/ Ginsburg: More than commerce power at stake in question. federal private entities bad direction to regulatory (2) regs not as states. tied to Cong authorization. (2) Enumerated/Implied. b. prisons. and consumption of commodities” Rational Basis & Aggregate Effect Examined & Deference to Congress Wickard = Governing Law (Aggregating) & Deference to Congress Broad Regulatory Scheme (Gonzalez) Spending Power Limits Conditioning federal funds to state action Dole Elements: Highway Funding Factors for Analysis: (1) type of action linked to commerce (JX link). no express JX element.Commerce Channels of Interstate Commerce Roads. (3) If Implied then Necessary/Proper . education. should look at aggregate – should have found “rational basis” Morrison (2000) Rehnquist: Congress exceeds bounds with crim stat on Violence Against Women Act. O’Connor: need for judicial certainty Thomas: sub effect test is bogus creation Stevens/Souter/ Ginsburg: Guns are part of commerce. too broad interpretation of Cong power. et al) St/Sout/Gins/ Breyer: Threat of a national emergency. “we‟ll be back” Hodel (1981) Perez (1971) Gonzalez (2005) O’Connor: Broad Regulatory Scheme. historical arguments that taxes were collected by state agents Commandeering Affirmative actions needed by state govt State capacities Requiring state legislation . OR (2) statutory authorization or Congressional findings. full effect 10th Amendment & Commerce Clause Over Time Wickard (1942) Ames (1903) Harlan: Congressional decision to regulate interstate commerce is PLENARY and complete in self Garcia (1985) Darby (1941) If analysis comes within the commerce clause.what‟s regulated?. 2nd Triggers amd mention White/ Blackmun/ Stevens: Seriousness of the public problem.Commerce Clause “A thing in interstate commerce” (1) Why created . Instrumentalities Substantial Effect on Interstate Commerce Reference to Lopez/Gonz Persons or Things Moving Between States Economic Non-Economic If within the (1) Channels or (2) Instrumentalities then often easier for Congress deference & broad power “Production. structure of govt will protect the states Powell/Rehnquist: Court is wrong. reject state immunity and traditional framework. Airways. no power in Cong to force states to exercise police power = child labor is purely local decision and does not affect inter comm Holmes Dissent: consideration of Congress and not the Court to decide. spend) – Factors: typical for protection of citizens Brennan Dissent: wrong decision against Darby Stevens Dissent: Should be subject to fed regulation O’Connor: Scalia: Cannot simply Fed govt may (1) applies to compel states not compel the more than just to eliminate states to enact the states – radioactive or administer a also applies to waste products. et al. then no need for 10th amendment analysis. c. ess part of broad. should include natural resources Dagenhardt (1914) Employee regs on child labor. program – no affirmative act commandeer issuing of but as owners state directives or of database info decisions not command of (3) not a accepted – do state officers or required action through those within to but required spending power administer a prohibition even if states program have accepted Thomas: the regs (no Return to comm choices given clause roots is 10th Amend. displacement of state decisions (how to fund. noneconomic & criminal statute. landuse) and no national productivity nexus (1) Specific Activity Examination (Non-Agg) & (2) No Deference to Congress & (3) Link to I/C Required (1) Condition is for the general welfare with extensive deference to Congress (2) unambiguous – st must now what it‟s losing for funds (3) related to fed interest through program or project – Reasonable Relation Test (4) not coercive – ex 5% of highway funds was not. no Congressional findings (maybe not enough) Thomas: substantial effect doc shld be abolished Stevens/Souter/ Ginsburg: Data was produced by Cong & was sufficient – formalism criticized US Corps of Eng (2001) Rehnquist: Ponds not in open water are not a part of the channels. to state) needed. once product cross state lines then open to regulation Usery (1976) Traditional state functions are protected by the 10th amendment. comm included in birdwatching & hunting. 10th doesn‟t limit delegated powers. says this is sub effect (crim gun statute) – a. places the issue into aggregate analysis NLRB (1937) Greater Power Less Power EC Knight Carter Coal ALA Schecter Lopez (1995) Rehnquist: defines 3 categories. not traditional function of state proc by 10th.eliminate direct/indirect analys Katzenbach (1964) Ht of ATL (1964) TX Railway Guillen (2001) Thomas: state highway info protected from discovery in civil cases b/c part of channels Specifically 10th Amendment Limits & Guideposts (only when state actor) Condon (2000) New York (1992) Printz (1997) Rehnquist: Allow banning of state info distribution Overrule Usery.
Separation of Powers Federal Executive Powers Acting w/ Express Congressional Authorization “Highest Ebb” (a) maximum power (b) strongest presumptions in favor of Congress (c) burden of persuasion falls on attacking party Article II.whether criminal or civil case War on Terror US can detain for duration of hostilities of conflict if engaged in armed against US Non-Detention Act: “No citizen shall be imprisoned or otherwise detained by US except pursuant to act of Congress” .” Art. indifference or acquiescence (d) Doesn‟t necessarily require a lawmaking process. 1 = “Executive powers. Civil Numerous challenges – not how Const looks Justiciability: Baker = textually committed. may just have leg actions Must tie the Presidential action being challenged to a statute Evaluate the constitutionality of the statute in question w/ strong deference to Congress Example Youngstown (1952) Frankfurter & Jackson Opinions – Pres decision is covered by statute so in 3rd and NOT a war power – FF says clear indication of C Vinson/Reed: In Korean War. court has interpreted broadly the ideas of leg and exec.public policy . still not acceptable Dissent: Different form of government nowadays.9. organizations. even though following the law.2) says this is illegal for US citizens Thomas Dissent: This is war – get over it. 3 = “Take Care Clause” Inaction by Congress OR Conflicting Congressional Action “Lowest Ebb” (a) Pres takes measure that is incompatible with express OR implied will of Congress (b) maintained ONLY IF able to disable Congress from decision Youngstown Framework: Jackson’s Concurrence Inaction by Congress OR Conflicting Congressional Action Debatable (a) either absence of Congressional grant/denial (b) OR acting on independent presidential responsibility (c) Cong inertia. in bucket 1 in this case Alito Dis: Geneva Art 3 satisfied Ginsburg/Souter: Not within the statute – Korematzu Stevens/Scalia Dissent: Cons Suspension Clause (I. Sec. need to defer to Pres war powers – “take care clause” Foreign Affairs Line Item Veto Curtis Wright (1936): No inherent powers in states for foreign relations – solely federal concern. diplomatic. not enough that intra-branch dispute. not miles away Br/Ken/Sout: No blank check for the pres Thomas Dissent: Exec should have expansive power in FP.Mindfulness of burdens on the executive branch . no need to referee dispute Nixon Case: Arguments regarding Executive Priv. or persons associated with Sept 11” Process still allowed for US CITIZENS – challenge status as enemy-combatant Writ of habeas corpus is allowed for all citizens Standard of Review – “some evidence” v. this is an executive power protected by Const Court Martial instructions Scalia/Al/Th: JX was given by congress through DTT . III court power Separation of Powers: Job of the jud br to “say what the law is” . or sensitive national security secrets for deference (b) evaluate balance of need of judicial process over exec priv Factors/ Triggers: . Cheney Case: Permitted – Criminal v. (b) fair opportunity to rebut in front of neutral decision maker Hamdan (2006) DTT of NonCitizens: Order for military tribunals being established and rules of procedure for interrogation/trial Military Commissions Civilian in times of martial law Temporary military govt “incident to conduct of war” Hamdi (2004) O’Connor: Within statute but not in line with due process concerns for citizens Stevens Maj: UCMJ: Not in line with the Geneva convention and the court is not permissible – captured in conflict and tried in conflict.after WWII det of JA AUMF: “all necessary and appropriate force against nations. often dismissed on standing or political question doctrines Executive Privilege Nature of Power: Specific regulations on how and why Pres could veto spending section of bill postpassage Problem: Not in line with the “finely wrought procedures of the lawmaking process in the Constitution” must have an amendment if want this power. II.not shared w/ another branch – must have claim of: (a) military. Sec. regular course of criminal proceeding so w/ in Art. exec agreement permitted War Powers Resolution: Inaction by Congress may prevent Pres from being able to act. private interest of unjust detainment Must be provided: (a) notice of fact-basis of classification. Pres “sole organ” Pres is better branch suited for such determinations Clinton Case: 2 other branches agree but court finds invalid Dames & Moore (1981): Executive Agreements: Place in bucket 1 b/c Cong has approved through statute in Foreign Claims Settlement Comm.
Sec. 1 = “All Leg” Appointment & Removal Powers Principle that Congress may not delegate its legislative power to administrative agencies – generally eroded to standards of delegation Appointments Clause. must have bicameralism to overturn exec action Chadha (1983): Efficiency alone will not save an action.Separation of Powers Administrative Delegation Non-Delegation Doctrine Art. Courts of Law. cl.e. good cause restriction did so. Principle: Criteria to Guide Agency‟s Discretion is Necessary. limited. Bicameralism Must be selected by the President and consented to by the Senate Generally Look At: (1) Incongruity (2) Power Intrusion (3) Power Expansion Scalia Dissent: Any restriction on the executive‟s power should be void and invalid. and so should not be permitted (1) appointed by President alone.cannot make these choices and act accordingly. Art. House judiciary comm tried to revoke a hold on deportation for Chadha. President cannot have choice of what is injurious or “unfair competition” . 2 – President nominates w/ Advice & Consent from Senate. industry. duties (not policy making and no administrative duties outside specific office) Officer is limited in jurisdiction – examine through scope off jurisdiction Panama Refining (1935): HOT OIL – Regulation of whole economy based on 1 standard (“unfair competition”). but may use benchmarks Whitman Trucking (2005): “Necessary to protect the public health [air standards]” “determinable standard” is not necessary even for Broad Regulatory Schemes – use of scientific data allowed Legislative Veto as Check = Unconstitutional. Agency cannot make policy decision. must be left to legislature Whether efficient or not is immaterial. or activity – unfettered discretion for enacting laws by President so invalid Intell. OR (3) appointed by the judicary Evaluate the legislative nature of the decision Evaluate the Framers‟ Intent (limited indp role for each branch) No reservation of removal by Congress permitted EXCEPT through impeachment Principals may be removed at will of President. must protect through sep of powers and structure Includes legislative veto as uncon for all agency rules too. II. but agency officers generally must have just cause – measure is NOT whether “purely executive” Subject to removal by higher executive official (i. removed by Attorney General) Statute only provides certain. or Heads of Departments Has Cong delegated a leg power inappropriately? Morrison Analysis Principal Officer Inferior Officer Standards Necessary for Discretionary Choices Made by Executive Branch ALA Schechter: No restraint on President‟s legislative choices – no standards for trade. I. Sec. but may vest power for inferior officers in President. 2. Deemed legislative and needed legislative process Dissent: Leg Veto is useful tool and has been used throughout statutes NO other law has been determined to be invalid based on delegation Must look to whether removal power restriction impedes Pres executive power to execute laws – is the burden hampering ability to control the official? If quasi-executive and quasilegislative then “good cause” is permitted to separate from full executive control over office Interference in the executive branch functions? Limited tenure – generally “temporary” to accomplish specific task Outside vesting is granted Cong deference but need to evaluate separation of powers concerns – no “incongruous” inter-branch appointments Some means of controlling the actions of officer are included – then does not violate sep of powers . OR (2) appointed by heads of depts.