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Constitutional Law I

I. The Supreme Courts Authority and Role

Fall 2009

A. The Power of Judicial Review Marbury v. Madison (Justice Marshall) Judicial Review: 1.) S. Ct. can review and declare acts of the legislative and executive branch unconstitutional only when those acts are not purely political A law that is inconsistent with the Constitution is VOID because all branches of government are bound by the Constitution 2.) S. Ct. is the ultimate Constitutional interpretive authority Article III 2: S. Ct. Jurisdiction o Original Jurisdiction- in all cases affecting: a.) Ambassadors b.) Public ministers and consuls, and c.) State is a party o Appellate Jurisdiction- in all the other cases before mentioned, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. a.) Applies to federal questions or federal diversity b.) Congress can alter the scope of Ct.s appellate jurisdiction B. Supreme Court Authority to Review State Court Judgments S. Ct. has authority to review state Supreme Court decisions where the case involves a federal question and S. Ct. has appellate jurisdiction S. Ct.s review of State S.Ct. decisions is not impeding upon state independence because: 1.) States do not have absolute sovereignty because they are bound by Constitution 2.) It is necessary for Supreme Court to review state decisions to maintain uniformity in the law C. Judicial Exclusivity in Constitutional Interpretation Article VI Supremacy Clause: The Constitution and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties madeunder the Authority of the U.S., shall be the supreme Law of the Land o Binds States and Federal Government o Since S. Ct. interprets and applies the Constitution, the S.Ct.s interpretations and applications also bind the states o All branches of the government interpret the Constitution: 1.) Congress- passing legislation 2.) Executive- enforcing the laws 3.) Judicial- judicial review State officials can oppose S. Ct. decisions, but they cannot nullify the decisions and actively bar its enforcement because under Art. VI para. 3 federal and state legislative, executive, and judicial officers are bound by oath to support the Constitution Why Do We Interpret the Constitution? 1.) Create and Organize the Government 2.) Create limits on government power

Ways the Executive and Legislative Branches Can Voice Disapproval of S. Ct. decisions: 1.) Judicial Selection: Nomination and Confirmation Process- Executive branch 2.) Impeachment 3.) Court-packing- increasing the size of the court 4.) Court-stripping- limit courts appellate jurisdiction 5.) Constitutional Amendment- been done 4 times- legislative Authoritativeness of Supreme Court Decisions Congress CANNOT overturn S. Ct.s interpretation of the Constitution Congress CAN overturn S.Ct.s interpretation of statutes and common law D. Constitutional and Prudential Limits on Judicial Review The S. Ct. and lower federal courts will only hear justiciable cases (cases that are appropriate for federal adjudication) Justiciability requirements are derived from: 1.) Constitutional Limits- Interpretations of Art. III 2 or 2.) Prudential Limits- From S. Ct. policies developed apart from Constitution A case is Justicicable and appropriate for S. Ct. when: 1.) Plaintiff has Standing a.) Constitutional Standing Requirements under Article III: Plaintiff must show that the P has an: 1.) Injury in Fact A.) Particularized and Concrete B.) Distinct and Palpable C.) Actual and Imminent 2.) Which was Caused by the Ds conduct and Harm must be fairly traceable to government actions 3.) A favorable judicial ruling would redress that harm b.) Prudential Standing Requirements Created by S. Ct.: 1.) 3d Parties do not have Standing unless: A.) Close Relationship with the rightholder B.) Close identity of the interest with the rightholder C.) The rightholders interest would be unavoidably hindered by the restriction of the 3d party restriction 2.) People who have generalized grievances If everybody has standing, then no one does; Ex: Taxpayers Exception: Establishment Clause challenges 3.) Suits outside a laws zone of interest (outside interest created by statute) 4.) Associational Standing (Hunt v. Washington State Apple) An organization has standing when: 1.) Its members would otherwise have standing to sue in their own right 2.) The interest it seeks to protect is germane to the organizations purpose

3.) Neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit 5.) States have automatic standing because they have an interest as a sovereign entity Case or Controversy S. Ct. and federal courts require a case and controversy because the S. Ct. cannot issue advisory opinions Declaratory judgments are not advisory opinions State S. Ct.s can issue advisory opinions To establish a case and controversy, the claimant must establish that the matter in controversy: a.) Is definite and concrete b.) Touches the legal relations of parties having adverse legal interests; and c.) Involves a real and substantial controversy capable of specific relief through a decree of conclusive character 3.) Timeliness: Cannot be Moot or not Ripe a.) Mootness- a case is moot when changing circumstances developing after the initiation of the lawsuit have ended the controversy, so that the court no longer confronts a live dispute Exception: Cases that are capable of repetition yet evading review 1.) Where the action is likely to happen repeatedly, but will always avoid review due to the time required to litigate 2.) Roe v. Wade- pregnancy litigation would seldom make it through the judicial process if all were considered moot just because the woman is no longer pregnant 3.) Cessation of past wrongful conduct might moot a claim for an injunction, but not a claim for damages b.) Ripeness Doctrine- the case is brought before a concrete confrontation emerges (Look for this when under standing, there is no immediate injury) 4.) Legal Issue: Cannot be a Political Question Determining whether something is a political question is a question for the court Baker v. Carr Factors: A suit involves a nonjusticiable political question if: 1.) Constitution textually commits the issue to another branch of federal government a. The legislative or executive branch must have the power and the final decision-making (discretion) power under the Constitution b. Only applies to Separation of Powers; not Federalism 2.) There is a lack of judicial standards for resolving it 3.) It would be impossible to decide the issue without a policy determination that is outside the judicial branchs discretion 4.) Deciding the issue would show a lack of the respect to one of the other branches 5.) There is an unusual need to defer to a prior political decision 6.) There is a need for the nation to speak with one voice S. Ct. shows prudence and restraint by: a.) Exercising power of judicial review only as last resort b.) Constitutional Avoidance- deciding Con. Law questions last 2.)

c.) Construing statutes as to render them constitutional d.) Deciding cases on narrowest grounds The Constitution can be interpreted in one of three ways: 1.) Textualism (Justice Scalia)- definitions 2.) Originalism- Framers intent, historical context 3.) Living Constitutionalism (Justice Kennedy)- considers: a.) Changing technology b.) Public attitudes and evolving standards of decency c.) Practices in other countries d.) Scientific, economic, social, philosophical, religious, and personal values _____________________________________________________________________________ _

II. Federalism- Relationship between States and Federal Government

A. Federal Power 1.) Limited to enumerated powers in the Constitution 2.) All government power not delegated to the federal government remains with the states B. Preemption Supremacy Clause Art. 6 2 federal law preempts state law Broad federal power gives congress more opportunity to displace state law Narrow federal power means less federal displacement of state law Analysis for Preemption: 1.) Is the federal law constitutional? 2.) Is the state law constitutional? C. Source of Federal Power Art. 1 1 All legislative power herein granted shall be vested in a Congress of the United States Art 1 8 is the List of Enumerated Powers: a.) Lay and collect uniform taxes, duties, imposts and excises, (Tax Clause) b.) Pay the debts and provide for the common defense and general welfare of the United States (Spending Clause) c.) Borrow money on the credit of the United States d.) Regulate commerce with foreign nations, and among the several states, and with the Indian tribes (Commerce Clause) e.) Establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States f.) Coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures g.) Provide for the punishment of counterfeiting the securities and current coin of the United States h.) Establish post offices and post roads i.) Copyright Laws j.) Constitute tribunals inferior to the Supreme Court k.) Define and punish piracies and felonies committed on the high seas, and offenses against the law of nations

l.) Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water m.) Raise and support armies, but no appropriation of money to that use shall be for a longer term than two years n.) Provide and maintain a navy o.) Make rules for the government and regulation of the land and naval forces p.) Provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions q.) Provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress r.) Exercise exclusive jurisdiction over D.C. and other government land s.) Make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. (Necessary and Proper Clause) Art 1 10: States Cannot: 1.) Enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility 2.) Lay any imposts or duties on imports or exports without Congresss consent, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress 3.) Lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay without the consent of Congress 10th Amendment: 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. If a state did not have the power before 1789, then the 10th Amendment does not reserve that right to the states (U.S. Term Limits, Stevens) If not on the feds list and not prohibited to the states, Thomas says it is reserved the States regardless of whether the States had that power prior to 10th Amendment (U.S. Term Limits, Thomas Dissenting) Doctrine of Enumerated Powers (Statutory Construction): 1.) Fed. Gov. can only exercise the powers granted to it 2.) If you can find the power in the Constitution, then the gov. has all the power to carry out that power 3.) Read non-delegated powers narrowly and delegated powers broadly McCulloch v. Maryland (Justice Marshall):

o Doctrine of Implied Powers: in addition to powers expressly granted, fed. Gov. may exercise incidental power 1.) Theoretical Basis for Implied Powers a.) Fed. Gov. is supreme within its sphere of power b.) No exclusion of implied powers because the 10th Amendment does not require that the powers be express c.) Enumerated powers need ample means for execution d.) Constitution is the source of the power It is the Constitution we are expounding 2.) Textual Support for the Doctrine a.) Necessary and Proper Clause not a power but a means in executing the enumerated power If necessary was intended to mean absolutely necessary and nothing else, proper would not have been added 3.) Marshalls Test for Implied Powers: (Rational Basis Test) a.) Ends must be enumerated b.) Means must be plainly adapted (reasonable) 4.) Separation of Powers and Necessary and Proper Clause: The degree of the laws necessity is to be discussed by Congress as long as Ct. determines that Congress has the power E. Themes in Federalism 1.) History a.) States and Union b.) Articles of Confederation and Constitution 2.) Political Theory a.) Decentralized government better protects liberty (Subsidiarity) b.) Encourages Experimentation in States 3.) Constitutional Law G. Subsidiarity Central authority should have a subsidiary function, performing only those tasks which cannot be performed effectively at a more immediate or local level European Union law: incorporates Subsidiary; like U.S. 10th Amendment that says the powers that are not given to Congress are reserved for the States. _____________________________________________________________________________ _

III. Commerce Power and Its Federalism-Based Limits

Art. 1 8 cl. 3 (Commerce Clause): The Congress shall have the Power . . . to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes. Commerce Clause Congresss principal domestic power We Must Define:

1.) Commerce Just about everything is interstate commerce today a.) Navigation b.) Shipment c.) Trade d.) Manufacturing alone is not Commerce 2.) Among a.) Intermingled with the states b.) Is not limited to external boundary of each state c.) Cannot regulate completely internal commerce of a state 3.) Regulate a.) Prescribe the rule by which commerce is to be governed b.) This power may be exercised to its utmost extent c.) Limited only by Constitution A. Three Judicial Limits on the Commerce Power 1.) Direct v. Indirect Test Intrastate activity must directly effect interstate commerce for Congress to have power to regulate the intrastate activity 2.) The Substantial Economic Effects Test Intrastate activity must have a substantial economic relation with the interstate traffic 3.) The Stream of Commerce Test Congress can regulate local activities that are: a.) in commerce or b.) an integral part of the current of commerce. Ex: cattle that are sent from one state to another to sell. B. National Police Regulation Using the Commerce Clause Constitution does not grant Congress police power- the ability to regulate morals, health, or safety However, Congress can regulate public policy through the Commerce Clause a.) Articles of commerce that are harmful can be regulated by Congress through Commerce Clause b.) Production of harmful articles cannot be regulated; only the goods themselves c.) Analysis: Direct Effect + Great Effect C. The Commerce Power and the New Deal During the New Deal era, FDR urged Congress to pass legislation to boost the economy. The S. Ct. kept striking the legislation down as invalid under the Commerce Clause. FDR threatened to increase the number of justices on the S. Ct. (Called courtpacking). S. Ct. suddenly switched and started upholding New Deal legislation (The switch in time that saved the nine). Everything was considered commerce until 1995 under Rehnquist in U.S. v. Lopez. D. Judicial Deference Toward Exercise of the Commerce Power After New Deal 1.) Commerce Power Only Requires that the Intrastate Activity Substantially Affects interstate commerce. a.) Manufacturing is interstate commerce; therefore, production can be regulated

b.) Extends to intrastate activities that have a : i. Substantial effect on commerce, or ii. The exercise of Congressional power over interstate commerce 2.) Substantially Affects is Determined by the Aggregate Wickard v. Filburn Congress can regulate an activity through the Commerce Clause: a.) Even if local (intrastate) and not regarded as commerce if b.) That activity has a substantial economic effect on interstate commerce c.) Does not matter if the effect is direct or indirect d.) Aggregate Effects Test- must look at the aggregate to determine substantial effect 3.) Commerce Power can Regulate Civil Rights and other Social Matters o Social matters are generally state concerns; however, 1964 Civil Rights Act was enacted under Commerce Clause power because: 1.) Businesses that discriminate based on race, sex, national origin, religion, or color affect commerce by: a.) Discouraging travel across state lines b.) Discouraging other businesses from coming to the state 4.) Determinative Test for when Congress can Exercise Power under Commerce Clause Congress can exercise its power under the Commerce Clause when: a.) Activity equals Commerce b.) Concerns more States than one and has a real and substantial relation to the national interest. c.) Even if the activity is: i. Morally or Socially wrong or ii. The activity is local 5.) Commerce Power can Regulate Crime E. The Rehnquist Courts Revival of Internal Limits (Imposed by Commerce Clause itself) of the Commerce Power After nearly 60 years of deferring to Congress, Rehnquist court determines a trilogy of cases limiting Congresss power under Commerce Clause to protect States power under Federalism Modern Commerce Clause Power: Congress May Use Its Commerce Power to Regulate: 1.) Use of Channels of Interstate Commerce even though an activity may occur wholly intrastate a.) Internet b.) Roads c.) Railways d.) Waterways 2.) Instrumentalities of Interstate Commerce used in Interstate Commerce a.) Trucks b.) Trains c.) Planes d.) Persons or goods traveling in IC 3.) Wholly Intrastate Activities that Substantially Affect Interstate Commerce Intrastate Activity Must be: a.) Economic in Nature

b.) Considered in the Aggregate (Reich) c.) Viewed in light of Congressional findings of its substantial affect on interstate commerce - Morrison- Congressional findings are not dispositive F. External Limits on the Commerce Power: Federalism and the 10th and 11th Amendments Congress Cannot Use Its Commerce Power to: 1.) Commandeer the State Legislature or Executive Officers 2.) Or to Abrogate a States Sovereign Immunity New York v. U.S. If a power is delegated to Congress in the Constitution, the 10th Amendment expressly disclaims any reservation of that power to the States. If a power is an attribute of state sovereignty reserved by the 10th Amendment, it is necessarily a power the Constitution has not conferred on Congress. Congress cannot commandeer the state legislatures by requiring it to enact specific legislation; however Congress can: a.) Give a state a choice between legislating as Congress wants or accepting federal preemption in an area within the federal power b.) May provide states incentives to legislate according to a federal plan by use of conditional grants under the Spending Power Congress cannot commander state executive officers to administer a federal program Congress can commandeer state judiciary (State cts must enforce federal law and apply substantive federal standards) G. State Sovereign Immunity and the 11th Amendment Analysis should always start with 11th Amendment when someone sues a state 11th Amendment: The judicial power of U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the U.S. by citizens of another State or by citizens or subjects of any foreign state 1.) The origins and meaning of the 11th Amendment Originally, Sovereign Immunity meant the King, as the Sovereign, could not be sued 11th Amendment was enacted in response to Chishlom v. GA (1973) allowed a citizen from S.C. to sue the state of GA and interpreted Art. III 2 to allow federal courts to have jurisdiction 11th Amendment applies only to: a.) Federal court suits b.) Brought by private parties c.) Seeking damages against a state th 11 Amendment instructs courts on how to interpret Art. III and: 1.) Diversity Cases 11th Amendment divests jurisdiction from federal courts over states as defendants by amending Art. III that allowed suits between a state and noncitizens 2.) Federal Question Cases 11th Amendment also takes away federal question cases, so a person from AL cannot sue the state of AL 2.) Exceptions to 11th Amendment Immunity

a) Suits for injunctive/declarative relief sought against state officials for federal law violations (Stripping Doctrine) b) Suits by anyone against subdivisions of states (cities and counties) c) Suits looking for prospective relief instead of damages for past conduct d) Suits in which a claim is that a state official violated federal law, not state law e) Suit brought against a state in state court on state law f) Damages sought against state officials personally g) Suits under federal statutes enacted under 5 of the 14th Amendment (gives Congress the power to enforce the 14th Amendment) h) Suits by federal government or other states i) When the State waives its right which can be done: i. By state statute Congress dangles this in front of states in exchange for money ii. By invoking federal jurisdiction (state as P) iii. By removing state case to federal court when state waives sovereign immunity in state court j) Congressional Abrogation i. Abrogation of State Sovereign Immunity through 14th Amendment 5 14th Amendment- Equal Protection Under 14th Amendment 5 (Enforcement Clause), Congress can abrogate a states immunity because: 1.) Rule of Construction: 14th Amendment comes after 11th 2.) Therefore, the 14th Amendment supercedes what the 11th Amendment says 3.) However, the 5 legislation abrogating a states sovereign immunity must be Congruent and Proportional: a.) Determine what the constitutional violation is 4.) Ex: Race Discrimination b.) Is the Remedy provided by Congress congruent to the constitutional wrong? 5.) Ex: Are damages or abrogation of sovereign immunity congruent to the race discrimination? c.) Is the Remedy proportional to the harm done? 6.) Ex: Are damages or abrogation of sovereign immunity proportional to the harm caused by race discrimination b.) Abrogation of State Sovereign Immunity through Art. 1 8 Cannot use Commerce Power in Art. 1 8 to abrogate state sovereign immunity because 11th Amendment came after Art. I 8, so 11th Amendment granting states sovereign immunity supercedes Art. I 8 Can use Bankruptcy Power in Art. I 8 3.) Federal Agencies suing States Citizens cannot suit states in a federal administrative agency because: a.) Federal administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts b.) The role of the Administrative Law Judge is similar to an Article III judge.

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IV. Other National Powers: Taxing, Spending, War, Treaties, and Foreign Affairs
If Congress cannot regulate an activity through the Commerce Clause, it can use another Art. 1 8 Power: 1.) Taxing 2.) Spending 3.) War 4.) Treaties 5.) Foreign Affairs B. Taxing Power as a Regulatory Device Taxing Clause Art. 1 8: Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common Defence and general Welfare of the U.S., but all duties, imposts, and excises shall be uniform throughout the U.S. Amendment 16: The Congress shall have power to lay and collect taxes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. 1.) States cannot impose their own tariffs, so tariffs must be uniform 2.) 2 easy always wrong answers on an exam: a.) provide for the common defense is not a separate source of power b.) general welfare is not a separate source of power Congress may use its Taxing Power to regulate an activity when: 1.) The taxs revenue feature outweighs the taxs penalty feature 2.) The tax is applied uniformly throughout the states 3.) The tax does not have to be uniform with respect to individuals Usually, there is a presumption of validity under the Tax Clause Tax is okay even if Congressional motive was to deter intra-state gambling C. Spending Power as a Regulatory Device Spending Clause Art. I 8: provide for the common defence and general welfare Statute exceeds Spending Power when: 1.) The statutory plan regulates and controls an activity traditionally reserved for the states 2.) The statutory plan does not make the states cooperation voluntary Power to tax for general welfare is an independent power in Congress All tax has some regulatory effect Regulation v. Revenue 7.) Regulation- must be a part of Congresss enumerated powers to regulate 8.) Revenue- need not be a part of Congresss enumerated powers D. Spending Power After New Deal

Power of Congress to tax is as broad as the power of states to tax (Steward Machine), so feds can tax EVERYTHING E. Scope of Spending Power Inducement v. Coercion Limitations on Spending Power: 1.) Must be in pursuit of the general welfare: in determining what the general welfare is, courts must defer to Congresss judgment 2.) The conditions on federal grants must be unambiguous so states know exactly what they are sacrificing in accepting the federal grant 3.) The conditions on the federal grants must be related to the federal interest in particular national projects or programs (Rational Basis Test) 4.) Conditional federal grants cannot violate any independent constitutional requirement F. War, Foreign Affairs, and Federalism Structural Themes: 1.) Judicial Review Congresss use of its War, Treaty, and Foreign Affairs powers raise issues of Justiciability: a.) Political Questions b.) Standing Act of State Doctrine- our courts cannot question the validity of acts of other countries Legality of War- court has never gotten into whether the war is legal Ct. will stay out of foreign affairs and defer to other political branches 2.) Federalism States do not have power over foreign affairs o 10th Amendment The doctrine of enumerated powers applies only to powers which the states had. States never had power over foreign affairs o Art. 1 10, Para. 1: States cannot enter into treaties o Art. 1 10, Para. 3: States cannot enter into war, unless actually invaded, or in such imminent danger as will not admit of delay Even if the power to declare war was not in Constitution, U.S. would have that power as a sovereign country Art. 1 8: The Congress shall have power to: a. Pay debts and provide for common defense b. Declare war c. Raise and Support Armiesprovide and maintain a navy d. Make rules for the gov. and regulation of thte land and naval forces e. Provide for calling forth the milita to execute the laws of the union, suppress insurrections, and repel invasions f. Provide for organizing, arming, and disciplining the militia


Separation of Powers

Congress and President both have power over foreign affairs, and these powers conflict Presidential Power comes from: 1.) Article II 2 a.) Commander in Chief of the army and navy, and militia of several States b.) Make treaties with approval of 2/3 of Senate c.) Appoints ambassadors, public ministers, and consuls 2.) Article II 3: a.) Receives ambassadors and other public ministers b.) Shall take care that the laws be faithfully executed 3.) Inherent (Exta-Constitutional) Ex of Congress and President Conflicting: Boland Amendment passed by Congress barred US intelligence agencies from spending funds to support military or paramilitary operations in Nicaragua. Iran-Contra Agreement So US starts selling weapons to Iran to support the Contras in Nicaragua. Congress can end wars by: a.) Refusing to fund deployment of troops after a certain date b.) Impeaching the President Last Declaration of War December 8, 1941, which means Congress has allowed President to have power to declare war Congress is Law and Policy Maker, and President is Law Applier even with War Power In response to Vietnam, Congress passed the War Powers Act: a.) President can send armed forces only if: i. Congress authorizes it ii. National emergency b.) President must consult with Congress before deploying troops c.) If Congress does not agree, it can terminate the troops in 60/90 calendar days or concurrent resolution (Just between House and Senate) requiring withdrawal of forces - Every President says this is unconstitutional G. Congresss War Power as a Regulatory Device: 1.) Continues for the duration of the emergency and 2.) Regulates any activity negatively affected by the war War Power is dangerous because you could potentially regulate anything with the War Power H. Treaty Power as a Regulatory Device Treaties that violate Constitution are not valid 1.) A treaty made by the President with the required concurrence of 2/3 of the Senate is the supreme Law of the Land and preempts state laws under Art 6

2.) There should be judicially enforced limitations on treaty power because: a.) Founders believed that treaties should be difficult to make b.) Founders contemplated that treaties would govern truly inter-national relations c.) Founders placed substantial emphasis on the role of the Senate in protecting states rights d.) Supporters of the Constitution repeatedly expressed the view that the Constitution delegated only limited powers to the national government 3.) Implied power for Congress to regulate foreign affairs International Court of Justice judgment is not selfexecuting, and states do not have to follow it Presidents memo is not binding on the courts _____________________________________________________________________________ _

V. Federal Limits on State Regulation of Interstate Commerce

Ways Federal Gov. can Limits on State Action: 1.) Preemption 2.) DCC 3.) P&IC 4.) Congress Consents to States Activities Reason for Federal Limits on State Regulation of Interstate Commerce: 1.) We do not want barriers between states dealing with economy Power to regulate commerce was granted to Congress to prevent state rivalries 2.) Uniformity Dormant Commerce Clause deals with concurrent powers shared between States and Congress, such as the power to tax (Is regulating commerce shared?) A. Dormant Commerce Clause (Negative Commerce Clause) First issue for Dormant Commerce Clause: Justiciability Commerce Clause: The Congress shall have the Power . . . to regulate Commerce with foreign Nations, and among the Several States, and with the Indian Tribes. Dormant Commerce Clause: Determines whether a state may enact legislation that affects interstate commerce when faced with federal inaction. o If state cannot enact the legislation, the state law is preempted by silence Congresss Commerce Power is: 1.) Exclusive as to the Direct Regulation of Interstate Commerce Economic aspects of trade Not health and safety 2.) Concurrent as to the Regulation of Health and Safety that Affect Interstate Commerce If a state uses its police power- power to regulate health and safety- it is presumptively valid If found invalid, DCC preempts the state law Dormant Commerce Clause cannot be found in the text of the Constitution; only supported by Originalism and Living Constitutionalism Courts modern Categories of Dormant Commerce Clause: 1.) Facially discriminate against out-of-state commerce

Per Se Invalid Must meet Strict Scrutiny Test: b.) State must show that it has a compelling interest in facially discriminating against out-of-state commerce - Types of Regulations Subject to Strict Scrutiny: 1.) Protection of Natural Resources 2.) Protectionist : Barring importation of goods into its borders to protect its in-state industries from out-of-state competition b.) Regulation will be upheld as involving a compelling state interest when: 1.) The regulation serves a legitimate environmental purpose - If the out-of-state waste would create the same environmental harm as the waste already in your state, then the state does not have a compelling state interest 2.) The regulation is for quarantine purposes 3.) There is no alternative in protecting the states interest besides the discriminatory regulation 2.) Facially Neutral Laws that have a Protectionist Purpose or Effect 3.) Facially Neutral Laws that have a Disproportionate Adverse Affect on Interstate Commerce Use Pike Balancing Test: A. States Interest Must meet Rational Basis Test: 1.) State must show that the regulation pursues a legitimate end and Legitimate when the regulation seeks to protect public welfare, health or safety a.) Transportation b.) Economic protection is NEVER a legitimate interest 2.) The regulation must be rationally related to that legitimate end B. Burden on Interstate Commerce Even if the states interest meets the Rational Basis Test, the states interest must still outweigh the burden on Interstate Commerce Burden on Interstate Commerce Factors: 1.) Is there a reasonable alternative to the burdensome regulation that would protect the states interest the same? 2.) Is the activity a type that should be regulated uniformly throughout the country? 3.) Is the state isolating itself economically? Dormant Commerce Clause Does Not Apply: 1.) Market Participant Doctrine a.) If a state is a market participant i. State is a Buyer or Seller - State does not sell fishing licenses; it regulates fishing licenses ii. Can only regulate that particular market and not a downstream market b.) It may choose to favor its own citizens c.) Even if that favoritism burdens interstate commerce

Exceptions to MPD: 1.) When a state has monopoly power in the market in which it participates because this is the same as regulating - Public Utilities (AL power) 2.) Sale of Natural Resources - This would come under P&I C 3.) Foreign Commerce - Foreign DCC since Congress has authority to regulate foreign commerce; therefore, there is an implied restriction on States to regulate foreign commerce - Ex: AL cannot refuse Japanese cars B. Privileges and Immunities Clause Art. IV 2 Privileges and Immunities Clause: The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states o P&I C is placed between Full Faith and Credit Clause and Extradition Clause o Art. 4 deals with sister state relations P&IC differs from DCC: 1.) Corporations are not protected under P&IC 2.) Congress may not authorize states to act inconsistently with P&IC 3.) P&IC only extends to the exercise of fundamental rights 4.) Market Participant Exception does not apply to P&IC For the P&I C to restrain state regulation: 1.) A state or city is discriminating based on 2.) The persons citizenship in another state Only state-identity discrimination is covere Only natural persons (citizens) are protected This person is only visiting the state 3.) The activity seeking protection must be fundamental Right to trade and employment Right to practice law Right to commerce Right to travel, access to civil institutions, courts Recreation is not a fundamental right Right to vote is not a fundamental right under P&I C 4.) The state or city cannot meet Intermediate Scrutiny: a.) Cannot show that it has a substantial reason for treating out-of-state differently b.) Statute or ordinance is narrowly tailored to achieve the substantial interest c.) Are non-citizens a peculiar source of the evil at which the statute or ordinance is aimed C. Preemption Art. VI Supremacy Clause c.) Not Self-Executing d.) A branch of government must pass law that conflicts

e.) i. ii. iii. State Constitution

Applies to:

State Statutes State Judicial Opinions Preemption Analysis: 1.) Is the federal law valid? 2.) Does the state law conflict with the federal law? Cts. should assume that a federal act does not supercede States historical authority unless: 1.) Express Preemption 2.) Implied Preemption: a.) Field Preemption- must be a clear showing that Congress meant to occupy a field and to displace the states from regulation on the subject matter i. Scheme of federal regulation so pervasive that it is reasonable to infer Congress left no room for State ii. Federal interest may be so dominant iii. Analysis: a.) Look to language b.) Look to purpose b.) Conflict Preemption- situation where compliance with both federal and state regulations is a physical impossibility A presumption of preemption occurs when Congress typically enjoys the power: a.) Commerce b.) Immigration c.) Determine Congresss ultimate purpose Anytime a state tries to interact with foreign powers, it is preempted because state has NO foreign power D. Other Aspects of Federal-State Relationships 1.) State Taxation of Interstate Business State tax may be sustained against Commerce Clause challenge when the Tax is : a.) Applied to an activity with a substantial nexus with the taxing State b.) Fairly Apportioned c.) Does not discriminate against interstate commerce d.) Fairly related to the services provided by the State 2.) Intergovernmental Tax Immunities Only applies when the levy falls on the U.S. itself, or on an agency or instrumentality so closely connected to the U.S. gov. that the two cannot be viewed separately 3.) Intergovernmental Regulation Immunities Ability of the State to regulate activities of U.S. Same as Tax Immunity: U.S. and its closely related agencies are immune from being regulated by the State. 4.) Mutual Obligations Among the States

a.) Art. IV 2: i. Privileges and Immunities Clause ii. Extradition Clause a.) Art. 1 10 Interstate Compact Clause States cannot enter into interstate compacts without the consent of Congress b.) Art. 4 1 Full Faith and Credit _____________________________________________________________________________ _

VI. Separation of Powers

Federalism vertical Separation of Powers horizontal Justice Brandeis: Purpose [of separation of powers] was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy. Themes in Separation of Powers: 1.) Incomplete Separation Power is shared between the branches 2.) Encroachment A power constitutionally assigned to one branch alone may not be exercised by another 3.) Interference One branch may not obstruct another in the performance of its constitutional pwoers 4.) Formalism Form must be observed; especially, by Congress Legislative Congress Strict Formalismlimited to Constitutional authority President Flexible and Functional (Ex: Executive Agencies) Federal Court Strict in Theory; loose in practice a.) Federal Rules of Criminal Procedure, Civil Procedure, Evidence Anything Goes Rare Generous Normally Strict (Art. b.) Admini III) strative Agencies have administrative law judges c.) Court Marshall Executive Violation of the

Executive Judicial

Forbidden Forbidden (except impeachment)

A. Separation of Powers

Article II: a.) 1, para. 1: vests executive power in the President without qualification, which is different than Article Is delegation of legislative powers herein granted. b.) 2, para. 1: The President shall be Commander in Chief to grant Reprieves and Pardons c.) 2, para. 2: Make Treaties and Appointments d.) 2, para. 3: Power to fill up Vacancies e.) 2, para. 4: Recommend laws to Congress; receive ambassadors, and shall take Care that the Laws be faithfully executed. Sources of Executive Power: 1.) Article II 2.) Congress 3.) Inherent Power Protecting U.S. from imminent invasion or insurrection Because Art. II does not say herein granted Youngstown Steel: 1.) Justice Black Majority: Strict Approach President must have the power to issue an executive order in the Constitution The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. Domestic Actions, such as taking over private property, are not within the Commander-in-Chief powers 2.) Justice Douglas Concurring: Cautionary Approach a.) Emergency does not create power b.) Seizure by President ties Congresss hands 3.) Justice Frankfurter Concurring: Flexible Approach a.) Congress can let its own power slip through its fingers to the President 4.) Justice Jackson Concurring: Structured Approach Presidents powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress 3 Zones of Conduct a.) Approval Congress expressly approves of the Presidents action President has broadest power here Invalid only if federal government AS A WHOLE lacks the power Ex: Infringes on states right b.) Silence Involves a concurrent power between legislative and executive branch c.) Disapproval Congress forbids Presidents conduct that is not in Art. II or an approved inherent power Presidents power at lowest ebb here B. Executive Agreements

Executive Agreements: Usually constitutional because they involve foreign affairs which require the nation to speak with one voice. Since President is the Head of State, it his is duty to speak for the nation as a whole Is a treaty but is never ratified by Senate These are binding between the two executives of the countries but not on citizens of the U.S. unless Congress passes a law implementing the executive agreement NAFTA is not a treaty but an executive agreement Not all executive agreements require enabling legislation Unitary Executive Theory: all executive power must be in Presidents hands, without exception 1.) Dick Cheney 2.) Professor John YooOffice of Legal Counsel Drafted Memo that redefined torture as failure of bodily organs 3.) David Attington 4.) Signing Statements Bush would write and attach his opinion on the constitutionality of a law Dames and Moore: President has power in the absence of Congresss disapproval to settle claims with foreign government and entities when: 1.) Necessary to resolution of main foreign policy dispute When President must speak for the nation 2.) Congress acquiesced in Presidents action Since 1952, the President has entered into at least 10 binding settlements with foreign nations; therefore, Congress has implicitly approved the practice of claim settlement by executive agreement A systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned may be treated as a gloss on Executive Power vested in the President by Art. II 1. C. Emergency Constitutionalism Constitution does not grant President emergency powers Emergency Constitutionalism: 1.) Art. I 9, cl. 2 Suspension Clause: Congress may suspend Habeas Corpus in times of Rebellion or Invasion to protect public safety 2.) Art. I 8, cl. 15 Congress can call the militia to suppress insurrections and invasions 3.) Art. I 10, cl. 3 gives States power to engage in war if attacked 4.) Art. IV 4 U.S. guarantees States protection from foreign and domestic invasions Chief Justice Rehnquist The laws will not be silent in time of war, but they will speak with a different voice. D. Executive Discretion in Times of War or Terrorism War Powers Resolution of 1973 a.) Joint Resolution by Congress b.) Allows President to send U.S. armed forces only by: i. Congresss authorization or

ii. If U.S. is already under attack or serious threat c.) President must notify Congress within 48 hours of committing armed forces to military action d.) Armed forces cannot remain more than 60 days in military action unless Congress authorizes it or declares war Types of Military Tribunals 1.) Courts martial 2.) War crimes tribunals 3.) Military commissions - Historically used for unlawful combatants Military Orders are supported by: a.) Delegation by Congress b.) Article II powers c.) Inherent powers - Military orders are not reviewable by federal courts - Military orders only bind military Military Commission: 1.) Tried by Article II Courts made of 3-7 military 2.) Admission of probative evidence in a manner consistent with the protection of classified information Some standard criminal procedures adopted 3.) Must appeal to Secretary of Defense or President 4.) Sentence to life imprisonment or death 5.) No recourse in Article III courts Lawful Enemy Combatants 1.) A member of the hostile States military 2.) Subject to Geneva Convention 3.) If captured, treated as a Prisoner of War Unlawful Enemy Combatants 1.) Not subject to Geneva Convention 2.) Not a part of the hostile states military 3.) Sentenced and punished after War 4.) Purpose for Detention: punish for wrongdoing 5.) U.S. citizenship does not prevent being labeled an unlawful enemy combatant (Ex parte Quirin)

Prisoners of War 1.) Subject to Geneva Convention 2.) Let go after war 3.) Purpose: prevent them from fighting against us; not to punish them for wrongdoing

1.) Executive Detention and Trial of Enemy Combatants Ex Parte Milligan (1866) a.) American citizens have the right to trial by jury and do not waive that right even in a time of war b.) Constitution does grant federal government right to suspend habeas corpus but not the right to suspend trial by jury

c.) Martial Law is only Appropriate when foreign invasion or civil war has closed the courts down so that the only court available is the military tribunal 2.) Executive Detention and Trial of Enemy Combatants After 9/11 Joint Resolution for the Authorization for Use of Military Force (AUMF) (2001): - Congress gave President authority to: a.) Use all necessary and appropriate force against b.) Nations, Organizations, or Persons - Only foreign citizens are subject to this order and sent to Guantanamo c.) He determines d.) Planned, Authorizes, Committed, or Aided Terrorist Attacks on September 11, 2001 Background to Rasul, Hamdi, Hamdan, and Boumediene: Eisentrager (1950) The privilege of litigation in U.S. Courts does not extend to aliens in military custody who have no presence in any territory over which the U.S. is sovereign. (This involved Germans where U.S. detained them in Germany prison) Rasul (2004) Federal courts do have jurisdiction over Guantanamo Bay detainees because the detainees have not been afforded a tribunal to dispute their charges and U.S. exercises exclusive jurisdiction and control over Guantanamo Bay Hamdi (2004) Hamdi (resident of Louisiana) is detained at Guantanamo, but he argues that the Non-Detention Act prevents him from being detained. e.) Non-Detention ActNo citizen shall be imprisoned or otherwise detained by the U.S. except pursuant to an Act of Congress. f.) AUMF Congressional act gives President power to detain a citizen Rule: A citizen-detainee seeking to challenge his classification as an enemy combatant must receive: 1.) Notice of the factual basis for his classification, and 2.) A fair opportunity to rebut the governments factual assertions before a neutral decision maker 3.) Combat Status Review Tribunal Order Issued by Secretary of Defense Established that detainees would be able to contest the basis for their designation as enemy combatants before military tribunals (CSRTs) comprised of 3 commissioned officers, including one judge advocate, unaffiliated with the particular detainees detention 4.) Detainee Treatment Act (DTA) Enacted by Congress Provided for limited review by the Court of Appeals for the D.C. Circuit of whether the enemy combatant status determination complied with statute and the Constitution Purports to overrule Rasul and Hamdi Hamdan (2006): caught in Afghanistan and transported to Guantanamo Issue: Whether Hamdan can be tried by military commission. Commissions have been used in 3 situations: 1.) Where martial law has been declared

2.) As part of a temporary military government over occupied enemy territory 3.) Incident to conduct of war, when there is a need to seize and subject to disciplinary measures those enemies who violate the law of war Ex: Nuremburg Trials Ct. says Hamdans situation could only fit as a violation of the law of war Here, Hamdan is charged with Conspiracy, which is not a violation of the law of war Holding: Military commission does not have jurisdiction to try Hamdan 5.) Military Commissions Act of 2006 All enemy combatant detainees being held abroad must be tried by a CSRT or another competent tribunal instead of by U.S. federal courts Enemy Combatant a.) Person who has engaged in hostilities b.) Or who has purposefully and materially supported the hostilities against the U.S. or its co-belligerents who is not a lawful enemy combatant c.) This includes a member of the Taliban, Al Qaeda, or associated forces d.) Person who, before, on, or after the date of the enactment of the MCA has been determined to be an unlawful enemy combatant by a CSRT or another competent tribunal established under the authority of the President of the Secretary of Defense Boumediene v. Bush (2008): Enemy aliens that are being detained in Guantanamo Bay have privilege of habeas corpus because: 1.) Guantanmo Bay is in absolute and indefinite control of the U.S. 2.) Military Commissions Act of 2006 is not a formal suspension of writ of habeas corpus 3.) Detainee Treatment Act of 2005 is not a substitute to the writ of habeas corpus 3 Factors are Relevant in Determining the Reach of the Suspension Clause: a.) The citizenship and status of the detainee and the adequacy of the process through which the status determination was made b.) The nature of the sites where apprehension and then detention took place c.) The practical obstacles inherent in resolving the prisoners entitlement to the writ 6.) 2009: Obama orders Guantanamo cases halted for 120 days until all cases can be reviewed by judges E. Congressional Violation of the Separation of Powers If legislative power is exercised by executive or judicial branch, it must be incidental to primary functions When legislative power is exercise by Congress, it must be according to form prescribed by Constitution. Analysis: 1.) Which branch is acting? 2.) If it is Congress, does Congress have the power under Article I?

- Does it meet the non-delegation principle? - Does it meet Bicameralism and Presentment? - Does it encroach on or interfere with judicial branchs power to review or Presidents powers? 3.) If it is Executive, does the Executive have the power under Article II, by a delegation from Congress, or from inherent power to protect nation? - Does it meet the non-delegation principle? - Does it meet Bicameralism and Presentment? - Does it encroach on or interfere with judicial branchs power to review or Congresss power to legislate? 4.) If it is Judicial, does the Judicial branch have the power under Article III or from a delegation by Congress? - Does it meet non-delegation principle? - Does it encroach on or interfere with Congresss power to legislate or Presidents power to execute the laws? 1.) Congressional Control over the Actions of the Executive Branch Principle of Nondelegation- the theory that Congress may not constitutionally delegate its legislative power to another branch of government a.) Weak in Domestic Affairs b.) Even weaker in Foreign Affairs INS v. Chadha (1983): All legislative power must comply with: a.) Presentment Clause: Text: Art.I 7 para 2-3: President must approve or veto; if vetoed, then House and Senate can override with 2/3 Theory: Fear of legislative b.) Bicameralism Text Art. I 7 para. 2: Every Bill which shall have passed the House of Rep. and the Senate shall be presented to the President to be signed or vetoed and returned. Congress can override the veto with 2/3 approval from both houses Art. I 7 para. 3: Every Order, Resolution, or Vote to which the concurrence of the Senate and the House of Rep. may be necessary must also be presented to the President a.) Concurrent Resolution does not have to be presented to President because no force of law (Ex: We think December 1 should be John Garman day) b.) Joint Resolution must be presented to President because functionally equivalent to a bill 4 Provisions in Constitution by which one House may act alone with the unreviewable force of law, not subject to Presidents veto: 1.) House can initiate impeachment 2.) Senate can conduct trials on impeachment 3.) Senate has power of Presidents appointments

4.) Senate can ratify treaties Theory 1.) Framers feared the legislative branch the most 2.) Division within the branch helps prevent tyranny Congress cannot strip other branches powers or give away too much of its legislative power Clinton v. New York: Line Item Veto is unconstitutional under Presentment Clause Line Item Veto Act granted President power to cancel in whole: 1.) Any dollar amount of discretionary budget authority 2.) Any item of new direct spending, or 3.) Any limited tax benefit Cancellation becomes null and void of overridden by Disapproval Bill LIV violates Presentment Clause because: 1.) President is amending or repealing existing law; not returning the unapproved bill to Congress 2.) Cancels only part of the bill; not the entire bill 2.) Congressional Control Over Executive Officers ANALYSIS: 1.) Is appointment constitutional? Appointment Clause (Art. II 2) a. Principal Officers: The President must appoint these with advise and consent of Senate i. Ambassadors ii. Judges of the Supreme Court iii. All other Officers of the U.S whose function is purely executive b. Inferior Officers: Congress may by law vest appointment of these in: i. The President alone ii. Court of Law, or iii. Heads of Departments iv. Inferior Officers are: a.) Quasi-legislative b.) Quasi-judicial c.) Administrative Agencies created by Congress a.) Federal Reserve Board- 14 year terms for members of the Board of Governors b.) Federal Communications Commission- 5 year terms for commissioners c.) National Labor Relations Board- 5 year terms for board members; 4 year term for General Counsel d.) Equal Employment Opportunity Commission- 5 year terms for commissioners d.) Not purely executive

e.) Duties are temporary and limited in nature 2.) Is removal constitutional? Generally, whoever is granted appointment has power to remove Congress cannot remove executive officers by itself because this would be encroaching on and interfering with executive branchs power to execute the laws; can only remove by impeachment Congress can limit removal based on good cause F. Executive Privileges and Immunities 2 - Fold Separation of Powers problem when there is a demand for executive information: 1.) Judicial or legislative inquiry into executive actions could interfere with performance of constitutional duties 2.) Executive refusal to provide evidence could interfere with judicial or legislative functions 1.) Qualified Immunity from disclosing confidential communication for criminal proceedings against others United States v. Nixon Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances does not exist, especially for a generalized need for confidentiality. 2.) Absolute Immunity from civil liability of official actions Nixon v. Fitzgerald Absolute presidential immunity from civil liability of official actions because: a.) Protection prevents the President from being unduly cautious in the discharge of his official duties b.) Other remedies for Presidential misconduct: i. Impeachment ii. Formal and informal checks on the President iii. Constant scrutiny by the press iv. Vigilant oversight by Congress v. Desire to earn re-election vi. Need to maintain prestige as an element of Presidential influence vii. Presidents concern for historical stature 3.) No Immunity from civil liability of unofficial actions Clinton v. Jones Presidential immunity does not apply to civil damages litigation arising out of unofficial events occurring prior to the assumption of office G. Impeachment Art. II 4: President shall be removed from office on Impeachment for, and conviction of, Treason, Bribery, or other high crimes and misdemeanors a.) House initiates the impeachment proceedings b.) Senate must vote 2/3 to remove c.) Only Andrew Johnson, Nixon, and Clinton have been impeached; none have been removed d.) Applies to President, V.P., or any civil officers of the U.S. e.) What is a high crime and misdemeanor?