10081897 Constitutional Law Outline Fall 08[1]

8/9/2019 10081897 Constitutional Law Outline Fall 08[1]

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CONSTITUTIONAL LAW OUTLINE

Hofstra Law, Professor Charlow, Fall 2008

JUDICIAL REVIEW

NATURE AND SCOPE OF JUDICIAL REVIEW

. Origins of the Power of Judicial Review The power of the courts to review legislation to determine ifits consistent with the Constitution.

a. Art III, 2, Cl. 2 The judicial power shall extend to all cases, . . . arising under thisConstitution. . . . In all Cases [where state is a party or affecting foreign officials], the

supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, thesupreme Court shall have appellate Jurisdiction, both as to Law and Fact, with suchExceptions, and under such Regulations as the Congress shall make."

b. Marbury v. Madison (1803) power of judicial review to declare acts of Congress uncon'l.i. Background : The incumbent federal Adams lost Pres election of 1800 to Jefferson. Right be4 end of

his term, Adams appoints a bunch of federalist judges. Marburys commission is signed and sealed,but its never delivered (by Madison, secretary of state). Once he took office, Jefferson tells Madisonnot to deliver the commission. Marbury sought a writ of mandamus to get the commission delivered.[Took a long time to hear the case b/c Congress suspended the Supreme Court for a term Art III,Congress can regulate Judiciary (but not tell them how to decide)].

ii. 1st Issue : Is Marbury entitled to the commission? Marshall says yes, the Pres granted it to him via anact of Congress (Organic Act). His right was vested once it was signed and sealed.

a. Note: but it was never delivered Prob Marshall does this so he can get to Judicial Review.iii. 2nd Issue : Does Marbury have a remedy at law available? Marshall says yes, the essence of civil

liberty is that there is redress to every denial of a legal right.a. Prof says not always true but again Marshall prob says this just to get to judicial review.

iv. 3rd Issue : Is Marbury entitled to the remedy he seeks? Yes.1. Nature of the writ of mandamus an order to compel a lower ct or govt official to do his

duty. Madison has a duty to deliver the commission. Since it was signed & sealed, its vestedso theres a legal duty here. Therefore writ of mandamus is a proper remedy.

2. Note: Pres doesnt like this ct is undermining authority of executive by telling them what todo. But if Marshall decided otherwise, would be undermining authority of Congress. Eitherway, still undermining.

v. 4th Issue : Whats the source of the courts power to issue the writ of mandamus?1. The Judiciary Act 1789, 13: "The Supreme Court shall also have appellate jurisdiction

[from lower & state courts], in the cases herein after provided for; and shall have power toissue . . . writs of mandamus . . . to any courts appointed, or persons holding office, under theauthority of the United States."

a. So, Judiciary Act is interpreted to mean that since Marbury is person holding officeunder authority of U.S., this give SC power to issue the writ. Interpreted to mean thatthis is a source of original jurisdiction.

b. But there are other possible ways it can be interpreted:i. Appellate jurisdiction- so court has jurisdiction to hear a writ under appeal.


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ii. This is an available remedy only when the SC would otherwise havejurisdiction.

1. If read this way, court would need to still have original jurisdiction.But the SC doesnt have original jurisdiction b/c its only where stateis a party or in cases against foreign officials.

2. But Marshall then says the Judiciary Act is unconstitutional b/c it goes against Art III, 2 ofthe Constitution, therefore, there is actually no jurisdiction per Art III, 2.

a. Art III, 2, cl. 2 - Lists the issues for which SC would have original jurisdiction. All

other cases, SC has appellate jurisdiction. Writ of mandamus not listed there.b. But it also says with such exception, and under such regulations as the Congress

shall make. So, Congress added this original jurisdiction in the Judiciary Act.i. Marshall says that Congress can't do this. If drafters had intended that

Congress could add original jurisdiction of SC later, they wouldnt have listedspecific instances of original jurisdiction. Marshall is interpreting it as settinga ceiling to the SC's original jurisdiction. An affirmative grant implies anegative of whats not granted.

ii. However, prof points out differing interpretations:1. The list of original jurisdiction written out to set a floor (min) of when

SC has original jurisdiction guarantees these powers. Prob here is it

may allow Congress to give SC too much work to do SC becomesoverwhelmed & may impinge on SC's power & destroy its authority.

2. Distribution for court to follow, but Congress can change it.3. Note: Judiciary Act written by drafters of the Constitution, so its most likely not

unconstitutional. More likely that Marshall read the Judiciary Act wrong.vi. 5th Issue : Can the court declare an act of Congress unconstitutional? So Marshall explains

judicial review. So the question is WHO DECIDES whether an act of Congress is unconstitutional.Marshall makes six arguments in support of judicial review:

1. Written Constitution Its important that we have a written constitution. Whats the point ofhaving it if it couldnt be enforced? Therefore, SC has power of judicial review to enforce it.

a. Prof Criticism ok, but why the court & not another branch? WHO DECIDES? Its

not clear that framers intended for court to have absolute power of judicial review b/cthey gave legislature power to take away courts jurisdiction over certain cases.

i. Still, if legislature had this power, may be problem b/c self-regulation. But thecheck would be the general public; we can vote ppl out (accountability).

2. Judicial Role or duty - (textual argument) Court has a role or duty to say what the law is, &when laws conflict to determine which law governs.

a. Prof Criticism Marshall is lumping the 2 roles of the court together as the samething. Just b/c theres power of JR to act as CL court doesnt mean there is JR to actas a Constl court. Roles:

i. Interpreting the law (acting like CL courts); fill in statutory gaps. Here, Legcan just go back & make changes (by maj vote) to the law if they dont agree.

ii. Saying what has legitimacy as law (acting like a Constl court). Here, Legcant just change the law, they have to make a constl change (amendment)

3. Checks & Balances / Separation of powers (structural argument) if no judicial review, thelegislature would police itself - & this means nothing, b/c they do whatever, & just decide itsconstl. Power must be checked.

a. Prof Criticism But here the court is doing the same thing. Court deciding how muchtheir power extends, and so is policing itself. So also begs question, who decides?

4. Grant of jurisdiction to Judiciary in Art III (textual argument) Art III, 2 grants the courtpower of judicial review to hear cases arising under the Constitution. So theres an implicitgrant of jurisdiction, b/c the grant would be meaningless if court couldnt examine all parts ofthe constitution when reviewing one part of it.


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a. Prof Criticism Question of statutory interpretation. Art III could also be viewed as asimple grant of jurisdiction - courts can examine the Constitution, but other branchesare not precluded from doing so. If Congress passes a law, then means Congressthinks its constitutional. Doesnt mean judiciary has power over another branch totell it what to do.

5. Judicial Oath to the Constitution (textual argument) Art VI, 3 requires judges to take anoath to uphold the constitution. So they must rule on the constitution, b/c theyd bedisobeying the oath if they ignored it.

a. Prof Criticism Every federal employee takes that oath doesnt mean they have thispower. So this cannot be the source of the power.

6. Supremacy Clause Art VI, 2 requires that an act of Congress be made in pursuance withthe Constitution, b/c it is the supreme law of the land. So if inconsistent with Constitution,then legislation is void.

a. Criticism Yes, but WHO DECIDES? Still doesnt answer why the judiciary gets to.vii. The holding inMarbury can be interpreted broadly or narrowly:

1. Most broad SC has power to rule on constitutionality of everyone State & federal courts,legislature, executive, individuals.

2. Broad SC has power to rule on constitutionality of acts of other branches of federal govt3. Narrow SC has power to rule on constitutionality of acts of Congress

4. Most Narrow SC has power to rule on constitutionality of acts of Congress only when itpertains to powers of the judiciary

5. Marbury understood to give a limited power of JR (most narrow). ThenDred Scottbroadened the scope of JR, interpreting Marbury to give the narrow power (all acts ofCongress). But since that case supported slaver, its not cited, and Marbury instead is cited.Today, we have the most broad interpretation.

. Judicial Review of State Actionsa. Martin v. Hunter's Lessee (1816) - power of judicial review to review decisions of state

courts.i. Background Martins a British citizen who owns land in VA. State confiscated land owned by

British citizens, & gives this piece to Hunter. U.S. has treaty with Great Britain where we wouldnt

do that. State appeals court found for Hunter, b/c (1) they found that the states title to the propertywas perfected before the existence of the treaty, and (2) VA state law settled ownership for Hunter.SC reverses, holding that the title wasnt perfected before treaty enacted, so the confiscation violatesthe treaty, and treaty is the supreme law of the land (Art VI). SC remands back to VA appeals toenter judgment for Martin, but VA refuses, arguing that SC doesnt have power to review state courtdecisions.

1. Note: SC doesnt talk about the state law at all no FSMJ, but can get in under suppl.jurisdiction. Usually SC will decide just not to hear the case. But they do & ignore this.

ii. Issue : Whether SC has power to review decisions of state courts.iii. Arguments in support of Judicial Review

1. ***Art IV - Supremacy Clause This Constitution, and the laws of the United States . . .

and all treaties made, or which shall be made, under the authority of the United States, shallbe the supreme law of the land; and the judges in every state shall be bound thereby

a. Per Art IV, Federal law is supreme over state judges. Therefore, state courts will dealwith federal question. Since state courts may hear federal questions, then SC shouldhave power to review them. Otherwise, the SC would never have appellatejurisdiction as per Art III, 2 (b/c at that time no lower federal courts, just lower statecourts). Therefore, SC can decide on the constitutionality of the decisions of statecourt judges.

i. Furthermore, since Congress has power to create federal courts, wouldntmake sense for Supreme Court to review state court decisions, but not lower


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federal court decision. Therefore, Supreme Court has power of judicial reviewfor both state & lower federal court decisions.

2. Art III, 2 Textual Argument Art III say, judiciary power extends to all cases arisingunder the Constitution. So all federal questions, including the ones that start in state court andare in SC under appellate jurisdiction. Argues that jurisdiction is over the case not thetribunal but Prof says this doesnt fly b/c federal court doesnt have authority to review intcourt decisions, even if a federal issue (treaty).

3. The Spirit of the Constitution argument Its the spirit of the Constitution to limit states

powers. State sovereignty is curtailed by the Constitution.4. Uniformity necessary to have uniformity in constitutional interpretation across the nation.

Need SC to do this, b/c states only look out for own interests. But we dont necessarily needuniformity a lot of other laws are diff across states and thats ok.

5. State bias problem Conflict between states (bias for own state) so we need a neutral party.6. Historical Precedent Historically, SC has told state courts what to do, and states listened.7. Argument of original understanding everyone, incl. framers understood that SC has power

to review state court decisions.8. Judiciary Act - Authorizes exercise of jurisdiction in the specific case. Since framers of

Constitution also wrote Judiciary Act, they intended what they said in the Judiciary Act. Thisargument not used in Marbury b/c Marshall was arguing that Judiciary Act and Constitution

are in conflict, and this argument would defeat what he was arguing.9. Art I, 10 Limitations on State Sovereigntyb. Other Possible Arguments

i. SC not politically accountable (life tenure) no political bias, & can freely interpret Constitution.But criticism free to interpret as they see fit, they might place personal bias into decisions.

ii. Framers intent clear that Court would have this power b/c of the structure of the govtiii. Necessity Someone has to be able to give the last work finality. But who? SC more constant (life

tenure), they dont change as often as Pres & Legislature (4 yrs). More consistency, uniformity &stability. Criticism not necessarily a bad thing if what is constitutional changes often.

iv. Voice for the people somewhere to go. Criticism can also go to legislators.

. Problem with Judicial Reviewa. Is it a good idea for the Supreme Court to be the Final Arbiter of what is Constitutional?

i. Good idea for efficiency. If SC wrong, amend the Constitution.ii. But, uniform laws may not work for vastly different cultures across the states.

1. Counter-Majoritarian Dilemmaa. Supreme Court not answerable to the people like Congress & President, b/c not

elected by ppl & hold position for life. So we have a minority telling the majoritywhat to do, which creates a counter-majoritarian dilemma.

. Different modes of Constitutional Interpretationa. Structural Argument certain things implied b/c of the structure of the govt set forth in

Constitution. Problem here is that you have to be skeptical about whats implied might gotoo far.

b. Textual Argument rely on the text. Problem is theres a lot of room for interpretation.c. Framers Intent Argument look at the legislative history. Problem is that this is hard to

define. Framers had diff ideas, and they voted, etc. So whose intent should govern? Also,some things were not contemplated back them (air force).

d. Argument of Original Understanding Publics understanding at the time it was written. Pplwrote books/articles about what they thought it meant; Dictionaries from the time of whatthings meant.


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i. The dead hand problem, we have changed/evolved. Only white men had a say when Constitutionadopted, & we would be stuck with how ppl understood it 200 yrs ago. Go back to see howunderstood but look at overall purpose of ho govt was established. Constitution formed duringtime of heightened political awareness, public now not as aware.

e. Consensus Interpretation Todays majority. The Congress is the majority consensus, notjudicial review.

i. Problem - Ppl not really aware of this stuff today; but ppl back then had a heightened awareness ofpolitical issues. Also, this is contractual we decided, as a country, by super majority, back then,

and we shouldnt change that unless we get another super-majority. Need a fixed point of agreement.f. Judicial Precedent Stare decisis. Court already decided how its interpreted, shouldnt

change that. Were relying on what the govt has always said.g. Policy Argument Constitution must embody good policy & promote justice. Problem is

who decides what these fundamental values are. Judicial review the court decides. Problemis they dont represent the majority. They have here own bias; decide whats fundamental b/cof what they believe.

h. Functional Argument argument of necessity.i. History rely on historical practice/precedent. Since no one questioned it, must have been

right. Problem is that just b/c theyve been doing it all along doesnt make it right. May havebeen wrong to begin with.

. Congressional Regulation of Judicial Powera. The Exceptions Clause - Art III, 2 says that SC's appellate jurisdiction is "subject to

such exceptions as the Congress shall make."b. Art III also says judicial power vested in Supreme Court, & in such inferior courts as the

Congress may from time to time ordain or establish. So Congress has power to create lowerfederal courts.

i. Congress has never given lower federal courts the max jurisdiction that Constitution allows. It hasalways imposed limits on the appellate jurisdiction of the SC. Limits on SC jurisdiction largely toprotect SC from being swamped with cases

ii. But sometimes Congress will impose limits b/c they didnt like what the court did. Only way to

overturn SC decision is to amend the constitution - this is very hard to do. So, instead, Congress canlimit jurisdiction of SC (to not hear certain cases). These are called "jurisdiction-stripping bills."

1. Ex Parte McCardle (1869) - is the leading case on the stripping of SC jurisdictiona. Background : Act of 1867 - Congress grants federal courts power to grant writs of

habeas corpus, & one provision authorized SC to hear appeals when circuit courtsdenied application for the writ. McCardle imprisoned by military govt for publishingmaterial tending to incite violence & impede Reconstruction; he sought habeascorpus, alleging unlawful restraint by military force. Circuit court denies it, and heappeals it to SC (under the 1867 Act). SC hinted it wants to hold militaryReconstruction unconstitutional, but Congress doesnt like this, so they pass arepealing act before case is decided, so SC wouldnt have jurisdiction to hear the

appeal stripping SC of its jurisdiction to hear this case.b. Holding : Art III says that SC's jurisdiction limited "under such regulations as the

Congress shall make." Since Congress first granted, but now stripped the SC'sjurisdiction to hear this appeal, the SC no longer has jurisdiction. Repealing act onlytook away jurisdiction from the SC that was granted by the Congress in the 1867 Act,not any other jurisdiction SC had before.

c. Note : SC could still hear an original writ of habeas corpus under the Judiciary Act;repeal of jurisdiction was only for hearing it on appeal from circuit court. Only onesource of habeas corpus review was foreclosed by Congress, not all.


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i. Ex Parte Yerger(1869) same issue as McCardle, but court upheldjurisdiction, b/c petitioner sought review based on the Judiciary Act, not the1867 Act.

iii. Congress can manipulate SC's jurisdiction, but there are limits to what they can do.1. If you take away all avenues for someone to bring a case of civil rights (by taking away

jurisdiction from all courts), you are eliminating due process, in violation of the Constitution.2. There are other Constitutional provisions that limit Congress ability to manipulate the

judicial branch.

iv. Art III gives Congress power to establish the lower federal courts. Therefore, it also has broad,discretionary power to prescribe & limit the lower federal courts jurisdiction. Although lowerfederal courts have general jurisdiction to hear cases arising under the Constitution, Congress hasnever given them the full jurisdiction allowed by the Constitution.

v. Habeas Corpus Jurisdiction The Suspension Clause of Art I, 9, cl. 2 provides that the privilegeof the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion, thepublic safety may require it.

1. INS v. St. Cyr(2001) writ of habeas corpus has served as a means of reviewing the legalityof executive detention. Suspension Clause bars Congress from banning judicial review ofexecutive detention they can't suspend writ of habeas corpus unless in times of rebellionetc.

. Discretionary ReviewHave to apply for writ of certiorari for SC to hear your case. SC will decide onlythose issues whole resolution will have immediate importance far beyond the particular facts and partiesinvolved.

a. Reasons for granting certiorarii. Disagreement between holdings in various courts; or if one court diverges significantly from

accepted & usual courseii. If state court decision conflict with another state or federal

iii. When a state or federal court has decided an important matter of law that should be decided by SC,or has decided a federal question in a way that conflict with the SC precedent.

b. Maryland v. Baltimore Radio Show - Crim court found s guilty & imposed fines for

broadcasting over radio matters relating to a criminal trial b/c it was an obstruction of theadministration of justice, depriving of an impartial jury. Court of appeals says reverses, per1st and 14th amendment. Court denies writ of certiorari.

i. Can be denied for technical reasons, or b/c the issue can't muster support from 4 members of thecourt. Also if record or issues are unclear.

ii. Rule of 4 takes 4 judges to grant certiorari

LIMITATIONS ON JUDICIAL REVIEW

. Prerequisites to Federal Jurisdiction and Judicial Reviewa. Art III federal judicial power extends only to cases & controversies.

i. Therefore, courts precluded from giving advisory opinions or deciding moot cases. Parties assertingconstitutional challenged must have standing, and claims may only be asserted when theyre ripe.

b. Nonjusticiability - Limitations on access to the court. Its a controversy that is notappropriate or proper for judicial consideration or resolution.

i. Not b/c of jurisdiction, would still have jurisdiction, but for other reasons will not take the case.1. Classical Rule Court has a duty not to decide. The issue is given to someone else.


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a. Issue of separation of powers. We want courts to play a limited role Art III,adjudicate cases & controversies. Judiciary can't step outside enumerated power.

2. Functional Rule just not possible for Court to decide the issue.3. Prudential Rule Not required by the Constitution. Court uses own prudence & imposes on

itself as a policy requirement to limit access. There are limited resources, and want the bestpossible use of those resources. Ppl who care, have an interest will make better arguments &will represent that side better. (Ex: 3rd party standing).

ii. Even if fed courts say nonjusticiable, can still take it to state courts. You can then appeal to federal

courts, and theyll prob take the case, b/c it doesnt want to leave decision of constitutionality tostate courts.

c. Final judgments or decrees court ordinarily only reviews final judgments or decrees ofhighest state court. This avoids (i) unnecessary constitutional decisions, (ii) inefficient,piecemeal review, and (iii) unnecessary interference with state court processes. Butnowadays, there are exceptions to this.

d. Also, Judicial Review limited to issues of federal law.

. Political Question (some disagree whether its a justiciability doctrine - but it does limit access to thecourts)

a. Exclusive Textual Commitment (Classical Rule) Constitution gives jurisdiction to

another branch of govt. If judiciary were to hear it, it would show disrespect to the otherbranch, b/c other branch can handle it. Even if court has power to get involved, it won't.

i. Impeachment1. Art I, 2, cl. 5: "The Senate shall have the sole Power to try all Impeachments.2. Nixon v. United States (1993) House of Rep impeaches Nixon, a district court Judge.

Senate invokes its own impeachment rule, and creates a committee of senators to receiveevidence & take testimony, and then presents this to entire Senate to decide. Senate votesNixon out of office, and he argues that the impeachment rule violated constitution b/c itprohibited entire Senate from taking part in the evidentiary hearings.

a. Court says nonjusticiable b/c its a political question. Up to Senate to decideimpeachment process b/c they have sole power to try all impeachments.

b. Charlow says: Court, by saying its a political question, is basically saying whatSenate was constitutional. If Senate behavior was egregious & unconstitutional, SCwould have intervened. So really decision on merits its constitutional.

3. Powell v. McCormack(1969) Art I 5 says "each house shall be the judge of thequalifications of its members. Court here says its not a political question & decides onmerits. How do you reconcile this with Nixon? Well, court inNixon said that here it was diff.The qualifications for membership in the house are specifically listed in the Constitution, &nothing outside of this can serve as a qualification. House can't add. Only thing House can dois decide who is qualified for membership based on those qualifications.

ii. Guarantee Clause (Art IV, 4): U.S. shall guarantee to every state in this union, a RepublicanForm of Government (a representative democracy).

1. Pacific States v. Oregon (1912) an initiative goes to ballad for the public to decide. This isdirect lawmaking a democracy not a representative democracy (republican form of govt).So it violates the guarantee clause. Court says its a political question b/c exclusive textualcommitment. U.S. shall guarantee U.S. means Congress, not the court. Congress hascontrol over this matter.

2. Courts have always said that Guarantee Clause questions are always political questions butthey might change this later (like if NY Gov declares himself King Court would definitelyintervene).

iii. Amending Process1. The Amendment process. Art V.


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a. Proposed - 2 ways to do this: (1) 2/3 of both houses of Congress, or (2) 2/3 of statelegislators apply to Congress to propose an amendment, and asks Congress to call aConvention.

b. Ratified by of the states. Either by of state legislature or of state convention.c. Congress decides when to propose and which to propose. Congress decides how they

will be ratified. But up to states to ratify.d. Can't deny state of seat in senate (2 per state) so more populated states dont

overwhelm. Every state gets same representation. Can't change by amendment.

2. An Example: Amendment XXVII (1992) If Congress wants to give itself a pay raise, mustwait until next election to take effect.

a. May be argued that this amendment is invalid. of states eventually ratified it, but ithappened slowly over 200 yrs. This doesnt truly reflect the will of the ppl b/c nosuper-majority at any given point in time. So how much lapse of time is too much?

3. Coleman v. Miller(1939) the issue was whether a proposed amendment lapses if notratified within a reasonable time. Court said political question exclusive textualcommitment, b/c Congress has exclusive power of amending process.

iv. Regulating the Militia1. Gilligan v. Morgan (1973)b. Absence of Standards (Functional Rule) lack of judicially discoverable & manageable

standards. So its impractical to decide either court would act as a lawmaker, or it would beinappropriate to decide.

i. Judicially Manageable Standards1. Vieth v. Jubelirer(2004) Plurality Scalia - (no majority) says its a political question b/c

no judicially manageable standard exist to decide when gerrymandering violates theConstitution no standard for figuring it out; no constitutional ban on it. Concurrence(Kennedy) says not standard but doesnt agree its a political question b/c a standard mayemerge in the future. Prof says this is weird we can't figure out standard now but may beable to in the future?

ii. Malapportionment1. Baker v. Carr(1962) apportionment of reps never changed even though population

increased. Same # of reps for 2 towns, even though one has higher population. Higherpopulated town says their power is diminished. Court says its not a political question b/cthere is a standard to apply the Equal protection clause. Court defines standard as one man,one vote.

a. Should the court have gotten involved in the apportionment of state legislatures?i. No this is legislatures duty. Ppl elect legislature, so its their duty.

ii. Yes - Ppls vote is being diluted here & they can't do anything about it. Ifcourt doesnt get involved, will never change.

c. Finality (Prudential Rule) theres an overriding need for finality over a decision alreadymade by another branch of govt. Court shouldnt second-guess another branch b/c theresthis need for finality.

i. Foreign Relations1. Goldwater v. Carter(1979) Pres wants to terminate a treaty; Congress says no & since you

need Congress to pass a treaty, can't do it w/o Congress. 4 justices said political questionb/c no standard the Constitution only says how to make a treaty, not how to get rid of it.Powell (concurrence) decides the case says not a political question, but rathernonjusticiable b/c of prudential considerations not ripe/ready for judicial review.

2. What usually happens with regards to treaties? Court won't take it, but rely on finality.Usually finality question will involve foreign matters, where Pres acts first. And once Presacts, theres a need for finality b/c other countries depending on us.

d. Thesis: No such thing as political question


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i. Sometimes when clearly a political question, court will still take it. So this implies that what thecourt is doing is really just deciding on the merits by declaring an issue to be a political question.Basically, their saying that whatever the complaint about is constitutional. If they really thought itwas unconstitutional, they will take the case. Sometimes theres a compelling reason to decide, eventhough otherwise would be political question, and theyll go ahead anyway.

. Standing (Classical Rule Separation of power; Judiciary cant step outside their enumerated powers).a. Nature & Purposes of the Standing Doctrine

i. Standing focuses on the particular party and whether they can sue for that particular claim. Butsometimes to determine standing, must look at merits of claim. But court not ruling on the merits.

ii. *** A must allege personal injury fairly traceable to the 's allegedly unlawful conduct and likelyto be redressed by the requested relief.

iii. Art III confines the federal courts to adjudicating actual cases and controversies. Requires that partyasserting the claim has a personal stake in the outcome.

1. Separation of powers & concern of the proper role of the judiciary. Dont want judiciaryusurping powers of other branches, so only going to decide when absolutely necessary tovindicate some individual right. So we bar adjudication of generalized grievances that aremore appropriately addressed in the representative branches.

2. Why restrict judicial review to cases brought by concretely harmed individuals:

a. The smooth allocation of power among courts over timeb. The unfairness of holding later litigants to an adverse judgment in which they may

not have been properly representedc. The importance of placing control over political processes in the hands of the people

most closely involved.iv. When you consider standing, you must consider it for each party and each claim, and each one is

separate. Each party is separate, and each claim is separate.v. Standing to sue in state court governed by state law/constitution

b. Constitutional Standing - imposes 3 requirements: Injury in fact, causation, &redressability.

i. Allen v. Wright(1984) Parents of black school children allege IRS did not adopt sufficient

standards to fulfill obligation to deny tax-exempt status to racially discriminatory private school.Harms them b/c interferes w/ childrens right to desegregated public schools b/c govt basicallyencouraging private schools (& thus the segregation). Court holds theres no standing.

1. Claim #1: Govt act was illegal & they suffered as a result of that act. Court says this claim isnot sufficiently personalized to these s called a generalized grievance. Everyone has rightto have govt act legally.

2. Claim # 2: Being stigmatized as African-Americans by policies that support thediscrimination. Stigma injury could be ok, but here its inadequate b/c its not sufficientlypersonal - Generalized grievance.

3. Claim #3: The IRS's policy resulted in their children being unable to receive an education ina desegregated school. Injury in fact; but no causation.

a. Court says this is a personal injury, but it's not fairly traceable to the government'sconduct. Court says its mere speculation that this injury was caused by thegovernment's actions. Claimants couldnt prove that even if tax-exempt status wastaken away, that children from private schools would move to public schools.

b. Also can't be redressed - we dont know if granting the relief will cure the problem.Usually, when no causation, not going to be redress (usually tied together, butexception: theLyons case).

c. Dissent : there is a direct causal relationship; common sense that elimination of tax-exempt status would make private segregated schools more expensive, and whiteswould move to public schools, so public schools would become more desegregated.


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ii. Injury in Fact (Constitutional injury) must have suffered an actual or threatened injury as aresult of s conduct. Ways to describe this: (1) Injury must be distinct & palpable; (2) Injury maynot be abstract or conjectural; (3) Injury must be concrete & particularized.

1. Non-economic Injuries Courts have accepted that non-economic injuries can satisfy theconstitutional requirements, but needs to be pleaded with sufficient specificity.

a. United States v. SCRAP(1973) law makes cost if freight rates to be moreexpensive. Injury claimed is that their recreational interest. Court upholds standingwhere injury is noneconomic, recreational interest.

i. But Prof says the causation here is very attenuated. Argument is that if freightcosts increase, there might be more discarded trash in the park, whichinterferes with their recreational interest. Why? (1) higher rates increase costof recycling, so may use more natural resources which may be taken from thearea; (2) increased rate will lead to use of non-recyclable goods, resulting inmore waste in area.

2. Injury and the Equal Protection Clausea. Heckler v. Matthews (1984) law gave large social security benefits to women than

to men; only remedy available if found unconstitutional (per statute), was loweringthe womens benefits to be same as men. So even though s wouldnt benefit if theywon a lawsuit, court says theres standing b/c interest was equal treatment.

Discrimination itself is the noneconomic injury, and this can be remedied byproviding equal treatment.

iii. Causation Injury suffered must be fairly traceable to the challenged action against the . The saction must have caused the particular injury youre asserting.

1. Simon v. Eastern Kentucky Welfare Rights (1976) IRS eliminated requirement thathospitals receiving favorable tax treatment had to provide care for indigents. Class action onbehalf of indigents they argued they would be harmed b/c hospitals would no longerprovide those services to them Court said no standing b/c harm too speculative for causation.Dont know if change in IRS action would change hospitals treatment of indigents hospitalsmay just decide it would cost more to serve poor w/ tax benefit, than to just not serve thepoor w/o tax benefit.

a. Note : IfSimon just re-characterized the injury as impairment of opportunity, this mayhave worked.

2. Re-characterize the injury to show causationa. Regents of the University of California v. Bakke (1978) not clear if affirmative

action program was what caused a white applicants rejection. But court said theresstill standing b/c the injury he suffered wasnt that he was rejected, but that he wasdeprived of the chance to compete for every place, based on his race. So there iscausation for that.

b. Northeastern v. Jacksonville (1993) affirmative action program gives preference tominority business owners in winning govt contracting bids. Causation b/c injury wasnot that he lost the bid, but that he lost a chance to fairly compete.

iv. Redressability Injury must be likely to be remedied by a favorable court decision. The remedywill solve the claimants injury.

1. Los Angeles v. Lyons (1983) choked by police after being stopped for traffic violation;police dept allows police to apply this life threatening choke. sues for injunctive relief(stop this practice). Court says no standing b/c the redress would only be for future injury, &too speculative whether would be injured again. didnt ask for damages, if he did hewould have his past injury redressed.

c. Prudential Standing: 3rd party Standing Rulei. This is a prudential rule the court imposes limit on itself, so it can waive it whenever it wants.

ii. Theres a general prohibition on a litigants raising another persons legal rights.


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1. Tileston v. Ullman (1943) - denied standing to a doctor to assert his patient's rights inchallenging a state law prohibiting use of contraceptives

iii. But not always prohibited. Criteria for determining when 3rd party claims can be brought:1. Power v. Ohio - upheld standing of a criminal to assert the rights of a prospective juror not

to be dismissed from the panel on account of race. Court recognizes right to bring action onbehalf of a 3rd party when 2 criteria met :

a. Litigant must have suffered an injury in fact - giving him a sufficiently concreteinterest in the outcome of the issue in the dispute

b. Litigant must have a close relationship to the 3rd partyc. There must exist some hindrance to the 3rd party's ability to protect his or her

own interests (usually, but not always).

i. Craig v. Boren statute says women can buy beer at 19, but men not until 21.Storeowner permitted to assert equal protection rights of the men, to not bediscriminated against.

1. suffered an injury less business (men are would-be customers)2. has a close relationship his customers3. Theres not hindrance but court allows standing.

iv. Reasons for the rule right-holder not asserting his right. So person asserting a 3rd partys right maynot properly represent the injured party, b/c they dont have a personal stake.

1. Not fair to hold later litigants to adverse judgment when not properly represented in the firstplace. Also, issue of allocating judicial resources to best use when someone has a personalstake, they will fight better & the decision will be a better quality.

d. Status-based Standing Issuesi. Taxpayer Standing Taxpayers generally dont have standing based on that status alone; However,

Flastmakes an exception when the taxpayer attacks an expenditure under Congresss Taxing &Spending Power which violates a specific constitutional limitation on that power.

1. Frothingham v. Mellon (1923) federal taxpayer challenged a federal statute that providedfunds to states that create programs to reduce maternal & infant mortality.

a. 1st claim: this burdens by increasing future taxes. Court says no standing b/c noinjury. This interest in Congress spending money is an interest shared by everyone.

Generalized grievance; not particular to the . Recourse is the political process whenthere are general grievances go to Congress & complain about spending.

b. 2nd claim: its a taking of her property w/o due process of law. Court says no standingb/c no direct connection. Effect on her is too remote & uncertain. Dont know ifprogram will affect how much she pays in taxes. Usually govt just collects taxes,then decides how to spend. They dont collect more just for a specific funding.

2. Flast v. Cohen (1968) federal taxpayers challenge federal spending on religious schoolsunder the religious clauses of the 1st amendment (govt money can't go to religion).

a. ***Court develops a test to determine taxpayer standing in order to ensuresatisfies reqs of Art III.

i. a logical link between the status and the type of legislative enactment

attackedii. A nexus between the status and the precise nature of the constitutional

infringement alleged.

b. Test as applied inFlast:i. Logical link satisfied - the constitutional challenge is made to Congresss

exercise of their spending power (general welfare) & and the challengedprogram involves a lot of federal spending from tax funds.

ii. Nexus satisfied s alleged that the spending violates the 1st Amendment(which operates as a specific constitutional limitation upon the exercise byCongress their spending power).

3. Difference betweenFrothingham andFlast:


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a. InFrothingham, there was no nexus between the status & the precise nature of theconstitutional infringement alleged. She alleged Congress has exceeded its generalpower delegated, but doesnt identify a specific limitation. But inFlast, the 1st

Amendments Establishment clause specifically limits Congress spending power can't spend on religion.

4. Applying theFlasttesta. Valley Forge Christian College v. Americans United for Separation of Church and

State, Inc. (1982) taxpayers challenge fed giving surplus federal property to

religious organization. Claims it violates 1st amendment establishment clause.i. Court holds that theres no logical link between the status and the type of

legislative enactment attacked. Diff fromFlastb/c here the challenged actionis not a congressional action limited by establishment clause, but rather anagency action under the property clause, not limited by the establishmentclause.

ii. Prof says so what? Why should it make any diff, even though involving diffclauses. Still contradicts the purpose of having the establishment clause(prevent govt giving $ to religion).

b. Hein v. Freedom from Religion Foundation (2007) Expenditures here not madepursuant to an act of Congress, but Executive. They say that cant have taxpayer

standing to sue over everyday exec action affecting religion, b/c too impractical, toomany lawsuits (prof says not talking about standing though). Dissent would applyFlastand uphold standing. Same if either Exec or Legisl.

c. United States v. Richardson - no standing because challenge didnt address aconstitutional power, but rather a CIA statute. Too generalized everyone aggrievedwhen govt violates this clause (accountability clause public accounting of how ourmoney is spent).

d. Schlesinger v. Reservist committee to Stop the War- no standing because exec action,not legisl. Incapability clause violated can't be member of 2 branches of govt (inCongress & hold an office). Too generalized everyone aggrieved.

5. Generalized Grievances some cases say not appropriate for JR go to political process

a. Maybe issue is not whether grievance is widely shared, but instead that it stems frompersonal constitutional rights (discrimination)

b. Prof - But what's the problem with just letting anyone sue? - it must be importantenough for them to spend the time and money in pursuing the lawsuit.

6. Local and State taxpayera. Frothingham - the interest of a taxpayer of a municipality in the application of its

money is direct and immediate.b. But,Asarco Inc. v. Kadish (1989) - held that there's an exception to this rule for

municipal taxpayers - in that it doesnt apply to state taxpayers unless there's proof ofa direct injury.

ii. Voter Standing more likely to find voter standing than taxpayer standing; not considered a

generalized grievanceiii. Standing of Legislators Lack standing unless theres a personal injury

1. Coleman v. Miller Congress members have standing over constitutionality of a lawCongress enacted, but only if their votes would have changed the outcome of the legislation.

2. But, inRained v. Byrd, Congress members lack standing to challenge constitutionality oflegislation passed b/c the # of ppl who sued wouldnt have changed the outcome of thelegislation to begin with.

e. Congressional Power to Create Standingi. Congress can legally recognize by statute for someone to have a claim not otherwise recognized. If

Congress gives a specific right for something, it's creating an injury that didnt otherwise exist. Sonow you would have standing, because you have this right & injury.


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ii. Lujan v. Defenders of Wildlife (1992) Endangered Species Act required federal agencies toconsult with Secretary of Interior to insure that funded projects dont threaten endangered species.The Act (Congress) created standing so any person can sue.

1. Court said no standing b/c s werent personally affected by a violation of this act. Nomatter what Congress does, still have to meet constitutional requirements, and there is noinjury in fact. Person suing must be aggrieved (personal injury)

a. Violates Separation of powers it would transfer the power of the executive to thecourt. Have to redress with the political process.

2. Lujan rejects the notion that Congress may confer standing wherever it choose, butdistinguishes. In cases involving actual injury, even if a generalized grievance, Congress mayconfer standing. But where no injury, Congress can't confer standing.

iii. Massachusetts v. EPA (2007) court found standing when state is challenging EPAs refusal to issueregulations on car emissions. Congress had impliedly created standing for a litigant that is accordeda procedural right to protect his interest. But still, litigant has to show he was injured. The injury wasthe loss of the states coastal land by rise in sea levels, which was exacerbated by lack of emissionsstandards. Theres redressability b/c regulations on emissions would reduce the effect of globalwarming. But criticism Dont really know that this is the cause; rather, there are so many sourcesof global warming. Its not certain that fixing this will solve the states problem.

. Timing of Adjudication: Mootness & Ripeness (Classical Rule Separation of power; Judiciarycant step outside their enumerated powers)

a. Mootness claim may have been good, but too late now to sue.i. Ex: Law says govt can't quarter soldiers in your home during peacetime. Natural disaster, & soldiers

quartered in your home. By the time case comes before the court, soldiers are out. Your claim ismoot. Doesnt exist anymore.

ii. DeFunis v. Odegaard(1974) law school special admission policy violates equal protection. But admitted into school already, & by the time case comes to SC, in his final year, and school said hewouldnt be affected regardless of outcome of the case. His case is moot. Determination by the courtis no longer necessary to redress his injury, already been cured.

iii. Possible bases of mootness doctrine

1. Like a bar against advisory opinions2. No case or controversy anymore3. Judicial economy

iv. Capable of repetition, yet evading review - when a statute directly applies to particular s only for ashort period, it may sometimes be difficult for s to prosecute a legal challenge to its conclusionbefore the statute has ceased to apply to them.

1. Ex: Assert right to abortion. By time issue goes through court no longer pregnant & can'thave abortion so no longer have a claim, its moot. But it would re-occur, and always evadereview.

b. Ripeness claim not ripe if its too soon to suei. United Public Workers v. Mitchell(1947) Act prohibited federal civil service employees to

participate in certain political activities. Bunch of them sue violates 1 st amendment rights. But onlyone of them actually violated the act; others just wanted to. Standing only for the one that violatedthe act; since the others faced no direct threat, no standing for lack of ripeness.

ii. Pursuant to Art III, Courts dont give advisory opinions. There must be a concrete legal issue, anactual case or controversy also applies to declaratory judgments.

1. Separation of powers Courts can't decide on the constitutionality of acts of Congress unlessan individual interest is violated and requires it to be redressed by the courts. Otherwisejudiciary intruding on powers vested in another branch.

. Advisory Opinions


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a. Judicial power is limited under Art III to the resolution of "cases or controversies."i. Protection is vested or legal rights

ii. The province of the Court is solely to decide on the rights of individualsiii. Judicial review limited to the protection of identifiable and concrete personal rights (like CL courts)iv. Courts dont have the "special function" of "policing or advising Legislature or Executives," unless

individual rights were at issueb. Virtues of limiting judicial review in this manner:

i. Provides concrete factual framing that both narrows the issues presented for resolution and ensures

that the issue is being argued by someone who has a stake in the matterii. Separation of Powers - It keeps the judicial role within historically accepted bounds and preserves

the separation of powers by preventing the judiciary from broadly interfering with the actions of thelegislative & executive branches.


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NATIONAL LEGISLATIVE POWER

SOURCES AND NATURE OF LEGISLATIVE POWER

. Division of power between state and federal governmenta. Why have state and federal governments?

i. Benefits of having both creates a system where each can check the other1. State - Diff cultural interests can express themselves in forming government accordingly2. State - Like a laboratory - based on what people want3. State - Closer to the people. Government more representative/responsive to the people

ii. Conflict exists between what the federal and state governments wants

1. If this happens, federal law trumps state law Sovereignty Clause2. But if federal doesnt have the power to act, state law trumps

. The Vesting Clause: Federal government power is granted by the Constitutiona. Article I vests all legislative powers herein granted in Congress. Congresss powers are

only those that the Constitution grants. If the power isn't listed in the Constitution, Congresscannot act.

b. When does the federal government have the power to act?

i. First, determine whether the federal government has the power to act in the first place:1. Federal grants of power

a. Art I, 8 enumerates the legislative powerb. The Commerce Clause source of most of federals power today

c. The Necessary and Proper Clauseii. Then, look to see if theres a constitutional limit or bar to the power to act

1. Limitationsa. Another constitutional provision that explicitly barsb. Power expressly given to the states by the Constitutionc. The 10th Amendment - "The powers not delegated to the US by the Constitution, nor

prohibited by it to the States, are reserved to the States respectively, or to the people."i. This might operate by cutting federal power before it reaches the full extent of

its breach. States stop the federal from acting, by exercising the power Checks & Balances scenario.

ii. Or it might operate by reserving for the states the particular sphere where only

states are allowed to act. Line separating who can act for what.

. Implied Powers The Constitutions structure suggests the existence of implied powers beyond thoseenumerated in the Constitution.

a. McCulloch v. Maryland(1819) MA taxing any bank operating in the state without stateauthority, and penalized a federal bank located in MA for not paying the tax. Federalgovernment says they have a right to create a bank & not be taxed. State trying to tax themout of existence, stop operating within the state. They thought federal bank was an intrusion,and federal would get too powerful.


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i. Federal government has the power to create a bank. The constitution does not explicitly grant thisright. But, it is implied. In order for Congress to carry out its enumerated powers, it isnecessary and proper to create the bank.

ii. Which enumerated powers? Specifically, under Art I, 8, :1. Need bank to collect taxes, borrow money, regulate commerce, raise & support army/navy

(the powers of the sword & the purse)a. There are other ways to carry out these functions, but it doesnt matter b/c its proper.

As long as its an efficient & useful way to do it. Also, court doesnt really care if this

is the true purpose of the bank; all that matters is that Congress has the power to do it.iii. The Necessary and Proper Clause Art I, 8, cl. 18 Power of Congress to make all laws which

shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powersvested by this Constitution in the Government of the United States, or in any Department or Officerthereof.

1. Even if no necessary & proper clause, it is implicit that if certain powers are given toCongress, youll have to establish an agency to do it. Congress has the express powers, butalso have the implied powers necessary for carrying them out.

2. Who decides whats necessary & proper? Congress they decided when they tookaction. Court defers to Congress, not going to ask questions, as long within the realm ofrationality that the act is useful.

a. Congress can't go too far. If they created a bank in a way that would destroy thestates, b/c it was necessary & proper, this just violates the Guarantee Clause guaranteed to a Republican form of government. Although Guarantee Clause usuallypolitical question, Court would prob step in. But court is not going to decide whetherits necessary & proper.

THE NATIONAL COMMERCE POWER

Art I, 8, cl. 3: Congress shall have the power to regulate commerce . . . among the several states.

. Development of Basic Conceptsa. Congress has plenary power over interstate commerce

i. Gibbons v. Ogden (1824) - Ogden has an exclusive right to navigate steamboats between NY andNJ, given to him by NY state, & he makes $ by transporting ppl. Gibbons also navigating per an actof Congress, so Ogden seeks an injunction.

1. Since The Commerce Clause grants Congress the power to regulate commerce among theseveral states, the state statute is unconstitutional; Congress has plenary power overinterstate commerce.

a. Among the several states between NY and NJ. Its not the sale of tickets thatsbeing regulated (which is done only in one state).b. Commerce court says commerce includes navigation its intuitive. Can't have

commerce w/o navigation, so must be included. Court takes broad view of commerce.ii. Plenary Power this power is strictly vested with Congress; it gives Congress thesole power to

regulate interstate commerce. Full & complete; exclusive. This power cannot exist concurrently withstate power. This makes sense b/c each state would have diff laws and it wouldnt work. SoCongress needs to be the one regulating.

1. Supremacy Clause - For there to be federal preemption under the supremacy clause, there hasto be conflict between state & federal; if no conflict, then have to comply with both. But thisis not a case preemption though, b/c the State just doesnt have the power.


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iii. Meaning of Commerce normally, this means buying & selling. Gibbons broadened this toinclude navigation.Paul v. Virginia (1869) held that insurance policies are not commerce. AndKiddv. Pearson (1888) held that manufacture & commerce are different. Manufacture takes place withinthe state; its a quintessential local activity, so its regulation is within state power.

iv. Among the several statesa. The Daniel Ball(1871) a ship navigating exclusively within a state can be commerce

among the states, when its purpose was to transport goods destined for other states. The shipwas part of a bigger commerce part of the flow of interstate commerce.

. Foundations for Extending The Reach of Congressional Powera. Congress has power to regulate channels of interstate commerce

i. The Lottery Case (1903) Federal Lottery Act prohibited interstate buying & selling of lotterytickets. Box of lottery tickets gets shipped from TX to CA, to be sold. Held that Congress canregulate the traffic of the lottery tickets.

1. Congress is regulating the shipping of the lottery tickets (only thats being done interstate,not the buying & selling). The movement of tickets, from one state to another, is theinterstate commerce.

2. But Congress not regulating, but prohibiting it. Court says prohibition is a form of regulationConstitution doesnt say Congress can't regulate by prohibiting. Congress regulating this b/cgambling is immoral.

3. Dissent : Says lottery tickets like insurance policies contingent Ks, so not commerce. Also,if Congress is allowed to regulate everything transported from state to state, theyd be takingjurisdiction away from states too much power, creating a centralized government.

ii. Paul v. Virginia (1869) - held that issuing a policy of insurance is not a transaction of commerce,and insurance contracts are not articles of commerce, even if issued in one state and shipped toanother. An insurance contract is an intangible contingent contractual right; only a piece of paper.

1. Insurance policy vs. lottery tickets - Both are intangible contingent contractual rights theright to get money if something happens. So, how do you reconcile these cases?

a. Lottery probably based on the morality issue, and has nothing to do with theCommerce Clause. The cases are inconsistent.

iii. Commerce clause as source of national police power

a. Commerce clause probably not intended by framers to regulate moral activities as well aseconomic ones. But still, if theres an economic reason as well as the moral one, then its ok.If only moral, then it wouldnt fly.

b. Congress later used Commerce clause to regulate commodities and activities "injurious, notto that commerce or to any of the agencies or facilities thereof, but to the health, morals,safety, and general welfare of a nation"

iv. Channels of interstate commerce:1. interstate shipment/movement2. interstate transportation3. interstate navigation4. interstate buying and selling

5. interstate flow of intrastate commerceb. Congress has power to regulate intrastate activity to protect the common

instrumentalities of interstate commerce

i. The Shreveport Case(1914) Texas railroads were discriminating in the rates they chargedinterstate traffic as opposed to intrastate traffic (favoring intrastate). Congress decides to fix bothrates via the Interstate Commerce Commission.

1. Theres a need for uniformity of the rates for interstate & intrastate; this will affect interstatecommerce by inhibiting it (much more expensive, so more favorable to just distribute goodsintrastate).

2. Congress can regulate to prevent the common instrumentalities of interstate & intrastatecommerce from being used in their intrastate operations to the injury of interstate commerce.


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a. Common instrumentality the railroad; all using same tracks, cars, etc.3. TheShreveportcourt said that Congress has power to regulate intrastate activity when

there is a close and substantial relationship to interstate commerce.

4. This is a purely economic regulation.ii. "Current of commerce" concept, also Stream of Commerce

1. Stafford v. Wallace - upheld federal regulation of rates and practices in local buying andselling. Court reasoned that the regulated activities, while intrastate, because of "current ofcommerce" - the acts would probably create a direct and undue burden on interstate

commerce.

. Regulation of National Economic Problemsa. Limitations on Commerce Power Through 1936

i. Hammer v. Dagenhart(1918) Court held that Congress exceeded its commerce power when itprohibited interstate transportation of products from factories using child labor.

1. TheLottery reasoning doesnt apply b/c nothing is wrong with the goods themselves, its justCongress wants to curtail child labor done intrastate.

a. But then, whats actually wrong with the lottery tickets? Just a piece of paper, its theactivity behind it thats bad. So this reasoning isn't so great.

2. But court distinguishes btwn manufacture & commerce. This is a regulation of

manufacturing done in the state, so Congress doesnt have power to regulate.3. Another argument is made that using the advantage of child labor (current of commerce idea)

gives the state an unfair advantage. But court disagrees, saying its not within the purpose ofthe commerce clause to equalize competition. Otherwise, Congress would have too muchpower.

b. Constitutional Struggle: The New Deal v. The Great Depression

i. The New Deal legislation sought to give the federal government more powers in order to get thecountry out of the depression. At first, court wasnt having it.

1. Schechter Poultry v. United States (1935) struck down a code adopted under the NationalRecovery Act, to regulate the NY poultry slaughtering market, where 96% of poultry camefrom other states; but the actual activities regulated all done in NY. The regulated conduct

had no direct effect on interstate commerce.2. Carter v. Carter Coal(1936) Used Schechters direct effect test, and held that the

Commerce Clause didnt give Congress the power cannot to regulate labor in coalproduction. But the coal will be used outside the state. Close & substantial means theres adirect connection. Its the proximity to interstate commerce that determines this. Here its anindirect effect. this activity - beyond commerce clause power.

ii. So President Roosevelt packs the Court he appoints his own people for every Judge over 70; theseJudges will agree with Roosevelt. Congress has this right, & theyre going along with the President.But this court packing ended up not being necessary; justices changed sides to agree with President(the switch in time saves nine). TheNLRB case broadened the scope of the commerce power.

1. NLRB v. Jones & Laughlin Steel(1937) upholds the National Labor Relations Act of

1935. Court opens scope of what's close & substantial. If it substantially affects interstatecommerce, even if indirectly, Congress has power under the commerce clause.

c. Expansion of Commerce Power after 1936d. Congress has power to regulate intrastate commerce when it substantially affects

interstate commerce

i. United States v. Darby (1941) The Federal Labor Standards Act regulated employment conditions.Upheld Congresss power to regulate under the commerce clause.

1. The interstate regulation here was that it prohibited shipment of goods manufactured inviolation of the Act this is within Congresss plenary powers, & it doesnt matter whyCongress did it, even if just for a moral reason.


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2. Intrastate Regulation because the goods being produced locally will be sent into interstatecommerce. Congress is regulating the goods going out of state.

a. There has to be a substantial effect on interstate commerce. But its for Congress todecide whether this is the case whether intrastate regulation is appropriate in orderto advance some legitimate commerce clause reason. Now, Congress has very broadpower.

3. Substantial Relationship = Substantially affects Also called affects power (really thenecessary & proper clause power).

4. See how diff it is with theDagenhartcase, where court said manufacturing is done strictlywithin the state, so unable to regulate under commerce clause.

ii. After Interstate commerce ends1. United States v. Sullivan (1948) pills are bought in bulk and resold in smaller quantities, all

locally, by a retail druggist. Federal regulation violated for not labeling pills properly. Upheldregulation under the Commerce clause

a. The pills themselves traveled in interstate commerce.b. Criticism - But its not the pills being regulated its the packaging. In another case,

they reasoned that its impractical to regulate while in interstate travel, so mustregulate while actually on the shelf in a state. But that reasoning won't work here b/cthe container itself never traveled interstate just the pills.

iii. In the Aggregate - Although each instance will only trivially affect interstate commerce, in theaggregate it can be a substantial effect.

1. Facial challenges where the act in itself if challenged. But also another argument that itsunconstitutional as applied to a specific circumstance. So under the Commerce Clause, thelocal activity has to have a substantial affect on interstate commerce. Well, for eachindividual instance, the effect may be trivial, so argument is that its unconstitutional asapplied in those circumstances. But its still constitutional. The court will aggregate the entireclass of activities and decide whether in total it affects interstate commerce. If in theaggregate its a substantial affect, the Congress can regulate.

a. Wickard v. Filburn (1942) allows Congress to regulate wheat production intendedsolely for consumption on the farm they weren't selling it. Reasoning is that if you

grow it yourself, youre not buying it, and this affects interstate commerce.Substantial affect in the aggregate.

b. Maryland v. Wirtz(1968) Federal minimum wage law for any business engaged ininterstate commerce. Issue is how this applies to local schools. Reasoning is if youdont pay ppl enough, they strike; if not working, institutions shut down, & fewergoods bought from interstate commerce.

i. VERY TENUOUS connection, but court allows it.1. But we dont want Congress to be able to regulate everything, and if

we allow such a tenuous connection, everything can come under thecommerce clause, and Congress will control everything.

c. Perez v. United States (1971) upholds federal regulation of loan sharking, even

though purely local activity. Organized crime affects the whole nation. Doesntmatter if each instance is trivial, because in the aggregate, it has a substantial affect.

. Civil Rights Protection through the Commerce Clausea. Heart of Atlanta Motel, Inc. v. United States (1964) motel by interstate highway;

majority of guests from out of state. They discriminate based on race, violating the FederalCivil Rights Act. The Act entitled everyone, regardless of race, same access to publicaccommodations defined as place that serves transient guests and whose operations affectcommerce.


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i. It doesnt matter that Congress was only trying to legislate against moral wrongs. Evidence that thediscrimination impedes interstate travel, & interstate commerce, so within scope of the commercepower, b/c intrastate activity has a substantial effect on interstate commerce.

ii. Equal Protection Clause (14th Amend) Couldnt be used here b/c it only protects ppl from states,not from other individuals.

b. Katzenbach v. McClung(1964) Civil Rights Act applies to restaurant using discriminatorypractices; located close to interstate highway (although served mostly local clientele).Affected interstate commerce b/c less was consumed b/c they didnt serve minorities, & so

less goods bought from interstate commerce. Discrimination also discourages thosediscriminated against from traveling, affecting interstate commerce. Although in thisinstance, trivial, becomes substantial in the aggregate. Court also says its up to Congress todecide if the regulations they impose are necessary to protect commerce; as long as theres arationale basis for it, Court will defer.

. New Limitations at the end of the 20th Century: Commerce Clause power is limited againa. United States v. Lopez(1995) - First case since the new deal that Court overturned

Congressional power via the commerce clause; Court struck down federal law making itunlawful to possess a gun near a school.

b. United States v. Morrison (2000) - Violence against Women Act provided civil remedies for

victims of gender-motivated violence.i. No interstate commerce involved in gender-based violence. So focus is on whether the regulated

activity has a substantial affect on interstate commerce Court says no.1. The violence only has an attenuated and indirect effect on commerce, not a direct and

substantial one. The reasons Congress gives are too remote in a causal connection, so itdoesnt prove theres a substantial effect.

ii. 10th amendment - There must be limits to using the commerce power to regulate b/c then it wouldobliterate state sovereignty/autonomy, creating a centralized government. If this connection isallowed, then under the same reasoning, Congress can regulate virtually anything, including powersnormally designated to the states (crime, divorce).

iii. Concurrence talks about how a broad use of the commerce power is inconsistent with the original

understanding of it when it had a much narrower definition.iv. Dissent : Big problem with gender-motivated violence that Congress should be able to address (like

Civil Rights Act). In the aggregate, it does have a substantial affect (woman who are beat up can'twork, not productive affects interstate commerce). Question of boundaries of commerce clause isup to Congress to decide, b/c it should be the political process that protects states from overreachingfederal power, not the courts. Congress more accountable to ppl & to the states (states repsrepresented in Congress). Therefore, Congress more likely to protect states interests. No staterepresentation in court.

c. Substantial Effects like proximate cause. Relationship between regulated activity &interstate commerce must be strong enough or close enough to justify federal

regulation.

i. Gonzales v. Raich (2005) upheld Congresss power to ban marijuana use & cultivation, even whenstates approve it for medical use. The cultivation & personal use of marijuana here court says thisis an economic activity (? Maybe). Since federal can regulate the interstate, they can regulate theintrastate b/c so closely linked. Also, federal law trumps the state law that allowed it.

1. Concurrence invoked the Necessary & Proper Clause In order to affect the larger interstateactivity, Congress must be able to regulate the local activity, which could make its way intothe illegal interstate market.

Basis for Congress power under the Commerce Clause:

1. Plenary power over interstate commerce (Art I, 8, Cl. 3, Gibbons)


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2. Channels of interstate commerce (Lottery, Darby, Heart of Atlanta)3. To protect the common instrumentalities of interstate commerce (Shreveport)4. Intrastate regulation when it substantially affects interstate commerce (Darby, Jones & Laughlin)

THE NATIONAL TAXING & SPENDING POWER

Art I, 8, cl. 1 - grants Congress power "to lay and collect taxes, duties, imposts and excises, topay the debts and provide for the common defense and general welfare of the United States."

. Regulation through taxing: Purpose of the taxing power is to raise money. At first, courts say youcan't use it as a pretense for regulating. But this limitation has been rejected more recently.

a. Bailey v. Drexel Furniture Co. (1922) (Child Labor Tax) First, court decides that

Congress doesnt have the power to regulate child labor, under the commerce clause, b/c itinfringes on state power. So to get around it, Congress imposes a tax on people violatingthose regulations. Court says this is unconstitutional b/c its purpose is not to raise money,but to punish by imposing a penalty to regulate by controlling behavior. The taxing is apretext for the actual regulation.

i. Evidence that Congress is actually regulating rather than just collecting taxes:1. Need knowledge of workers age (scienter) in order to be taxed. If they care about whether

person being taxed knew what they were doing, shows that Congress actually moreconcerned about the behavior.

2. No proportion between number of violations and amount of tax due. Looks more likeregulation they dont want this being done at all.

3. Employer subject to inspection, not just by tax collector, but by the dept of labor. Dept oflabor is a regulatory agency shows intent to regulate behavior.

4. Specific activity being targeted is a very narrow class that subjects you to the tax/fine. Themore detailed the class of activity required to impose the tax, the less likely youll impose thetax and the less likely youll actually collect money.

ii. Criticism We want to raise money, so tax cigarettes. Always target tax on bad things, b/c thepublic will back you up on it even if purpose is to raise revenue.

1. But it really does look like a regulation considering the history, where court first overturnsthe regulation.

b. United States v. Doremus (1919) Congress imposes $1 tax and requirement to register withfeds anyone selling/manufacturing narcotic drugs. Clearly the purpose was to regulate the

activity (only $1) how much can really be raised. Also, most offenders were illegallytrading so the purpose was to be able to put ppl in federal jail for violating it. But courtupholds it.

c. United States v. Constantine (1935) - followed theBailey reasoning, and found that Congresswas attempting to usurp police powers by taxing liquor businesses operating contrary tostate law 10-40 times more than other liquor businesses.

i. However, because of the broad powers Congress' got for regulation via the Commerce clauseafterwards, they didnt really use the taxing power for regulatory purposes. And since Constantine,no other federal tax has been invalidated because deemed a regulatory motive outside federal power.


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. Regulation through SpendingPurpose of spending power is to provide for the common defense &general welfare.At first, courts held that the spending power cannot be used to purchase a compliancewhich Congress is powerless to command (looked to see if states are being coerced into behaving in a

certain way). More recently, the restriction been abandoned; spending power becomes more broad .a. The Spending Power

i. Narrow view - spending limited to the exercise of other enumerated powers.ii. Broader view - Taxing & spending is limited only by the general welfare.

b. United States v. Butler(1936) Congress taxes agricultural commodities, & redistributes the

funds the farmers who promised to reduce their acreage (the prices were too low & farmerscan't make it, so it sought to raise prices to help farmers).

i. Congress says the source of their power to act is the spending clause. But court says itsunconstitutional, b/c the spending is being used to regulate agriculture, & Congresss power is cutoff by the 10th amendment- agriculture reserved to the states.

ii. Individuals are being coerced into acting how the federal government wants them to This is takingpower away from the state to decide how to regulate farming within the state. State loses a policyoption b/c federal law took over, in an area reserved to the states, & if state wants to make own laws,federal law would preempt.

1. Coercion its not mandated, but theres a tremendous incentive to join the program (govtgiving you money to do nothing), so farmers will comply.

a. Prof says not necessarily coercion a farmer may not comply & end up making moremoney b/c the price just went up but he still produces same amount.

c. Steward v. Machine Co. v. Davis (1937) Employers must pay money towards federal tax,but they can get 90% credited back if they pay taxes to a state unemployment fund, but onlyif the state unemployment fund complies with federal standards. Purpose was to helpunemployment (during Depression).

i. Court holds that the Act is fine; doesnt intrude on states power - no coercion. Thats b/c whether ornot the employers paying into the state unemployment fund, it will not affect whether the state has tocomply with federal standards. Employers will want state to comply, but the state doesnt have to.

ii. Spending power being used to promote for the general welfare. Almost anything can constitutespending for the general welfare. Court will normally defer to Congress on this issue.

d. South Dakota v. Dole (1987) federal law withheld 5% of federal highway funds from statesthat didnt adopt a 21 yr old minimum drinking age. Court said law is valid no coercion.

i. Limits of Congresss spending power:

1. Must be in pursuit of the general welfare

a. Clear that it is make highways safer by reducing drunk driving by young adults2. Must be unambiguous, so states know what will happen if they dont comply.

a. Clear 5% of federal highway funds will be taken away3. Has to be related to a federal interest

a. Court imposes a germaneness requirement federal spending cannot be conditionedon something unrelated.

b. Court says yes, but its arguable how related the drinking age is to highway safety; a

bit too attenuated Dissent said not reasonably related.4. There isn't another constitutional provision that bars it (like 10th amendment)

a. 10th amendment not being violated b/c no coercion. Its a voluntary program &amount of money is not too significant to coerce states into complying (only 5%)States dont have t adopt the program.

i. Prof says still can be coercive. Federal taxing takes away some ability forstates to tax (b/c ppl will only allow govt to tax us to a certain amt).

e. Sabri v. United States (2004) Spending Power used very broadly. Held that, under thespending power, Congress can make it a crime to bribe a state or local official whose govtagency receives at least $10K in federal funds in any year (even if the bribe & federalfunding has nothing to do with each other).


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i. Congress has power under the Spending Clause to appropriate money to promote thegeneral welfare. Under the Necessary & Proper Clause, Congress has the power touse this measure to make sure that the federal funds are going where theyresupposed to (not given away as bribes).

1. But here, the federal funds werent being given away as bribes bribe has noconnection to federal funds. Court says it doesnt matter b/c its withinCongresss power to prohibit all bribes to all federally-funded organizations(b/c proving the exact connection would be impractical).

FOREIGN AFFAIRS POWER

. Treaties as a source of legislative power

Art. II 2: "[The President] shall have power, by and with the advice and consent of the

Senate, to make treaties, provided two thirds of the Senators present concur"

Art VI: "This 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; and the judges in every state shall be bound thereby,

anything in the Constitution or laws of any State to the contrary notwithstanding."

a. Treaty-making power - made by President, with advice and consent of 2/3 of Senate.i. The treaty clause only gives right to make treaty, binding only between U.S. & other countries. It

infers the right for it to be self-executing (automatically become domestic law), b/c of theSupremacy Clause. But the House is not involved with making treaties, so how can they becomevalid domestic law?

1. Possible policy argument - senate in better position to get involved in international mattersthan House. House more accountable to people, closer for the people. So House is moreparochially tied, and more representative of the people, so good for making domestic laws.But still not involved here.

ii. 10th Amendment1. Missouri v. Holland(1920) - Treaty with Canada which protects certain species of

endangered birds. Under Art II, this is a valid treaty. Only issue is whether this is forbiddenby the 10th amendment, but under Art VI, treaties are the supreme law of the land. There is anational interest here in the protection of these birds, and its not sufficient to rely on thestates. Treaty here is not self-executing. It needs an act by Congress to make it domestic law which it does, and it is necessary & proper to enforce this treaty, b/c its enforcing anexpress power of the federal government.

b. Scope of treaty power The scope of treaty power can be very broad, and the governmentcan enact a law just by entering into a treaty. Federal can use it as a means of regulation,outside of the power they actually have, b/c treaties always trump. But they still have to beconstitutional.

i. Judiciary limiting treaty power1. Limiting it to only matters of international concern.2. Treaty power is also limited in that it has to be made pursuant to the Constitution


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a. Cannot be inconsistent with any specific constitutional provisions.

. Other bases for legislative power over foreign affairsa. Art I, 8 (Scope of legislative power - only pertaining to foreign affairs)

i. To regulate commerce with foreign nationsii. Define and punish piracies and felonies committed on the high seas, & offenses against the law of

nationsiii. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and

water;

iv. Raise and support army and navyb. Perez v. Brownell(1958) federal statute mandated loss of citizenship for voting in a

political election in a foreign state. Upheld, b/c theres an implied constitutional power toenact legislation on an issue affecting foreign affairs, b/c for government to functioneffectively, they have to be able to affirmatively deal with foreign affairs. Its not practicalto make a treaty every time government has to deal with foreign affairs.

i. Here, Congress was regulating to prevent tension risked by citizens participating in the political orgovernmental affairs of another country.

INTERGOVERNMENTAL IMMUNITIES

. Federal Immunity from State taxesa. McCulloch v. Maryland(1819) held that MAs taxes on Federal bank was invalid. Bank is

immune, b/c its owned by the federal government, and it was like state was taxing thefederal government. Federal government is immune from state tax.

i. A tax on the federal government would give the state the power to destroy it, therefore, it would alsohave the power to control it. States cannot have this power. The Constitution is the supreme law ofthe land, and doesnt allow this.

ii. Collector v. Day - Early on, this immunity was reciprocal. States were immune from federal

taxation. This was abandoned in 1938.

. State Immunity from Federal Taxes There is no absolute state immunity from federal taxation, likethe reciprocal. The state and its entities are generally immune from federal taxation, with some exceptions.

a. State revenue may be taxed by the federal government if the revenue from the state

activity is not uniquely capable of being earned by the state.

i. New York v. United States (1946) court upholds federal taxes on NYs sale of mineral waters,which were bottled & sold by the state to provide funds for a state health resort. As long as Congresstaxes a source of revenue that is not uniquely capable of being earned only be the state (like derivingincome from taxation), the Constitution does not forbid it merely b/c it falls on the state.

1. Some Justices want a broader state immunity b/c tax may be interfering with the Statesfunctions.

2. Dissent says just b/c state enter into private enterprises doesnt mean federal can tax them.b. Federal government can tax revenue generating activities of the state that are of the

same nature as those of private enterprises, even if the proceeds from the activity go to

essential state functions.

i. Massachusetts v. United States (1978) upheld tax on all civil aircraft that fly in navigable U.S.airspace, including aircraft owned by state and used it exclusively for police functions.

1. The law is non-discriminatory, in that it applies to everybody (state, private individual) thathas aircraft, and doesnt apply just to the states. It's not a law in effect only to destroy statepower; not targeted at government operations.


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2. Also, it doesnt impinge on important governmental objectives, and also the states arerepresented in the political process by Congress, so they are not being burdened by the tax.

3. Therefore, federal government can tax revenue-generating activities of the states that are ofthe same nature as those of private enterprises, even if proceeds from activity go to essentialstate functions.

. State Immunity from Federal Regulationa. Recognition of State Autonomy Early on, Court gave federal government power to

regulate the states via the commerce power, even if it interfered with state functions. Court

later overrules this in Usury, saying that the commerce power cannot dictate how a stateoperates its essential state functions.

i. Maryland v. Wirtz(1968) upheld Fair Labor Standards Act as applied to state schools andhospitals, b/c it only interfered with state functions to the extent that the activity affected commerce.Just b/c run by the state for benefit of their citizens doesnt exempt them.

1. Dissent state sovereign power is severely being tampered with and being potentiallycrippled. B/c states pay wages from the state budget. Now that the state can't decide how tospend their money. So basically, federal telling them how to spend it.

ii. National League of Cities v.Usery (1976) . Federal minimum wage law applies to state employees.Court says the commerce power cannot dictate how a state should operate its integral operations(overruling Wirtz). Same reasoning as the dissent in Wirtz The economic burden is now placed on

the states by the federal government, and this interferes with the states ability to structure itsintegral operations in areas of traditional governmental functions.

b. Then the Court overrules Usury and upholds the Fair Labor Standards Acti. Garcia v. San Antonio Metropolitan Transit Authority (1985) court upholds application of the

Fair Labor Standards Act wage and hour prov

Documents

10081897 Constitutional Law Outline Fall 08[1]