Con LAW Good Outline

CHAPTER 1THE FEDERAL JUDICIAL POWER

A. The Authority for Judicial Review Marbury v. Madison Authority for Judicial Review of State Judgments Martin v. Hunter’s Lessee

Cohens v. VirginiaCase, Fact Nugget, Issue Holding Etc Rule/DPMarbury v. Madison(1803)

Marshall

The case began on March 2, 1801, when Federalist, William Marbury, was designated as a justice of the peace in DC. Marbury and several others were appointed to Govt. posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the S. Ct..

I: Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the S. Ct. the place for Marbury to get the relief he requests?

* M. put forth the idea of judicial review under Marbury but the 1st time the Ct exercised this power was in Gibbons v. Ogden.

Marshall: Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the S. Ct.'s power of judicial review.

Marshall didn’t have to address any of these issues b/c the Ct didn’t have juris to decide the case. Where there is a legal right, there must also be a legal remedy. It is Inherently the province of the ct. to say what the law is.

§ of Jud Act of 1789 that permitted the writ of mandamus was declared an unconst expansion of the Ct’s original juris. Congress can only expand or contract the ct.’s appellate jurisdiction.

Cts as well as other departments are bound by the Constitution. [ hints at judicial review]

Under Art. III, Congress may not expand the Ct’s original juris, it may only expand or contract its appellate juris.

S. Ct. is still young at this point, has its first true leader and strong CJ. M is still trying to solidify the legitimacy and power of the Ct. Barnes says: (1) Authority to review executive action.(2) Authority to review legislative action(3) Art. III’s grant of power to the federal judiciary is the ceiling for original jurisdiction. (4) The Constitution is a regulatory document.

Martin v. Hunter’s Lessee

S. Ct of VA has to recognize the land claims of Martin b/c of a US Treaty w/ Great Britain.

State Cts are bound by decisions of federal cts.

Cohens v. Virginia

An act of Congress authorized the operation of a lottery D.C. The Cohen brothers proceeded to sell D.C. lottery tickets in VA, violating state law. VA authorities tried and convicted the Cohens, and then declared themselves to be the final arbiters of disputes between the states and the national Govt..

Marshall held that state laws and constitutions, when repugnant to the Constitution and federal laws, were "absolutely void." After establishing the Ct.'s jurisdiction, Marshall declared the lottery ordinance a local matter and concluded that the VA ct. was correct to fine the Cohens brothers for violating VA law.

B. Limits on the Federal Judicial Power1. Interpretive Limits2. How should the Constitution be interpreted?

Originalists:o Textualists:

What did the text of the Con. mean at the time the framers created it. or

What did it mean to the framers?

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o Original Intent Adherents: What was the original intent of the framers in writing the provisions of the Constitution.

An amorphous changing document = no real meaning Tradition is important for Originalists.

Process theoryo Constitution and federal ct.’s are just about allowing a fair process, anything outside of the process

should be left to the majoritarian political process (Exec. And Congress). Judiciary only defines structure.

Non-Originalists:o The Constitution is a living document, and while the words never change, the meaning behind

these words must change to reflect the changes in the nation and our society. A static document = a dead document

Prudentialism:o Applies a cost benefit analysis to Constitutional interpretation. What is the social harm the Ct’s

ruling will have? Why do we need to interpret the Constitution?

o The Constitution is intentionally broad and ambiguous. o Not every important issue regarding Constitutional powers is in the Constitution.

The 2nd Amendment problem, what does it mean?!o “A well regulated Militia, being necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed.”o Collectivists or States Rights Theorists:

Contend that the 1st clause of the amendment is a qualification of the 2nd clause of the amendment, in that it clearly specifies the right to bear arms is contingent upon and only for the benefit of regulated service in the State Militia.

Today the State Militia is the National Guard. Claim historical support in that many people were excluded from owning guns

during the revolutionary war, ex. if they failed to take loyalty oath, were black, or were a woman.

Contend that Madison’s lost “Conscientious Objector” clause supports their idea that the 2nd amendment was restricted to “militia service”.

o Individual rights Theorists: Contend that the 1st clause is a subordinate clause, and that the founders realized that the

only way to ensure a well-regulated militia was to allow the people, meaning U.S. citizens, to own guns.

Claim historical support that members of the militia during the revolutionary war, were “the people”.

Claim that Madison originally wanted to insert the amendments throughout the Constitution and instead of placing it in Art. I, Sec. 8’s regulation of the militia proviso, he wanted to place it in Art. 1, Sec. 9 along with other individual rights and restrictions on National Govt. power.

United States v. Emerson

Case Fact Nugget, Issue

Holding Etc Rule/DP

US v. Miller (NOTE) (1939) p. 13

Miller was charged w/ moving a sawed-off shotgun in ISC in violation of the Natl. Firearms Act of 1934.

S. Ct. rejected Miller’s argument that the Act was an unconst hindrance on his 2nd Am right to bear arms.

The purpose of the 2 nd Am is assuring the continuation and rendering possible the effectiveness of the Militia.

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Case Fact Nugget, Issue

Holding Etc Rule/DP

US v. Emerson (ND TX 1999)

p. 14

F: Emerson was indicted for violating 18 USC § 922 which made it illegal for someone under a restraining order to possess a firearm.

I: (1) does 2nd Am create an individual right for citizens to possess firearms, or does it merely allow the state militias to bear arms in their service to the state.(2) does § 922, to the extent that it makes it illegal for a non-criminal citizen, subject to a restraining order, to possess a gun, violate the 2nd?

Cummings Dist. J.:(1) Yes – all of the text and structure of the Const, the history of its drafting, the history of the right to bear arms, judicial precedent, and public policy all lead to the conclusion that the 2nd Am guarantees an individual citizen the right to bear arms.

(2) Yes, § 922 is unconst to the extent that it violates a non-criminal citizen’s 2nd Am right to possess a firearm.

The Am states that it’s the people who were given the right, not the states.

The Miller case did not address the issue of whether the 2nd amendment applied to an individual right to possess guns, and its holding that the purpose of the 2nd amendment was assuring the continuation and rendering possible the effectiveness of the Militia, is the very reason individual citizens must be able to own guns, so they can shoot!

Rule: A fed statute that makes it illegal for a person to possess a firearm while under a state restraining order not based on particular findings violates the 2nd Am individual right to bear arms.

There are costs to all personal rights. Social costs of individual gun ownership are irrelevant, for if they were, we would have to expose the entire Bill of Rights to social cost-benefit analysis, most likely destroying a good portion of them.

Group of law professors’ amicus curiae brief states [Historical Textualism]:o “The 2nd amendment is about the allocation of military force.” o Contends that the 1st clause of the amendment is a qualification of the 2nd clause of the

amendment, in that it clearly specifies the right to bear arms is contingent upon and only for the benefit of regulated service in the State Militia.

o If the 1st clause has no independent meaning why include it? Then it is mere surplusage. o Today the State Militia is the National Guard. o Claims historical support in that many were excluded from owning guns during the revolutionary

war, ex. if they failed to take loyalty oath, were black, or were a woman. o Contend that Madison’s lost “Conscientious Objector” clause supports their idea that the 2nd

amendment was restricted to “militia service”. o Historical evidence supports the assertion that, for the framers of the Constitution, “bear arms”

meant to use fire arms in military service. o Militias were not isolated bands of disaffected citizens; they were state regulated military entities.

3. Congressional Limits Congressional limits

S. Ct.’s Art. II power/jurisdiction is subject to the qualification that the S. Ct. possess appellate jurisdiction “both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

o What does this mean? One side contends this is a check on the ct.’s power. The other side contends “exceptions” was simply intended to modify the preceding word

.

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The Exceptions and Regulations Clause Ex Parte McCardle Felker v. Turpin Separation of Powers as a Limit on Congress’s Authority United States v. Klein Roberts v. Seattle Audubon Society

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Case Fact Nugget, Issue Holding Rule/DPEx Parte McCardle (1869)

p. 22

CJ Chase

McCardle was arrested by fed authorities in 1867 for writing and publishing a series of editorials in his MS newspaper. The editorials were sharply critical of Reconstruction. McCardle sought a writ of habeas corpus on the ground that the Reconstruction Acts under which he was arrested were unconst. McCardle appealed to the S. Ct. under an 1867 congressional statute that conferred juris on appeal to the High Ct.. After hearing arguments in the case, but prior to announcing a decision, the Congress withdrew its 1867 act conferring jurisdiction.

I: May the Congress withdraw jurisdiction from the High Ct. after that jurisdiction has been given?

Chase: Yes, the S. Ct. may remove jurisdiction here b/c it was Congress that gave the ct. this appellate jurisdiction in the 1st place. S. Ct. does not have the authority to review MCardle’s writ of habeas corpus. The Ct is not at liberty to pierce the veil and inquire into the motives of the legislature.

The appellate jurisdiction of the S. Ct. is derived from Art. III, sec. 2, but it is conferred “with such exceptions and under such regulations as Congress shall make.”

W/out jurisdiction the ct. cannot proceed in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the ct. is that of announcing the fact and dismissing the cause.

The rider proviso only bars the S. Ct. from hearing Habeas Corpus appeals, under the 1867 Act, that emerge from Circuit Ct.’s

The S. Ct.’s appellate juris is derived from Art. III § 2 of the Const, but Congress has the ability to make exceptions and regs to this juris.

The Ct., speaking through Chase, validated congressional withdrawal of the Ct.'s juris. The basis for this repeal was the exceptions clause of Art III § 2. But Chase pointedly reminded his readers that the 1868 statute repealing juris "does not affect the juris which was previously exercised."

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Case Fact Nugget, Issue Holding Rule/DPFelker v. Turpin (1996)p. 24

CJ Rehnquist

F: Felker filed a petition for writ of habeas corpus, appellate or certiorari review, and stay of execution after having his convictions for capital murder, rape, aggravated sodomy, and false imprisonment affirmed on appeal. Felker's habeas petition challenged the constitutionality of Title I of the Antiterrorism and Effective Death Penalty Act of 1996. Title I of the Act requires that all motions for filing a second or successive habeas appeal from a Dist. Ct. be reviewed by an appellate panel whose decision shall not be appealable by writ of certiorari to the S. Ct.

I: Do the Act's Title I provisions, preventing the S. Ct. from reviewing an appellate review panel's denial of leave to file a 2nd habeas petition, unconstitutionally "suspend" the habeas writ and restrict the Ct's authority to entertain original habeas petitions?

Rehnquist: No. The unanimous Ct. held that the Act's creation of an appellate panel, charged with reviewing all second or successive habeas applications, is not unconstitutional.

The Act simply transfers the duty of habeas review from the district cts to an appellate panel. While the Act prevents an appeal to the S. Ct. from an appellate panel's denial of leave to file a 2nd habeas petition, it does not repeal the S. Ct.'s authority to entertain original habeas petitions. Thus, the shift in habeas "gatekeeping" duties to an appellate panel is neither an unconstitutional "suspension" of the habeas writ which would violate the Exceptions Clause of Article III, nor a deprivation of the Ct.'s appellate jurisdiction.

A Congressional statute that limits a prisoner’s ability to file successive petitions of habeas corpus and makes the Appeals Ct’s decisions in these matters final and non-appealable does not unconstitutionally limit the S Ct’s appellate juris as the Ct still retains the ability to hear original petitions of habeas corpus.

S. Ct. rejected the claim that this was an impermissible “exception” to its appellate juris or an unconst suspension of the writ of habeas corpus.

US v. Klein (1871) p. 25

CJ Chase

F: Congress passed a law terminating fed ct juris in cases in which a claim was made for recovery of property seized by the US during the Civil War and where the claimant used a presidential pardon to show he had not aided the enemy.

I: Is a Congressional statute, providing that presidential pardons are not admissible as evidence in ct. proceedings and are even considered as admissions of guilt if they do not specifically specify innocence, a constitutional exercise of the Congress’ ability to create exceptions and regulations for the S. Ct.’s appellate jurisdiction?

Chase: No, a Congressional statute, providing that presidential pardons are not admissible as evidence in ct. proceedings and are even considered as admissions of guilt if they do not specifically specify innocence, is not a constitutional exercise of the Congress’ ability to create exceptions and regulations for the S. Ct.’s appellate jurisdiction.

Policy: The language of the law here is results driven, rather than a limitation on juris. It prevents juris merely b/c of the presence of a specific piece of otherwise valid evidence, a presidential pardon.

Congressional laws which rescind the S. Ct.’s appellate jurisdiction via a command to not hear cases b/c they involve evidence that is admissible per settled law are an unconstitutional violation of the separation of powers doctrine.

Separation of Powers: Congressional laws which interfere with a power that is exclusively vested in the Executive by the constitution are unconstitutional usurpations of a power of a coordinate branch of govt.

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Case Fact Nugget, Issue Holding Rule/DPRoberts v. Seattle Audubon (1992) p. 27

Dept. of Interior and Related Agencies Appropriations Act of 1990 required the Bureau of Land Management to offer specified land for sale and also imposed restrictions on harvesting from other land. The Act specifically noted two pending S. Ct. cases and said, “Congress hereby determines and directs that management of areas according to sub §s (b)(3) and (b)(5) of this § on the specified lands is adequate consideration for the purpose of meeting the statutory requirements that are the basis for the two lawsuits.”

S. Ct. rejected the argument that Congress was directing the outcome of the pending litigation. The S. Ct. held that Congress had changed the law itself and did not direct findings or results under the old law.

Ct distinguished Klein.

Klein only applies when Congress directs the judiciary as to decision making under an existing law and does not apply when Congress adopts a new law.

4. Justiciability Limits(3) Article III Justiciability limits

The Justiciability doctrines are all judicially created limits on the matters that can be heard in federal ct.’so Some are “Constitutional”

Meaning that they cannot be overridden by statute.o Others are “Prudential”

Meaning that they are base on prudent judicial administration and can be overridden by statute.

o Per Art. III the federal Ct.’s are only to hear Cases and Controversies. Limits the ct.’s jurisdiction to Qs involving a true adversarial conflict that is capable of

resolution through the judicial process. o 5 Major Justiciability Doctrines:

(1) No Advisory Opinions (Constitutionally not a case or controversy) Ct. will not answer Qs of law submitted to it by the other branches of govt. when

there is no case or controversy involved. See e.g. Hayburn’s Case

o The basic problem in Hayburn’s case was that Congress passed a law directing the federal ct.’s to decide Revolutionary War veterans’ pension claims but then stated that the Sec. of War, an Executive official, could ignore the ct.’s decisions.

o The basic problem is the same in Plaut the ct.’s final decisions were being subjected to revision by the stipulations of an act of Congress.

Some scholars contend that Bush v. Gore was an advisory opinion as the FL election commission had not finished counting the votes.

All of the doctrines require that there is a “case and controversy.” o Advisory Opinion Doctrinal Progression:

Opinion Of the Justices [Per Curiam]: Rule: In order for a case to be justiciable and not an advisory opinion, there

must also be a substantial likelihood that a fed ct decision in favor of a claimant will bring about some change or have some effect.

Hayburn (1792): Rule: S. Ct. will not review cases that ask for advisory opinions b/c they lack

the necessary qualities to create an Art. III “case or controversy.” Plaut v. Spendthrift Farms [Scalia] (1995):

Rule: S. Ct. will not support a law that requires it to reopen cases on which it has rendered a final judgment, to do so would effectively render the ct’s

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previous rulings mere advisory opinions [dismissal by S. Ct. is a final judgment!].

Nashville, C & St. L. Ry. V. Wallace [Stone] (1933): Rule: The case was justiciable “so long as the case retains the essentials of an

adversary proceeding, involving real, not a hypothetical, controversy.”

o Brandeis’ Concurring Opinion in Ashwander v. TVA (1936): (1) S. Ct. will not pass upon the constitutionality of legislation in a friendly, non-

adversarial proceeding. (2) Ct. will not anticipate a Q of constitutional law in advance of the necessity of

deciding it, the Q must be necessary to decide the case at hand. (3) Ct. will not formulate a Constitutional rule that is broader than what is necessary to

determine the case at hand. (4) Ct. will not pass on a Constitutional Q although properly presented by the record, if

there is also some other ground on which the case may be decided. (5) Ct. will not pass on the validity of a statute upon the complaint of one who fails to

show that he is injured by its operation. The right to be heard will be denied to one who does not have a personal or

property right at stake in the suit. (6) Ct. will not pass of the validity of a statute at the insistence of one who has availed

himself of its benefits. (7) When there is a Q of whether an act of Congress is unconstitutional the ct. will first

attempt to maintain a statutory construction that is constitutional, and if this is not possible then the ct. may deem the act unconstitutional.

a. Prohibition on Advisory Opinions: The 1st Major Justiciability Doctrine Opinion of the Jusitices Hayburn’s Case Plaut v. Spendthrift Farm, Inc. Nashville, C & St. L. Ry. V. Wallace

Case Fact Nugget, Issue Holding Rule/DPOpinion of the Jusitices p. 29

F: Jefferson asked the S. Ct. for its answers to a long list of Qs concerning America’s conduct as a neutral party in a conflict b/w France and England.

The Justices declined to answer the Qs stating, “The 3 depts of the govt…being in certain respects checks upon each other, and our being the judges of a ct in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the Qs alluded to.

In order for a case to be justiciable and not an advisory opinion, there must also be a substantial likelihood that a fed ct decision in favor of a claimant will bring about some change or have some effect.

Hayburn’s Case (1792)p. 30

F/I: The basic problem in Hayburn’s case was that Congress passed a law directing the fed ct.s to decide Revolutionary War veterans’ pension claims but then stated that the Sec. of War, an Exec official, could ignore the ct.’s decisions.

5 S. Ct. Justices found this approach unconstitutional, explaining that the duty of making recommendations regarding pensions was “not of a judicial nature.” It would violate sep of powers b/c the judicial actions might be “revised and controlled by the legislature, and by an officer in the exec dept. Such revision and control we deemed radically inconsistent w/ the independence of that judicial power which is vested in the cts.

S. Ct. will not review cases that ask for advisory opinions b/c they lack the necessary qualities to create an Art. III “case or controversy.”

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Case Fact Nugget, Issue Holding Rule/DPPlaut v. Spendthrift Farm, Inc.(1995) p. 30J. Scalia

F: In short, Congress passed legislation allowing cases on which the fed ct.s had rendered final decisions to be reopened in some situations.

I: Does legislation that requires the fed cts to reopen cases upon which the cts have rendered a final decision violate the sep of powers doctrine?

Scalia: Yes. The Const’s sep of legislative and judicial powers denies it the authority to do so. This legislation is unconst. b/c it requires the ct.s to decide that the law that applied to a completed case was different than the ct.s concluded it was.

2 prior categories the ct has identified as violating Art. III don’t apply here:(1) Klein type – statutes that prescribe the rules of decision for pending cases of the fed ct.s are unconstitutional. (2) Hayburn type – Congress cannot vest review of the decisions of Art. III ct.s in officials of the Exec branch

•Having achieved finality a judicial decision becomes the last word of the judicial dept. with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the ct. said it was.

S. Ct. will not support a law that requires it to reopen cases on which it has rendered a final judgment, to do so would effectively render the ct’s previous rulings mere advisory opinions.

Nashville, C & St. L. Ry. V. Wallace (1933) p. 32 J. Stone

F: A Co. sought a declaratory judgment that a tax was an unconst burden on ISC.

Stone: S. Ct. explained that b/c the matter would have been justiciable as a request for an injunction; the suit for a declaratory judgment was capable of fed ct adjudication.

A case is justiciable “so long as the case retains the essentials of an adversary proceeding, involving real, not a hypothetical, controversy.”

b. Standing: The 2nd Major Justiciability Doctrine- S. Ct. has declared that standing is the most important Justiciability requirement - Standing is the determination of whether a particular person is the proper party to bring a matter to the ct.

for adjudication- “In essence the Q of standing is whether the litigant is entitled to have the ct. decide the merits of the

dispute or of particular issues”- 3 Constitutional Requirements for Standing [Test emereges in O’Connors Allen v. Wright Opinion ]:

o (1) Injury of π: π must allege that he has suffered or imminently will suffer a personal injury.

o (2) Causation of π’s injury by ∆: π must allege that the injury is fairly traceable to the ∆’s conduct.

o (3) Ability of ct. to redress π’s injury: π must allege that a favorable federal ct. decision is likely to redress their injury.

- 2 Prudential Requirements for Standing [Prudent admin of justice]: o (1) A party generally may assert only his or her own rights and cannot raise the claims of 3rd

parties not before the ct. No 3rd party claims where affected party may bring suit themselves.o (2) π may not sue as a taxpayer who shares a grievance in common with all other taxpayers. No

generalized complaints.i Constitutional Standing Requirement

Allen v. Wright Lujan v. Defenders of Wildlife Notes on Constitutional Standing Requirements: Injury, Causation, and Redressability Linda R. S. v. Richard D. Warth v. Seldin

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Simon v. Eastern Kentucky Welfare Rights Organization Duke Power Company v. Carolina Environmental Study Group, Inc.

Case Fact Nugget, Issue Holding Etc Rule/DPTrafficant case (not in book)

F: White Π sued the owners of his building b/c they were discriminating.I: Does π have standing?

Yes, the Civil Rights Act of 1968 creates the right to interracial living.

Allen v. Wright, 1984, O’Connor, p. 33

F: Πs want to prevent the IRS from granting tax exemptions to discriminatory schools. Πs claim that IRS is preventing integration and has allowed public schools to Resegregate.

I: Did Parents of minority children who attended public schools have standing to challenge IRS regulations for denying tax-exempt status to private schools that discriminated against racial minorities.

O’Connor: No standing here:(1) The injury is too abstract. The Govt. failing to follow its own rules does not create standing. Injury has to be personal—the πs here haven’t personally been denied equality or entry into the private schools.(2) The injury is not fairly traceable to the IRS—the private schools should be the ∆s. The govt action is not causing the injury free and clear of the actions of a 3rd party.(3) Ct. remedy not likely to redress: There is nothing to indicate that this remedy would result in desegregation.(4) AND, sep’n of powers requires that the ct. stay out of the exec’s b’ness when it comes to statutes that don’t offend the constitution.

Stevens and Blackmun dissent: Say that πs DO have standing. Πs have a personal stake in the outcome. The injury IS fairly traceable to the IRS. Sep’n of powers issue has no relevance to the standing Q. A complaint should not be dismissed on lack of standing grounds when the real reason is sep’n of powers.

“A plaintiff must allege personal injury fairly traceable to the ∆’s allegedly unlawful conduct and likely to be redressed by the requested relief.”

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Case Fact Nugget, Issue Holding Etc Rule/DPAfter Allen, before Lujan

(1) Injury must be personal and concrete.(2) (A) Injury must be fairly traceable.(2) (B) The remedy sought needs to address the injury.* Rogue Separation of Powers issue according to O’Connor.

Pre-Lujan Doctrine on Con. Standing:(1) Personal Injury(2) Causation(3) Redressability(4) Separation of Powers

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Case Fact Nugget, Issue Holding Etc Rule/DPLujan v. Defenders of Wildlife, Scalia, 1992, p.40

F: The Endangered Species Act of 1973 required federal agencies to consult with the Sec. of the Interior to ensure that any authorized actions did not jeopardize endangered species. A 1986 amendment to the act limited its scope to actions in the U.S. or on the high seas. πs filed an action seeking a Dec. Judgment that the new amendment erred by providing for a geographic limit on the original law.

I: Do πs have standing?

Scalia (plurality): No standing here.Where the injury is indirect, the requirement to show injury is heightened. The πs here do not have an imminent injury b/c they don’t have concrete plans to return.There is a redressability issue b/c the US is just a small portion of the funding for these projects.Also, the relief requested is too broad and implicates Allen v. Wright sep’n of powers issues.Scalia’s “final dance:” Throws out the idea of a “procedural injury” b/c this is not a case or controversy under Art. III—it’s too much like a general grievance. Vindicating the public interest is the function of Congress and the Exec.

Blackmun and O’Connor Dissent: Doesn’t like maj’s overbroad rejection of “procedural injuries” b/c most governmental conduct can be termed “procedural.” There is standing here.

Scalia’s Rejection of πs Standing Theories: (a) “ecosystem nexus”: “To say that an act protects ecosystems is not to say that the act creates rights of action in persons who have not been injured in fact.”(b) “animal nexus”/“vocational nexus”: Standing is not created by an “ingenious academic exercise in the conceivable”, it is pure speculation to say that someone who has an interest in seeing, studying, or working with an animal, anywhere in the world, is appreciably harmed by a single American funded project that may harm a portion of that animal’s habitat.

R/DP: * NOW, the threshold Q is separation of powers issue.1) Now the requirement is that there is an invasion of a right which is “actual or imminent”2) A) Injury must be “fairly traceable” and it can’t involve independent actions of 3rd parties, much like the rule in Allen.2) B) Redressability must be “likely” rather than merely speculative.Prof: This rule is illusory b/c Congress can redefine what an “actual or imminent” or concrete injury actually is.

Con. Standing Requirements Post Lujan, Scalia’s Refinements:**Separation of Powers concerns & Art. III case and controversy concerns.(1) Invasion of a legally protected right that results in concrete personal injury actual or

imminent.(2) Injury must be fairly traceable to the ∆’s conduct and not be primarily the result of

3rd parties not before the ct. (3) Redressability must be likely as opposed to speculative.

Scalia indicates that standing will usu. be assumed when a party is directly injured, but where the injury is indirect standing will be much harder to attain.

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Case Fact Nugget, Issue Holding Etc Rule/DPINJURY NOTE CASESCity of Los Angeles v. Lyons (NOTE), White, 1983, p. 50

F: Π put in choke hold by PD after a traffic violation. Lyons sought an injunction against the City barring the use of such control holds.

I: Did Lyons's injunction against the use of PD chokeholds meet the threshold requirements imposed by Article III of the Constitution?

White: No standing b/c there is no imminent threat of injury—just b/c it happened once, doesn’t mean it’s going to happen to him again.

Lyons cannot show that he will ever again face the situation of being restrained w/an illegal police choke hold. In order to est. an actual controversy in this case Lyons would have to allege:(1) That he would likely have another encounter w/the LAPD.(2) That all LAPD officers apply choke holds to any citizen with whom they happen to have an encounter.(3) That LA authorized the officers to act in such a manner.

“Absent a sufficient likelihood that he will be harmed in a similar way, Lyons is no more entitled to an injunction than any other citizen of LA; and a federal ct. may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.”

U.S. v. Hays, (NOTE) O’Connor, 1995, p. 51

F: πs claim that Louisiana’s districting plan is a “racial gerrymander,” and as such violates the 14th Am.

O’Connor: No standing b/c πs do not live in the district in Q and have not demonstrated that they have been subjected to discrimination themselves.

Rule: In order to have the proper standing to petition the U.S. regarding a state’s allegedly racially discriminatory congressional redistricting practices that πs must be citizens of one of the affected districts and must have been denied equal treatment based on the legislature’s reliance on racial criteria.

Federal Election Commission v. Akins , (NOTE), Breyer, 1998, p. 52

F: πs brought suit challenging a decision by the FEC that a certain committee was not a political committee subject to disclosure regulations.I: Do voters have the proper legal standing to challenge the Federal Election Commission's decisions regarding political committees?

Breyer: Yes, πs have standing. Note: totally different result from Lujan.

R/DP: If congress grants a right to suit that is specifically and narrowly tailored, then standing will be found.

CAUSATION AND REDRESSABILITY NOTE CASES

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Case Fact Nugget, Issue Holding Etc Rule/DPLinda R.S. v. Richard , (NOTE) 1973, p. 52

F: π challenged the Texas policy of prosecuting fathers of legitimate kids for not paying child support, but not fathers of illegit kids.

I: Standing?

H: No, the mother does not have proper standing to bring this suit b/c the action does not satisfy the 3rd constitutional requirement of standing redressability.An injunction commanding TX state prosecutions of fathers who failed to pay child support to illegitimate children would not necessarily provide this mother any relief, as the father might simply go to jail.

Barnes Says: Crazy, bad decision.

Warth v. Seldin , (NOTE) 1975, p. 53

F: πs challenging the unconstitutionality of zoning practices which prevented the construction of low-income housing.I: Standing?

H: No, they do not have proper standing to challenge Penfield’s zoning practices b/c the action does not satisfy the 3rd constitutional requirement of standing redressability.

An injunction commanding Penfield to restructure its zoning laws to permit more lower-cost high-density housing might not actually result in housing πs can afford, and these builders might not choose to construct houses in Penfield, regardless of the outcome of the suit.

Barnes says: that the ct. isn’t respecting the distinction here between “likely” and “speculative.”

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Case Fact Nugget, Issue Holding Etc Rule/DPSimon v. E. Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) [Indigents requesting IRS to really enforce the requirement that tax-exempt hospitals give free care to indigents, No redressability = no standing] p. 53

Statement:Group of indigents, who had sought but were denied medical care in tax-exempt hospitals, are seeking an

injunction to force the IRS to more strictly ensure that these hospitals are in fact rendering free medical care for indigents.

Issue:Do these indigents possess the requisite standing to bring this suit?

Holding:No, they do not have proper standing to challenge the IRS’s standard for the amount of free care tax-exempt

hospitals must supply indigents b/c the action does not satisfy the 3rd constitutional requirement of standing redressability.

It is “purely speculative” whether the new Revenue ruling was responsible for the denial of medical services to the πs.

There is no “substantial likelihood” that πs’ victory in this suit would result in them receiving the free medical services.

Rule:In addition to the first two constitutional standing requirements (actual injury, and ∆’s causation) π must also

satisfy the 3rd requirement, a favorable ruling must be likely to result in the ct.’s redressment of π’s injury.

Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59 (1978) [Town residents challenge the constitutionality of the Price-Anderson Act re: Nuclear power and plant liability, Redressability = Standing] p. 53

Statement:Group of residents and two community organizations challenge the constitutionality of the Price-Anderson

Act’s limitation on the liability of utility companies in the event of a nuclear reactor accident. Issue:

Do these residents and organizations possess the requisite standing to bring this suit?Holding:

Yes, they do have proper standing to challenge the constitutionality of the Price Anderson Act’s limitation on the liability of nuclear plants b/c the action does satisfy the 3rd constitutional requirement of standing redressability.

Construction of a nuclear reactor in π’s area subjected them to many injuries, including exposure to radiation, thermal pollution, and fear of major nuclear accidents.

But, the ct. held that the Price-Anderson Act was constitutional anyway. Rule:

In addition to the first two constitutional standing requirements (actual injury, and ∆’s causation) π must also satisfy the 3rd requirement, a favorable ruling must be likely to result in the ct.’s redressment of π’s injury.

Class:Breyer said that the S. Ct.’s decisions are not final b/c they are right, rather they are right b/c they are final.

ii Prudential Standing Requirements The Prohibition of Third-Party Standing Singleton v. Wulff Barrows v. Jackson Craig v. Boren Gilmore v. Utah The Prohibition of Generalized Grievances United States v. Richardson Flast v. Cohen Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. Elk Grove Unified v. Newdow (Supp)

2 Prudential Requirements for Standing: (1) Asserting only their own rights and not raising the claims of 3rd parties not before the ct.

o General Prohibition of 3rd Party Standing:

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π generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interest of 3rd parties.

A π can only assert injuries that he or she has suffered; a π cannot present the claim of 3rd parties who are not part of the law suit.

(2) Not suing as taxpayers who share a grievance in common with all other taxpayers. No generalized complaints.

o Prudential requirements for standing differ from the constitutional requirements in that Congress can alter or overrule the prudential standards b/c they are not derived from the Constitution, but rather from the ct.’s idea of prudent judicial administration

Case Fact Nugget, Issue Holding Etc Rule/DPSingleton v. Wulff, Blackmun, 1976, p. 54

F: MO is trying to keep poor folk from getting abortions (unless they are medically indicated, Medicaid won’t pay). Dr.’s are suing to have the law declared unconstitutional.I: Do the docs have standing to sue when the women themselves might me the better litigants?

Blackmun: Yes, docs have standing. The docs in this case fit the exception to the rule against 3rd party standing. (1) The docs allege an injury in fact b/c they are owed $$.(2) The Dr.’s are well situated to bring the suit b/c their close relationship to the women makes them effective proponents to challenge the law. (3) AND there are genuine obstacles to the women bringing the cases themselves: e.g capable of repetition yet evading review, privacy concerns.

Prof: “this case makes sense.”Rule: 3 rd party standing will be found when:(1) The claimants rights are inextricably linked to the rights of a 3rd party.(2) The is some barrier that limits the claimants’ ability to bring the claims themselves.Barnes: This is a good standing summary case for showing how to apply the standing Qs: A) Art III standing and B) Prudential standing.

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Case Fact Nugget, Issue Holding Etc Rule/DPBarrows v. Jackson, 346 U.S. 249 (1953) [Policy decision, white man sues to allege the unconstitutionality of a racially discriminatory land covenant] p. 57

Statement:White landowner sues to challenge the constitutionality of a racially discriminatory real covenant that he is a

party to, stemming from his desire to rent his property to black families. Issue:

Does this white property owner have standing to challenge this discriminatory real covenant?Holding:

Yes, he does have the requisite standing to challenge the constitutionality of this racially discriminatory real covenant b/c it would be difficult or impossible for blacks to challenge the constitutionality of the real covenant, as they are not parties to the covenant and would lack standing of their own.

Rule:Persons may sue to protect the rights of 3rd parties not before the ct. when 2 requirements are met:

(1) the relationship between the parties is such that the person suing may effectively advocate for the right, and;

(2) there are genuine obstacles to the 3rd party asserting their own rights. Craig v. Boren, 429 U.S. 190 (1976) [Bartender sues b/c OK law permits 18 year old girls to buy beer, but not 18 year old guys] p. 57

Statement:Bartender sues to challenge the constitutionality of an OK law that permits 18 year old girls to buy 3.2%

alcohol beer, but denies 18 year old guys the same right.Issue:

Does this bartender have standing to challenge this discriminatory alcohol law?Holding:

Yes, he does have the requisite standing to challenge the constitutionality of this discriminatory alcohol law b/c he has suffered an “actual injury”, as this biased law has materially effected his business by denying him all of his male customers between the ages of 18 and 21



(2) there are genuine obstacles to the 3rd party asserting their own rights. “Vendors and those in like positions have been uniformly permitted to resist efforts at restricting their

operations by acting as advocates of 3rd parties who seek access to their market or function.”Gilmore v. UT, 429 U.S. 1012 (1976) [Mother seeks to attain stay of execution and habeas corpus writ on behalf of her death-row son, who has declined to do so] p. 57

Statement:Death row inmate, Gary Gilmore’s mother, sued on his behalf, as a “next-of-friend”, to stay his execution and

attain a writ of habeas corpus, stemming from her son’s choice not to do this on his own. Issue:

Does this mother have standing to sue on behalf of her death-row son to stay his execution?Holding:

No, she does have the requisite standing to sue to stay her son’s execution b/c her son “knowingly and intelligently” declined to pursue the stay and writ of habeas corpus on his own, thus effectively waiving his right to do so.



(2) there are genuine obstacles to the 3rd party asserting their own rights.

Persons may sue to protect the rights of 3rd parties not before the ct. when 2 requirements are met:(1) the relationship between the parties is such that the person suing may effectively advocate for the right, and;(2) there are genuine obstacles to the 3rd party asserting their own rights.

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Case Fact Nugget, Issue Holding Etc Rule/DPU.S. v. Richardson , Burger, 1974, p. 58

F: Richardson, A U.S. citizen sues to force the CIA to provide a constitutionally required regular listing of all its expenditures, per Art. 1, s. 9, cl. 7. Richardson, a taxpayer interested in activities of the Central Intelligence Agency, sued the Govt. to provide records detailing the CIA's expenditures.

I: Does a federal taxpayer have standing to force the Govt. to disclose expenditures of the CIA?

Burger: No, π lacks the proper standing to challenge the constitutionality of the CIA’s reporting scheme. Because whatever Richardson’s injury is it is one he shares “with all the members of the public,” and therefore his proper remedy is to lobby congress to change the law. Frothingham v. Mellon (1923):Ct. denied standing to a woman challenging the Federal Maternity Act of 1921 on the basis that it raised her income taxes. Her injury was a “comparatively minute, remote, fluctuating, and uncertain” impact on a taxpayer, and she failed to allege the kind of direct injury required for standing.

Flast v. Cohen (1968):Ct. announced a two-pronged standing test (a prudential test):(1) Requires allegations challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and; (2) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on the taxing and spending power.Assumes that Frothinham’s requirement of a concrete claim is met and then applies the 2 prong test.

Richardson’s claim fails the two-pronged taxpayer standing test from Flast : (1) His challenge is not directed at and Art. I, §8 Taxing and Spending power of Congress, rather he challenges the constitutionality of statutes regulating the CIA. (2) He alleges that these regulations violate the Art. I, § 9 requirement that the Govt. provide a regular accounting of all public money. “This is surely the kind of generalized grievance described in both Frothingham and Flast since the impact on him is plainly undifferentiated and common to all member of the public.”NO GENERALIZED GRIEVANCES.

Stewart and Marshall dissent: Prof skipped this in class.

R: Under Frothingham, the injury must be more than “remote, fluctuating and uncertain.”

In order to attain the taxpayer exception to the prudential rule against generalized grievances a π must make allegations:(1) Challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and; (2) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on Congress’ taxing and spending power.

Taxpayer status is not sufficient to confer standing to challenge the constitutionality of federal action unless the taxpayer alleges direct injury from the practice and not generalized grievances common to all members of the public.

DP: Ct. is saying that if no one can bring a claim, then it should be dealt with in the political arena. Ct. is ruling with issues of judicial economy in mind.

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Case Fact Nugget, Issue Holding Etc Rule/DPFlast v. Cohen , Warren, 1968, p. 61

F: Flast, as a taxpayer challenged federal legislation that financed the purchase of secular textbooks for use in religious schools. Flast argued that such use of tax money violated the Estab. Clause of the 1st Am. A Dist. ct. held that the fed. cts. should defer when confronted with taxpayer suits directed against federal spending programs.

I: Should the Frothingham barrier be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the 1st Am?

Warren: Yes, the πs do posses the requisite standing to challenge, on 1st amendment grounds, the constitutionality of the apportionment of funds under the Elementary and Secondary Education Act of 1965 to religious schools.(1) The πs are challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and are; (2) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on Congress’ taxing and spending power.

The framers saw the connection between the power to tax and spend and religious liberty. They intended to prevent the govt. from using its power to favor a given religion or religious institution.

The framers intended the Establishment clause as a limit on Congress; power to tax and spend.

Harlan dissent:Neither of the two parts of the majority’s taxpayer standing tests actually measures the taxpayer’s “stake in the outcome”.

Why would a taxpayer be more interested in expenditures made pursuant to Congress’ Art. 1, §8 power to tax and spend rather than expenditures affected through regulatory schemes.

Why would the taxpayers standing vary based on which portion of the Constitution has been violated.

R (A Prudential Test for Taxpayer Standing):In order to attain the taxpayer exception to the prudential rule against generalized grievances a π must make allegations:

(1) Challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and;

(2) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on Congress’ taxing and spending power. DP: The Ct. has held Flast limited to its facts and has only applied it in cases of Congressional expenditures that violate the Establishment Clause (even though the case itself just required a violation of a specific const. provision).

Case F/I Holding Etc Rule/DP

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Case Fact Nugget, Issue Holding Etc Rule/DPValley Forge Christian College v. Americans United for Separation of Church and State, Rehnquist, 1982, p. 64

F: Πs filed suit claiming that donation of the property to Valley Forge violated the Establishment Clause and that it deprived πs of the fair and constitutional use of their taxes.

I: Does a group of taxpayers have standing to bring suit alleging that a transfer of surplus Govt. property to a religious college violated the Estab. Clause?

Rehnquist: No standing. B/c the πs do not allege a violation of congressional authority under the taxing and spending power of Art. I, § 8, the suit does not meet the narrow conditions that allow for taxpayer standing (this is really an Art. IV, § 3 property issue). Also, the problem is that πs are challenging an ACTION of the Sec. of Health, Education and Welfare, NOT an act of Congress taken under its taxing and spending power. [Fails the Flast exception to generalized grievances]

Brennan and Marshall dissent:

“if the action violates the First Amendment it does so whether it is in the form of a cash donation or a land donation in support of the religious institution.”

Prof: Problem with this case is that the Flast test was just made up—the ct. could have constructed a similar test for the facts relevant to this case as well.DP: The Ct. here is limiting Flast to its facts to prevent the floodgates from opening.Prof says to take away from this case: If there’s a prudential analysis then the ct. is acknowledging that there is an injury.

Elk Grove Unified School Distr. v. Newdow , Stevens, 2004, p. 17 supp.

F: π thinks that “under God” is unconst. and violative of the 1st Am.I: Does dad have standing to bring this claim?

Stevens: Ct. presumes Art III standing b/c the Calif. state ct. found it and so they address prudential standing. Newdow lacks 3rd party standing to sue on behalf of his daughter. The girl’s mother has legal custody AND the ct. was unwilling to get involved in a domestic relations matter. Ct. does not say that this is a generalized grievance, but focuses on the dom. relations issue as a way of not finding standing—BUT the domestic relations issue has already been resolved by the Cali ct.. Ct. also says that Newdow might not be similarly situated as his daughter.

Rehnquist, O’Connor, and Thomas concurrence: The majority’s use of standing, specifically a family law exception to standing, masks the real issue.The pledge of allegiance is a patriotic exercise, not a religious exercise.Further more it is a voluntary exercise.

Prof: Ct. makes up a rule in that its trying to be prudent by staying out of the issue b/c the ct. feels that the case is harming the daughter. Ct. is using prudential concerns to get out of saying that the pledge is unconst. or const.

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Case Fact Nugget, Issue Holding Etc Rule/DPStanding Post Newdow:

In order to sue in federal ct. a π must satisfy constitutional and prudential standing:o 3 Constitutional Requirements for Standing:

(1) Injury: Alleging that πs have suffered or imminently will suffer a personal injury. (2) Causation: Alleging the injury is fairly traceable to the ∆’s conduct. (3) Redress: Alleging that a favorable federal ct. decision is likely to redress their injury.

o 2 Prudential Requirements for Standing: (1) Asserting only their own rights and not raising the claims of 3rd parties not before

the ct. (2) Not suing as taxpayers who share a grievance in common with all other taxpayers. No

generalized complaints. (3) Domestic Relations:

It is improper for the federal ct.s to entertain a claim by a π whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the π's claimed standing.

Standing Summary: Is there a case and controversy?

Art. III Standing? [Test Post Allen & Lujan]:

o (1) have suffered a concrete injury in fact or be facing imminent harm from a probable injury in fact; o (2) π’s harm must be likely traceable to ∆’s conduct, not primarily the result of 3rd parties not before

the ct.;o (3) it must be likely that a favorable verdict will redress the π’s harm; Redressability must be likely as

opposed to speculative.

Prudential Standing?:

o Generally, NO 3RD PARTY SUITS.

Persons may sue to protect the rights of 3rd parties not before the ct. if & only if 2 requirements are met [Singleton v. Wulff]:


(2) there are genuine obstacles to the 3rd party asserting their own rights. Newdow Rule:

It is improper for the federal ct.s to entertain a claim by a π whose standing to sue is founded on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the π's claimed standing.

o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].

“The impact on the π is plainly undifferentiated and common to all member of the public.” A “prudential principle” preventing standing when the asserted harm is a generalized

grievance shared in substantially equal measures by all or a large class of citizens. The prohibition against generalized grievances prevents individuals from suing if their only

injury is as a citizen or taxpayer, concerned with having the government follow the law. Exceptions:

(1) Flast taxpayer exception: In order to attain the taxpayer exception to the prudential rule against generalized grievances a π must make allegations [has gen. been restricted to 1st amendment Est. Clause claims.];

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o (i) Challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and;

o (ii) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on Congress’ taxing and spending power.

2 Flast Nexuses: o (i) A connection between the taxpayer and the allegedly unconstitutional

legislation.o (ii) A connection between the taxpayer and the infringement.

(2) Statutory right to sue

c. Ripeness: The 3rd Major Justiciability Doctrine Ripeness, like mootness is a justiciability doctrine determining when review is appropriate. Ripeness and mootness determine when the litigation may occur.

o Specifically the Ripeness doctrine exists to separate matters that are premature for review because the injury is speculative and never may occur, from those cases that are appropriate for federal ct. action.

In order for the case to be ripe, the π might show that review is not premature: o a π must demonstrate that a harm has occurred or imminently will occur.

There is an unfairness, however, to require any person to violate a law in order to challenge it.o A primary purpose of the declaratory judgment act was to permit people to avoid this choice and

obtain a preenforcement review of statutes and regulations. Ripeness then is best understood as the determination of whether a federal ct. to grant preenforcement

review. Poe v. Ullman Abbot Laboratories v. Gardner United Public Workers v. Mitchell International Longshoremen’s and Warehousemen’s Union, Local 37 v. Boyd Regional Rail Reorganization Act Cases Lake Carriers Association v. MacMullan

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Case Name Facts & Issue Holding Dissent RulePoe v. Ullman, 367 U.S. 497 (1961) p. 67

ct. review of the constitutionality of a CT statute that prohibits medical advice regarding contraceptives, the S. Ct. determines that this case is not ripe for a few b/c Connecticut has not enforced the statute

F: An old Connecticut law prohibited the use of contraceptive devices and the giving of medical advice in the use of those devices. The law also applied to married couples. The CT AG threatened to enforce the law against three individuals in this case including Jane Doe (Doe v. Pullman). Mrs. Doe, having recovered from a tough pregnancy which threatened her life and left her with several emotional and physical disabilities, was informed by her physician that any additional pregnancies could be fatal. She challenged the CT law since it criminalized her use of contraceptives.

I: Is this issue constitutionally ripe for Ct. determination, when the individuals in Q have not been prosecuted under the statute that is alleged as unconstitutional?

Frankfurter:No, this issue is not constitutionally ripe for federal Ct. determination b/c the individuals in Q have not been prosecuted under the statute that is alleged as unconstitutional. The Ct. found no sense of "immediacy which is an indispensable condition of constitutional adjudication."

"It is clear that the mere existence of the state penal statute would constitute insufficient grounds to support a federal ct.s adjudication of its constitutionality and proceedings brought against the state's prosecuting officials if real threat of enforcement is wanting.”

Douglas:The majority's decision leaves these πs in a terrible predicament: break the law and face the penalties or try to avoid detection. This is an uncivilized way to conduct our medical consultations. The πs deserve a resolution of the issue.

What are these people and their Dr. to do? Flout the law and go to prison? Violate the law surreptitiously and hope they will not get caught? By today's decision we leave the no other alternatives.

The declaratory judgment of a state ct. upholding a statute on the books does not make the issue of that statute’s constitutionality ripe for federal ct.s termination when the state has not and likely will not prosecute under the statute.

a case is considered "ripe" for federal Ct. purposes when:(1) the issues presented are appropriate for judicial decision and;(2) the parties would face hardship if the ct. declined to hear the case

Ct.’s Perception of Inevitability of Enforcement is Key!

Case Name Facts & Issue Holding RuleAbbott Laboratories v. Gardner, 387 U.S. 136 (1967) P. 69

a group of pharmaceutical companies is challenging the authority of the Commissioner of the Department of Health education and welfare, in relation to his ability to promulgate a regulation that requires re-labeling of the pharmaceutical company's products.

F: In 1962 Congress amended the Federal food drug and cosmetic act to require manufacturers of prescription drugs to print the GENERIC NAME of the drug prominently into an type at least half as large as that used thereon for any proprietary name.A number of drug companies sued, arguing that the Commissioner had exceeded his authority. The drug companies alleged to comply with order would be very expensive.

I: Is this case ripe for review when the law at issue hasn’t actually been enforced yet?

Harlan: Yes, we believe the issues presented are appropriate for judicial resolution at this time. The issue is purely a legal one, with a statue that was properly construed by the Commissioner to require the establish name of the drug to be used every time the proprietary name is employed."This is also a case in which the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review."

A case is considered "ripe" for federal Ct. purposes when:(1) the issues presented are appropriate for judicial decision and;(2) the parties would face hardship if the ct. declined to hear the case

DP: The only true way to distinguish Abbott from the non-ripe Poe case is the inkling that the law will actually be enforced here.

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Case Name Facts & Issue Holding RuleUnited Public Workers v. Mitchell, 330 U.S. 75 (1947) P. 70 [similar to Poe]

F: a lawsuit was filed by a group of federal workers challenging the constitutionality of the Hatch act of 1940, which prevented federal employees from taking "any active part in political management or political campaigns". The π sought a declaratory judgment for the law violated their First Amendment rights.


The claims of these πs are not ripe for judicial review.The π here clearly seek advisory opinions upon broad claims a hypothetical threat is not enough. [But, πs actually submitted affidavits stating specifically the activities they would take part in.]

a case is considered "ripe" for federal Ct. purposes when:(1) the issues presented are appropriate for judicial decision and;(2) the parties would face hardship if the ct. declined to hear the case.


International Longshoreman's & Warehouseman's Union local 37 v. Boyd, 347 U.S. 222 (1954) P70: [similar to Poe]

F: A group of resident aliens of the U.S. sued to ensure that they would be able to return the U.S. after leaving to go to Alaska to obtain work. The alien suit to enjoin US immigration officers from preventing a return to the U.S. after working Alaska, which at this time was merely a U.S. territory.


These πs claims are not ripe for judicial review.The ct. found that the situation was "hypothetical" and concluded that "determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves two remote and abstract an inquiry for the proper exercise of the judicial function." [But, who can sue for these πs if they cannot re-enter the U.S. to bring suit?]

a case is considered "ripe" for federal Ct. purposes when:(1) the issues presented are appropriate for judicial decision and;(2) the parties would face hardship if the ct. declined to hear the case


Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974) p. 71: [similar to Abbott]

F: 8 major railroads brought a lawsuit challenging the conveyance of their property to Conrail.The Dist. Ct. found the case not justiciable on ripeness grounds b/c the reorganization plan had not yet been formulated and special ct. had not yet ordered the conveyances.


The S. Ct. held that the case was ripe, concluding: "where the inevitability of the operation of a statute against certain individuals is patent, it is a relevant to the existence of interest controversy that there will be a time delay before the disputed provision will come into effect."



Lake Carriers Association v. McMullen, 406 U.S. 498 (1972) p. 71: [similar to Abbott]

F: A state law prohibited the discharge of sewage from boats. Πs challenge the statutes validity. State officials announced that they would not enforce the law until land-based pump-out facilities would be available.


Even though enforcement was many years in the future the ct. found that the suit was ripe b/c it was inevitable that the law would be enforced and that as a result the boat owners had to begin installing new facilities on their boats in anticipation of the time when the law would be implemented.



d. Mootness: The 4th Major Justiciability Doctrine a π must present a live controversy at all stages of federal ct. litigation.

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If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot. Also, if the party settles the matter, a live controversy obviously no longer exists. If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber). Exceptions to the mootness doctrine :

o (1) wrongs “ capable of repetition yet evading review” . o (2) a second major exception to the mootness doctrine is Voluntary cessation . o (3) a properly certified class-action suit may continue even if the named πs claims are rendered

moot, so long as the members of the class have a live controversy. Moore v. Ogilvie Roe v. Wade Defunis v. Odegaard Friends of the Earth, Inc. v. Laidlaw Environmental Services United States Parole Commission v. Geraghty

Case Name Facts & Issue Holding RuleMoore v. Ogilvie, 394 U.S. 814 (1969) P. 72: [elections and "the capable of repetition yet evading review" exception to the mootness doctrine]

F: An Illinois law required a new political party to obtain petitions from 200 qualified voters in each of at least 50 counties in order to be included on an election ballot. In 1968 the πs filed petitions for inclusion on the ballot, but were denied this b/c they did not meet the requirement for the number of signatures in each county. They immediately filed suit, but, of course, the election was over by the time the S. Ct. heard the case.

I: Are the π’s claims moot b/c the election has ended.

The S. Ct. granted standing in the case in spite of the fact that it was technically moot b/c "the case was capable of repetition, yet evading review."New elections will have the same problem.

Suits which are capable of repetition yet evading review due to the nature and length of a judicial proceeding are justiciable despite technical mootness.

Roe v. Wade, 410 U.S. 113 (1973) P. 72: ["the capable of repetition yet evading review" exception to the mootness doctrine]

F: Roe, a TX resident, sought to terminate her pregancy by abortion. Texas law prohibited abortions except to save the pregnant woman's life. At a time she filed her suit in 1970 she was in the first trimester of her pregnancy and seeking an abortion. When the S. Ct. decided her case in 1973, she was no longer pregnant.

I: Are the π’s claims moot b/c she is no longer pregnant?

This π had standing in spite of the fact her case was technically moot b/c "pregnancy provides a classic justification for a conclusion of non-mootness. It truly could be capable of repetition, yet evading review.

Suits which are capable of repetition yet evading review due to the nature and length of a judicial proceeding are justiciable despite technical mootness.

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Case Name Facts & Issue Holding RuleDefunis v. Odegaard, 416 U.S. 312 (1974) P. 73: [Acceptable Voluntary Cessation, WA law school says he can finish]

F: DeFunis was denied admission to the UW Law School despite test scores that were higher than some of the minorities admitted. The π a white male was denied admission to the University of Washington school of Law he filed suit challenging his denial that mission on the ground that the university's affirmative action program denied him equal protection. The π received a preliminary injunction was allowed to attend the law school while the suit was pending. But the time the case reached the S. Ct. the π is a third-year law student. The university stay that he would be allowed to finish school the matter what the ct.'s ruling.

I: Is π’s case moot and therefore outside the scope of judicial review?

Per Curiam: This π will never again be required to attempt to admission into this law school, and so the Q is certainly not capable of repetition so far as he is concerned. This case therefore in no way presents the exceptional situation in which the doctrine might permit a departure from the usual rule in federal cases that an actual controversy must exist at all stages of appellate or certiorari review, and not simply at the date the action is initiated.

Where the legal contention between the parties ceases to be “definite and concrete” and no longer “touch[es] the legal relations of parties having adverse legal interests" it is moot.

Friends of the Earth, Inc. v. Laidlaw Environmental Services, 120 S. Ct. 693 (2000) P. 74: [In order to moot a case ∆’s voluntary cessation must make it absolutely clear that the allegedly wrongful behavior could not be expected to recur]

Invalid Voluntary Cessation

F: An environmental group is suing the Laidlaw Corp. for declaratory and injunctive, the holder of a National Pollutant Discharge Elimination System permit based on a citizen suit provision of the Clean Water Act, alleging that Laidlaw violated Mercury discharge limits. During the course of the lawsuit, which went on for several years, the ∆ Laidlaw Corp. voluntarily achieved compliance with its NPDES permit and also “closed” its offending facility.

I: Is π's suit moot b/c of Laidlaw's sudden compliance with the Clean Water Act?

O’Connor: no, the ∆'s voluntary achievement of compliance and facility closure do not automatically moot this case. The ∆ bears the burden of proving to the trial ct. that there is no reasonable chance that it could resume its violations. The ∆ must show that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

A ∆'s voluntary cessation of allegedly wrongful actions does not make a lawsuit moot unless it is absolutely clear that the allegedly wrongfully behavior is not expected to recur.

The ct. is attempting to prevent polluters from simply stopping allegedly wrongful activities in order to moot a lawsuit and then resuming the wrongful activities as soon as the lawsuit has been dismissed as moot.

DP: This exception is especially important to the ct.s b/c it helps avoid the type on-again off-again dispute that ties up ct. resources without bringing finality to the case.

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Case Name Facts & Issue Holding RuleU.S. Parole Commission v. Geraghty, 445 U.S. 388 (1980) p. 75: [the class action exception to the mootness doctrine]

Blackmun

F: Federal prisoner is challenging the validity of the U.S. parole commission's parole release guidelines, after having been twice denied parole from a federal prison. The π sought to be the named π to represent the class of all federal prisoners eligible for parole now or in the future. The District Ct. granted summary judgment in favor of the federal parole board. Π appealed both decisions, but was released from prison while the appeal was pending. The other prisoners that would have been members of the class move to have themselves substituted as the named πs in the case.

I: Is this attempted class action now moot b/c the likely named π no longer has an active case or controversy against the federal parole board?

No, this case is not moot b/c a dispute remains between the members of the potential class and the ∆, federal parole board, the mootness of the named π's case does not prevent the appellate ct.s from considering an appeal of the class certification denial. It is clear the controversy over the validity of the parole release guidelines is still a "live" controversy between petitioners and at least some members of the class respondent seeks to represent.

The claims in a class action do not necessarily become moot if the individual claims of the representative π become moot.

There is a class action exception to the mootness doctrine, were the claims of the individual representative π become moot but the claims of the class as a whole are not moot.

Barnes Says: This looks like prudence usurping Art. III constitutional concerns.

At some point there is no case in this claim, as there was never a class action and the case become moot for the only real π.

Ripeness Summary

A case is considered "ripe" for federal Ct. purposes when:o (1) the issues presented are appropriate for judicial decision and;o (2) the parties would face hardship if the ct. declined to hear the case

Ct.’s Perception of Inevitability of The Law’s Enforcement is Key! o Cf. Poe v. Ullman (State Anti-Contraceptive Law, not enforce for years.)w/ Abbott with Laboratories v.

Gardner (Congress’s recent passage of a pill container labeling act that will be enforced.)

Mootness Summary

π must present a live controversy at all stages of federal ct. litigation. If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot [Defunis v.

Odegaard]. Also, if the party settles the matter, a live controversy obviously no longer exists. If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber). Exceptions to the mootness doctrine :

o (1) wrongs “ capable of repetition yet evading review” [Moore v. Ogilvie & Roe v. Wade].o (2) a second major exception to the mootness doctrine is Voluntary cessation . [Friends of the Earth, Inc. v.

Laidlaw Environmental Services] A ∆'s voluntary cessation of allegedly wrongful actions does not make a lawsuit moot unless it is

absolutely clear that the allegedly wrongfully behavior is not expected to recur.o (3) a properly certified class-action suit may continue even if the named πs claims are rendered moot, so long as

the members of the class have a live controversy [U.S. Parol Comm. v. Geraghty]

e. The Political Q Doctrine: The 5th Major Justiciability Doctrinei The Political Q Doctrine Defined

The S. Ct. has held that some constitutional provisions are left to the political branches of Govt. to interpret and enforce.

Although there is an allegation that the Constitution has been violated, the federal ct.s refuse to rule and instead dismiss the case, leaving the constitutional Q to be resolved in the political process.

Critics of the political Q doctrine argue that it is wrong to leave some constitutional provisions solely to the political branches to interpret and enforce.

But the political Q doctrine is defended on separation of powers grounds.

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o The Constitution is seen as assigning certain provisions to the other branches of Govt..o Moreover, defenders of the political Q doctrine argue that it minimizes judicial intrusion into the

operations of the other branches of Govt. and that allocates decisions to the branch of Govt. that have superior expertise in particular areas.

What is a Political Q? The Issue of Malapportionment

PQD Issues: o (1) Malapportionmento (2) Congressional self-governance Qso (3) Foreign policy Qso (4) Impeachmento (5) Military, Commander and Chief Qs (really foreign policy Qs)

Think policy, what is the appropriate role of the federal judiciary. Its en vogue now.

Baker v. Carr is the most famous articulation of the criteria for determining what is a political Q.o Baker involves a Q of whether an equal protection challenge to malapportionment of State

legislatures is a non-justiciable political Q. Before Baker, challenges to malapportionment were usually based on "the guarantee clause", article IV, §

4 of the U.S. Constitution.o Luther v. Borden (1849):

the Rhode Island Legislature had passed an apportionment plan that was grossly unfair. As a result a group of Rhode Island citizens sued the Rhode Island Legislature in federal

ct. alleging that the unfair apportionment plan violated article IV § 4 of the U.S. Constitution, which provides "the U.S. shall guarantee to every state in the union a republican form of Govt., and shall protect each of them against invasion; and on application of the Legislature, or the executive (when the Legislature cannot be convened) against a mastic violence."

Holding : this case poses a political Q that cannot be decided by federal Ct.

o "under this article of the Constitution it rests with Congress to decide what Govt. is the establish one in a state. Force the U.S. guaranteed to each state a Republican Govt. Congress must necessarily decide what Govt. is established in the state for it can determine whether it is Republican or not."

o The S. Ct. has never varied from this holding: cases under the guarantee clause are non-justiciable, Colgrove v. Green followed this in refusing to adjudicate a challenge to malapportionment under the guarantee clause.

o The issue and Baker v. Carr is whether the same challenge is justiciable when brought under the equal protection clause instead of the guarantee clause.

Baker v. Carr Vieth v. Jubelirer (Supp)

Political Gerrymander Cases

Case Name Facts & Issue Holding Dissent Rule

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Baker v. Carr, 369 U.S. 186 (1962) P. 78: [guarantee clause malapportionment claims are non-justiciable political Qs, but due process clause malapportionment claims are not non-justiciable political Qs]

Brennan

F: Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state's General Assembly was virtually ignored. Baker's suit detailed how Tennessee's reapportionment efforts ignored significant economic growth and population shifts within the state. TN apportionment favored rural over urban districts.

I: Is a malapportionment claim based on the equal protection clause of the 14th amendment as opposed to the guarantee clause of article IV a non-justiciable PQ?

Brennan:No, a malapportionment claim under the 14th amendment as opposed to a malapportionment claim under the guarantee clause is not always a non-justiciable PQ.

Malapportionment cases brought under the guarantee clause and other PQ cases are non-justiciable b/c of the delicate relationship between the judiciary and the coordinate branches of the federal Govt., and not the federal judiciary's relationship with the states.

The Q in this case relates to the relationship between the federal judiciary any state legislature not the relationship to the federal legislature any other coordinate branches of federal Govt..

Frankfurter:This case is exactly the same as the guarantee clause in malapportionment case.The πs’ claim here should be deemed a non-justiciable PQ regardless of whether it's basis is the guarantee clause or the 14th amendment's due process clause.Apportionment is exceedingly complex, and does not lend itself to judicial determination.Brennan violated his own test by not producing a manageable and discoverable standard for addressing and redressing these claims.

The guarantee clause may not be used as a source of a constitutional standard for invalidating state action, but an EP claim may be so used where it does not implicate PQ.

Brennan's PQ test:(1) a constitutionally demonstrable commitment of the issue to a coordinate political department (more constitutional);(2) a lack of judicially discoverable manageable standards for resolving it (more prudential);(3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion (more prudential, but C/P);(4) the impossibility of the ct.s undertaking independent resolution without expressing lack of the respect due coordinate branches of Govt. (more prudential);(5) an unusual need for unquestioning adherence to a political decision already made (more prudential);(6) Sees potential for embarrassment from multifarious pronouncements from different branches (more prudential, but C/P).

Case Name Facts & Issue Holding RuleDavis v. Bandemer, 478 U.S. 109 (1986) P. 81 [a political gerrymander violates the principle one-person one-vote that was enunciated in Reynolds first sentence]

F: The π claimed that the Republican dominated Indiana Legislature created a political gerrymander, and that this was a violation of the equal protection clause of the 14th amendment.

I: Is the Q of whether this IN re-districting plan is a “political gerrymander” a political Q that the ct. cannot review as a case or controversy?

The S. Ct. held the claim was justiciable."The standards that we set forth here for adjudicate his political gerrymandering claim are no less manageable in the standards that have been developed for racial gerrymandering claims.""Political gerrymandering cases are properly justiciable under the equal protection clause.”

Political gerrymandering is not always a non-justiciable PQ.

Three more important areas where the political Q doctrine has been applied:(1) challenges to restrictions on congressional membership, or the political Q doctrine was rejected;(2) challenges to the president's conduct the foreign-policy;(3) to seize challenges to the impeachment process, where the political Q doctrine was applied.


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Vieth v. Jubelirer, 124 U.S. 1769 (2004) supp. p. 31: [Plurality Opinion: counter to Davis v. Bandemer there is no reliable standard to identify a “political gerrymander”]

Scalia

F: A group of PA voters is challenging the most recent iteration of the congressional districts, as drawn by the Republican dominated PA legislature. They claim that the map is a “political gerrymander”. The population figures from 2000 give PA 19 House representatives. At the time the new map was drawn the PA legislature was Republican dominated, as well as the office of Governor. 2002 the plan was passed. πs, registered Democratic voters in PA, brought suit challenging the new map as a “political gerrymander,” seeking to enjoin implementation of the new district lines.

I: Is the Q of whether this PA re-districting plan is a “political gerrymander” a political Q that the ct. cannot review as a case or controversy?

Scalia:Yes, this is a non-justiciable PQ b/c there is no reliable means for determining when there has been a political gerrymander or for determining the proper remedy to relieve an alleged gerrymander.

“Sometimes the law is that the judicial dept. has no business entertaining the claim of unlawfulness.”

Fails (2) Of the Baker Test: a lack of judicially discoverable in manageable standards for resolving it, is at issue here.

Bandemer did not issue a test for determining when a political gerrymander has occurred, or how one is properly redressed.There is no proper test to determine this Q, and it is outside of our review as it is a “non-justiciable’ political Q.

Stevens:We can properly hear and redress racial gerrymanders, but not political gerrymanders?!The two are one in the same, they are discriminatory voting lines meant to dilute the power of voters who share specific characteristics.Reynolds v. Sims is still the standard, “one person, one vote.”Dissent (Souter & Ginsburg):Would adopt a prima facie structure for brining and maintaining a case for a political gerrymander.

After the elements had be prima facially met the burden would shift to the state to rebut the evidence and to provide legit justifications for the redistricting plan.

Scalia feels that this test does not state what it is testing for. Breyer:Our country is basically democratic, and we should start with that as our base.We cannot count on a severely gerrymandered legislature to right the situation itself, it has a stake in maintaining that same unconstitutional structure.The “anti-apartheid” argument, we shouldn’t allow an entrenched minority to monopolize political power in a state. Scalia says it would be impossible to tell when a minority has illegally entrenched itself.

(1) “Political Gerrymanders” are always a non-justiciable PQ, as there is no reliable test, nor will there ever be a reliable test, to identify political gerrymanders. [Scalia]

• or

(2) Currently there is no reliable test for determining and redressing political gerrymanders, and until such a test is announced political gerrymanders are a non-justiciable political Q [Kennedy’s Concurrence].

DP: It is unclear what the end result is under this line of cases, only Rehnquist and Thomas fully concurred with Scalia, so in the future the ct. may address a particularly egregious case of political gerrymandering, a la Kennedy’s concurrence.

ii The Political Q Doctrine Applied: Congressional Self-Governance Powell v. McCormack

Congressional Qualifications & Term Limits

Case Name Facts & Issue Holding Rule

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Powell v. McCormick, 395 U.S. 486 (1969) P. 81: [issues relating to the qualifications of Congress are not always non-justiciable political Qs]

Warren, C.J.

F: Adam Clayton Powell pecked at his fellow representatives from his unassailable perch in NY's Harlem. Powell had been embroiled in controversy inside and outside Washington. When Powell failed to heed civil proceedings against him in NY, a judge held him in criminal contempt. His problems were only beginning. He won reelection in 1966 but the House of Representatives voted to exclude him.

I: May the House of Representatives exclude a duly elected member if the member has satisfied the standing requirements of age, citizenship and residence as articulated in Article I § 2 of the U.S. Con?

Warren, C.J.:No, this is not a non-justiciable PQ b/c the text of the Con does not commit to Congress a blanket authority to determine whether to seat a member a lacked, the ct.s are not barred from deciding issue."The main principle of our representative democracy is, in Hamilton's words, that the people should choose whom they please to govern them."Allowing Congress to refuse to seat duly elected members of Congress who meet all the qualifications listed in the Con, via a bare majority, would effectively nullify the convention's decision to require a two thirds vote for expulsion.The phrase "to be the judge of the qualifications of its own members" indicates that the Congress may judge whether its members adequately meet those qualifications listed in article 1.

The text of the Con does not specifically commit the issue in the case to congressional resolution; therefore the PQD does not bar the federal ct.s from deciding a case concerning Congress's powers to determine its membership.

Congress, under Art. I, § 5 is the judge of the qualifications of its members, but these qualifications are specified in and limited to the qualifications set forth in Art. 1, § 2.

Congress cannot make up new qualifications, which are not present in Art. I.

To allow this would be a back-door exception to the Constitution’s requirement for a 2/3 supermajority to expel a duly elected member of Congress.

Term Limits Are Unconstitutional

U.S. Term Limits, Inc. v. Thornton (1995):S. Ct. declared a state law unconstitutional that prevented candidates for Congress from being listed on

the ballot after they had served a specified number of years.Art. I sets the only permissible qualifications for members of Congress.

Cook v. Gralike, 531 U.S. 510 (2001):S. Ct. declared unconstitutional a MO law that “instruct[s]” each member of that state’s congressional

delegation “to use all of his or her delegated powers to pass a Congressional Term Limits Amendment.”

The Political Q Doctrine Applied: Foreign Policy The ct. has declared that “it is error to suppose that every case or controversy which touches foreign

relations lies beyond judicial cognizance.” Baker v. Carr, 369 U.S. 186 (1962) Brennan, J., quoted in El’Shiffa But, the ct. has held most foreign affairs cases to be non-justiciable political Qs. Oetjen v. Central Leather Co. (1918)/Goldwater v. Carter Rehnquist, CJ:

o The conduct of foreign relations is committed to the Executive and the Legislature, the political branches of govt., and the ct.’s should refrain from interfering.

Goldwater v. Carter The Political Q Doctrine Applied: Impeachment and Removal El Shifa (Handout) Nixon v. United States

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Case Name Facts & Issue Holding Etc RuleGoldwater v. Carter, 444 U.S. 996 P. 84: [President’s power to terminate treaties w/out Senate consent and the Political Q Doctrine]Rehnquist

F: In order to begin trade and formal relations w/mainland China, communist China required that the U.S. end formal agreements and recognition of Taiwan. This is known as the “one China Policy”.President Carter rescinded the mutual protection treaty w/Taiwan in recognizing mainland China.Congress took no official action, although the Senate considered a resolution declaring that Senate approval is necessary for the termination of any defense treaty, however no final vote occurred. Art. 2, § 2, cl. 2 provides that the President must make treaties “with the advice and consent of the Senate”, but there is no constitutional provision for the procedure in terminating a treaty.

I: Is Q’ing of the President’s ability to terminate a defense treaty w/out the advice and consent of the Senate, where the Senate itself has taken no official action challenging the termination, a non-justiciable PQ.

Rehnquist:Yes, this is a non-justiciable PQ.Art. 2, § 2, cl. 2 provides that the President must make treaties “with the advice and consent of the Senate”, but there is no constitutional provision for terminating a treaty.Baker non-justiciable PQ (1): a constitutionally demonstrable commitment of the issue to a coordinate political department (more constitutional);This is a foreign relations case and requires extreme deference to the Executive, especially where the Senate has not taken any official action challenging its authority to terminate the treaty.

Concurrence in The Judgment Powell:Would dismiss the case on ripeness grounds, as opposed to political Q grounds.

There has been no official clash between the coordinate branches of the Executive and the Legislature on this Q, until there is there is no Art. III case or controversy.

Concurrence in Part Dissent in Part Brennan:Congress has taken no official action.If however there was a clash on this Q it would be this ct.s duty to address the issue.The S. Ct. is the arbiter of what the Constitution means, so it would be for the ct. to decide if the President needs Senate “advice and consent” in terminating a treaty if there was in fact a clash on the issue between the President and the Senate.

Qs involving foreign policy are generally left to the executive and the legislature to resolve on their own.

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Case Name Facts & Issue Holding Etc RuleEl-Shifa v. U.S., 378 F.3d 1346 (U.S. Circuit Ct. 2004)

[Contra Rehnquist in Goldwater Simply b/c a case involves the Executive & FP does not automatically mean it’s a non-justiciable PQ.]

Clevenger

F: Al Qaeda bombed our African embassies. Clinton learned these factories had ties to Bin Laden. Clinton labeled this factory enemy property and ordered the Navy to cruise missile it. Factory owner claimed President Clinton mislabeled his property “enemy property.” The factory owner sued in the U.S. ct. of claims alleging a non-compensated 5th amendment taking.

I: Is the U.S. subject to suits in its own ct.s stemming from damage to foreign property, labeled by the president as “enemy property,” and damaged during the course of a military action commenced by the president? Is this a non-justiciable PQ?

Clevenger:No, the Con gives the president the power to label enemy property and targets, as the “commander and chief” of the U.S. armed forces. Allowing foreign 5th amendment takings cases against the U.S. due to legitimately ordered military actions would unconstitutionally infringe the president’s duties as “commander and chief.”However, even if an issue presents a political Q this does not end the ct.’s inquiry. Some political Qs must be heard and determined by the ct.’s.The ct.’s will not ex post facto review the legitimacy of the intelligence the president relied on.

This ct. did not technically say that this case involved a non-justiciable political Q, rather they said there was no manageable standard to review President Clinton’s actions.

The separation of powers did not encompass judicial supervision over the President's designation of enemy property, and thus judicial review of whether such designation is proper is precluded by PQD; such acts are covered by the President's inherent war powers.

The federal ct.s will not generally review the military decisions made by the President with in the capacity of “commander and chief” of the U.S. armed forces.

Courts should not always use the political Q doctrine to avoid deciding cases with political overtones or Qs that they might categorize simply as political.

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Case Name Facts & Issue Holding Etc RuleNixon v. U.S., 506 U.S. 224 P. 86: [Senate’s status as the trier of all impeachments and the Political Q Doctrine]

A federal district ct. judge is suing the U.S. Senate alleging that they failed to abide by the constitutional procedure for impeachment trials, in that his trial was not in front of the “entire Senate.”

Rehnquist

F: Nixon was a former chief judge in the U.S. District ct. for the S. District of MS.He was convicted by a jury of bribing a local DA to drop charges against a local businessman’s son, and taking bribes himself to do just that.While in prison Nixon continued to collect his salary and benefits as a federal judge. Senate brought 3 articles of impeachment for high crimes an misdemeanors against Nixon as a result.The senate used the Rule IX impeachment proceeding, in which Nixon’s hearing took place in front of a Senate committee, who published its findings to the rest of the senate who then voted to impeach Nixon. Nixon alleged that this violated Art. I, § 3, cl. 6 of the Constitution, which provides “the Senate shall have sole power to try all Impeachments. . . . And no person shall be convicted with-out the concurrence of 2/3 of the members present.”Nixon was convicted by over 2/3.

I: Is the Q of how the Senate should be required to carry on its Impeachment proceedings a non-justiciable PQ?

Rehnquist:Yes, this is a non-justiciable political Q.Baker non-justiciable PQ (1): a controversy is non-justiciable if the Con commits the issue to another branch of Govt.. Art. 1 § 3 clause 6 of the Constitution gives the Senate the sole power to try all impeachments.The word "sole" is of considerable significance. It means that only the Senate may determine whether someone should be acquitted or convicted of impeachment. Judicial review would be inconsistent with checks and balances b/c impeachment is the Legislature's only check on the judicial branch.The framers recognized, in addition to the impeachment proceeding, there would be a separate criminal trial that would involve the judiciary.

White:Disagrees that this Q will always be non-justiciable, although he concurs in the judgment.

Allowing judicial review would promote checks and balances by ensuring that the Senate adhered to a minimal set of procedural standards and impeachment trials.

Rule XI is compatible with the constitutions commanded the Senate trial impeachments.

Souter:This case is non-justiciable b/c we should adhere to a political decision that was already made b/c we should avoid the potential embarrassment of multiple decisions on a single Q.

Baker Rules 5 & 6: However, judicial review may be necessary if the Senate acted in a way that seriously threaten the integrity of its decision, convicting, say, upon a coin toss.

The power to try all impeachments is solely vested in the Senate, therefore the judiciary may not review the Senate's trial of an impeached official.

If Nixon's Senate hearing had been less comprehensive, as Justice Souter suggested, if the Senate had decided Nixon's fate on a coin toss, maybe the ct. would have ruled that it could review the Senate's procedures.

DP: Barnes says that PQD is ultimately a policy decision. IT depends on who is on the ct. and the fairness the ct. perceives in the political decision, which has already been made by another branch of the Govt.. If there is gross unfairness or the ct. feels it must act it will likely hear the case [Ex. Powell v. McCormick], however if there are serious risks posed to the courts legitimacy in hearing the Q or the ct. perceives fairness the ct. will likely rule the case is a non-justiciable PQD [Ex. Nixon v. U.S.]

Summary of Article III Justiciability limits (1) No Advisory Opinions (Constitutionally not a case or controversy)

o Ct. will not answer Qs of law submitted to it by the other branches of govt. when there is no case or controversy involved.

o Some scholars contend that Bush v. Gore was an advisory opinion as the FL election commission had not finished counting the votes.

All of the doctrines require that there is a “case and controversy.” o Advisory Opinion Doctrinal Progression:

Opinion Of the Justices [Per Curiam]: Rule: In order for a case to be justiciable and not an advisory opinion, there must also be a

substantial likelihood that a fed ct decision in favor of a claimant will bring about some change or have some effect.

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Hayburn (1792): Rule: S. Ct. will not review cases that ask for advisory opinions b/c they lack the necessary

qualities to create an Art. III “case or controversy.” Plaut v. Spendthrift Farms [Scalia] (1995):

Rule: S. Ct. will not support a law that requires it to reopen cases on which it has rendered a final judgment, to do so would effectively render the ct’s previous rulings mere advisory opinions [dismissal by S. Ct. is a final judgment!].

Nashville, C & St. L. Ry. V. Wallace [Stone] (1933): Rule: The case was justiciable “so long as the case retains the essentials of an adversary

proceeding, involving real, not a hypothetical, controversy.” (2) Standing:

o Art. III Standing? [Test Post Allen & Lujan]: (1) have suffered a concrete injury in fact or be facing imminent harm from a probable injury in fact; (2) π’s harm must be likely traceable to ∆’s conduct, not primarily the result of 3rd parties not before

the ct.; (3) it must be likely that a favorable verdict will redress the π’s harm; Redressability must be likely as

opposed to speculative.

o Prudential Standing?:

o Generally, NO 3RD PARTY SUITS. Persons may sue to protect the rights of 3rd parties not before the ct. if & only if 2 requirements are

met [Singleton v. Wulff]: (1) the relationship between the parties is such that the person suing may effectively advocate

for the right, and; (2) there are genuine obstacles to the 3rd party asserting their own rights.

Newdow Rule: It is improper for the federal ct.s to entertain a claim by a π whose standing to sue is founded

on family law rights that are in dispute when prosecution of the lawsuit may have an adverse effect on the person who is the source of the π's claimed standing.

o NO GENERALIZED GRIEVANCES [E.g. Frothingham & Richardson].

“The impact on the π is plainly undifferentiated and common to all member of the public.” A “prudential principle” preventing standing when the asserted harm is a generalized grievance shared

in substantially equal measures by all or a large class of citizens. The prohibition against generalized grievances prevents individuals from suing if their only injury is as a

citizen or taxpayer, concerned with having the government follow the law. Exceptions:

(1) Flast taxpayer exception: In order to attain the taxpayer exception to the prudential rule against generalized grievances a π must make allegations [has gen. been restricted to 1st amendment Est. Clause claims.];

o (i) Challenging an enactment under the Taxing and Spending Clause of Art. I, §8 of the Constitution, and;

o (ii) Claiming that the challenged enactment exceeds specific constitutional limitations imposed on Congress’ taxing and spending power.

2 Flast Nexuses: o (i) A connection between the taxpayer and the allegedly unconstitutional legislation.o (ii) A connection between the taxpayer and the infringement.

(2) Statutory right to sue (3) Ripeness Summary:

o A case is considered "ripe" for federal Ct. purposes when: (1) the issues presented are appropriate for judicial decision and; (2) the parties would face hardship if the ct. declined to hear the case

o Ct.’s Perception of Inevitability of The Law’s Enforcement is Key! Cf. Poe v. Ullman (State Anti-Contraceptive Law, not enforce for years.)w/ Abbott with Laboratories v.

Gardner (Congress’s recent passage of a pill container labeling act that will be enforced.)

(4) Mootness Summary

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o π must present a live controversy at all stages of federal ct. litigation.o If anything occurs while a lawsuit is pending to end the π's injury, the case is to be dismissed as moot [Defunis v.

Odegaard].o Also, if the party settles the matter, a live controversy obviously no longer exists.o If a challenged law is repealed or expires, the case is moot (ex. Ex Parte Yerber).o Exceptions to the mootness doctrine :

(1) wrongs “ capable of repetition yet evading review” [Moore v. Ogilvie & Roe v. Wade]. (2) a second major exception to the mootness doctrine is Voluntary cessation . [Friends of the Earth,

Inc. v. Laidlaw Environmental Services] A ∆'s voluntary cessation of allegedly wrongful actions does not make a lawsuit moot unless it

is absolutely clear that the allegedly wrongfully behavior is not expected to recur. (3) a properly certified class-action suit may continue even if the named πs claims are rendered moot, so

long as the members of the class have a live controversy [U.S. Parol Comm. v. Geraghty] (5) PQD

o Critics of the political Q doctrine argue that it is wrong to leave some constitutional provisions solely to the political branches to interpret and enforce.

o But the political Q doctrine is defended on separation of powers grounds. The Constitution is seen as assigning certain provisions to the other branches of Govt. Moreover, defenders of the political Q doctrine argue that it minimizes judicial intrusion into the

operations of the other branches of Govt. and that allocates decisions to the branch of Govt. that have superior expertise in particular areas.

o Brennan's PQ test: (1) a constitutionally demonstrable commitment of the issue to a coordinate political department (more

constitutional); (2) a lack of judicially discoverable manageable standards for resolving it (more prudential); (3) the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial

discretion (more prudential, but C/P); (4) the impossibility of the ct.s undertaking independent resolution without expressing lack of the

respect due coordinate branches of Govt. (more prudential); (5) an unusual need for unquestioning adherence to a political decision already made (more prudential); (6) Sees potential for embarrassment from multifarious pronouncements from different branches (more

prudential, but C/P).o PQD Issues:

(1) Malapportionment: (2) Congressional self-governance Qs (3) Foreign policy Qs (4) Impeachment (5) Military, Commander and Chief Qs (really foreign policy Qs)

Think policy, what is the appropriate role of the federal judiciary.

CHAPTER 2THE FEDERAL LEGISLATIVE POWER

Scope Of Congressional AuthorityA basic principle of American Govt. is a Congress may act only if there is an express or implied authority in

the Constitution, whereas states may act unless the Constitution prohibits the action.The 10th amendment declares: “the powers not delegated to the U.S. by the Constitution, nor prohibited by it to

the states, are reserved to the states respectively, or to the people.”In evaluating the constitutionality of any act of Congress, there are always two Qs:

(1) does Congress have the authority under the Constitution to legislate? (this requires defining the scope of the powers granted to Congress, particularly in Art. I, § 8 of the Constitution.

(2) If so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties?

B/w the late 19th C and 1937 and again in the past decade, concern for state govts has profoundly answered how the Ct has dealt w/ both Qs. The Ct during these times limited Congressional power to leave areas of governance to state govts. The Ct also directly protected state sovereignty, concluding that even valid exercises of legislative power are unconstitutional when they infringe upon state sovereignty. The Ct. has used the 10th amendment as the basis for this protection of state governments from federal encroachment.

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4 Federalism Periods of the Ct.:(1) early 1800s through 1890:

the ct. broadly defined Congress's powers under Art. I but seldom intervened on federalism and state sovereignty Qs.

(2) 1890 through 1937:the ct. limited Congress's powers under Art. I by interpreting the 10th amendment as an

affirmative limit that may restrict the scope of Congress’ proper exercise of authority.(3) 1930s until the 1990s:

the Ct. broadly defined the scope of Congress's authority under Art. I of the Constitution and refused to use the 10th amendment as a limit on federal power.

(4) late 1990s until present:the Ct. has returned to an interpretation of the 10th amendment that limits the scope of

Congress’ proper exercise of authority, when the ct. has determined that Congress’s use of this authority is restricting state's sovereignty.

Mc v. MD is the most important S. Ct. decision in American history defining the scope of Congress’s powers and delineating the relationship b/w the fed govt and the states.

A. Introduction: Congress and the States The Framework for Analysis McCulloch v. Maryland (Supp)

Case Fact Nugget, Issue Holding Etc Rule/DP

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McCulloch v. MD (1819) CJ Marshall p. 93

In 1816, Congress chartered the 2nd Bank of the US. In 1818, the MD passed legislation to impose taxes on the bank. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.

I: The case presented two Qs: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

Nugget: (1) the power to create implies a power to preserve Power to create = power to preserve(2) a power to destroy, if wielded by different hand, is hostile to, and incompatible with the powers to create and to preserve.Power to destroy ≠ preservation(3) where this repugnance exists, that authority which is S. must control, and will not yield to that over which it is S.. Power to tax = the power to destroy.

Ct held that Congress had the power to incorporate the bank and that MD could not tax instruments of the Natl. Govt. employed in the execution of constitutional powers. Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Const. Marshall also held that while the states retained the power of taxation, "the Const and the laws made in pursuance thereof are supreme they control the constitution and laws of the respective states, and cannot be controlled by them."

B/c the Const flows directly from the people, it, through the Supremacy clause, trumps the laws of the several states.

A narrow reading of the Const would render it useless in the face of changing times a call for flexible interpretations. Effective federalism necessitates broad interpretation of legislative powers, and this federalism necessitates the supremacy of fed over state laws.

Congress is not expressly granted the power to create a bank, it is however granted the power to regulate ISC, and the power to create a Natl. bank is one such power that is necessary and proper in order to carry into execution the power to regulate ISC.

Under the necessary and proper clause, Congress may enact legislation so long as it ends are legitimate under the Constitution and the legislation is appropriate and plainly adapted to those ends.

Policy: State govts and state entities taxing the fed Govt. and fed entities could conceivably bring the fed Govt. to its knees and create chaos, therefore MD cannot tax the fed Govt..

“The power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government a power to control the constitutional measures of another, which other, respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied.”

The Constitution and laws of the Union are supreme. o (1) the power to create implies a power to preserve

Power to create = power to preserveo (2) a power to destroy, if wielded by different hand, is hostile to, and incompatible with the powers to

create and to preserve. Power to destroy ≠ preservation

o (3) where this repugnance he exists, that authority which a supreme must control, not yield to that over which it is supreme.

Power to tax = the power to destroy. “It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to

modify every power vested in subordinate government, as to exempt its own operations from their own influence.”

What Role Should Concern over Protecting States Have in Defining Congress’s Power?

o Competing Interpretations of Congress’s powers:

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Should Congress's authority, under provisions such as the CC and the spending power in § 5 of the 14th amendment, be narrowly interpreted to leave more governance solely to the states?

Or should Congress’s powers be broadly defined without concern for preserving areas for state control?o Competing Interpretations of the 10th Amendment:

Should the 10th Am be enforced by the judiciary as a limit on Cong's powers so as to protect state govts?

Or should the 10th amendment be seen simply as a reminder that Congress can act only if it has express or implied authority, while states can act unless the Constitution prohibits the conduct?

o States’ Rights 10th Amendment Arguments: Decreasing the likelihood of federal tyranny, enhancing democratic rule by providing Govt. that is

closer to the people, and allowing states to be laboratories for new ideas. The states are closer to people and thus more likely to be responsive to public needs and concerns.

o However there's a danger that greater responsiveness increases the dangers of Govt. tyranny, as predicted by James Madison's faction argument in Federalist number 10.

The states serve as laboratories for experimentation.o Critics argue that this is a policy argument to be made to Congress against federal legislation

and not a judicial argument that should be used to invalidate particular federal laws on the grounds that they unduly limit experimentation.

o Two Key Normative Issues: (1) How important is the protection of state sovereignty and federalism? Those who oppose judicial protection of states as a limit on Congress’s power argue that Natl.

legislation is needed to deal w/ Natl. problems. The Ct should not circumscribe the scope of Congress’s authority or use the 10th Am to invalidate fed laws.

(2) Should it be the judiciary’s role to protect state prerogatives or should this be left to the political process?

One view is that judicial enforcement of federalism as a limit on Congress is unnecessary b/c the political process will adequately protect state Govt. interests.

o Wechsler argued that the interests of the states are represented the national political process and that the nature of that process provides sufficient protection of state sovereignty, thus making it unnecessary for the cts to enforce federalism as a limit on Congress.

B. The Commerce Power

article 1, § 8 of the Constitution states:“the Congress shall have the power to regulate commerce with foreign nations, among the several states, and

with Indian tribes.”4 Federalism Periods of the Ct.:

(1) early 1800s through 1890 [Broad Commerce Power]:the ct. broadly defined Congress's powers under article 1 but seldom intervened on federalism and

state sovereignty Qs.(2) 1890 through 1937 [Narrow]:

the ct. limited Congress's powers under Art. 1 by interpreting the 10th amendment as an affirmative limit that may restrict the scope of Congress’ proper exercise of authority.

(3) 1930s until the 1990s [Broad]:the ct. broadly defined the scope of Congress's authority under article 1 of the Constitution and

refused to use the 10th amendment as a limit on federal power.(4) late 1990s until present [Narrow]:

the ct. has returned to an interpretation of the 10th amendment that limits the scope of Congress’s proper exercise of authority, when the ct. views the use of this authority as restricting state sovereignty.

The commerce clause has two general purposes:(1) It provides Congress with the authority to affirmatively regulate all commerce that is not

exclusively founded in finish within the borders of a single state.(2) The commerce clause, without any affirmative declarations by Congress, acts as a limit on the

exercise of state power in the interstate commerce arena.

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Throughout these eras, there have been three Qs the ct. has considered:(1) what is "commerce"?(2) what does "among the several states" mean?(3) does the 10th amendment limit Congress? If Congress is acting within the scope of the commerce power,

can a law be declared unconstitutional as violating the 10th amendment?1. The Initial Era: Gibbons v. Ogden Defines the Commerce Power

Gibbons v. Ogden Case Name Facts & Issue Holding Etc RuleGibbons v. Ogden, 22 U.S. 1 (1824) p. 103 [Broad Commerce Power: Marshall uses the Con's grant to the federal Govt. of the power to regulate interstate commerce as a means to invalidate a NY steam boat ferry monopoly.]

Marshall

F: NY Legislature granted a monopoly to Fulton & Livingston for operating steamboats in NY waters; Fulton and Livingston licensed Ogden to operate a ferry boat between NYC and NJ. Gibbons operated a competing ferry service and thus violated the exclusive rights given to Fulton and Livingston by NY. Gibbons maintained that he had the right to operate his ferry b/c it was licensed under federal law as "vessels in the coasting trade." Ogden successfully sued for an injunction in the NY State ct.s. The S. Ct. reversed for Gibbons.

I: Did NY exercise authority in a realm reserved exclusively to Congress, namely, the regulation of interstate commerce?

Marshall:The NY licensing requirement for out-of-state operators is inconsistent with the congressional act regulating the coasting trade. The NY law is invalid by virtue of the Art. VI, cl. 2 Supremacy Clause. Marshall developed a clear definition of the word commerce, which included navigation on interstate waterways. He also gave meaning to the phrase "among the several states" in the Commerce Clause. Marshall concluded that regulation of navigation by steamboat operators and others for purposes of conducting interstate commerce was a power reserved to and exercised by the Congress.

The word "among" means intermingled with. “Intermingled” hints that intrastate commerce that affects interstate commerce in a way the ct. views as significant may be regulated by the federal govt.

All that Marshall leaves to the states is the power to regulate commerce that is wholly intrastate, that does not have a significant impact on interstate commerce. "The completely internal commerce of a state, then, may be considered as reserved to the state itself.”

The federal commerce power extends to all commerce among and between states and foreign nations, with only commerce having connections solely with a single state being unreachable under the commerce power.

DP: Commerce Clause Qs:(1) What is commerce? Intercourse, more than merely buying and selling.(2) What does “among the states” mean?“Intermingled”(3) What limits does the 10th Amendment Impose?Congress must act pursuant to a Constitutional grant of power. The states may do what is not prohibited by the Constitution, when doing so does not conflict with valid exercises of the federal govt.

The Daniel Ball, 77 U.S. 557 (1871) p. 105:the ct. accorded Congress broad authority to license ships, even as operate entirely in intrastate

commerce long as the boats were carrying goods that had come from another state or that ultimately would go to another state.

The ct. explained unsafe ships in intrastate commerce could affect and harm ships in interstate commerce.

U.S. v. Dewitt (1870) p. 105:a federal law outlawed the sale of naphtha and other illuminating oils that could ignite at less than

100°F.The ct. held that the law was "a police regulation, regulating exclusively to the internal trade of the

states."The ct. declared the law unconstitutional b/c it was "a virtual denial of any power to interfere with

internal trade and business of the separate states."The Trademark Cases (1878):

the ct. invalidated a federal law that established a federal system for registering trademarks.The ct. concluded that the law was unconstitutional b/c it applied to wholly intrastate businesses and

business transactions and therefore "is obviously the exercise the power not confided the Congress."

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2. The 1890’s – 1937: A Limited Federal Commerce PowerCongressional Power & The 10th Amendment 1890 - 1937: A Limited Federal Commerce Power, A Focus On

Business Stages, & Direct v. Indirect Effects

The ct. applied the 10th amendment to reserve a zone of activities for exclusive state control and invalidated federal laws that were w/in Congress’s commerce power that usurped state prerogatives.

The ct. applied three doctrines:o (1) a narrowly defined "commerce" (i.e. manufacturing ≠ Commerce)o (2) it applied a restrictive conception of what is "among the states"o (3) it held that Congress violates the 10th amendment when it regulates matters left to the state

governments. The S. Ct.'s majority during this era was deeply committed to laissez-faire, unregulated economy. The hostility to Govt. economic regulation reflected in federalism cases was followed by a parallel in the ct. also

invalidating state laws regulating the economy. This era was the first time in American history in which the ct. on a fairly regular basis invalidated important

popular federal and state laws.a. What is “Commerce”?

United States v. E.C. Knight Co. Carter v. Carter Coal Co.

b. What Does “Among the States” Mean? Houston, East & West Texas Railway Co. v. United States A.L.A. Schechter Poultry Corp. v. US

Case Name Facts & Issue Holding Etc Rule/DPU.S. v. E.C. Knight Co., 156 U.S. 1 (1895) p. 106: [Narrow Commerce Power: manufacturing is local in character, therefore Manufacturing ≠ Commerce, Commerce Power v. State Police Power]

Fuller

F: Congress passed the Sherman Anti-Trust Act in 1890 as a response to the public concern in the growth of giant combinations controlling transportation, industry, and commerce. The Act aimed to stop the concentration of wealth and economic power in the hands of the few. It outlawed "every contract, combination...or conspiracy, in restraint of trade" or interstate commerce, and it declared every attempt to monopolize any part of trade or commerce to be illegal. The E.C. Knight Company was such a combination controlling over 98 percent of the sugar-refining business in the U.S.

I: Is sugar refining commerce, which Congress may regulate via its power under article 1 § 8 of the Constitution?

Fuller:No, manufacturing is totally local in character, and therefore is not commerce subject to Congressional regulation. Rather, it is a local concern subject to local regulation.The federal Govt.'s commerce power should not be used so as to interfere with the states police powers, which included “the power of the state to protect the lives, health, and property of its citizens, and to preserve good order and the public morals.” Manufacturing ≠ Commerce: Manufacturing is incidental and indirect in terms of its impact on interstate commerce. "Commerce succeeds to manufacture, and is not a part of it. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed and is a power independent of the power to suppress monopoly.”

Harlan [echoes Marshall in Gibbons]: Under the commerce power Congress may remove any unlawful obstructions of whatever kind to the course of trade among the states.The Federal govt. has police powers too, and they trump state police powers.

Manufacturing directly effects interstate commerce.

Manufacturing is separate from "commerce" b/c it occurs before any goods are transported in interstate commerce, and thus the federal Govt. may not regulate manufacturing in and of itself.

Any effects manufacturing has on interstate commerce are incidental and indirect.

Congress can only suppress monopolies within its commerce power.

DP: Commerce Clause Qs: (1) What is commerce? Intercourse, not manufacturing or production.(2) What does “among the states” mean?Between more than one state, not intrastate local activity.(3) What limits does the 10th Amendment Impose?Congress must act pursuant to a Constitutional grant of power.Congress cannot violate traditional spheres of state power, like the states’ police power.

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Case Name Facts & Issue Holding Etc Rule/DPCarter v. Carter Coal Co., 298 U.S. 238 (1936) [Narrow Commerce Power: coal mining is akin to production and manufacture, and hence is not “commerce” that Congress is permitted to regulate] p. 108

Sutherland

F: Congress passed the Bituminous Coal Conservation Act of 1935, which was a bit of FDR’s New Deal legislation intended to combat the Depression.The Act set: Max. and Min. coal prices. And required that the coal companies allow the miners to unionize and collectively bargain. Carter did not want his Co. to comply with act so he sued to enjoin the co. from complying.

I: Is mining production or manufacture, and hence outside of Congress’s power, under Art. I, § 8, to regulate interstate commerce?

Sutherland: Yes, mining is production, it takes place before commerce, and hence cannot be regulated by commerce, production is local in character and it is for the states to regulate it. Production is not intercourse for the purpose of trade. It includes transport, purchase, sale, and exchange of commodities between the citizens of different states. The intent to move these goods in interstate commerce does not subject their means of production to Congressional regulation. “Mining brings the subject-matter of commerce into existence. Commerce disposes of it.”

Zones of Activities for the Federal Govt. and the States:Federal Govt. can regulate commerce, but . . . The states have police powers and the commerce clause cannot circumscribe these. The impact rules do not apply to production and manufacture.There are stages of business; commerce is not manufacture or production. Commerce is the disposition of goods, buying and selling.

Production and manufacture occur before the goods are moved in interstate commerce, therefore production and manufacture are local in character, hence it is for the states to regulate production and not Congress.

DP: Commerce Clause Qs: (1) What is commerce? Intercourse for the purposes of trade, not manufacturing or production.(2) What does “among the states” mean?Between more than one state, not intrastate local activity.(3) What limits does the 10th Amendment Impose?Congress must act pursuant to a Constitutional grant of power.Zone of Activities: Congress cannot violate traditional spheres of state power, like the states’ police power.

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Case Name Facts & Issue Holding Etc Rule/DPHouston, E. & W. TX Ry. Co. v. U.S., 234 U.S. 342 (1914) [Out of Place Case For the Era: Congress can regulate intrastate commerce where it has direct effects on interstate commerce] p. 110

Hughes

F: A TX Ry. co. is challenging the constitutionality of the ICC’s fixing of max rail rates for TX rails, regardless of whether the trains traveling on them were TX trains or out of state trains. The HEW TX Ry. charged much higher rail rates for out of state rail travel which entered into or passed out of TX, than it did for similar distances traveled w/in TX. This scheme directly affected commerce. The ICC found that the interstate rates, when compared to the interstate rates, were unreasonable and unduly injured interstate commerce. The ICC stepped in and est.’ed max. rates for comparable distances, regardless of point of origin. HEW TX Ry. alleges that the ICC’s rate fixing is unconstitutional b/c it affects intrastate rates that are wholly the purview of state regulation.

I: Is it within the scope of Congress’s power to regulate commerce “among the states” to fix max. rail rates for comparable distances, regardless of state of origin?

Hughes [echoes Marshall from Gibbons]: Yes, TX’s favorable rates to intrastate trains to the detriment of out of state trains traveling the same relative distances to destinations w/in TX was directly injurious to interstate commerce, as such it is a valid exercise for the federal govt. to set max. rail rates in such circumstances. “The power confided to Congress [is] to regulate commerce among the several states. It is the essence of this power that, where it exists, it dominates. Interstate trade was not left to be destroyed or impeded by the rivalries of local govt.”

In a situation where both a state and the Federal govt. are regulating commerce, a tie goes to the Federal govt. TX was unfairly giving a local advantage to TX rails, which were in some instances father away from other TX destinations than out of state points of origin.The case is similar to Ogden, where Marshall said that intrastate activities that have an affect on interstate commerce may be regulated by the federal govt. This case involved transport rail services:Ct. never addressed whether this service was commerce it assumed it was commerce.

Congress may justly regulate intrastate commerce where intrastate commerce has a direct effect on interstate commerce.

DP: 1890-1937 Ct. Framework for Commerce Cases:(1) Zone of Activities:There are zones that are typically reserved for the states’ police powers. (2) Impact Rule:The impact on interstate commerce must be immediate and direct. Merely local activities are not subject to commerce clause regulation.This ct. does not like legislation geared towards social welfare. (3) Business Stages:Commerce ≠ production, manufacture, and even some stages of transportBarnes thinks:(1) the ct. is being too formalistic during this era(2) the ct. is discounting the interests of society(3) In some cases it does take the federal govt.’s action to “fix” the commerce problems, even if they are local in character.

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Case Name Facts & Issue Holding Etc Rule/DPA.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) [Indirect Effects from E.C. Knight: Congress may not regulate commerce that is wholly intrastate in character, the “stream of commerce” ends when the goods have reached the state of final disposition] Hughes

F: A NY poultry wholesaler is challenging the constitutionality of the Live Poultry Code, stemming from its allegation that the act oversteps Congress’s commerce power by regulating its business, which is allegedly wholly intrastate in character. The Live Poultry Code required: The code was designed to assure the quality of poultry by preventing sellers from requiring buyers to purchase whole coops of chickens, which might contain sick chickens. Industry min. wage, max. working hours, and allowed for poultry worker unionizing and collective bargaining. NYC is the largest live poultry market in the U.S. 96% of the chickens sold there came in from other states. A.L.A. bought chickens from two NY markets and resold them w/in the NY market as a wholesaler. It alleged that its business was wholly intrastate and should not be subject to the Live Poultry Code.

I: Is regulation of the purchase standards and business practices of a NY wholesaler buying out of state chickens at intrastate NY markets and reselling the chickens w/in the NY market constitutional under the Commerce Clause?

Hughes:No, the Live Poultry Code is unconstitutional, the interstate “stream of commerce” ended when the chickens reached NY, as that was their final place of disposition; hence Schecter’s business practices, etc. are for NY to regulate not Congress. “So far as the poultry here is concerned, the flow in interstate commerce has ceased.”There is a natural and recognized distinction between direct and indirect effects on interstate commerce, here the effects, if any, are merely incidental and indirect, so Congress cannot regulate this local commerce.

Where the ct. determines the effect of intrastate commerce on interstate commerce to be indirect or incidental, Congress cannot constitutionally regulate the intrastate commerce under the Commerce Clause.

The interstate stream of commerce ends when the goods reach their State of final disposition, here NY.

DP: Comm. Qs:(1) What is Comm.?It ends when the goods have reached the State of their final disposition.(2) What does among the states?Transport across state lines, commerce ends once the goods are confined to a single state.(3) What is the significance of the 10th Amendment?There is a protected zone of sovereignty where the States may regulate via their police powers w/out interference from the federal govt. This ct. is conservative; it is hostile to legislation that regulates for the social welfare!

Holmes’ “Stream of Commerce” conception of Interstate Commerce:Est. in Swift v. U.S. (1905), Stafford v. Wallace (1922) and other stockyard cases, where the Federal Govt. was

regulating the activities of intrastate cattle stockyards dealing with interstate cattle, which were intended to be sold later in interstate trade.

Commerce is a stream and it passes through many states, simply b/c one point of that commerce occurs in a single state does not mean that the intrastate activity is Immune from congressional regulation.

The ct. did not consistently apply the stream of commerce approach. Ex. R.R. Retirement Board v. Alton R.R. Co., (1935) [ct. is hostile to the R.R. pension plan b/c it views it as

a social welfare law, & labor regulations are for state police power]):Ct. declared the R.R. Retirement Act of 1934 unconstitutional, which provided a pension system for

R.R. workers. R.R. were part of the stream of commerce, and yet the ct. rejected that argument in Alton. Ct. distinguished this cases b/c the Act was merely to provide for “the social welfare of the worker, and

therefore was remote from any regulation of commerce.”

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Does the Tenth Amendment Limit Congressional Powers? Or Is It Merely Intended To Remind Congress That It Must Act Pursuant To A Power Granted By The Constitution, And That The States May Act When The Constitution Does Not Bar Them From Doing So?

The 10th Amendment:o “The powers not delegated to the U.S. by the Constitution, nor prohibited to it by the states, are

reserved to the States respectively, or to the People.” Is the 10th Amendment:

o (1) a judicially enforceable limit on the Federal Govt.’s power, or;o (2) is it but a “truism” (Darby), simply meant to remind Congress that when it legislates, it must

legislate pursuant to a constitutional power?

Hammer v. Dagenhart Champion v. Ames

Roberts’ “Switch in Time that Saved Nine”:FDR and the ct. were on a collision course.The nation and FDR wanted progressive legislation to combat the Depression.The ct., esp. the “Four [Conservative] Horsemen” (Butler, Sutherland, Van Devanter and McReynolds) wanted

nearly absolute laissez-faire capitalism.In West Coast Hotel v. Parish (1937) Roberts “switched” his vote, thus ending the “4 Horsemen’s” majority and

allowing New Deal legislation to pass the ct.’s scrutiny with more regularity.

3. 1937 – 1990s: Broad & Plenary Federal Commerce Power Key Decisions Changing the Commerce Clause Doctrine NLRB v. Jones & Laughlin Steel Corp. United States v. Darby Wickard v. Filburn

Case Name Facts & Issue Holding Etc Rule/DPNLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) [Broad Commerce Power: Congressional power to regulate commerce extends to instances of intrastate commerce that obstruct interstate commerce, such as regulating labor relations] p. 120

Hughes

F: Jones is a large multinational steel corp. with many ops in the U.S. and Canada. Its ops are wholly owned and span the entire gambit of steel and iron production, transport, sale, and fabrication. Jones, in violation of the NLRA, was engaging in unfair business practices by dismissing workers for engaging in union activities. The ct. of appeals denied the NLRB’s orders as exceeding the commerce power by regulating local labor relations, labor being a component of manufacture.

I: Were the NLRB’s orders in excess of the Federal Govt.’s power to regulate interstate commerce?

Hughes (Quotes Marshall from Gibbons):No, the NLRB’s orders were proper exercises of the Federal govt.’s power to regulate interstate commerce b/c Jones’ unfair labor practices have a detrimental effect on interstate commerce by causing labor strikes and bogging down the nation’s steel industry. “affecting commerce” means in commerce, or burdening or obstructing commerce or the free flow of commerce. Congress’s power to regulate interstate commerce is plenary “no matter what the source of the dangers that threaten it.”

“The 4 Horsemen”: Labor practices in the course of such operations did not directly effect interstate commerce. If this type of local production regulation is allowed under the commerce power the states ability to regulate production via their police powers will be merely an afterthought, if that.

Congressional power to regulate interstate commerce extends to intrastate and interstate activities that may burden or obstruct interstate commerce.

DP: Commerce Clause Qs:(1) What is commerce? Intercourse, more than merely buying and selling, includes production and labor relations.(2) What does “among the states” mean?“Intermingled.” But, Congress may regulate intrastate activities that burden interstate commerce.(3) What limits does the 10th Amendment Impose?A truism!

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Case Name Facts & Issue Holding Etc Rule/DPU.S. v. Darby, 312 U.S. 100 (1937) [Broad & Strong Counter to Hammer: Even if manufacture itself is not commerce the shipment of manufactured goods in interstate commerce is, hence Congress may regulate which goods are permissible to ship in interstate commerce, Return to Ogden] p. 123

Stone

F: The U.S. is prosecuting a lumber yard owner for failing to comply with the FLSA’s min wage and max hours provisions. Darby owns a GA lumber operation that is not in compliance with the FLSA’s .25/hr. min wage, its 44/hr. per week max hours provision, and its overtime provision. Lumber from the operation is transported in interstate commerce. Darby was indicted for these violations of the FLSA.

I: Is the FLSA a legitimate exercise of Congress's power to regulate interstate commerce?

Stone: Yes, Congress can regulate labor practices in manufacturing industries as these practices have a direct effect on interstate commerce. Congress’s commerce power, within its permissible spheres, is plenary. Congress’s motives are unimportant, so long as they do not violate the Constitution. Congress also has public policy and police powers and they may exercise them through the commerce power.The ct.’s conclusion is unaffected by the 10th amendment, which is “but a truism.” The 10th amendment was merely intended to allay state fears that Congress would act outside of its delegated powers.

Returns to Marshall’s conception of the commerce power, it’s plenary. Explicitly overrules Hammer v. Dagenhart.

No more exclusive zones of activity for the states’ police power regulation of production/commerce.

Congress’s commerce power is plenary, complete in and of itself. Shipment of goods across state lines is commerce; therefore, Congress may prohibit goods from interstate commerce that violate the minimum requirements of the FLSA.

DP: Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc.(2) What does among the states mean?Intermingled, having tangible effects on more than one state. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism” it merely indicates that Congress must act pursuant to a grant of Constitutional power, including the grant and any laws that are necessary and proper for giving effect to the enumerated power.

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Case Name Facts & Issue Holding Etc Rule/DPWickard v. Filburn, 317 U.S. 111 (1937) [Broadest Comm. Power Ever Was: Conduct that by itself may not have a substantial effect on interstate commerce, may still be regulated under the commerce power if these individual activities in the national aggregate will have a substantial impact on interstate commerce] p. 125

Jackson

F: Filburn, a local farmer, grew wheat on his farm.He was give a max bushel amount under the A.A.A.He exceeded this allotment, but claimed that the wheat he grew for personal use on his farm for himself and his livestock should not be included. Filburn claimed that if the A.A.A. allotment max included the wheat he used for personal purposes it was an unconstitutional exercise of the Commerce power. And Filburns argument that consumption is not commerce.

I: Is the A.A.A.’s stipulation of max wheat quotas a constitutional exercise of the commerce power, even as it relates to wheat that is used for farmers’ personal use on their own farms?

Jackson:Yes, the A.A.A. max. wheat quotas are a constitutional regulation pursuant to Congress’s commerce power b/c even though Filburn’s conduct, in and of itself, will have a slight impact on interstate commerce, this conduct on a national scale will have a substantial impact on interstate commerce.Home-grown wheat competes with wheat that could be purchased in the market, if all farmers like Filburn engaged in this extra wheat production for personal use there would be a substantial impact on wheat prices, supply, and demand.

Death of the idea that there is no local arena the ct. cannot reach via the commerce power. Even individual consumption is commerce.

Direct v. indirect effects distinction is out the window!

Barnes says: The ct. is being a slave to the Ogden idea that commerce power is plenary and is only subject to constitutional restraints other than the 10th amendment.

Congress may regulate individual production activity under the commerce power b/c this production taken in the national aggregate will have a substantial impact on interstate commerce.

Congress can reach activities that are not commercial in and of themselves, but nevertheless have a substantial impact on interstate commerce.

DP: Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Everything including Non commerce.Even includes wholly local production that, in and of itself, has a tiny impact on interstate commerce, so long as the local production, taken in the national aggregate, will have a substantial impact on interstate commerce. (2) What does among the states mean?Even local activity as long as it has a substantial affect. Intermingled, having tangible effects on more than one state. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism.” Federalism as supremacy

The Meaning of “Commerce Among the States”o The Civil Rights Act of 1964: the law prohibits private employment discrimination based on race, gender, or religion common for bids racial

discrimination by places of public accommodation such as hotels and restaurants. Congress enacted this legislation under its commerce clause power.o The Civil Right Cases , 109 U.S. 3 (1883) p. 138 Held that Congress pursuant to § 5 could only regulate Govt. conduct and therefore cannot regulate private

behavior under the 14th amendment. Commerce clause jurisprudence can reach personal conduct. Where as if we used the 14th amendment which

would not reach persons acting outside spheres of federal and state action

Heart of Atlanta, Inc. v. US Katzenbach v. McClung Sr. and McClung Jr.

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Case Name Facts & Issue Holding Etc. RuleHeart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241 (1964) [Broad Commerce Power: local activities that have a substantial impact on interstate commerce can be regulated under the commerce power] p. 128

Clark

F: Congress passed the 1964 Civil Rights Act in part to ban racial discrimination in public accommodations. Testimony in support of the act include evidence that such racial discrimination has both a qualitative and quantitative effect on interstate commerce.Qualitative: It makes it much more difficult for racial minorities to find lodging and other accommodations while traveling from state to state.Quantitative: It dissuades large numbers of minorities from traveling interstate, which results in a substantially harmful effect on interstate commerce as a whole. The heart of Atlanta Motel is readily accessible from two interstate highways into state highways. The hotel advertises nationally; maintains over 50 billboards and highway signs within Georgia. Approximately 75% of its guests are from out of state. Prior to the act, the hotel refused to let rooms to Blacks, and it wishes to continue to do so.

I: Is the Civil Rights Act of 1964 a permissible exercise of Congress’s power to regulate commerce?

Clark: Yes, it is constitutionally permissible for Congress to prevent places of public accommodation from discriminating on the basis of race, as this is a local activity that has a substantial and harmful effect upon interstate commerce.Congress is not restricted by the fact that this particular obstruction to interstate commerce was also deemed a moral and social wrong. The power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof. How obstructions in commerce may be removed, what means are to be employed, is within the sound and exclusive discretion of the Congress. It is subject to only one caveat, the means chosen by it must be reasonably adapted to the end permitted by the Constitution.

1. whether congress has a rational basis for finding that racial discrimination affected commerce 2. if it had such a basis whether the means selected to eliminate that evil are reasonable and appropriate

Douglas Concur: Commerce power does not do justice to the Paramount nature of the right of the American people to be free of racial discrimination.A decision based on the 14th amendment would have been preferable [But, 14th only applies to state action].Such a construction would put an end to all obstructionist strategies and finally close one door on a bitter chapter in American history.

Barnes:But can’t bring a 14th am claim where it is personal conduct and not state action

Congress has the power, under the commerce clause, to regulate local activities that could reasonably be seen as exerting a substantial harmful effect upon interstate commerce.

DP Three activities the commerce power can reach:(1) The channels of interstate commerce;(2) The goods and persons that are involved in interstate commerce;(3) Interstate or local activities that have a substantial impact on interstate commerce.

Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Even includes wholly local production that, in and of itself, has a tiny impact on interstate commerce, so long as the local production, taken in the national aggregate, will have a substantial impact on interstate commerce. (2) What does among the states mean?Intermingled, having tangible effects on more than one state. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism.” Taxing and spending and block grants might be an alternative, but these acts will not reach as many people and activities as the commerce power.

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Case Name Facts & Issue Holding Etc. RuleKatzenbach v. McClung, 379 U.S. 294 (1964) [Broad Commerce Power: Even purportedly local establishments are subject to commerce power regulation if they have an impact on interstate commerce, such as purchasing food moved in interstate commerce] p. 130

Clark

F: The U.S. AG is suing the McClungs for violating the 1964 Civil Right Act, stemming from the McClungs’ refusal to admit blacks into their barbecue restaurant. The McClung's own always barbecue a restaurant located in Birmingham, Alabama near both a state and an interstate highway. Ollie's has both a dining room and take out.Blacks are only allowed take out and are not admitted into the restaurant. Ollie's purchases about $150,000 worth of food annually, 46% of which is the purchased from a local supplier who procure is it from out of state.The trial ct. found that a substantial portion of the food Ollie sells has moved in interstate commerce.The McClung's continued their racially discriminatory practices even after the Civil Rights Act of 1964, which bans such practices in public accommodations.

I: Does a nominally local commercial enterprise serving the public fall within the reach of Congress’s commerce authority when it sells goods, a substantial portion of which, have moved in interstate commerce?

Clark: Yes, b/c discriminatory practices in public restaurants and hotels etc. may be trivial in each individual instance but in the aggregate they will have a substantial impact on interstate commerce.The only commercial activities that are beyond the reach of Congress are those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere, the purpose of executing some of the general powers of the Govt.It is enough that Congress had a rational basis for enacting this legislation, the ct. does not need to inquire as to whether the legislation was the best possible means for confronting the problem. Social and cultural context

(applies Wickard test)

Expands Heart of Atlanta to reach very local activities that have some tentative connection to interstate commerce.

Even if the activity is not commercial in nature, so long as it will have a substantial effect on interstate commerce when taken in the aggregate, it may be reached by the commerce power.

Strong Counter To ALA Schecter Poultry: The goods here, meat, had arguably reached their final destination state, and under Schecter would have been deemed “out of the stream of commerce.”

Congress's commerce authority extends to any public commercial establishment selling goods that have moved in interstate commerce and/or serving interstate travelers.

DP Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Even includes wholly local non-commercial activities that, in and of themselves, have a tiny impact on interstate commerce, so long as the local activity, taken in the national aggregate, will have a substantial impact on interstate commerce. (2) What does among the states mean?Intermingled, having tangible effects on more than one state. Very broad even local activities are included. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism.”

Barnes: the court does not care if they do harm to the ollies, they are focused on commerce only and accumulation tool powerful

Weschlers principle has surfaced again that the polity can take action through the election process

Hodel v. IN, 452 U.S. 314 (1981) [S. Ct. can only knock down Congressional Commerce clause legislation if there is no rational basis

Strip mining and federal regulation thereof. Holding:

o This law is w/in the scope of Congress’s Commerce authority. o Must be absolutely no rational basis for the commerce legislation in order to strike it down. o Any thing having an “effect” not a substantial effect (standard is easing) o Rational basis is front and center

Three activities the commerce power can reach: (1) The channels of interstate commerce; (2) The goods and persons that are involved in interstate commerce; (3) Interstate or local activities that have a substantial impact on interstate commerce.

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Case Name Facts & Issue Holding Etc. RulePerez v. U.S., 402 U.S. 146 (1971) [Even federal criminal statutes can criminalize local offenses that have an effect on interstate commerce]

p. 143

Douglas

F: ∆ is one of the species commonly known as "loan sharks" which Congress found are in large part under the control of "organized crime."

I: Whether title II of the consumer credit protection act is a permissible exercise by Congress of its power under the commerce clause of the Constitution.

Douglas: Yes, b/c while the activities of loan sharks individually may be characterized as local, in aggregate they have a substantial impact on interstate commerce.Three activities the commerce power can reach:(1) The channels of interstate commerce;(2) The goods and persons that are involved in interstate commerce;(3) Interstate or local activities that have a substantial impact on Extortionate credit transactions, though purely interstate, may rationally in the judgment of Congress affect interstate commerce.

Barnes: Ct. seems to be saying “Commerce is everything.”

Congress may reach even local activities, through the commerce power, if in the rational judgment of Congress they have a substantial impact on interstate commerce.

DP Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Even includes wholly local non-commercial activities that, in and of themselves, have a tiny impact on interstate commerce, so long as the local activity, taken in the national aggregate, will have a substantial impact on interstate commerce. (2) What does among the states mean?Intermingled, having tangible effects on more than one state. Very broad even local activities are included. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism.”

The Tenth Amendment between 1937 and the 1990sThe Short Lived “Flip-Flop”: National League of Cities &Garcia

National League of Cities v. Usery Garcia v. San Antonio Metropolitan Transit Authority

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Case Name Facts & Issue Holding Etc RuleNational League of Cities v. Usery, 426 U.S. 833 (1976) [Narrow Commerce Power Temporary Return of 10th Amendment: “traditional functions” of states as states cannot be reached via the commerce power, the 10th Amendment returns as a limit on the Commerce power] (return to Darby)Rehnquist

F: In 1974, Congress passed amendments to the FLSA of 1938. The purpose of the amendments was to regulate minimum wage and overtime pay for state and local Govt. employees. The National League of Cities, as well as several states and cities, challenged the constitutionality of the amendments.

I: May Congress, acting under its commerce power, regulate the labor market of state employees, which the Tenth Amendment possibly reserves to the states?

Rehnquist: No, these wage determinations are functions essential to separate and independent existence of the states, so Congress may not abrogate the states otherwise plenary authority to make them.Both the minimum wage and maximum hour provisions of the FLSA will impermissibly interfere with the integral governmental functions of the states as states.Imposing the fair labor standards act's minimum wage and maximum hour provisions to the states is not within the authority granted Congress by Art. 1 § 8 clause 3 of the Constitution.

Concurrence (Blackmun):The majority adopts a balancing test, and does not effectively rule out congressional exercises of power in all areas of concurrent or shared power with the states.

Dissent (Brennan):Weschler’s Prin. The Con contemplates that restraints upon exercise by Congress of its plenary commerce power lie in the political process and not in the judicial process.

Dissent (Stevens):Congress has the right under the commerce power to ensure that all Americans have fair labor conditions, including state employees.

The commerce clause does not empower Congress to regulate states or local governments and their integral Govt. functions, which have traditionally been left to the states or these local governments.

Congress, through the commerce clause, may not regulate the “states as states.”

DP Comm. Qs:(1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Does not include regulation of “traditional roles” of the states as states.(2) What does among the states mean?Intermingled, having tangible effects on more than one state. (3) What is the significance of the 10th Amendment?The 10th Amendment returns, there are certain protected “zones of activity” in which the states are sovereign. Through the notion of integral government functions

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Case Name Facts & Issue Holding Etc RuleGarcia v. San Antonio Metro Transit Authority, 469 U.S. 528 (1985) [Broad Commerce Power: rejection of the National League of Cities’ “traditional state function” exception to Congress’s commerce power] (overrules Nat’l League of cities)Blackmun

ZONE OF ACTIVITY box is hard to define what is saying is that it is too hard to define state sovereignty

FEDERALISM: here is that the political process will be your only protection is federal supremacy

F: A San Antonio Metro transit Authority employee, Garcia, is suing seeking application of the fair labor standards act to the San Antonio Metro transit Authority. The federal Govt. applies the FLSA which regulates hours, wage, and overtime conditions for covered employees to San Antonio's Metropolitan Transit Authority. The MTA objects to such an application on the ground that the S. Ct.'s ruling in National League of Cities prohibits the federal Govt. from regulating the states as states, and their traditional and core governmental functions, a category in which the MTA claims it is included.

I: May Congress regulate, through the FLSA, a city's mass transit authority’s employer-employee relations under the commerce clause?

Blackmun: Yes, Congress may regulate a city's mass transit authority’s employer employee relations under the commerce clause b/c National League of Cities "traditional Govt. functions" exception to the application of the commerce power to the states as states is unworkable.The "traditional Govt. function" exception impermissibly invited an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.The commerce clause by specific language does not provide any special limitation on Congress's actions with respect to the states. (ANALYSIS is MADE UP)

Weschler’s Theory:The proper protection of the state's role in the federal system is provided by the political process, and the state's participation in that political process, not by an unelected judiciary.

Dissent (Powell):This issue was just settled by the National League of Cities, and that case should not have been reversed, stare Decisis is crippled (overruled 200 years of operation)Today's decision effectively reduces the 10th amendment to meaningless rhetoric on Congress’s acts pursuant to the commerce clause. Dissent (Rehnquist):Federalism cannot be reduced to the weak essence distilled by the majority today.The true essence of federalism is that the states as states, have legitimate interests which the national Govt. is bound to respect even though its laws are S..

Congress has full authority under the commerce clause to regulate the traditional, or core, functions of the state and local governments not withstanding the 10th amendment, the proper recourse for state protection is the political process not the judiciary's application of the 10th amendment.

DP Comm. Qs: (1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment, sale, etc. Even includes wholly local non-commercial activities that, in and of themselves, have a tiny impact on interstate commerce, so long as the local activity, taken in the national aggregate, will have a substantial impact on interstate commerce. (2) What does among the states mean?Intermingled, having tangible effects on more than one state. Very broad even local activities are included. (3) What is the significance of the 10th Amendment?The 10th Amendment is “but a truism.”

(this is the big question here)

Eras:(1) Federal Govt. is S.(2) Laissez-Faire(3) Social Welfare/National Commerce and correcting the “Great Depression”(4) “Shared Powers”: Returning certain zones of power to the States, disallowing regulation of non-commercial

activities. Theories:

Zone of Activities:2 & 4

Impact Rule:3 & 1

Business Phase:2

The 4th Era, The Reemergence Of The 10th Amendment Limitations On The Commerce Power:

4. 1990s – ???: Narrowing of the Commerce Power and Revival of the Tenth Amendment as a Constraint on Congress

a. What is Congress’s Authority to Regulate “Congress Among the States?”

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United States v. Lopez United States v. Morrison Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers

Case Name Facts & Issue Holding Etc RuleU.S. v. Lopez, 514 U.S. 549 (1995) [the Rehnquist ct. is not willing to apply the "substantial impact" test to noncommercial activities. local crime and education are for the States to regulate]

Substantial Impact Test ≠ Non-Commercial Activity

Rehnquist

(The test here is very important the test changed here again in prong 3 after Perez and Holdel moved from ANY effect to Substantial effect)

F: Lopez, a 12th grade high school student, carried a concealed weapon into his San Antonio, Texas high school. He was charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act of 1990. The act forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone." Lopez was found guilty following a bench trial and sentenced to six months' imprisonment and two years' supervised release.

I: May Congress criminalize gun possession in public school zones, under its commerce power, without explicitly regulating any commercial activity associated with the guns in Q?

O’Connor- in concurrence will continue to apologize and vote for states rights and Federalism b/c she is wed to stare deices

Thomas- very strongly against substantial effects test and that the federal government.

Rehnquist: No, Congress may not criminalize gun possession in public school zones in this fashion b/c the act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.The Gun Free School Zones Act does not fall under any of the three categories:(1) it does not regulate the channels of interstate commerce;(2) it does not regulate persons or things in interstate commerce;(3) it does not regulate an activity that has a "substantial impact" on interstate commerce:Gun possession ≠ economic/commercial activityMultiple steps to get to economic activity is to attenuated (link too thin) “inference upon inference”“The possession of a gun in a local school zone is in no sense in economic activity that might through repetition elsewhere, substantially affect any sort of interstate commerce.”

Can no longer use the commerce clause for social regulation has to be economic activity (Stat 922 not linked to economic activity it is criminal)

Dissent (Stevens):Guns are both articles of commerce and articles that can be used to restrain commerce.

Dissent (Souter):a rational basis test should have been employed. Commercial/Non-Commercial distinction looks too much like Direct v. Indirect Effects.Good education = Good economy guns are a detriment to education guns in schools affect interstate commerce [rational basis].

Dissent (Breyer):The statute falls within the scope of the commerce power.(1) The pwr to reg. commerce among the several states encompasses the power to regulate local activities that significantly affect interstate commerce.(2) Aggregate (Wickard)(3) A rational basis test should of been employed.congress not courts prescribe commerce pwr.

Congressional authority to regulate pursuant to the commerce clause extends to only those commercial activities that rationally implicate:(1) the channels of interstate commerce; (Darby)(2) the instrumentalities, persons, or goods of interstate commerce; (3) activities having a "substantial effect" upon interstate commerce. (this prong changed in this case)

DP Comm. Qs: (1) What is Comm.?Includes all of the stages of commerce including labor, production, shipment…(not inference upon inference) Only includes economic commercial activity. (2) What does among the states mean?Intermingled, having tangible effects on more than one state. (3) What is the significance of the 10th Amendment?The 10th Amendment returns, there are certain protected “zones of activity” in which the states are sovereign.

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Case Name Facts & Issue Holding Etc RuleU.S. v. Morrison, 120 S. Ct. 1740 (2000) [the Rehnquist ct. is not willing to apply the "substantial impact" test to noncommercial activities.]

Substantial Impact Test ≠ Non-Commercial Activity

Rehnquist

F: In 1994, while enrolled at VaTech Brzonkala alleged that Morrison and Crawford, both students and football players raped her. In 1995, Brzonkala filed a complaint against Morrison and Crawford under Virginia Tech's Sexual Assault Policy. After a hearing, Morrison was found guilty of sexual assault and sentenced to immediate suspension for two semesters. Crawford was not punished. A second hearing again found Morrison guilty (poor language/lesser penalty). Morrison's punishment was set aside, as it was found to be "excessive." Ultimately, Brzonkala dropped out of the university. Brzonkala then sued Morrison, Crawford, and Virginia Tech in Federal District Ct., alleging that Morrison's and Crawford's attack violated the Violence Against Women Act of 1994 (VAWA), which provides a federal civil remedy for the victims of gender-motivated violence.

I: Does the VAWA fall within Congress's power to regulate commerce?

Rehnquist: No, the VAWA does not fall within Congress's power to regulate commerce b/c gender motivated crimes of violence are not, in any sense of the phrase, economic activity.If accepted, the petitioners reasoning would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime had substantial effects on employment, production, transit, or consumption.The Constitution requires a distinction between what is truly national and what is truly local.(Barnes) court wants to lmt commerce in nature. No inference upon an inference to attenuated. What would congress have to do to pass this test. Dissent wants a return to social welfare (Wickard) Problem is that gender violence cannot be brought another way; Maj draw line to lmt con pwr.

Concurrence (Thomas): The very notion of a “substantial effects” test under the commerce clause is inconsistent with the original understanding of Congress is commerce power.Only instrumentalities and channelsDissent (Souter):Congress has the power to legislate with regard activity that, in aggregate, has a substantial effect on interstate commerce.Ct. should have used a rational basis test.Ct. provided a lot of statistical evidence of gender violence’s impact on interstate commerce (a la Heart Of Atlanta) Return to third era social welfare congress should be arbiter of data

Congress may not, pursuant to the commerce clause, regulate a noncommercial local activity solely on the basis that it has substantial effects on interstate commerce when viewed in its nationwide aggregate.

DP Comm. Qs: (1) What is Comm.?Intercourse trade, production, transport, etc. Commercial activity.(2) What does among the states mean?Intermingled, but must relate to commercial activities that have substantial impacts on interstate commerce.(3) What is the significance of the 10th Amendment?Creates an area of shared powers for the states that the federal govt. cannot reach.

Need a commercial activity with a non-tangential, non-attenuated connection to interstate commerce in order to regulate intrastate activity that has a “substantial impact” on interstate commerce.

What is Congress’s Authority to Regulate “Commerce Among the States?” In the next case the S. Ct. used its recent decisions restricting the scope of the commerce clause as the basis for

narrowly interpreting a federal law. Instead of declaring the law unconstitutional, to avoid these Qs, the ct. narrowly interpreted the federal statute. In the second case the ct. upheld the authority of Congress to regulate the channels of interstate commerce

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Case Name Facts & Issue Holding Etc RuleSolid Waste Agency of Northern Cook County v. U.S. Army Corps. of Engineers, 531 U.S. 159 (2001) [The Rehnquist ct. is reluctant to accept at face value an administrative agency’s regulations, made pursuant to Congressional legislation, when those regulations reach the outer limit of Congress’s power and Congress has not clearly stated that it approves of the regulations]

Rehnquist

F: the U.S. Army Corps of Engineers has interpreted § 404(a) to confer federal authority over interstate waters, which [The Migratory Bird Rule]:(a) are or would be used as habitat by birds protected by Migratory Bird Treaties;(b) are or would be used as habitat by other migratory birds which cross state lines;(c) are or would be used as habitat for endangered species;(d) used to irrigate crops sold in interstate commerce.The site involved in this case qualified as "waters of the U.S." based upon the following criteria:(1) the proposed site had been abandoned as a gravel mining operation;(2) the water areas and spoil piles had developed a natural character;(3) the water areas are used as habitat by migratory birds which cross state lines.The Corps refused to issue a § 404 permit. § 404(a) authorizes the respondents to regulate the discharge or fill material into "navigable waters" which the statute defines as "the waters of the U.S., including the territorial seas."

I: Whether the provisions of § 404(a) may be fairly extended to the waters involved in this case, and if so, whether Congress could exercise such an authority consistent with the commerce clause.

Rehnquist: The Migratory Bird Rule as stated by the army corps of engineers, in interpreting § 404(a), is not fairly supported by the Clean Water Act.There is no clear statement from Congress that it intended § 404 to reach an abandoned sand and gravel pit.Permitting respondents to claim federal jurisdiction over ponds and mud flats falling within the "Migratory Bird Rule" would result in a significant impingement of the states’ traditional and primary power over land and water use.We do not have to address the constitutionality of § 404(a) of the CWA b/c the Corps has impermissibly expanded the definition of “navigable waters” under the CWA.

Barnes: 1. def army core of eng had that moved beyond the lang of the statute 2. whether congress had pwr to create the act?

1. Army core outside ambit of pwr to create any waters as in statute. Core took def too far and in application upset commerce pwr.2. Court said no need to get to that question b/c operating on the fringes

Stevens: Under the CWA Congress gave the Corps the power to define “waters.”Waters of the U.S. + territorial seas these seasonal ponds, streams, rivers, wetlands, mudflats, etc. Damage to migratory birds has a substantial impact on interstate commerce; therefore, sites such as the one in the present case, a will in aggregate, have a substantial impact on interstate commerce.Holmes in MO v. Holland said that the federal interest in protecting migratory birds was of the 1st magnitude. Barnes Diss: Analysis would be attenuated and it is the worst kind b/c it is attenuated in the worst extent. This shows the problem that the maj in lopez and Morrison claim is pre-textual. (Stevens has always been for accumulation)

When administrative interpretation of a statute invokes the outer limits of Congress's power, we expect a clear indication that Congress intended the result .

Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the ct. will construe the statute to avoid such problems and last such construction is plainly contrary to the intent of Congress.

DP Comm. Qs:Comm. Qs:(1) What is Comm.?Intercourse trade, production, transport, etc. Commercial activities. (2) What does among the states mean?Intermingled, but must relate to commercial activities that have substantial impacts on interstate commerce.(3) What is the significance of the 10th Amendment?Creates an area of shared powers for the states that the federal govt. cannot reach.Supremacy is not always S. there are some limits on the federal govt., e.g. 10th Amendment.

The dissenters are at a loss they are trying to fit their arguments w/in the majority’s frameworks from Lopez [commercial activities] and Morrison [show us the stats].

Ex. In Morrison the dissenters used the statistical data that showed an interstate impact like in Heart of Atlanta.

In Solid Waste Stevens attempts to show that migratory birds are involved in commercial activities.

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Case Name Facts & Issue Holding Etc RulePierce County WA v. Guillen, 123 S. Ct. 720 (2003) [unanimous decision]

Thomas

This case is not a distruption of the rule but an easy application b/c this is a channel and instrumentality

F: The Hazard Elimination Program provides state govt.s with funding to improve the most dangerous sections of their roads. To be eligible for funding, a state must undertake a thorough evaluation of its public roads. This led to concerns that the absence of confidentiality would increase the liability risk for accidents that took place at hazardous locations before improvements could be made. Ultimately, Congress provided that materials "compiled or collected" for purposes of the program "shall not be subject to discovery or admitted into evidence in a Federal or State Ct. proceeding." In 1996, Guillen's wife died in an automobile accident in a Pierce County, WA intersection. While WA had previously been denied funding for the intersection where the accident occurred, its 2nd request was granted after the accident. Guillen first sought information on the intersection and then asserted that the state had been negligent in failing to install proper traffic controls. WA sought to protect itself under the Program. The WA S. Ct. held that the Program exceeded Congress's power under the Constitution. I: Is 23 USC § 409 a proper exercise of Congress's authority under the commerce clause?

Thomas: Yes, it is well established that the commerce clause gives Congress the authority to regulate the use and channels of interstate commerce.Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.Congress could reasonably believe that adopting a measure eliminating any unforeseen side effects of the information gathering requirement of § 152 result in more diligent efforts to collect the relevant information, more candid discussions of hazardous locations, better informed decision-making, and, ultimately greater safety on our nation's roads.

Congressional authority to regulate pursuant to the commerce clause extends to only those commercial activities that rationally implicate:(1) the channels of interstate commerce;(2) the instrumentalities, persons, or goods of interstate commerce;(3) activities having a "substantial effect" upon interstate commerce.

Congress is empowered to regulate the instrumentalities of interstate commerce and the channels of interstate commerce even though the threat protected against may come only from intrastate activities.

DP Comm. Qs: (1) What is Comm.?Intercourse trade, production, transport, etc. (2) What does among the states mean?Intermingled, but must relate to commercial activities that have substantial impacts on interstate commerce.(3) What is the significance of the 10th Amendment?Creates an area of shared powers for the states that the federal govt. cannot reach.This case shows:That the 4th era ct. is not radically departing from the 3rd era. The 4th era ct. is divided into those that want a more narrowly tailored substantial effects test and those that would accept nearly anything under the substantial effects test. The ct. here used the 1st prong, the channels prong. The 4th era ct. does not like congressional regulations that are pretexts for social welfare laws.

b. Does the Tenth Amendment Limit Congress’s Authority? New York v. United States Printz v. United States Reno v. Condon

Power Vacuum Theory- (Chemerinsky) Anytime there is a prob where the fed/state share an interest who ever steps in first to reg should be shown deference. (Gonzalez) perhaps state should be shown deference unless the fed gov can find a PATENT violation of the constitution and the SAME should be true protecting the federal government (if they jump in first) we should “deffer” or presume it commerce scheme unless paitently distruptive to rights (Barnes) will prob not buy this due to problems of implementation/ works to fill a gap and then get messy and someone has to win Barnes thinks the court is not interested in this would help resolve problems in Gonzales /NY/Printz

Case Name Facts & Issue Holding Etc Rule

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Barnes 2 Qs:(1) Is it the end of federalism for the states to enact federal regulations?

Why not uphold the radioactive waste law based on the states’ waiver of sovereignty.(2) Why not allow this when the federal govt. can show a “compelling interest?”

Case Name Facts & Issue Holding Concurrence/Dissent Rule

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Printz v. U.S., 521 U.S. 898 (1997)

[Federal govt. cannot commandeer the states executive officials in order to implement federal regulatory programs, even if the commandeering is temporary in nature]

Scalia

(original meaning or framers intent analysis)

Barnes: expands NY by saying you also can’t commandeer state employees

All you need for the fed according to the dissent is Art I pwr and the nec and proper clause. The dissents analysis is that the 10th am pwr is nullified once art I pwr established b/c 10th am pwr does not textually have the pwr to take on Art I and nec proper.

F: 1993 Congress amended the Gun Control Act of 1968 by passing the Brady Handgun Violence Prevention Act.

The Act requires the AG to establish a national instant background check system by November 30, 1998 and creates interim provisions until the system goes online.Under these interim provisions, state and local law enforcement personnel must do background checks before issuing permits to purchase firearms.Under Act, fire arms dealers are required to submit Brady forms to the local chief law enforcement officers, who are then obligated to make "reasonable efforts" within five days to determine whether the sales listed on the forms are kosher.Printz and Mack are CLEOs who challenge the constitutionality of Brady's interim provisions. I: Whether the interim provisions violate the Constitution.

Barnes I: can fed gov using the nec & Proper clause use this temporary measure?

Barnes: in order to have a dialogue you need a middle ground b/t supremacy and states rights here the views are polarized. Here the court says all or nothing. NO balancing test. Does the constitution require that we live in polar opposites? NO it is just meant to be interpreted. The problem now the supremacy folks art 1 nec proper state here that the protection for the states is Wechsler. NEVER GOING TO WORK. No state alone will be pwr enough to protect int unless aliened with others

Scalia: Yes, the Brady Act impermissibly compels state and local CLEOs to implement a federal regulatory program.There is no constitutional text speaking to this precise Q, the answer to the petitioners challenge must be sought in: (1) historical analysis, in (2) the structure of the Constitution, and (3) in the jurisprudence of this ct.Historically Congress’s direct compulsion of state officials has involved state ct. judges enforcing federal laws, there is a lack of statutes imposing obligations on the states’ executive officers, and this suggests an absence of such power.

Congress must act pursuant to enumerated powers.

Art. II, § 2, Per the Constitution, it is the president that "shall take care that the laws be faithfully executed," not the individual state's executive officers.

The Brady act effectively transfers this responsibility to thousands of CLEOS, who are left to implement the program without meaningful presidential control.

NY v.U.S. applies here:"The federal Govt. may not compel the states to enact or administer a federal regulatory program."

The federal Govt. may neither issue directives requiring states to address particular problems, nor command the state's officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.

Thomas [Concurrence]:If the 2nd Amendment is a personal right to bear arms a colorable argument exists that the federal Govt.'s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that amendment's protections. “b/c does not believe in the substantial affects test.” Would like a complete return to “zone of activities” “business phase” or a return to the 2nd era

Stevens: When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens.Textualist analysis (what does the 10th am say) How does it effect the relationships discussing now Art. 1, § 8, grants the Congress the power to regulate commerce among the states.

Additionally, the necessary and proper clause grants Congress the authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Weschler’s Theory: The 10th amendment imposes no restriction on the exercise of delegated powers (Ex. Darby & Garcia, Wechsler’s Theory).The 10th amendment is a truism.

If Congress believes that such a statute will benefit the people of the nation, and serve the interests of cooperative federalism better than enlarge federal bureaucracy, we should respect both its policy judgment and its appraisal of the constitutional power.

The federal govt. may not compel the states to directly enact or administer a federal regulatory program, nor may the Federal Govt. commandeer the states officers to administer its regulatory programs.

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Case Name Facts & Issue Holding Additional Points RuleReno v. Condon, 120 S. Ct. 666 (2000)

[Congress can regulate the states as “commercial entities.” w/out violating the 10th amendment.]

Barnes: not aimed at the state but the economic activity and another dist b/t Reno and NY/Printz it is affirmatively requiring something and prohibiting something NY/Printz required action (take title/background) here no affirmative duty placed on the state it is broad.

F: Congress passed the Drivers Privacy Protection Act of 1994 regulating the dissemination of personal information provided to states by drivers license applicants.The act generally prohibits any [trader of information] state DMV, officer, employee, or contractor thereof from "knowingly disclosing or otherwise making available to any person or entity personal information about individuals obtained by the department in connection with a motor vehicle record."The act also regulates the resale and disclosure of drivers’ personal information by private persons who have obtained that information from a state DMV.SC's law conflicts with the act.B/c of this conflict Condon, the SC AG, filed suit in federal district ct. seeking to have the act declared invalid under the 10th and 11th amendments.SC claims that the DPPA compels the states to enforce complex federal regulations in violation of NY v. US and Printz v. US. I: Has Congress “commandeered” SC under the DPPA thus violating the 10th Amendment?

Rehnquist: No, Congress has not “commandeered” SC under the DPPA and has not violated the 10th Amendment b/c Congress is regulating SC as a “commercial entity” not as a state.

Drivers’ info in this context is an article of commerce (channels and instrumentalities), its sale or release into the interstate stream of business is sufficient to support congressional regulation.

A state wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating activity, this is a commonplace occurrence that presents no constitutional defect (SC v. Baker).

The act regulates the states as the owners of databases. It does not require SC to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.

The act is also generally applicable as it regulates both the states and the private businesses that resell this private information obtained from DMV's.

DP What the Ct. likes and dislikes in commerce power regulation:

Dislikes:Pre-textual (i.e. social welfare) regulation [activity must be commercial]

Commandeering the states to implement federal regulatory programs [NY and Printz] (Reno exception, where the states are acting as commercial entities)

Likes:Regulations dealing with the channels and instrumentalities of commerce

Regulating the states as commercial actors, as opposed to regulating them as sovereign actors.

States are to comply with constitutionally valid legislation regulating state activities, even when compliance means incurring additional cost to be borne by the states.

Congress can regulate the states via the channels and instrumentalities prongs of the commerce power so long as they do not unduly infringe on the states as states.

Congress can regulate the states as “commercial entities.”

Where Are We Currently In Commerce Clause Jurisprudence?:

Doctrinal Progression & Commerce Clause Qs:(1) What is Comm.?

Econ. Activity [Gonzalez] Intercourse trade, production, transport, etc. Commercial Activity. [Ex. Lopez & Morrison]

(2) What does among the states mean?Instrumentalities, Channels, Intermingled, but must relate to commercial activities that have substantial

affects [very hard to reach] on interstate commerce. [Ex. Guillen](3) What is the significance of the 10th Amendment?

Creates an area of shared powers for the states that the federal govt. cannot reach. [Ex. Lopez & Morrison] Zone of Activities, Commandeering

Ct. may not commandeer the states to implement federal regulations [NY v. U.S. & Printz v. U.S.]However, Congress may regulate the states as “commercial entities” w/out violating the 10th,

so long as the regulation falls under one of Rehnquist’s 3 Commerce Prongs from Lopez. (1) the channels of interstate commerce;(2) the instrumentalities, persons, or goods of interstate commerce;(3) activities having a "substantial effect" upon interstate commerce.

The 4th Era Ct.:The 4th era ct. is not radically departing from the 3rd era.

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The 4th era ct. is divided into those that want a more narrowly tailored substantial effects test and those that would accept nearly anything under the substantial effects test.

The 4th era ct. does not like congressional regulations that are pretexts for social welfare laws.4th Era ct. holds that the 10th amendment means something, it is not a “truism” as Stone said it was in Darby.

Ct. will find legislation under the Commerce power permissible when:It relates to commercial activity [Lopez & Morrison ]

andWhere the legislation falls under 1 of the following:

(1) the channels of interstate commerce;(2) the instrumentalities, persons, or goods of interstate commerce;(3) activities having a "substantial effect" upon interstate commerce.

Must not regulate the states as states, forcing them to implement federal regulations [NY v. U.S. & Printz v. U.S.].

What the Ct. likes and dislikes in commerce power regulation:Dislikes:

Pretextually (i.e. social welfare) [Lopez/Morrision] regulation [activity must be commercial]Commandeering the states to implement federal regulatory programs [NY and Printz] (Reno, National

League of Cities exception, where the states are acting as commercial entities)Likes:

Regulations dealing with the channels and instrumentalities of commerceRegulating the states as commercial actors(generally applicable law) [Reno] (1. laws gen applicable 2.

not creating affirmative duties) as opposed to regulating them as sovereign actors. [Guillen]. [Raich] market analysis approach.

Current state of commerce clause activity 1. is it pretextualC. The Taxing and Spending Power

1. For What Purposes May Congress Tax and Spend?

For what purposes may Congress tax and spend? Is Congress limited to taxing and spending only to carry out the powers specifically enumerated in Art. I

[Madisonian view], or does Congress have the broad authority to tax and spend for the general welfare

[Hamiltonian view] that congress could tax and spend for any purpose that it believed served the general welfare, so long as Congress did not violate another constitutional provision

In reading Butler it is important to distinguish two issues:o (1) the scope of Congress’s taxing and spending powers.o (2) whether the 10th Amendment is a limit on it.

Butler’s holding on (1) is still good law, but its holding with respect to (2) is no longer good law.

Art. I, § 8:o Congress may tax & spend for the “General Welfare.”

United States v. Butler Chas. C. Steward Mach Co. v. Davis


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U.S. v. Butler, 297 U.S. 1 (1936)

[Taxing case: Congress does have the broad power to tax and spend for the “general welfare”, but this power may be circumscribed where it unduly infringes on traditional areas of state sovereignty]

(Barnes) precursor act to Wickard

I: is this taxation for the general welfare?

F: The A.A.A. declared that b/c of a crisis in agricultural production, the Sec. of Agriculture could set limits on production of certain crops and impose taxes on production in excess of these limits. Under the A.A.A. the Sec. could K with farmers to produce a limited amount of crops in exchange for benefit payments, the payments coming from an account funded by taxes imposed on producers for exceeding their production limits. The Act also authorized grants to farmers to control production and thus regulate prices. Art. I, § 8 of the Constitution empowers Congress to "lay and collect taxes, duties, imposts, and excises, the pay the debts and provide for the common defense in general welfare of the U.S.." I: Whether certain provisions of the A.A.A. conflict with the federal constitution.

Roberts: Yes, certain provisions of the A.A.A. conflict with the constitution b/c it infringes on certain reserved rights of the states.Congress has the express power to lay taxes to provide for the General welfare; however the Constitution also prohibits certain invasions of the reserved rights of the states. (Good Law!)

This is a statutory plan to regulate and control agricultural production, a local matter, a matter beyond the powers delegated to the federal Govt. (this portion of the reasoning is no longer good law).

It does not help to declare that local conditions throughout the nation have created a situation of national concern; for this is to say that whenever there is a widespread similarity of local conditions, Congress may ignore constitutional limitations upon its own powers and usurp those reserved to the states.

Stone: The majority makes four errors:(1) Ct.s are concerned only with the power to enact statutes, not with their wisdom. When assessing the constitutionality of a congressional statute the ct. should exercise judicial restraint (rational basis).(2) the constitutional power of Congress to levy an excise tax upon the processing of agricultural products is not Q’ed.(3) As the present depressed state of agriculture is nationwide in its extent and effects, there is no basis for saying that the expenditure of public money in aid to farmers is not within the specifically granted power of Congress to levy taxes to "provide for the general welfare."(4) while all federal taxes inevitably have some influence on the internal economy of states, it is not contended that the levy of a processing tax upon manufacturers using agricultural products as raw material has any perceptible regulatory effect on either their production or manufacture.

Congress may not use the taxing or spending powers to force compliance in an area where the Constitution does not give Congress independent power to regulate, or where the Congressional law invades a traditional area of state sovereignty.

(Barnes) zone of activity notion

What that General Welfare Means?

Chas C. Steward Co. v. Davis, 301 U.S. 548 (1937) ["The Congress shall have power to lay and collect taxes, duties, imposts, and excises."]

Issue:The validity of the tax imposed by the Social Security Act on employers of eight or more.

Facts/Procedure:The tax, which is described in the statute as an excise, is laid with uniformity throughout the U.S. as a duty,

and impost, or excise upon the relation of employment.Holding:

The U.S. can tax employers for Social Security benefits b/c the ct. found no basis for holding that the power in that regard, which belongs by accepted practice to the legislatures of the states, has been denied by the Constitution to the Congress of the nation.

"The Congress shall have power to lay and collect taxes, duties, imposts, and excises." The subject matter of taxation open to the power of Congress is as comprehensive as that open to

the power of the states, though the method of apportionment may at times be different.Class:

Simply b/c the Congress and the states may have concurrent powers in an area it does not violate state sovereignty for Congress to exercise this power in contradiction of the states’ policies

Conditions on Grants to State Govt.

The ct. has held that Congress may place strings on such grants, so long as the conditions are expressly stated and so long as they have some relationship to the purpose of the spending program.

Oklahoma v. Civil Service Commission, 330 U.S. 127 (1947): i is forHolding:

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the ct. upheld a provision of the federal Hatch Act which granted federal funds to state governments on the condition that the states adopt civil service systems and limit the political activities of many categories of Govt. workers.

While the U.S. is not concerned with, and has no power to regulate, local political activities, it does have power to fix the terms upon which its money allotments to states shall be disbursed.

South Dakota v. DoleSabri v. U.S. (What are the lmt and What can you do under the spending pwr)

Case Name Facts & Issue Holding: Dissent RuleS.D. v. Dole, 483 U.S. 203 (1987)

[the federal govt. may condition grants of federal funds to the states based on state compliance with federal programs so long as the program: (1) is based on the general welfare; (2) the conditions for the receipt of the funds is clear; (3) the conditions are reasonably related to the purpose of the federal program (4) must not be coercion of the States (10th Amendment)]

F: SD permits persons 19 years of age or older to purchase beer containing up to 3.2% alcohol.In 1984 Congress enacted 23 USC § 158, which directs the Secretary of transportation to withhold 5% of federal highway funds otherwise allocable, from state's "in which the purchase of or public possession of any alcoholic beverage by person who is less than 21 years of age is lawful."

§ 2 21st Amendment(not a scheme or zone but a pwr to reg that may have to yield to other pwrs)Intoxicating liquors, shipment into dry territory prohibited:The transport or importation into any State, territory, or possession of the U.S. for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

SD sued in U.S. District Ct. seeking a declaratory judgment that § 158 violates the constitutional limitations on the congressional exercise of the spending power and violates the 21st amendment to the U.S. Constitution. I: May Congress use its spending power to regulate activities in areas otherwise reserved to the states by conditioning the receipt of federal funds on the state's compliance with the congressional regulation?

Rehnquist: Yes, b/c the Constitution empowers Congress to "lay and collect taxes, duties, imposts, and excises, the pay the debts and provide for the common defense in general welfare of the U.S.." Incident to this power Congress may attach conditions on the receipt of federal funds.

However, the spending power is not unlimited:(1) the exercise of the spending power must be in pursuit of the "general welfare."This provision is designed to serve the general welfare.(2) if Congress desires to condition the state's receipt of the funds, it must do so unambiguously enabling the states to exercise their choice knowingly, cognizant of the consequences of their participation.The conditions on which the states receive the funds are clear and unambiguous.(3) conditions on federal grants might be a legitimate if they are unrelated to the federal interest in particular national projects or programs.The condition imposed by Congress is directly related to one of the main purposes for which highway funds are expended, safe interstate travel.

“A perceived 10th amendment limitation on congressional regulation of state affairs does not limit the range of conditions legitimately placed on federal grants.”

Brennan: Regulation of the minimum age for purchasing alcohol is reserved to the states by the 21st amendment.Since the states possess this constitutional power, Congress cannot condition a federal grant and in manner that abridges that right.

O’Connor:(3) § 158 is not a condition on spending reasonably related to the expenditure of federal funds and cannot be justified on the ground.The establishment of a minimum treating age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose.

Barnes says: If the amount of money was more than 5% of a state’s federal highway funds, say 50% this likely would have been impermissible coercion under the 10th Amendment. Court has ill defined cohersion and the States can’t leave fed money on the table

Valid use of the spending power is subject to 4e requirements:(1) it must be used for the general welfare;(2) any conditions on receipt of the funds must be unambiguous;(3) and, any conditions must be related to the federal interest in the particular national projects or programs being funded.(4) When pressure turns to compulsion then this is an impermissible violation of state sovereignty under the 10th Amendment.

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981) [Strings attached to Federal funding must be unambiguous]

Facts:

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the Developmentally Disabled Assistance and Bill of Rights act of 1975 created a federal grant program for state governments to provide for better care for the developmentally disabled.

This included a bill of rights for the developmentally disabled.The Pennhurst State school and Hospital, a facility run by PA, was sued for violating the bill of

rights contained in act.Holding:

S. Ct. ruled in favor of the state, holding that "if Congress intends to impose a condition on the grant of federal money it must do so unambiguously."

The ct. explained that conditions must be clearly stated so that the states will know the consequences of their choosing to take federal funds.

The ct. concluded that the act failed to require that states meet the bill of rights as a condition for accepting federal money.

Case Name Facts & Issue Holding Concurrence RuleSabri v. U.S., 124 S. Ct. 1941 (2004)(just gen welfare case) HERE needs just not violate other con provisions[Congress has the power to condition the State’s receipt of federal funds on its ability to impose federal prosecution for misappropriation of those funds by state or local officials.]

(Barnes) (Souter) Art 1 pwr to spend for general welfare and the Nec and Prop clause gives the pwr to.No textual diff b/t Sarbi and Butler only interpretive difference.

Here, Souter says nec and prop gives the ability to ensure money is only spent for the general welfare. (McCulloch)

F: Sabri is a real estate developer who proposed building a hotel and retail structure in the city of Minneapolis. Sabri offered three separate bribes to City Councilman, Brian Herron.18 USC § 666(a)(2) imposes federal criminal penalties on anyone who "corruptly gives, offers, or agrees to give anything of value to any person, with intent to influence or reward an agent of an organization or of a state, local or Indian tribal Govt., or any agency, thereof, in connection with any business, transaction, were series of transactions of such organization, Govt., or agency involving anything of $5,000 or more. In 2001 Minneapolis administered about $29 million in federal funds paid to the city, and in the same period, the MCDA received some $23 million federal dollars. ∆ moved to dismiss the indictment on the ground that the statute is unconstitutional on its face for failure to require proof of a connection between the federal funds and the alleged bribe, as an element of liability (no nexus between the federal funds and the alleged bribes). I: Is 18 USC § 666(a)(2) unconstitutional for failing to require proof of a connection between the federal funds and the ∆’s alleged bribe?

(Souter) No, § 666(a)(2)’s authority to bring federal power to bear directly on individuals who convert public spending into unearned private gain, not a means for bringing federal economic might to bear on a state's own choices of public policy. [not acting on the states, acting on corrupt bribers]

The power to keep a watchful eye on expenditures and other liability of those who use public money is bound up with congressional authority to spend in the first place, and the ∆ would be hard-pressed to claim, and the words of the Lopez ct., that § 666 "has nothing to do with" the congressional spending power.

Congress does not have to sit and accept the risk that federal grants will be thwarted by local and state improbity.

(NEC AND PROP) Barnes- there is no textual meaning. Rather it is interpretive.

Thomas: This is commercial activity associated with business creation and the receipt of federal funds, therefore, the decision should have been based on the commerce clause power, not the spending power of imposing conditions on the states receipt of federal funds.(Appropriate and Plainly adapted) Where Congress imposes criminal liability on individuals via its taxing and spending powers, it is not subject to the same requirement imposed when it is regulating states via the taxing and spending powers, that any conditions must be related to the federal interest in the particular national projects or programs being funded.

(Barnes) Art I. + Nec and Proper (here crazy just Thomas)

The power to keep a watchful eye on expenditures and other liability of those who use public money is bound up with congressional authority to spend.

(Barnes) Souter is proposing but for federal oversight criminals would go unpunished? NO. They would be punished under state federal law.

Court more concerned with COHERSIVE behavior.

Summary of the Brief Foray into Taxing and Spending: (MAJOR TEST)Taxing:

(1) Text: “general welfare”(2) Must not violate other portions of the Constitution:

Do the relevant Congressional taxing & spending provisions merely compel or do they impermissibly coerce?

Spending [ Rehnquist’s test from SD v. Dole ]:

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(1) Text: “general welfare”(2) If there are conditions they must be unambiguous(3) Linked to Federal Interest(4) Finally ask about Coercion or compulsion? (10th Amendment Limits concerns)

This is an ad hoc flexible standard/ and ill defined The total effect of the 10th Amendment on Congress’s Taxing and Spending powers is unclear at this

time.

D. Congress’s Powers Under the Post-Civil War Amendments

13th – prohibits slavery and involuntary servitude and also provides in §2, Congress shall have the power toe enforce this article by appropriate legislation.

14th – provides that all persons born or naturalized in the US are citizens and that no state can abridge the privileges or immunities of such citizens; nor may states deprive any person of life, liberty, or property w/o due process of law or deny any person of equal protection of the laws. § 5 states: Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

15th – declares that the right of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of race, color or previous condition of servitude. § 2 again provides that Congress has the power to enforce it by appropriate legislation.

The three Reconstruction Era amendments, contain provisions that empower Congress to enact civil rights legislation. Two major Qs arise concerning the scope of this power.

1. May Congress regulate private conduct under this authority, or is Congress limited to regulating only Govt. actions?

2. What is the scope of Congress’s power under these amendments?

1. Who May Congress Regulate Under the Post-Civil War Amendments?

The Civil Rights Cases, 109 U.S. 3 (1883) [8 to 1 decision: Restricted the effects of the Reconstruction amendments and their enforcement laws to the states]

Pursuant to § 2 of the 13th and § 5 of the 14th the federal govt. may regulate only state and local govt. actions, not private conduct.

Struck down the Civil Rights Act of 1875 as unconstitutional.Holding:

Civil Rights Act of 1875 is an unconstitutional exercise under the enforcement clauses of the Reconst Ams, as it regulates private conduct, and those Ams may only constitutionally reach St action.

Cannot adjust the social rights of men and races in the community. Civil Rights Act of 1875 (Broadly prohibited private racial discrimination by hotels, restaurants,

transportation, and other public accommodations.) 42 USC 1981 [prohibits discrimination in private and public K’ing]42 USC 1982 [prohibits discrimination in private and public sales]42 USC 1983 [allows citizens to sue different levels of govt. for certain discrimination claims]

Are all still good law. Today the § 2 of the 13th can be used to prohibit private discrimination, which Congress determines

to be vestiges of slavery.

Jones v. Alfred Mayer Co., 392 U.S. 409 [42 USC § 1982, Black family sues b/c real-estate developer refuses to sell to them b/c they are black]:

Holding: Congress may prohibit private discrimination in the selling and leasing of

property.

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Congress has the power under the 13th to rationally determine what are the badges and incidents of slavery, & the authority to translate that determination into effective legislation.

Runyon v. McCrary, 427 U.S. 160 (1976) [42 USC § 1981, qualified Black students want to attend discriminatory white schools]:

Holding:Congress may prohibit racial discrim. in private K’ing pursuant to § 2 of the

13th. § 5 14th still cannot be used to regulate private behavior destructive to EP, Due process, and P & I’s:

U.S. v. Guest, 383 U.S. 745 (1966) [Plurality held the Civil Rights Cases were wrong, 14th should apply to state as well as private discrimination]:

A federal law made it a crime for 2 or more persons to go onto a highway in disguise, or onto the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege (18 USC § 241). As a matter of law did not overrule the Civil Rights Cases.

Holding:Interference w/ the use of facilities in ISC violated the law, whether or not

motivated by a racial animus. (concluding that Congress may outlaw private discrimination pursuant to § 5 of the 14th Am.

United States v. Morrison Case Facts, Nuggets, Issue Holding Etc Rule/DP

US v. Morrison (2000) CJ Rehnquist

(Barnes)

An alleged rape victim sought to sue her accused attackers under the fed VAWA. The accused asserts that VAWA is an unconstitutional exercise of congressional authority.

I: Is VAWA a valid exercise under § 5 of the 14th (since it regulates the activities of private individuals)?

Nugget: Chemerinsky’s empowerment argument:The fed Govt. should be able to fill in gaps where laws are inadequate to support and promote the general welfare of the people. States should be able to cede their reserved powers to the fed Govt. where they are unable or unwilling to do something themselves.

No, the VAWA is not a valid exercise b/c we have previously held that § 5 of the 14th only applies to state action, not private action like gender-based violence.

The Ct held that Congress lacked the authority to enact a statute under the CC or the 14th Am since the statute did not regulate an activity that substantially affected ISC nor did it redress harm caused by the state. Rehnquist wrote for the Ct. that [i]f the allegations here are true, no civilized system of justice could fail to provide [Brzonkala] a remedy for the conduct of...Morrison. But under our federal system that remedy must be provided by the STATE of VA, and not by the US

Breyer argued that there is state action here: inadequate action to address gender motivated violence. By doing nothing, you have done something. He would have also found VAWA constitutional under the CC as Congress presented mounds of statistics to show gender motivated violence’s substantial impact on ISC.

Congress’s authority to regulate under § 5 of the 14th Am extends only to State action, not private action.

Unless it’s the state seeking to deprive you of your 14th Am rights, this Ct is not going to recognize any state action – though the Warren Ct would have found that there was commercial action and a substantial affect on ISC (see Heart of Atlanta.

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2. What is the Scope of Congress’s Power? Initially it only will allow sec 5 14th as a state action and to pierce sovereign immunity of the states

There are two divergent views as to Congress’s power under the Reconstruction Amendments:o (1) Narrow Approach (remedial, FEDERALIST perspective) ]: [See Kennedy’s opinion in

City of Boerne]: Congress may only enact laws, under Amendments’ enforcement clauses, which address

state action (or state and private action under § 2 of the 13) that the Federal ct.’s have declared unconstitutional.

Congress only has authority to prevent or provide remedies for violations of rights recognized by the S. Ct.; Congress cannot expand the scope of rights or provide additional rights.

o (2) Broad Approach (substantive, NATIONALIST perspective) [See Brennan’s opinion in Katzenbach: if you are a nationalist you think the fed gov has broad pwrs to regulate

Congress may enact laws, under the Amendment’s enforcement clauses, which addresses action that Congress feels is unconstitutional.

Congress, by statute, may create rights where the Ct has not found them in the Const, but Congress cannot dilute or diminish const rights.

The choice b/w these 2 views, in part, is about a textual argument concerning what § 5 means when it empowers Congress “to enforce” the Am by appropriate legislation.

Those who take the former view:1. contend that Congress is not “enforcing” if it is creating new rights. 2. see it as solely the Ct’s role to decide the rights protected under the Const as Congress’s role is limited

to enacting laws to prevent and remedy violations. 3. see it as narrowing federal power, reserving more governance for the states, and lessening the instances

in which the fed Govt. can regulate state and local actions.

Those who take the latter view:1. argue that Congress is enforcing the Am by creating greater protections than those found by the Ct. 2. see both Congress and the Ct as having authority to recognize any rights under the Constitution.3. defend it as creating needed national power to protect civil rights and civil liberties.

Katzenbach v. Morgan and Morgan Boerne v. Flores

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Case Facts, Nuggets, Issue Holding Dissent RuleKatzenbach v. Morgan (1966) J. Brennan, (Barnes) could talk about voting as due process or equal protection rights.

(BROAD VIEW) see recapWhy are we using the 14th amendment instead of the 15th amendment? Could have but harder case to prove. 15th just about voting 14th is much broader.

NY voters are challenging a fed law (§ 4(e) of the Voting Rights Act 1965) b/c it is a pro tanto prohibition of the enforcement of the election laws of NY requiring an ability to read and write English as a condition of voting.

I: Whether § 4(e) if the Voting Rights Act of 1965 is appropriate legislation to enforce the 14th’s EP clause under the § 5 enforcement clause.

Yes, § 4(e) is a valid exercise under § 5 of the 14th in order to enforce the EP clause of the 14th b/c the drafters of the 14th intended § 5 to confer broad enforcement powers to Congress, similar to the Necessary and proper clause, therefore Congress may enact any laws, pursuant to § 5 of the 14th, which are “plainly adapted to the end” of enforcing the 14th, and which are not prohibited by, but are consistent with the “letter and spirit of the Constitution.”

Harlan: Congress’s power under § 5 of the 14th is remedial and not substantive, that can be agreed upon, but Congress’s action here was substantive, it was interpreting the Constitution. But, it is a judicial Q: whether the condition with which Congress has thus sought to deal is in truth an infringement of the Constitution, something that is the necessary prerequisite to bringing the § 5 power into play at all.

Harlan and the Rehnquist Ct feel that by using the 14th

as substantive rather than remedial, the Congress is declaring what the constitutional laws are.

§ 5 of the 14th authorizes Congress to enact remedial legislation prohibiting enforcement of state laws found to abrogate civil rights even though such state laws are not per se unconstitutional.

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Case Facts, Nuggets, Issue Holding Dissent RuleCity of Boerne v Flores (1997) J. Kennedy(Ct adopts a very different view of the scope of Congress’s authority under § 5 of the 14th Am than that taken by the majority in Katzenbach.)

Here, Ct declared the Religious Freedom Restoration Act unconstitutional, which was signed into law by Clinton in response to the Ct’s decision in Smith (see below).

(Barnes) RFRA- have to demonstrate COMPELLING INT and Narrowly tailor rule.

Rejects RFRA but the court is striking down the rule for compelling int and narrow tailoring

The Archbishop of San Antonio sued local zoning authorities for violating his rights under the 1993 Religious Freedom Restoration Act (RFRA), by denying him a permit to expand his church. Boerne's zoning authorities argued that the Archbishop's church was located in a historic preservation district governed by an ordinance forbidding new construction, and that the RFRA was unconstitutional insofar as it sought to override this local preservation ordinance.

I: May Congress, pursuant to § 5 of the 14th, define the substantive scope of constitutional guarantees so as to afford all Americans due process, EP, and free exercise of their P & I’s?

No, § 5 of the 14th is remedial in nature, not substantive. Congress may enact laws under § 5 against state action declared unconstitutional by the federal cts, but it cannot determine the substantive scope of Constitutional rights on its own.

Congress is limited to laws that prevent or remedy violations of rights recognized by the Ct, and these must be narrowly tailored – “proportionate and congruent” to the constitutional violation.

While preventative rules are sometimes appropriate remedial measures under enforcement clause of 14th Am, there must be congruence b/w means used and ends to be achieved; appropriateness of remedial measures must be considered in light of evil presented.

Kennedy chastises Congress for its attempt to make an end-run around the Ct’s disposition of religious freedom in Smith.

O’Connor: Smith (which held that generally applicable, religion-neutral laws that have the incidental effect of burdening a particular religious practice need not be justified by a compelling governmental interest) was wrongly decided. If the Ct corrects the misinterpretation of the Free Exercise Clause set forth in Smith, it would put our 1st Am jurisprudence back on course.

Souter: Since Smith is wrong, this case should be re-argued permitting a full review of the issue.

§ 5 of the 14th amendment does grant Congress an affirmative legislative power, however it is a remedial power to enact measures to prevent constitutional violations, but it does not allow Congress to define the substantive scope of constitutional guarantees.

Employment Div. Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) the S. Ct. significantly narrowed the scope of the Free Exercise Clause. Facts:

o Oregon law prohibited the consumption of peyote, a hallucinogenic substance.o A group of Native Americans challenged the law claiming that it infringed free exercise of

religion b/c their religious rituals required the use of peyote.o The previous S. Ct. precedent on the issue had been that Govt. actions burdening religion are

upheld only if they are necessary to achieve a compelling Govt. purpose. Holding:

o the S. Ct. changed the law and held that the Free Exercise Clause cannot be used to challenge neutral laws of general applicability.

o The Oregon law prohibiting consumption of peyote was deemed neutral b/c it was not motivated by a desire to interfere with religion and that was a law of general click ability b/c it applied to everyone.

E. Congress’s Power to Authorize Suits Against State Governments

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1. Background on the Eleventh Amendment and State Sovereign Immunity

11th Am - “The Judicial power of the U.S. shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The 11th was intended to strike from Art. III, § 2 the clauses that state:o that the judicial power of the U.S. extends to suits “between a State and Citizens of another state,”

and “between a State, or the Citizens thereof, and foreign States, Citizens or subjects.” The 11th was a reaction to the S. Ct. case Chisholm v. Ga., 2 U.S. 419 (1793):

o Facts: A SC citizen sued GA to recover money owed to him by GA. He sued in federal ct. citing the Art. III language that expressly allows federal cts to hear

suits against the state govt.’s by citizens of other states. GA claimed that it had SI and should not be sued w/out its consent.

o Holding (4 to 1): Ct. held that the clear language of Art. III authorized suits against a state by citizens of

another state. o Facts post decision:

GA adopted a statute declaring that anyone attempting to enforce the S. Ct.’s decision is “hereby declared to be guilty of a felony, and shall suffer death.”

Less than 3 weeks later Congress approved the 11th amendment, and 3 years later the president approved of the states’ ratification.

Hans v. La. , 134 U.S. 1 (1890) [Since Hans states have been immune to suits both by their own citizens and by citizens of other states]

o Holding: Ct. held that the 11th also bars suits against the states by their own citizens, even on Fed.

Q claims.

Two Views of the 11th: (Scholars and Justices alike disagree as to the proper interpretation of the 11th

Am)o (1) The current majority of the Ct. believes that SI creates a constitutional restriction on federal ct.

subject matter jurisdiction for all suits against state govt.’s. o (2) The current 4 justice minority believes that the 11th amendment merely prohibits federal cts

from hearing diversity jurisdiction cases between states and citizens of other states. Under this view States can be sued based on other Art. III jurisdiction provisions. Most notably SI would not apply to Federal Q jurisdiction. All claims of state violations of the Constitution or fed laws could be heard in fed cts.

Three ways around the current majority’s conception of SI:o (1) State officers may be sued in federal ct., even where state govts cannot be sued.o (2) States may waive their 11th amendment immunity and consent to be sued in fed ct.o (3) Congress acting pursuant to § 5 of the 14th may authorize suits against the state govts.

Lapides v. Board of Regents of the University System of Georgia (Supp)

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Case Facts, Nuggets, Issue Holding Dissent RuleLapides v. Univ. of GA (2002)J. Breyer,

Π brought a civil rights claim along with a number of state law claims against the Univ of GA in GA state Ct. GA waived its SI in the state Ct. and allowed the suit to proceed. GA then moved to have the case removed to fed ct., which it was. Then GA moved to dismiss the suit based on the 11th Am. There were no viable federal claims b/c state govts cannot be sued under 42 USC § 1983 and all that remained were state law claims.

I: Does a State's act of removing a lawsuit from state ct to fed ct waive the State's 11th Am immunity from suit in fed ct by citizens of other States?

Yes. The Ct held that a State waives its 11th Am immunity when it removes a case from state ct to fed ct. The Ct concluded that the university officials' voluntary removal of the action expressly invoked the juris of the fed cts and thus constituted a waiver of SI with regard to state law claims for which immunity was waived in state ct. Under the general principle that a State's voluntary appearance in fed ct amounts to a waiver of its 11th Am immunity, the Ct reasoned that GA was brought involuntarily into the case as a D in state ct, but it then voluntarily removed the case to fed ct, thus voluntarily invoking that ct.'s jurisdiction.

It would seem anomalous or inconsistent for a state both to: (1) Invoke fed juris, thereby contending that "judicial power of the U.S.” extends the case at hand, and; (2) Claim 11th Am immunity, thereby denying that the "judicial power of the U.S." extends to the case at hand.

The State’s choice to remove the case to fed ct was a waiver of its SI.

A State’s choice to remove a case from state to fed ct is a removal when there are state law claims and the state has waived its immunity as to these claims in state ct.

2. Congress’s Power to Authorize Suits Against State Governments Board of Trustees, University of Alabama v. Garrett (Supp) Nevada Department of Human Resources v. Hibbs (Supp) Tennesee v. Lane (Supp) Fitzpatrick v. Bitzer Seminole Tribe of FL. v. FL.

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Case Facts, Nuggets, Issue Holding Dissent RuleBd of Trustees, Univ of AL v. Garrett (2001)CJ Rehnquist

After Garrett, Dir of Nursing for the U of AL, was diagnosed with breast cancer, her treatment forced her to take a substantial leave from work. Upon return, her supervisor informed her she would have to give up her position. Garrett filed a discrimination suit against her AL state employer, seeking $$ damages under Title I (premised upon equal protection clause) of the Americans with Disabilities Act of 1990 (ADA), which prohibits the States and other employers from "discriminating against a qualified individual w/ a disability b/c of that disability... in regard to... terms, conditions, and privileges of employment."

I: (1) Did Congress expressly abrogate the states SI in the ADA?(2) May an individual sue a state for damages in federal ct. under the Americans with Disabilities Act of 1990?

(1) Yes, Congress’s intent to abrogate the states’ SI via Title I of the ADA is clear.(2) No, suits in fed ct by state employees to recover $ damages by reason of the state's failure to comply with Title I of the ADA are barred by the 11th Am. "In order to authorize private individuals to recover $ damages against the States, there must be a pattern of discrimination by the States which violates the 14th Am, and the remedy imposed by Congress must be congruent and proportional to the targeted violation." None of these requirements had been met.

Breyer, Stevens, Souter, Ginsburg:

Ct: (1) is acting as a “super-legislature” by acting as a separate drafting review body for congressional legislation.(2) is treating Congr. as a lower ct.(3) cannot impose judicial evidentiary standards on Congres(4) is overlooking the fact that Congress is more in touch w/ the people & w/ society; therefore, if it says there is evidence of widespread discrimination there probably is and this finding should be accepted under a rational basis review.

Congress may not abrogate the states’ SI, by authorizing private suits, via § 5 of the 14th absent a pattern of discrimination by the states which violates the 14th amendment. Adverse, disparate treatment (i.e. of the disabled) often does not amount to a constitutional violation where rational-basis scrutiny applies.

Congress may not abrogate the state’s SI, by authorizing private suits, via § 5 of the 14th Am absent a pattern of discrimination by the states which violates the 14th Am.

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Case Facts, Nuggets, Issue Holding Dissent RuleNV Dept of HR v. Hibbs (2003) Rehnquist

(Hightened Scrutiny) there is a shift to this standard b/c premised upon gender

Serve sub or imp gov int substaintally related to achieving that goal.

(Barnes) ct does not state what you have to do or set a bight line rule b/c that would constrain the court in the future

Hibbs, an employee of the NV Dept of HR, sought leave to care for his wife under the Family and Medical Leave Act of 1993 (FMLA). The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid leave annually for the onset of a "serious health condition" in the employee's spouse. The Dept granted Hibbs's request for the full 12 weeks of FMLA leave and, after he had exhausted that leave, informed him that he must report to work by a certain date. When Hibbs failed to do so, he was fired. Pursuant to FMLA provisions creating a private right of action "against any employer" that "interfered with, restrained, or denied the exercise of" FMLA rights, Hibbs sued in Fed Dist Ct, seeking money damages for FMLA violations. The Dist Ct concluded that the 11th Am barred the FMLA claim. The Ct of Appeals reversed. I: (1) was it unequivocally clear that Congress intended to abrogate the states’ SI in the FMLA? (2) Whether Congress acted w/in its constitutional authority when it sought to abrogate the State’s immunity for purposes of the FMLA’s family-leave provision?

(1) Yes, Congress’s intent to abrogate the states’ SI via the FMLA is clear.

(2) Yes, the FMLA is a valid enforcement act/prophylactic measure pursuant to § 5 of the 14th Am b/c gender discrimination is subject to “strict scrutiny” and Congress has shown a widespread pattern of discrimination and the FMLA is proportionate and congruent as it is narrowly tailored to remedy the problem.

The Ct held that State employees may recover $$ damages in fed ct in the event of the State's failure to comply with the FMLA's family-care provision. The Ct reasoned that Congress both clearly stated its intention to abrogate the States' 11th Am immunity from suit in fed ct under the FMLA and acted within its authority under § 5 of the 14th Am by enacting prophylactic, rather than substantively redefining, legislation. "In sum, the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic § 5 legislation."

Scalia: There is no guilt by association, enabling the sovereignty of one state to be abridged under § 5 b/c of violations by another state, or by most other states, or even by 49 other states.

The states are not some collective body; they are individual sovereignties and should be accorded the requisite respect.

(Barnes): the treatment from state to state is really not that different

Where the discrimination involved involves a protected class and is therefore subject to strict scrutiny and Congress shows widespread discrimination on the part of the states and the § 5 enactment is remedial and its means are congruent and proportional to the remedial end then Congress may abrogate the state’s SI and subject them to private suit under the § 5 enactment.

The (majority in this) Ct likes that Congress is legislating “smaller.”

Equal protection is the gatekeeper and an EP category subject to strict scrutiny will get you in, but rational basis review of the state action will likely kill the congressional legislation, as the states can always come up w/ some plausible excuse for the discrimination.

Analysis to determine whether it’s a valid exercise: size of the problem > level of scrutiny applied to the discrimination > proportionality and congruence.

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Case Facts, Nuggets, Issue Holding Dissent RuleTN v. Lane (2004)Stevens

(diff b/t tenn v. lane and Garrant is that it is brought under the Title 2 of the ADA)

Two paraplegics, a criminal suspect and a ct reporter, are suing TN, under Title II of the ADA, for lacking the proper infrastructure to accommodate disabled people, thereby denying them access to public services.

TN asked that the case be dismissed, claiming that it was barred by the 11th Am’s prohibition of suits against states in fed cts (the SI doctrine). The state cited Alabama v. Garrett, in which the S. Ct. ruled that Congress had acted unconstitutionally in granting citizens the right to sue states for disability discrimination (such as the denial of employment) under the 14th Am's equal protection clause. In that case, the Ct reasoned that Congress did not have enough evidence of disability discrimination by states to justify the waiver of SI.

The dist ct rejected the state's argument and denied the motion to dismiss. The Ct of App panel affirmed. The cts reasoned that b/c Title II of the ADA dealt with the Due process Clause of the 14th Am, not the equal protection clause, the ruling in Garrett did not apply. The ct found that while Congress may not have had enough evidence of disability discrimination to waive SI for equal protection claims, it did have

No. The Ct held that Congress had sufficiently demonstrated the problems faced by disabled persons who sought to exercise fundamental rights protected by the DPC of the 14th Am (such as access to a ct). The Ct also emphasized that the remedies required from the states were not unreasonable - they just had to make reasonable accommodations to allow disabled persons to exercise their fundamental rights. B/c Title II was a "reasonable prophylactic measure, reasonably targeted to a legitimate end," and b/c Congress had the authority under the 14th Am to regulate the actions of the states to accomplish that end, the law was constitutional. Boerne Inquiry:1st step: identify the const right that Congress sought to enforce when it enacted Title II. (the rights at issue are protected by the DPC of the 14th Am)

2nd step: level of scrutiny and evidence of widespread state discrimination prophylactic legislation. (access to cts is a fundamental right requiring strict scrutiny)

Concur: Ginsburg –Legislation calling upon all Govt. actors to respect the dignity of the disabled is entirely compatible w/ our Constitution’s commitment to federalism, properly conceived.Dissent: Rehnquist, Kennedy & Thomas: The majority identifies nothing in the Congressional record that shows Congress was responding to widespread state violations of the DP of disabled persons.

Just b/c the states don’t have “ideal” facilities doesn’t mean disabled people are being systematically denied access to the cts. A violation of DP occurs only when a person is actually denied the const right to access a given judicial proceeding. We have never held that a person has a const right to make his way into a ct room w/o any external assistance.

Financial concerns are a valid justification for discrimination against the disabled.

Scalia, dissent:

The proportionate and congruent test is

Where the discrimination involved is subject to strict scrutiny and Congress shows widespread discrimination on the part of the states and the § 5 enactment is remedial and its means are congruent and proportional to the remedial end, then Congress may abrogate the states’ SI and subject them to private suit under the § 5 enactment.

The problem w/ formalism:

EP – Overbreadth is deadly

DP – Overbreadth is not necessarily deadly b/c the Ct believes it’s the more critical 14th Am right that needs to be protected.

IOW, there is a fundamental right at issue here, but this decision is based on a formalistic distinction b/w § 5 enactments aimed at EP as opposed to DP. EP seems to be the place where this type of legislation is most appropriate, but the Ct, b/c of previous EP jurisprudence, is unwilling to allow this abrogation of the states SI b/c states, under EP juris, can discriminate against classes like the disabled where the ct

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Case Facts, Nuggets, Issue Holding Dissent Ruleenough evidence of Due Process violations (such as non-handicap-accessible courthouses) to waive the SI doctrine for Due Process claims.

I: Did the ADA violate the SI doctrine of the 11th Am when, based on Congress's 14th Am enforcement powers of the DPC, it allowed individuals to sue states for denying them services based on their disabilities?

3rd step: Was Congress’s enactment under § 5 (here, Title II of the ADA) proportionate in its means relative to its ends? The Act requires only “reasonable modifications” that are w/in the limits of practicability.Ct holds: “Title II’s affirmative obligation to accommodate persons w/ disabilities in the administration of justice cannot be said to be so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.”

a farce; it’s nothing more than a judicial policy making tool.

Congress should be allowed to legislate as it chooses w/in these limitations:(1) Congress must unequivocally intend to abrogate the states’ SI.(2) the abrogation must be under § 5 of the 14th Am.(3) the § 5 enactment must be prophylactic.(4) the § 5 enactment must generally be directed at racial discrimination.(5) the § 5 enactment must be pursuant to identified constitutional violations and must be directed at the violating states.

applies a “rational basis” test.

Congress would be wise to make the act limited and restrictive.

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Case Facts, Nuggets, Issue Holding Dissent RuleFitzpatrick v. Bitzer (1976) J. Rehnquist(Barnes)

Is the pwr of the 11th sup to the pwr of sec 5 14th? Or vice versa.

Lmt at least leg ends or 14th am

(broad view)

In the 1972 Amendments to Title VII of the Civil Rights Act of 1964, Congress, acting under §5 of the 14th Am, authorized fed cts to award $ damages in favor of a private individual against a state govt found to have subjected that person to employment discrimination on the basis of "race, color, religion, sex, or national origin." The provision of a right to sue states in fed ct is challenged as a violation of the 11th Am’s purported grant of SI to the states.

I: Whether, as against the shield of SI afforded the State by the 11th Am, Congress has the power to authorize Fed cts to hear private COAs against the State as a means of enforcing the substantive guarantees of the 14th Am.

Rehnquist: Yes, Congress as a means of enforcing the substantive guarantees of the 14th, may authorize private suits against state govt.’s and state officials in federal ct., which are constitutionally impermissible in other contexts.

The prohibitions of the 14th Am are directed to the States, and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. Such enforcement is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the U.S., empowered Congress to enact

We think that the 11th Am, and the principle of state sovereignty which it embodies are necessarily limited by the enforcement provisions of § 5 of the 14th Am.

When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Am whose other sections by their own terms embody limitations on state authority.

No constitutional provision prohibits Congress from providing for a private COA in the fed cts contra state govts as a means of enforcing the substantive guarantees of the 14th Am.

PA v. Union Gas , (1989) (broad view, broader than Fitzpatrick)

I: 1. Does CERCLA, as amended by SARA, authorize suits against state govts in fed ct?2. If so, does Congress, when legislating pursuant to the CC, have the authority to create such state Govt. liability?

Ct answered YES and YES. However, the Ct did so w/o a majority opinion. 5 votes that CERCLA permits states to be sued for monetary liability in fed ct. Also 5 votes that Congress, acting pursuant to its CC authority, can create such fed ct juris.

Rule: Congress may override the 11th Am and authorize suits against state govts pursuant to any of its constitutional powers, so long as the law in its text expressly authorizes such suits.

(Seminole case says this is wrong)

Seminole Tribe of FL v. FL (1996) J. RehnquistOverturns P.A. Union(Barnes)

Congress passed a law allowing states to be sued for failing to negotiate in good faith w/ Indian tribes regarding the formation of gaming compacts b/w those parties. The law is challenged as a violation

(1) Yes, Congress unequivocally expressed its intent to abrogate the states’ immunity in the Indian Gaming Regulatory Act.(2) No, Congress did not act pursuant to a

Stevens: PA v. Union was right and the majority’s decision today prevents Congress from effectively ensuring state compliance with fed rights:

Congress may not, other than when enforcing the 14th Am’s substantive guarantees, authorize private suits against state govts in abrogation of the 11th Am.

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Case Facts, Nuggets, Issue Holding Dissent Rule(Narrow view)

of the 11th Am’s SI. Tribe sues the Governor.

I: (1) Whether Congress has "unequivocally expressed its intent to abrogate the immunity." (2) Whether Congress has acted "pursuant to a valid exercise of power."

Nugget: After Seminole it is clear that Congress may only authorize suits against st. govt.’s when it’s acting pursuant to § 5 of the 14th.

If a law is within that authority, then the states can be sued for violating it.

If a law is not within that authority, then states cannot be sued for violating it.

valid exercise of power, as Congress cannot abrogate the states’ SI under acts passed pursuant to the Commerce Power, like the Indian Gaming Regulatory Act.

In Fitzpatrick the ct. held: through the 14th Am, fed power extended to intrude upon the province of the 11th Am and therefore that § 5 of the 14th Am allowed Congress to abrogate the immunity from suit guaranteed by that Am. However, this case does not involve the 14th rather it involves an Art. I power, the Commerce power, which was restricted when Congress adopted the 11th Am. The 11th Am applied to all portions of the Const in existence when it was adopted, therefore it applies to Art. I.PA v. Union Gas was wrong: Congress cannot abrogate the states’ SI pursuant to the passage of an act based on any Art. I power. Even when the Const vests in Congress complete law-making authority over a particular area, the 11th Am prevents congressional authorization of suits by private parties against unconsenting states, the only recognized exception to this is § 5 of the 14th.

It prevents Congress from providing a fed forum for individuals to enforce fed rights against non-complying states. 11th am is supposed to prevent suits from citizens from other states (Indians are duel citizens) of the tribe and state so in some ways using 11th to deny citizens of own state which language does not say about.

Souter: The 11th Am (narrow view) is not a legitimation of the archaic common-law notion of SI, rather it merely means that fed cts cannot hear diversity juris claims where one party is a state and the other is a citizen of another state.Hans was wrong: the 11th does not apply to suits by citizens of a state suing that very same state in fed ct., this ct. misread the 11th, it only applies to diversity jurisdiction;The 11th has nothing to do with Federal Q jurisdiction.

In order to validly abrogate the states’ SI Congress must do so via § 5 of the 14th Am, and even here it must pass a 2 part test:(1) Has Congress unequivocally expressed its intent to abrogate the immunity?”(2) Congress must have acted pursuant to a valid exercise of § 5 power.

(Barnes) The Hans court misread and there was an expansive and misguided view of the 11th amendment. This reading almost prevents all suits.

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3. Recent Decisions Concerning Congress’s Authority Under Section 5 to Authorize Suits Against State Governements.

FL. Prepaid Postsecondary Education Expense Board v. College Savings Bank and the United States Kimel v. FL. Board of Regents

Case Facts, Nuggets, Issue Holding Dissent RuleFL Prepaid v. College Savings & US (1999) CJ Rehnquist

(SCOPE CASE)

(Barnes)

Cong has to create the right. The right must fall under due process or equal protection

Appropriate and plainly adapted means that congress will have to define the scope of the problem that will necessitate a solution to the problem that is historically documented

(Barnes) Return to RECAP 2/28/2006: remedy has to be proportionate to the harm or CONGRUENT TO THE ENDS to prevent overbroad regulation or punishment of too many people.

Remedy to harms analysis (not a test) but an analysis YOU NEED TO WATCH COURTS WORDS THAT DISCRIBE

Congress enacted legislation providing a right to sue states in fed ct over patent infringement. The legislation is challenged as beyond Congress’s 14th Am enforcement authority.

I: (1) Whether Congress “unequivocally expressed” its intent in the Patent act to abrogate the states’ SI.(2) Whether Congress acted pursuant to a valid exercise of power in abrogating the states’ SI.

Nugget: Moves the rule from city of Bourne (not over rest states ability in sec 5) not only arcatecture but substantially lmt when they allow congress to leg conduct under sec 5 14th. 2 part rule out of this if cong want people to sue the state under sec 5 1. congress clear intent to do so 2. whether cong had pwr to authorize suit or was the leg an effectual or constitutional exercise. (new terminology) pwr used in a remedial fashion (profolaticlly, remedy imm) so long as proportionality b/t remedy and what the ends are. Can use sec 5

(1) Yes, Congress unequivocally expressed its intent to abrogate the states SI to allow private suits against the states under the Patent Act. (2) No, Congress did not act pursuant to a valid exercise of power to abrogate the states SI b/c Congress cannot abrogate the states’ SI under the CC and the Patent Act was not appropriate remedial legislation under § 5 of the 14th.

The legislation must be "appropriate" under § 5 as that term was construed in City of Boerne. In other words the act must be: (1) remedial in nature;(2) must not define new constitutional substantive rights; (3) and the means used must be proportionate to the end achieved. i.e., (Fitzpartick, Katzenback); appropriate plainly adapted; not overbroad; must show widespread and persisting state deprivation or likely deprivation; narrowly tailor the remedy to the harm.

If profolatic and proportionate and

Stevens, Souter, Ginsburg, Breyer: Given the absence of real state remedies for patent infringement the Patent Act was a proper congressional exercise of its power to ensure due process and equal protection for all patent holders across the nation.

Congress should have the plenary power to vest exclusive juris over patent cases in the fed cts.

Patent law is fed law and fed law should prescribe the remedies. Even if state remedies might be available in theory, it would have been "appropriate" for Congress to conclude that they would not guarantee patentees due process in infringement actions against state defendants.This ct. has never mandated that Congress must find “widespread and persisting deprivation of constitutional

In order for Congress to constitutionally abrogate the states’ SI pursuant to § 5 of the 14th, it must:(1) show a history or a pattern of unconstitutional activity by States giving rise to a need for remedial or preventative fed legislation, and;(2) limit the scope of the remedy by making the means proportionate to the end of remedying the constitutional violations, which gave rise to the need for enforcement (this portion is from Boerne).

(Barnes) this is a good example of the dissent telling you there is a shift.

Difference b/t architecture and harm being congruent.

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Case Facts, Nuggets, Issue Holding Dissent Ruleappropriate and plainly adapted it is constantly shifting

but just has to be tailored in such a way.

congruent have to have documented evidence of action (strict or more lmt use of sec 5)

rights” in order to employ its § 5 authority - the majority made this up!The states were given the opportunity to voice their concerns about the Patent Act when Congress was debating it and they chose not to.

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Case Facts, Nuggets, Issue Holding Dissent RuleKimel v. FL Bd of Regents(2000) O’Connor(rational basis category)

The dissent invokes Wechsler’s Theory:The normal operation of the legislative process itself would adequately defend the states interests from undue infringement. IOW, the political process protects the state and the state can get its remedy from the people.

Barnes isn’t convinced if Wechsler’s theory works in that the political process may not actually provide adequate protection to the state. States would certainly need other similarly situated states to support them.

(broad part of the rule) 1. is there a clear and ambiguious statement of the statute. 2. whether ADEA was appropriate question of cong pwr.

Congress extended coverage of fed age discrimination laws to the States using its § 5 authority to enforce the 14th Am. The extension is challenged as outside the scope of this authority.

I: (1) Whether Congress unequivocally expressed its intent in the Age Discrimination in Employment Act (ADEA) to abrogate the states’ SI.(2) Whether Congress acted pursuant to a valid exercise of power in abrogating the states’ SI.Nugget: Congress can only abrogate the states’ SI pursuant to a valid exercise of its § 5 14th Am enforcement power.This means that the means involved must be proportionate or congruent with the end desired; the remedying of unconstitutional violations of due process and EP.

(generally ct picks level of rev based on protected category) 1. strict scrutiny (compel gov int) race, 2. Hight scrutiny3. rational basis- everything else lumped here (beauty of this standard for Gov is it is so thin reasonable means to achieve this end imp any thing will generally suffice

(1) Yes, Congress unequivocally intended for the ADEA to abrogate the states’ SI is federal cts. In reading the statute in its entirety, Ct says yes, not explicit language, but the intent was clear.(2) No, the AEDA, as far as it abrogates state SI, is not a valid exercise of Congress’s § 5 14th Am enforcement power b/c the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that could be targeted by the Act. Age is not a suspect classification under the Equal Protection Clause.

It is clear that the ADEA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne.

Stevens, Souter, Ginsburg, Breyer:Congress’s power to regulate the economy involves the power to regulate both the private and public sectors of employment.Congress’s power to authorize fed remedies against state agencies that violate fed statutory obligations is coextensive with its power to impose those obligations on the states in the first place. If Congress can impose a requirement on the States, it should be able to provide for a private right of suit to ensure state compliance.

Unwilling to accept Seminole Tribe as controlling precedent. The Ct’s judicial activism manifested in cases like Seminole represents such a radical departure from the proper role of this Ct that it should be opposed whenever the opportunity arises.

In order for Congressional Acts abrogating the states’ SI, under § 5 of the 14th to be valid, its substantive requirements must be congruent with and proportionate to the unconstitutional actions that are to be remedied.

The act must be:(1) remedial in nature;(2) must not define new constitutional substantive rights; enforce rights, do not create rights.(3) and the means used must be proportionate to the end achieved. i.e., appropriate; plainly adapted, not overbroad; must show widespread and persisting state deprivation or likely deprivation; narrowly tailor the remedy to the harm.

Review of the collision between the 14th and the 11th in the federal context:Bitzer:

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14th followed the 11th and § 5 was intended as a limitation on the states’ sovereignty.

Katzenbach:§5 14th enactments must be “appropriate legislation” “plainly adapted” for the

purpose of furthering the aims of the 14th Am. Union Gas:

Expanded valid § 5 enactments to laws passed pursuant to any Art. I power.Seminole:

Contracted valid § 5 enactments to laws passed pursuant to enforce § 1 of the 14th.

Rule Development: Bourne/FLA Pre-paida) Congress may abrogate 11th when:

(1) Clear Statement(2) Valid Exercise

(a)Congress § 5 enforcement (can’t be creation) of legislation remedying §1 14th amendment violations of: (NEED A SOILD METHOD OF ANALYSIS need better framework here)

(i) EP Pattern of State discrimination

widespread harm means must be “congruent and proportionate” to the ends desired.

ct. wants remedies w/limits(ii) Due Process

Whether there is a protected class does not matter.

Not as susceptible to Overbreadth as is EP.

4. Congress’s Power to Authorize Suit Against State Governments in State Courts Alden v. Maine

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Case Facts, Nuggets, Issue

Holding Dissent Rule

Alden v. Maine (1999) J. Kennedy

(Barnes) agrees w/dissent and thinks this is one of the better dissents by Souter.

The structural analysis here is highlighted in yellow and is Kennedy’s structural analysis- viewing in the constitution as a whole

Kennedy isPlaying free and loose with history and structure

A group of probation officers sued their employer, the State of ME, alleging that the state had violated the overtime provisions of the 1938 Fair Labor Standards Act. Following the Ct's decision in Seminole Tribe which held that States are immune from private suits in fed ct and that Congress lacks the authority to abrogate that immunity, the suit was dismissed in Fed dist ct. Alden then sued ME again for violating the FLSA, this time in state ct. The state trial ct and the state S. Ct. both held that ME had SI and could not be sued by private parties in their own ct. I: May Congress use its powers under Article I of the Constitution to abrogate a state's SI from private suits in its own courts?

No. The ct held in a 5-4 decision that Congress may not use its Art. I powers to abrogate the states' SI. Both the terms and history of the 11th Am suggest that States are immune from suits in their own cts. And more generally, the original understanding of the Constitution's structure and the terms of the 10th Am confirm that states retained much of their sovereignty despite their agreeing that the Natl. Govt. would be S. when exercising its enumerated powers.

Congress subjecting a non-consenting state to suit, pursuant to its Art. I powers, in the state’s own ct is not consistent w/ our Constitutional framework b/c the states would never have ratified the Const had it allowed this type of congressional action to abridge their SI.

SI derives not from the 11th Am but from the structure of the Constitution.

Nobody, not even the Const’s most ardent opponents, suggested the document might strip the States of the immunity. A sovereign’s immunity in its own cts has always been understood to be w/in the sole control of the sovereign itself.

This does not mean the states may disregard fed law; rather, the states should be given the benefit of the doubt that they will comply and if not there are other options besides allowing private suits in the state’s own cts.

Souter, Stevens, Ginsburg, and Breyer, dissenting:

Seminole Tribe was wrong: the 11th Am was never intended to reach fed Q juris and that Am does not represent the archaic common law doctrine of SI.

Congress exercising its conceded Art. I power may unquestionably abrogate such immunity.

ME is not sovereign w/ regard to Natl. legislation like the FLSA. ME state cts are required to enforce fed rights granted by Congress b/c of the Supremacy Clause Art. VI, cl. 2.

The strain on the state treasury feared by the majority will not be felt if the states do not violate federally granted rights.

States are soverign accept when Fed gov exercise their art 1 pwr. Finds structural arg rhetorical.

Congress does not have the authority, under its Art. I powers, to abrogate the States’ SI from suit in their own cts.

Class notes:

Kennedy builds inferences upon inferences and as a non-textually, uses dubious historical references.

If there was no Q about SI then why did the framers word Art. III the way they did – thus, necessitating the 11th Am in the first place.

The majority’s reasoning is inconsistent w/ the notion of the supremacy clause. Big point on silence in the text

Interesting b/c Maj cannot state a constutional textual claim

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5. Congress’s Power to Authorize Suits Against State Governments in Federal Administrative Proceedings

Federal Maritime Commission v. South Carolina State Port Authority (Supp)

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Case Facts, Nuggets, Issue Holding Dissent RuleFed Maritime Comm. v. SC State Port Authority (2002)J. Thomas

SC Maritime Services asked the SC State Ports Authority (SCSPA) 5 times for permission to berth a cruise ship at the SCSPA's port facilities in Charleston. Some cruises offered by Maritime Services would allow passengers to participate in gambling activities while on board. The SCSPA repeatedly denied Maritime Services' requests, contending that it had an established policy of denying berths in the Port of Charleston to vessels whose primary purpose was gambling. Maritime Services filed a complaint with the Federal Maritime Commission (FMC), arguing that SCSPA violated the Shipping Act by its denials. The complaint was referred to an ALJ, who found that the SCSPA, as an arm of the State of SC, was entitled to SI and thus dismissed the complaint. Reversing on its own motion, the FMC concluded that state SI covers proceedings before judicial tribunals, not Executive Branch agencies. In reversing, Ct of App found that the proceedings were an adjudication and thus subject to state SI. I: Does a State's SI preclude the FMC from adjudicating a private party's complaint that a state-run port has violated the Shipping Act of 1984?

Yes. In a 5-4 opinion, the Ct held that state SI bars the FMC from adjudicating a private party's complaint against a non-consenting State b/c fed administrative hearings involving an ALJ (administrative law judges- for agency policies) are so similar to Art. III ct’s proceedings that they are for all intents and purposes ct cases, and as such the same restrictions on suits against non-consenting states should apply. Historically, the Ct noted, states were not subject to private suits in administrative adjudications when the Constitution was adopted, and states were thus presumptively immune from such actions. Moreover, the Ct pointed to the similarities between the FMC's proceedings and civil litigation to conclude that there was no basis for distinguishing between the actions for purposes of SI. "Although the Framers likely did not envision the intrusion on state sovereignty at issue in today's case, we are nonetheless confident that it is contrary to their constitutional design."

Dissent, Stevens: There are two main weaknesses in the majority’s opinion:(1) Alden was wrong,(2) the notion that states must be afforded the dignity of separate sovereigns.

The 11th Am was never meant to refer to SI as the majority envisions it:(1) the 11th is a bar on fed diversity SMJ not a bar on PJ over states in all fed hearings. (2) The Const does not immunize the states from a federal ct’s process.

Dissent, Breyer:FMC is an exec branch agency not a judicial ct. It is not exercising the judicial power of the US. 11th Am, no matter what the interpretation, does not apply.

The constitution is a living document and it must adjust to the times, modern nations need administrative agencies w/ real power.

State SI bars fed administrative bodies from adjudicating complaints filed by a private party against a non-consenting state.

State SI does not merely constitute a defense to monetary liability or even to all types of liability ; rather, it provides an immunity from suit.

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CHAPTER 3THE FEDERAL EXECUTIVE POWER

A. Presidential Power Introduction

Inherent Powers of the executive: Madisonian view: Presidential powers are limited to those powers that are enumerated. Said that the first

clause of Art. II was only intended to settle the Q of whether the Executive would be single or plural and gave the office a title

Hamiltonian view: Presidential powers are broad—Article II does not bind the powers of the president the way that Article I does for congress.

Youngstown Sheet & Tube Co.. v. Sawyer The Scope of Inherent Power: The Issue of Executive Privilege United States v. Nixon Cheney v. US District Ct. For District of Columbia

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Case Fact Nugget, Issue Holding Dissent Rule/DPYoungstown Sheet & Tube v. Sawyer , Black, 1952,

Barnes: Currently Bush has cong authority to do what is necessary and also that he has commander and chief pwr ie FISA, here Ct says no to Comm & Chief pwr.

Barnes: jacksons illustrating a relative pwr scheme approach

If thinking r.e. Douglas look at art I or III as long as not usurping these pwrs ok he is only talking about who has the pwrs.

Either you accept we need an executive that does or does not need these pwrs and if so what are these notions of pwr

F: In order to prevent the feared interruption of supplies to troops in Korea, Truman, on the eve of a steelworkers’ strike, ordered the Sec’y of Commerce to take possession of the nation’s largest steel mills and keep them operating. Congress was twice informed of the P’s actions but remained silent. Sec’y defended the P’s actions, arguing that the P was acting within his power as chief executive and commander-in-chief.

I: Was the President’s Exec Order taking temporary possession of private property without the consent of the property owners unconst?

Chemerinsky: focus here on how each of the opinions answer the question of when the President may act w/out express constitutional or statutory authority. More specifically when if at all may the President claim executive privilege?

Plurality OpinionBlack conc: The Pres does not have inherent/implied powers. His power is limited to 1) the text of the constitution 2) and congressional Acts. The President is not a lawmaker but an enforcer. The Const. grants congress the power to make laws.Jackson conc: This has come to be the favored approach. 1) The President’s powers have maximum force when he acts pursuant to expressed or implied authorization by Congress or the const. 2) When Congress is silent, the Const grants the Pres certain power to act independently or concurrently with Congress. Balanced approach. 3) The Pres’s power is at its lowest when he acts contrary to the will of Congress or the const., express or implied. Douglas conc: The pres’s power is broad but not without limits: his powers cannot infringe on another branch. Here the Pres usurped Congress’s power: this is a seizure and therefore Congress would need to pay for it.Frankfurter conc: F takes the approach of Jackson’s #3. Pres has inherent powers but the powers are limited by congressional will. Here congress has made a conscious choice not give seizure power to the Pres.

(Barnes) Frankfuter seems like he would allow congress to ceed some pwr around their authority. Douglas would fight this notion.

Vinson dissent : Emergency position. There’s an inherent power that exists outside of the const and congress. Here the Pres’s action was 1) temporary AND 2) congress was silent after the Pres had sent them notice. The Pres was merely “taking care that the laws be faithfully executed.”

(SEE HORNBOOK)Want a broad pres understanding for the move of national defense even to the extent that they are enacting the congressional plan and notified congress what they are doing.

Barnes: we are always deciding which is the default possistion and Barnes agrees that the world is looking like this now See el shifia

Clearly the pres has to have some art pwr, art II does not give braod pwr for admin but we have them.

Barnes: here this is structural to con and what they have done here is that they want pres to act across a number of categories w/interactions with the other bracnches steming from pwrs as commander and chief, when we compare these pwrs pres is pwr is broad and the congress is enumerated.

DF: Jackson’s 3-tiered approach has been the most widely adopted.

The Continuum of Presidential Power – A Relative Power Scheme (strongest to weakest):(1) When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.(2) When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility.(3) When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

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Case Fact Nugget, Issue Holding Dissent Rule/DPUS v. Nixon, Burger, 1974, Barnes:Strong declaration that there is no absolute privilege pres will get more protection in foreign relations and national security.

F: Nixon refused to turn over tapes of his surreptitiously recorded conversations that had been subpoenaed to assist in the prosecution of individuals in the Watergate break-in.I: Are the President’s confidential communications subject to an absolute privilege?

Burger: The Ct.’s holding is very narrow: There is a general privilege but this gives way in the face of the fair administration of criminal justice b/c of due process issues.

(Barnes) ct cannot give this uncontested immunity b/c other branches may need to know this information and this upsets due process in the criminal judical process (balancing linked to textual commitment) in sep/pwr arg. No wholesale secret ability to keep information on general scale.

What about some qualified privilege? Ct we have never based on general confidentiality given deference to a request that would support a subpoena that would thwart a criminal investigation. (look at balancing in other arenas and weigh the other side or cost to cong or citizens) This is to say others would not get a fair trial if info not released by the president.

Rule/A Balancing Test: There is a tension here between Art. II and III: Communications between the president and other exec. branch officials and advisors are generally privileged, but not absolutely privileged, esp. where the content of the communications is general in nature and not pertaining to national security.

Cheney v. US District Ct. for D.C., Kennedy, 2004

Problem included private individuals in this created commission.

F: A lawsuit was filed claiming that an energy task force, chaired by Cheney, violated the Federal Advisory Committee Act. Cheney sought a writ of mandamus in the Ct. of Appeals to vacate the discovery orders.I: Was the Ct. of Appeals correct to conclude that it had no authority to exercise the writ b/c the Govt. could protect its rights by asserting executive privilege in the District Ct..

H: Sounds like the Ct. is telling the Ct. of Appeals to issue the writ. “The Ct. of Appeals may exercise its power to issue the writ only upon a finding of “exceptional circumstances amounting to a judicial ‘usurpation of power’” or “a clear abuse of discretion.”

Ginsburg and Souter Dissent: No class notes: The decision should be affirmed and the District Ct. should be allowed to narrow the scope of the discovery requested.

Barnes: here unlike criminal case of Nixon this is a civil case. Look back to Luian and allen v wright Nixon ct seemed to reject this.

DP: Nixon is limited to its facts. Cheney hints at a broader level of presidential immunity where the immunity is invoked re: natl. security claims.

Rule: For purposes of discovery, a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any ordinary individual.

B. The Authority of Congress to Increase Executive Power Two Approaches:

One sees separation of powers as appropriately resolved, whenever possible, between the Pres and Congress; if the 2 branches agree, the courts only rarely should invalidate their actions.

The other sees sep’n of powers as constitutionally mandated and therefore envisions a crucial judicial role in enforcing its requirements.

Clinton v. City of New York

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Case Fact Nugget, Issue Holding Dissent Rule/DPClinton v. City of New York , StevensBack in the news again.Barnes: Notes arg that there is no pwr for executive to legislate in this way. Here the arguments by the ct are that the pres is legislating and should only function here singing bills into law and not amending them that pwr belongs to cong alone. Ct here is stuck on the structural analysis of the constitution and the ct is hung up on a single presentment post bicameralism.

F: Clinton used his newly acquired Line Item Veto power to cancel 2 items of congressional spending, and the intended recipients sued his ass.

I: May Congress grant the President the authority to cancel portions of legislation after it has been enacted?

Stevens: No, it may not. The president is effectively amending and repealing laws which looks too much like congressional power. Congress cannot give the President this power b/c of Sep’n of Power issues.

(look to Alden v. Maine, silence is what the maj means the ct just determines what they want) Here helpful to look at framers intent b/c the constitutional convention

Kennedy Concurrence: Although the congressional attempt to curtail its persistent and excessive spending is laudable, the Constitution requires a stability that transcends the convenience of the moment. One branch cannot decide to transgress sep’n of powers: concentration of power in the hands of a single branch is a threat to liberty.Breyer Dissent: The President is just choosing an option, like in a K—and this does not alter the nature of the pre-existing K. Barnes: this analogy is bad.

Barnes thinks the line item veto is a good thing—cuts the pork.

Rule: Congress may not delegate its legislative power to the President, the President may veto or sign into law Acts in toto. B/c distruptive.

(budgeting process on the hill) here idea is to give pres pwr to selectively eliminate pork. Arg is that pres could eliminate the pork projects of the other party. Barnes there we lmt on the pwr of cong placed on the pres.

C. The Constitutional Problems of the Administrative State Introduction

1887 creation of the ICC ushered in a new era for the federal Govt.: the creation of federal administrative agencies with broad powers (legislative, executive, and judicial). E.g.: FCC, SEC, FDA, EPA, NRC, etc

Administrative agencies have exploded onto the scene during the past century and to many they are disturbing because with a simple Congressional enactment and mission statement they are created, but they wield, on a smaller scal,e a fusion of executive, legislative, and judicial powers (See e.g. FMC v. SCSPA).

Federalist No. 47 (Hamilton):o “The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may

justly be pronounced the very definition of tyranny.” The Legislative Veto:

o A former check on the actions and regulations of admin. agencies was the Legislative Veto.o By some form of disapproval either by a vote in a single house, both houses, or even a

Congressional Committee admin. agency actions/regulations were repealed.o However, in INS v. Chada (1983) the S. Ct. declared the legislative veto unconstitutional.

The Non-Delegation Doctrine And Its Demise:o This doctrine stood for the principle that Congress could not delegate its legislative powers to

admin. agencies.o However, since “the switch in time that saved nine” almost no congressional delegations of power

to admin. agencies have been declared unconstitutional, even extremely broad delegations.o The “Intelligible Principle Test” has supplanted the Non-delegation Doctrine:

Congress may delegate is legislative power to an admin agency if it lays down in the legislative act an intelligible principle to which the person or body charged to exercise the

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delegated authority is directed to conform, then such legislative action is not a forbidden delegation of legislative power.

A.L.A. Schechter Poultry Corporation v. US Panama Refining Co. Ryan Mistretta v. United States Whitman v. American Trucking Association

Case Fact Nugget, Issue Holding Dissent Rule/DPA.L.A. Schechter Poultry v. US , Hughes, 1935

F: Congress delegated authority to an executive agency without prescribing specific standards for exercise of that authority.I: May Congress delegate unrestrained law making authority to the executive branch or is this unconstitutional ?

H: No. The NIRA (sec 3) sets up no specific standards for the Pres to apply in determining whether to accept or reject proposed codes, aside from the general aims of rehabilitation, correction, and expansion.

Rule: Congress cannot delegate unfettered authority to the Pres to make any laws that he thinks are desirable or necessary.

Barnes: Congress does have the pwr to delegate but they have to provide architecture.

Panama Refining Co v. Ryan , Hughes, 1935Barnes: always afraid of giving too much pwr.

F: Congress delegated to the President the power to restrict or prohibit the interstate and foreign transport of petroleum. Lmt was that deferred to state standards.I: May Congress delegate unrestricted law-making authority to the President?

H: No. The law at issue contains nothing as to the circumstances and conditions under which the transportation of petroleum should be forbidden. Congress left the matter entirely to the Pres, without standard or rule, to be dealt with as he pleased.

R: The Constitution is flexible enough to allow the Congress to assign to certain administrative instrumentalities to the ability to make subordinate rules—within prescribed limits—and to make certain factual determinations to which legislative enactments shall apply.

DP: In our modern administrative state, agencies DO make regulations. (violates strutuarlly/substaintivly sep/pwrs)Barnes: Has to lmt tightly controlled the exec in some clear way so that there are boundaries that are congressionally imposed. Here the ct does not see boundaries. (makes ref to CC puddle case) can have rules that do not observe § lmts for delegation to be effective there must be a § lmt

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Case Fact Nugget, Issue Holding Dissent Rule/DPMistretta v. US , Blackmun,

F: Congress enacted a determinate sentencing scheme for federal crimes and created the United States Sentencing Commission to devise guidelines that judges were obligated to use in sentencing.I: May Congress delegate legislative authority (i.e. the authority to determine punishments for crimes) to an independent judicial agency?

H: Yes. Congress has provided limits to the authority (maximums and averages), clear goals, and specified purposes.

Scalia dissent: The sentencing “guidelines” have the force and effect of law. This is opening up a dangerous precedent and Scalia foresees all kinds of “expert” bodies, insulated from the political process to which Congress will delegate lawmaking responsibility.

R: “Intelligible principle” test: “So long as Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform, such legislative action is not forbidden delegation of legislative power. Also, congress has power to delegate nonadjudicatory functions as along as they do not infringe upon the role of another branch AND are appropriate to that branch.DP: Although the ct. plays lip service to this test, no legislative delegations of power to administrative agencies have been declared unconst since the ALA Poultry and Panama cases.

Whitman v. American Trucking Assoc , Scalia, 2001

I: Does the Clean Air Act delegate legislative power to the Administrator of the EPA in contravention of the constitution?

Requisite to protect with an adequate margin for safety. Name a discrete set of requirements.

H: No. Congress has laid down an intelligible principle to which the EPA is directed to conform. The scope of the Act is well within the outer limits of our non-delegation precedents. The word “sufficient” is held to be limiting enough.Barnes: “intelligible principle” is the lmt that will give guidance and create a space to act and be bound by this principle. Process argument: by ct it is difficult to second guess boundaries as a function of time.Substance arg: has to answer question of intelligible prin. (if you have this question in front of you. Pwr delegated an agency must set uniform standards that protect pub health 2nd have to ask Q re intelligible prin or has Cong set some lmt on how pwr will be carried out.

“We have almost never felt qualified to 2nd-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.”

Barnes: “BOX” is § or law and enactment and the inside is the rule and as long as the box/law has provided the rules ct will not disturb this, here the case made it to the ct b/c the ct below found too many holes in the box.

- Why does Congress need to be able to delegate?- Efficiency/convenience- have to give some latitude to deal w/fact congress can’t foresee reg necessary- No legislation is worse than at least SOME delegation - Administrative bodies have expertise—work place issues, environmental issues, financial matters.

- W/exception of the line-item veto, the ct. has been reluctant to disallow delegation as long as it is somehow limited.

2. The Legislative Veto and Its Demise

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- Congress uses this to keep some sort of control of the power they’ve delegated away: allowed Congress (or one of its houses, or even a committee) to overturn an agency’s action by doing something less than adopting a new law.

Immigration and Naturalization Services v. Chadha

Case Fact Nugget, Issue Holding Dissent Rule/DPINS v. Chadha , Burger, 1983

F: Congress authorized either House of Congress to invalidate and suspend deportation rulings of the Attorney General. Chadha had stayed in the U.S. past his visa deadline and was ordered to leave the country. After a hearing the AG recommended the suspension of Chadha’s deportation. The House of Reps voted NOT to suspend the deportation.

I: Did the Immigration and Nationality Act, which allowed a one-House veto of executive actions, violate the separation of powers doctrine and/or the structure of the constitution?

(Barnes) the leg veto is not dead but it had to follow presentment and bicameralism

H: Yes, Congress cannot do this b/c of 1) presentment issues (Art I: need to present to the Pres before it becomes law) and 2) bicameralism (there are only 4 specific exceptions to this).

Powell Conc: Worried that the breadth of this holding will create chaos b/c of the number of statutes that have such a veto. To him the issue is clearly one of sep’n of powers. Congress impermissibly assumed a judicial function. Congress exceeded the scope of its constitutionally prescribed authority and therefore the ct. need not decide that all legislative vetoes are invalid under the Presentment clauses.White dissent: Says this holding is too broad. (upsets stare decisis) Favors the efficiency argument over the structural argument. Under Sep’n of Powers doctrine this is NOT a problem. W’s dissent reminds Barnes of the K analysis in Breyer’s dissent from Clinton v. NYC. This is a conditional K and not a new law—Barnes finds this more compelling than Breyer’s argument. The Constitution should be interpreted with the flexibility to respond to contemporary needs.

R: The Legislative Veto violates Sep’n of Powers and the constitution. We cannot sacrifice the freedom from the arbitrary exercise of governmental power for efficiency reasons.

Barnes: real loser in this is the president or the executive b/c that is who does not get an opportunity to hold congress in check, when they take on an executive function undoing a judicial function.

Ct uses basic structural argument and if it is traditional law making it needs bicameralism and presentment

From Chadha (Powell Conc):- Functionally, the doctrine of separation of powers may be violated in two ways: (roles of the branches)

- One branch may interfere impermissibly with the other’s performance of its constitutionally assigned function. E.g. US v. Nixon - Or the doctrine may be violated when one branch assumes a function that more properly is entrusted to another. E.g. Youngstown, Chadha (concerned where cong pwr disruptive of the judiciary)NORMATIVE OR PRAGMATIC CONCERNS:Transprancy- to the ext the ct defends presentment and bicameralismEquality issue- (Chadha) so that people are treated similarly under the law

3. Checking Administrative Power The Appointment Power

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Morrison v. Olson

Case Fact Nugget, Issue Holding Dissent Rule/DPMorrison v. Olson , Rehnquist, 1988

F: The Independent Counsel was appointed by the Special Division of the DC Circuit Ct. of Appeals to investigate a high-ranking Govt. official, and the official responded by claiming that the appointment of Independent Counsel was unconstitutional.

I: Is the appointment constitutional?

H: Yes. This is an inferior appointment and thus congress may provide for appointment by the President alone, by the heads of departments, or by the Courts. Why is this an inferior position:1) Counsel is subject to removal by a higher Executive Branch official. 2) Counsel is empowered to perform only certain, limited duties. 3) Counsel’s jurisdiction is limited. 4) Counsel’s tenure is limited.

Scalia dissent: Criminal investigation and prosecution are quintessentially executive functions. The Pres should have exclusive control over those functions. Today’s decision deprives the Pres of a purely executive function, thereby substantially affecting the balance of powers.

The Appointments Clause, Art II, § 2, cl. 2, divides executive officers into 2 classes: principal officers and inferior officers. Barnes: says this more like a congressional check than an unwarranted power grab.

The Removal Power- There is no textual support concerning the Pres’s authority to remove executive branch officials. The principle that has emerged from the cases is that the Pres may remove executive officials unless removal is limited by a statute.

The Impeachment of Andrew Johnson Myers v. US Humphrey’s Executor v. US Wiener v. US Bowsher v. Synar Morrison v. Olson

Case Fact Nugget, Issue Holding Rule/DPMyers v. US , (NOTE)Taft, 1926

F: President Woodrow Wilson removed Myers, a postmaster, without seeking Senate approval.I: Does Pres. have power to remove the postmaster w/o the consent of the senate?

H: Yes. The Pres. does not need to seek approval to remove someone from office. Art. I does not grant this power to the Congress and Art. II does not limit the Pres’s power in this respect.Barnes: Pres. needs to be able to remove people in his cabinet for efficiency reasons but what about due process issues?

Pres. has unlimited removal power.

Barnes: 1. if constitutional congress wanted to do this would be words 2. to fill the void the pres structural or historical analysis is structure of broad leg structure is lmt

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Case Fact Nugget, Issue Holding Rule/DPHumphrey’s Executor v. US, (NOTE) Sutherland, 1935

F: Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the (FTC). In 1933, Roosevelt asked for Humphrey's resignation for political reasons. When Humphrey refused to resign, Roosevelt fired him b/c of his policy positions. However, the FTC Act only allowed a president to remove a commissioner for "inefficiency, neglect of duty, or malfeasance in office." I: Did § 1 of the Federal Trade Commission Act unconstitutionally interfere with the executive power of the President?

H: The Ct. found that the Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Ct. reasoned that the Constitution had never given "illimitable power of removal" to the president. Myers was distinguished in that the officer there was part of the exec. dept. The FTC is different b/c it was a body created by Congress to perform quasi-legislative and judicial functions. Barnes: The difference is between the agencies and not the power itself.

Myers distinguished: Pres. has limited removal power for a non-executive agency official—Congress can have input.

Wiener v. US , (NOTE) Frankfurter, 1958

F: By the War Claims Act of 1948, Congress established the War Claims Commission for the purpose of adjudicating claims for compensating internees, prisoners of war, and religious organizations. Wiener was confirmed as a member of the Commission by Truman. Eisenhower requested Wiener's resignation, Wiener refused. I: Did President Eisenhower have the authority to terminate Wiener's membership on the Commission?

H: The Pres. does not have the authority to remove individuals from the WCC at will. The Ct. found that Congress had intended to create a body that was "'entirely free from the control or coercive influence, direct or indirect,' of either the Executive or the Congress." This Commission needed to be free from any coercive effects.

Pres. does not have at-will removal power, depending on the character of the agency or commission.

Bowsher v. Synar , (NOTE) Burger, 1986

F: Due to rising Govt. budget deficits during the first term of the Reagan Administration, Congress passed an act that was designed to eliminate the federal budget deficit by restricting spending during fiscal years 1986 through 1991. Under the law, if maximum allowable deficit amounts were exceeded, automatic cuts, as requested by the Comptroller General, would go into effect.I: Did the functions assigned by Congress to the CG under the act violate the doctrine of separation of powers?

H: Yes. To permit an officer controlled by Congress to execute the laws would be a back-door way of allowing legislative veto power. The ct. found that requiring good cause for termination was not unduly burdensome in light of the purpose of independent counsel.

Congress cannot vest in itself the power to remove an officer charged with the execution of the laws, with the one exception of impeachment.

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Case Fact Nugget, Issue Holding Rule/DPMorrison v. Olson , (NOTE) Rehnquist, 1988

F: The Ethics in Govt. Act of 1978 created a special ct. and empowered the AG to recommend to that ct. the appointment of an "independent counsel" to investigate, and, if necessary, prosecute Govt. officials for certain violations of federal criminal laws.I: Did the Act violate the constitutional principal of separation of powers—do the removal restrictions impede the Pres’s ability to perform his constitutional duty?

H: No. The means of selecting the independent counsel did not violate the Appointments Clause; the powers allocated to the special ct. did not violate Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch.

New Rule: The categories aren’t all that important—what’s important is whether the removal restrictions interfere with the Pres’s ability to perform his constitutional duty.

Barnes says: note that removal doctrine is all judicially created since it’s not explicitly in the constitution.b/f and in Morrison 1. (Humphries/Weiner) agency (legislative) and/or 2. Duties (quasi-“legislative” or “Judicial”) 3. Impediment to the exec duty.

D. Separation of Powers and Foreign PolicyArticle I, §8: Congress has the power to regulate commerce with foreign nations, “To declare War, grant

letters of Marque and Reprisal, and Rules concerning Captures on Land and Water,” to raise and support armies, and to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations.”

Article II: The “President shall be Commander in Chief of the Army and Navy of the US, and of the Militia of the several States, when called into the actual Service of the US.” The Pres. “shall have Power, by and with Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

Foreign policy issues are SO different now than during the time of the framers that it’s impossible to apply their intent to today’s issues. Difficult b/c Constitution does not help us figure out which brach has more pwr when they come into conflict.

Hamdi v. Rumsfeld

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Case Fact Nugget, Issue Holding Dissent Rule/DPHamdi v. Rumsfeld, O’Connor, 2004

Now avoid Sep/pwr arg w/ Elshifia to go around Baker (non justiciable) sep/pwr does not mean that we defer to unchecked pwr where ct believes that there is gov’t malfeasance the rule was supposed to be about form

F: Hamdi, an American citizen, was arrested by the U.S. military in Afghanistan. He was accused of fighting for the Taliban against the U.S. and declared an "enemy combatant," and transferred to a military prison in Virginia. A petition for a writ of certiorari was filed in federal district ct. there in an attempt to have Hamdi's detention declared unconstitutional. He argued that the Govt. had violated Hamdi's V Amendment right to DP by holding him indefinitely and not giving him access to an attorney or a trial. The Govt. countered that the Exec. had the right, during wartime, to declare people who fight against the United States "enemy combatants" and thus restrict their access to the ct. system. The district ct. ruled for hamdi, telling the Govt. to release him. The 4th

Circ Ct. of Appeals reversed, finding that the sep/pwr’s required federal courts to practice restraint during wartime b/c “the executive and legislative branches are organized to supervise the conduct of overseas conflict in a way that the judiciary simply is not” and therefore the judiciary should defer to the Exec “enemy combatant” determination. I: (1) Did the Govt. violate Hamdi's Fifth Amendment right to Due Process by holding him indefinitely, without access to an attorney, based solely on an Executive Branch declaration that he was an "enemy combatant" who

H: 5-4 plurality rule: there was sufficient legal authority to detain Hamdi as an enemy combatant. 8-1 conclusion, however, that Hamdi must be accorded a meaningful factual hearing.

Although Congress authorized Hamdi's detention (apparently through the resolution that authorized the Pres to “use all necessary and appropriate force…” under the AUMF), Fifth Amendment due process guarantees give a citizen held in the United States as an enemy combatant the right to contest that detention before a neutral decision-maker. The plurality rejected the Govt.'s argument that sep’n-of-powers prevents the judiciary from hearing Hamdi's challenge. What process does H get? The Mathews balancing test:(1) What is the harm of the Govt. getting it wrong? We MUST be accountable to our higher constitutional purposes.(2) Burden that the Govt. will face in providing more process.

(Barnes) once wrote enemy combatant paper.

Souter and Ginsburg, concurrence with the plurality that Hamdi had the right to challenge in ct. his status as an enemy combatant. Disagreed, however, with the plurality's view that Congress authorized Hamdi's detention. They say that the Non-Detention act says that the congressional authorization must be explicit. They also think there’s a sep’n of powers issue.Scalia and Stevens dissent: Since Habeas was not officially suspended under Art. II, § 9, cl. 2, the exec. cannot detain someone without a hearing. Citizens are entitled due process! Try them for treason. Thomas dissent: Says the Ct. should butt the hell out. Congress clearly gave this power to the Exec under the AUMF. Also argues that this is non-justiciable political Q under sep/pwrs. The Ct. does not have the power to make this balancing test determination. Baker and

U.S. must provide U.S. citizens labeled as “enemy combatants” with a factual basis for this classification and the ability to rebut the Govt.’s assertions at some sort of hearing.

Barnes: what’s big deal of enemy combatant status? What rights are being violated? You get charged and have rights provided for through 6th & 5th am due process Right to be heard. Gov rational is that b/c of enemy combatant status. (or unlawful enemy combatant) 1.lawful belligerents (armed forces other sides) 2. innocents (lives interrupted by war) 3. Enemy combatant- the individual that does not fit into the other categories. What is important is that if a lawful belligerent you are covered by the Geneva convention.

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Case Fact Nugget, Issue Holding Dissent Rule/DPfought against the United States? (2) Does the separation of powers doctrine require federal courts to defer to Executive Branch determinations that an American citizen is an "enemy combatant"?

Goldwater comport with this.

Barnes’ Separation of Powers Summary: Federal & State Govt. (Separation of Power)

o Ct. choosing between doctrines (1) Federalism as Supremacy (e.g. Gibbons v. Ogden) (2) Federalism as a function of shared power b/t federal Govt. and the states

(a) Textually – e.g. 10th and 11th Amendment (b) Structurally – e.g. Kennedy says that the Const. implies sovereign immunity

(Alden v. Maine)o Executive & Congress

Textual: Art I v. Art II limits on powero Structural: Art I:

(1) Cong’s powers are enumerated (2) Exec’s powers are broad—the limits are much less defined in II v. I

o Prudential: the ct. decides whether it’s prudent to intervene if ct. wants to get involved: constitutional limits Q if ct. doesn’t want to get involved: it’s a Political Q (e.g. Goldwater: Ct. didn’t want to

get involved in a battle between Congress and the Pres)

1. Are Foreign Policy and Domestic Affairs Different?- U.S. v. Curtiss-Wright Export Corp (See YOUNGSTOWN)

Case Fact Nugget, Issue Holding Dissent Rule/DP

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US v. Curtiss-Wright Export CorpSoutherland

Arg: Structural- positionally need to be true as head of foreign affairsPwr Pres broad must enjoy inherent pwr b/c framers did not list that was a commitment. Cong was confined b/c listed.

F: Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt.

I: Did Congress in its Joint Resolution unconstitutionally delegate legislative power to the President?

H: The President is allowed much room to operate in executing the Joint Resolution and thus there is no constitutional violation. Making important distinctions between internal and foreign affairs, the Ct. argued b/c "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically.

Barnes: Thinks this is WRONG and the Pres should not have the lawmaking function. (Ala shecter/Panama diff here foreign)Need for efficiency/nimbleness

Ask textual commitment question from Youngstown

Reverse arg: if the framers wanted this pwr they would have written it in Con not a tax code it is setting a national architecture Take Away:Most commentators said that this is over broad and dangerous b/c this foreign affairs creates much greater domestic implications w/increased exec pwr increase abuse of pwr. Also leads to dangerous foreign arrangements

R: President must be afforded more discretion in international affairs, therefore, in situations where the non-delegation doctrine would apply if the matter were domestic it will probably not apply where the matter is actually related to Foreign Policy.

2. Treaties and Executive Agreements- Danger of the executive agmt if used liberally you could get around the need to use treaties and never have to use Advice and Consent of the Senate.

- Dames & Moore v. Regan, Secretary of the Interior

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Case Fact Nugget, Issue Holding Rule/DPDames & Moore v. Regan, Rehnquist, 19811stDouble move no textual authorization

2nd turn to history to fill the void and then could lead to 3rd structure or they made it up

Cong enactment here and (Youngstown) pwr is the strongest here, he does have the pwr behind him but it is not strongest here. But now it looks like a move away from maj. Youngstown was domestic this is foreign

F: In rxn to the seizure of the U.S. embassy and nationals in Iran, Carter invoked the International Emergency Economic Powers Act (IEEPA) and froze Iranian assets in the United States. When the hostages were released in 1981, the Carter administration terminated all legal proceedings against the Iranian Govt. and created an independent Claims Tribunal. Dames & Moore attempted to recover over $3 million owed to it by the Iranian Govt. and claimed the executive orders were beyond the scope of presidential power.

I: Did the president have the authority to transfer Iranian funds and to nullify legal claims against Iran?

H: Ct. makes a Historical analysis. The Pres has broad powers as long as he doesn’t violate the Const. The Ct. held that the IEEPA constituted a specific congressional authorization for the Pres to order the transfer of Iranian assets. The Ct. further held that although the IEEPA itself did not authorize the presidential suspension of legal claims, previous acts of Congress had "impliedly approved" of executive control of claim settlements—International Claims Settlement Commission. Since Cong has acquiesced in the past, it’s okay to do now. The Ct. emphasized the narrowness of its ruling, limiting the decision to the facts of the case.

Barnes: Thinks the opinion is problematic. The Ct. is saying the Pres only has the power to make an exec. agreement if Cong has at one point said that it’s okay – either implicitly or explicitly. If Advice and Consent isn’t necessary for an Exec. Agreement, then Congress’s assent, implicit or explicit, shouldn’t matter. Chose the world most palatable to you dangerous pres or slow cong

Rule: The Pres. has the authority pursuant to a Congressional Act to promulgate Exec. Agreements that forgive some and settle other claims via binding arbitration against foreign governments and foreign citizens.

3. War PowersArticle I: grants Congress the power to declare war and the authority to raise and support the army and the navyArticle II: makes the Pres. the Commander-in-Chief

- Title 50. War and National Defense: Chapter 33—War Powers Resolution- Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism

The War Powers Act/Resolution Act was passed in 1973 in response to the disaster caused by the Gulf of Tonkin Resolution, which gave

Johnson and Nixon wide discretion to wage the undeclared Vietnam War as they saw fit.o Pres. could take all necessary (measures) actions to repel attacks against the troops in Vietnam and

to end the hostilities. War Powers was intended to restore the Constitutional Balance by drawing the line between military ops

and war. 3 Main Provisions:

o Notification: President must notify Congress via/written communication w/in 48 hours of introducing

U.S. troops into hostilities or an area of likely hostilities. In every possible instance President must notify Congress before introducing U.S. troops

into hostilities or an area of likely hostilities.o Consultation:

After introduction President must periodically consult and appraise Congress of the situation until U.S. troops are returned home.

o Time Clock: In the absence of (a) a declaration of war; (b) statutory approval, or; (c) national

emergency/attack the President is required to terminate the troop deployment w/in 60 days w/a possible 30 day extension to 90 days total.

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Is War Powers Constitutional Given The Division Of The War Powers Between The Congress And The Executive?

o When can the President employ troops in the absence of Congressional approval?o What form does the declaration have to take?o Doesn’t the War Powers Resolution simply allow Congress to sit back and let the President take

the blame for any failed military adventures?o Textual Problem:

Art. II, § 2 President is the commander and chief. o Structural Problem:

Congressional action through inaction troops come out once the 60/90 day time-clock expires.

Congress should have to pass an act. o Textual Argument For:

Congress has the power to declare war and raise and support the military.o Prudential/PQD:

Ct. has generally stayed away from the War Powers issue and has been very deferential to the Executive’s War Power.

Has only stepped in where there are other Constitutional rights at issue (Ex. Hamdi and Due Process).

Typically ct. has held no standing.

Are Military Tribunals Constitutional? Bush, based on his advisors interpretation of Ex Parte Quirin, (see Hamden Handout) passed an Executive

Order for Military Tribunals, which was accompanied by the DOD’s Procedures for Trials by Military Commissions.

Bush claims that it is necessary, per his function as Commander in Chief, that he have the power to detain enemy combatants and create military commissions to try these detainees.

Detention, Treatment, And Trial Of Certain Non-Citizens In The War Against Terrorism: o Per the AUMF and §§ 821 & 836 of title 10 U.S.C. Bush created the following:

Definitions and Policy: Act applies to non-citizens who the U.S. has reason to believe are or were

associated with Al Qaeda or assisted/harbored Al Qaeda members. Detention Authority of SecDef:

Such individuals must be held humanely at locations chosen by the SecDef.o Guantanamo was chosen b/c it was believed that if a non-citizen was

held outside the U.S. they had no Due Process rights. Authority of SecDef Regarding Trials:

Individuals under the act will be tried by military commissions SecDef will see to the formation and structure of the commissions. Commission will not be bound by Art. III ct. procedure and the commission will

sit as both the trier of law and the finder of fact. After conviction or acquittal SecDef and/or President will have the final say.

Obligation of other Agencies to Assist the SecDef: Other agencies who have these individuals are required to turn them over to the

SecDef. Relationship to Other Law and Forums:

Individuals subject to the act will be solely under the jurisdiction of military commissions.

Exec War order is very much based on the policy of efficiency (pg 343) - Ex Parte Quirin (SEE HAMDEN HANDOUT)

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Case Fact Nugget, Issue Holding Dissent Rule/DPEx Parte Quirin, Stone,

F: A group of German trained saboteurs came to the US by sub. They abandoned their uniforms upon reaching shore. Their plan was to destroy targets in the US. Pres appointed a Military Commission to try ∆s for war crimes. I: (1) Was it constitutional for the Pres to appoint the Military Commission? (similar to can you detain) (2) Was the Commission executed properly according to the Articles of War?

H: B/c of the saboteurs’ unlawful enemy combatant status, they have no rights and thus no habeas (no const. protection). They can be tried by military tribunal b/c of common law.

Rule: The problem with the commission though is that the president can override its decisions and there are no appeals. Quirin is bad law but ends up being the basis for the detainee cases. But today’s context is totally different from the 1940’s context that allowed this decision.

(Barnes) unlawful enemy combatants we make it up as we go along. saboteurs were executed after the fact the Sup/Ct said not their proudest moment.

Now exigencies not as great Now war could be ongoing and

may not be such a good idea Maybe more cooperation b/t the

branchesDetention and Tribunal Question

Domestic Surveillance issue: US v. United States Dist ct. CaseE. Checks on the President

United States v. United States District Court (Handout) 1972 wiretapping case Attempt to blow up CIA building Q: whether pwr under art 2 is broad enough to create an exception to a warrant to

conduct a search of this nature Court agrees that national sec matters are of great imp however in the analysis

which looks like a balancing in Hamdi against the encroachment of privacy rhts and freedom of expression. Given these dangers national sec int is against the rights to privacy. Three gov arg:

1. special circumstances2. ct does not have the knowledge (or expertise) to determine the P/C

determination (clearly the gov is making a sep/pwr arg or a non-justiciable political question) See BAKER (6)

3. Nature of National Security (Privileged and Confidential information vital to national sec inappropriate for the ct to review)

Ct response: these rhts are too imp to leave to one branch this is one area where the executive branch cannot be left w/out a check. The balancing test reveals that this is too imp to leave unchecked, can be done w/a warrant and can end up having a chilling effect

Barnes: why is the Keith (US v. USDC) case imp the warrantless wiretap. 6 years later after the handout FISA explicit w/in § 1802 lmt pres pwr to foreign affairs. What is the claim that this is not volatile of the CON, CASE LAW, or FISA… the president. (pres claim now is that tracking the call from outside the US to inside the US)

1. this force is authorized by use of force 9112. inherently authorized as a function of commander and chief pwr : a

clarification letter called the white paper claiming the AUMF provided pres pwr as commander and chief and then suggests that it is specifically allowed as pres FOREIGN AFFAIRS PWRS which is a

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link back to foreign affairs (BROAD CURTIS WRIGHT PWR NOT A YOUNGSTOWN PWR)

3. Barnes Pres arg: Even in Hamdi, the authorization does not say anything about detaining (cong action said that you can’t detain) even the plurality says that pres is allowed to detain but it is not expressly stated. The explicit statement of pwr would have to such… The one claim is the § violated the other claim is 4th am jurisprudence. The constitution here is the last saving per. In 2004, AG makes a request to the ct that there is an Affidavit and the ct comes back after the fact and approves them. FISA prob claiming a new prob and Pres claiming exigency. Broad rule here in Keith look to delegation of pwr cases, and if you believe Just Sutherland in Curtiss Wright it is broad.

4. The space where domestic and foreign affairs is conflating and is not new. The actual language comes from Curtis wright actions belong to foreign affairs where they are external to the US. The actual def is that those matters that effect a situation entirely external to the US. 1 year later we found that YOUNGSTOWN was domestic. Using Sutherlands def in Curtis you could have made a foreign affairs arg and the exc claimed he was acting under his commander and chief pwr part of what is going on here is that we have been accepting the cts presumption w/out challenging a largely domestic b/c foreign (See Dames Moore) WANT TO CHALLENGE US TO THINK ABOUT RE EXEC PWR HOW IS THE CT CONSTRUCTING THE QUESTION WHAT ARE THEY PRESUMING W/REGARD TO THE AREANA THAT THE EXEC ACTION OR CONDUCT IS TAKING. WE HAVE B/F SEEN THAT ACTIONS IN THE US HAVE FOREN AFF EFF NOW WE SEE THE REV WHERE FOREIGN → US ALL OF THE IMPACT TO THE US ASK WHAT IS THE COURT PRESUMING FOUNDATIONALLY WE AUTOMATICALLY LEAP TO THE CASE WHERE BARNES BELIVES THAT DECIDING ON WHICH SET OF THESE CASES APPLIES B/C MORE TRICKY AND PAY MORE ATTENTION TO HOW THE CT STRUCTURES THE QUESTION AND WHEN THAT IS DONE IT IS PRESUMED THAT CONTROLLING FACTS OF JUR PRU APPLIES AS IN HAMDI IT LOOKS LIKE OCC DECINGING SEP/PWR YOU WOULD GET A DIFF ANALYSIS DEPENDING ON THE QUESTION THAT YOU ARE ASKING…… justiciability ex as strategically used by the ct control what answers we get and it is not so apparent.

5. In both cases are there lmt on pres con pwr (younstown/curtis) beyond congressional enactment there was no effect on his pwr and in keith there is a 4th lmt. But he can always claim that the act is unconstitutional (i.e. could cliam not required to follow FISA(barnes: sepeciafically deals w/pres freedom for gathering info in foreign

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arena) regarding Keith pres would have to arg severely lm to the facts i.e. can’t use this pwr generally.

- Primary & Informal: o Informal checks like public opinion and Congressional budgetary checks.

- Formal: o Civil suits (re: activity outside the scope of his office, e.g. Whitewater & Paula Jones);o Criminal suitso Impeachment

1. Suing and Prosecuting the President Richard Nixon v. Ernest Fitzgerald Clinton v. Jones

2. Difference b/t two cases is the scope

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Case Facts, Nuggets, & Issues


Nixon v. Fitzgerald (1982)Powell

Barnes: 1st is there any immunity 2nd is it qualified or absolute

Structure, history and sep/pwr

We are talking about § claims or constitutional

SCOPE of his office ct. if the pres making a decision w/in the structure of his office there has to be an absolute immunity

Fitz, a civilian analyst with the USAF, testified before a congressional committee about inefficiencies and cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which Prez Nixon took responsibility. Fitz then sued Nixon for damages after the Civil Service Comm concluded that his dismissal was unjust. I:Is the President immune from prosecution in a civil suit for actions taken in his official capacity?

Yes. The Ct held that the Prez "is entitled to absolute immunity from damages liability predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history."

There remain other remedies: impeachment, informal public perception and political capital constraints.Analysis:1. sep/pwr 2. historically too broad and untenable for pres to deal w/this3. pragmatically pres should not have to deal w/this b/c it would disrupt his functioning as presCt said that pwr here check is impeachment

Dissent, White:Doesn’t agree w/ the absolute nature of the immunity.

Attaching absolute immunity to the Office of the President, rather than to particular activities that the President might perform places the Prez above the law – reverting to the old notion that the King can do no wrong.

Suit should be allowed where the Prez acts contrary to his constitutional and statutory duties.

This is nothing more than a (bad) policy decision.

Prez is immune from civil suits related to his official conduct. If w/in scope of employment.BRIGHT LINE SHEILD

Qualified immunity no go b/c:In order for the President to carry out his constitutional functions as the pinnacle of executive power and to “take care that the laws are faithfully executed” he must be given absolute civil immunity for his official actions during tenure as president

Clinton v. Jones (1997)J. Stevens

Jones sued Prez Clinton, alleging that while she was an AR state employee, she suffered several "abhorrent" sexual advances from then AR Gov. Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Following a Dist Ct's grant of Clinton's request that all matters relating to the suit be suspended,

(1) No. In a unanimous opinion, the Ct held that the Constitution does not grant a sitting Prez immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Exec office, the Ct held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process.

Rule: A sitting prez does not have immunity from civil suits, which relate to conduct outside the scope of his official duties.

A sitting prez is not entitled to a stay of such civil proceedings until the end of his term in office, b/c the ct. system, itself, weeds out most frivolous claims at an early stage, and facing the remainder will not interfere with the President’s ability to fulfill his constitutional duties.Barnes: even though this is outside the scope the same rationale applies the ct barred the suit in Nixon due to sep/pwr concerns and impediment to executive function concerns. Ct says no not same

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Case Facts, Nuggets, & Issues


pending a ruling on his prior request to have the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the Dist Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the 8th Circ affirmed the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity. I: (1) Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?

(2) In the alternative, is the Prez entitled to a stay of suit until his term has ended, so as to prevent interference w/ the fulfillment of his Constitutional duties?

(2) No, the Prez is not entitled to a stay of suit until his term has ended b/c most frivolous claims are dismissed at the pleading or SJ stages and the fed cts are more than competent to accommodate, fairly, the Prez’s needs.

While the independence of our govt's branches must be protected under the doctrine of sep of powers, the Const does not prohibit these branches from exercising any control over one another. This, the Ct added, is true despite the procedural burdens which Art III juris may impose on the time, attention, and resources of the Chief Exec.

case as Nixon; b/c this will not interfere with capacity of presidentClinton arg: textual: broad pres pwrs (ct agrees) breadth of his art 2 pwr and that they are not specifically enumerated therefore→structural: (ct says pres arg weak little merit)judiciary should not interfere w/the functioning of the exec office if ct messes with this they upset office of the pres. (sep/pwr arg)

the structural arg fails b/c there is nothing that they do in allowing the civil suit that create that much prob the arg Clinton would have to make would be that there is a decrease or encroachment of pwr and by allowing the case to go forward they are not opening the flood gates and finally the ct dismisses their own arg from Distinguishes: NIXON – one reason that they did this was that they did not want to bog down the pres office/here they claim that this is not what they are doing.Problem: as in Hamdi Barnes has a problem w/not asking a more foundational question should be whether this si the type of case given conflicting pwrs among the diff branches whether the ct should hear this at all?(never ask justiciability Q or if this could result in dealing in standards they have no business. Encroaching is not the same as justiciability (that is prudential if should hear at all)

2. Impeachment

There is a strong argument that impeachment and removal should be the sole remedy against the President. But, on the other hand no principle is more basic than the idea that no person is above the law and that this

principle justifies allowing the President, like others, to be charged and tried for crimes. Art. II, §4 Executive Officers Subject To Impeachment:

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o The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Art. I, §2 House Has The Sole Power To Bring Articles Of Impeachment: o The House of Representatives shall … have the sole Power of Impeachment.

Art. I, §3 Senate Has The Sole Power To Try Impeachments: o The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they

shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Clinton Impeachment: o Art. I: Perjury before Grand Juryo Art. III: Obstruction of Justice

Two Major Unresolved Qs About These Provisions:o (1) What are “High Crimes and Misdemeanors?” o (2) What procedures must be allowed/followed when there is an impeachment (See Nixon v. U.S.)

Non-justiciable PQD

CHAPTER 4LIMITS ON STATE REGULATORY AND TAXING POWER

Art. VI of the Constitution – The Supremacy Clause Controls when:Congress has passed a valid law. “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 S. Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Where there is no direct Preemption of state law:There remain two ways federal law can invalidated a state law:

The Dormant/Negative Commerce Clause:State and local laws are unconstitutional if they place an undue burden on interstate

commerce even where Congress has not acted. The Privileges and Immunities Clause Art. IV, §2:

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Two Views On Federal Preemption of State Law:(1) Shared Power Federalism: State and local laws should only be preempted where Congress clearly

does or intends so and preemption does not violate another portion of the Constitution.(2) Federal Law As S.: Preemption is not something to avoid but should be found whenever doing so

will better effectuate the interests of federal law. Forms of Preemption: Keep in Mind Supremacy Clause and Federalism in this section

(1) Express : [Ex. Cipollone]ERISA:

“the federal Employee Retirement Income Security Act of 1974 supersedes any an all State laws insofar as they may now or hereinafter related to any employee benefit plan.”

(2) Implied (i) Conflicts Preemption- both relevant federal and state law [Ex. FL. Lime & Avocado

Growers Gibbons v. Ogden & Gade v. National Solid Wastes Management Assn.] (ii) State Law Impedes A Federal Objective [Ex. Pacific Gas](iii) Federal Law Occupies The Field fed gov wholly and solely regulator [Ex. Hines v.

Davidowitz]Congressional Intent and Ct.’s View of Federalism:

The primary issue regardless of which type of preemption is present is Congressional Intent. How willing should the courts be to find preemption?

What is the courts attitude towards federalism?

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A. Preemption of State and Local Laws1. Express Preemption

- Whenever Congress has the authority to legislate, it can make fed law exclusive in a field.- Clearest way for Congress to do this is to expressly preclude state or local regulation in an

area.- Thus, some fed laws contain clauses that expressly preempt state and local laws. i.e., ERISA

(see above)Cipollone v. Liggett Group

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Case Facts, Nuggets, Issue Holding Dissent RuleCipollone v. Liggett Group (1992) J. Stevens

Rose Cipollone died at 58 from lung cancer after smoking for 42 years. Before her death, she and her husband sued several cigarette manufacturers in fed ct for damages resulting from her lung cancer. A trial ct judgment of $400,000 was reserved in the U.S. Ct of App.

A fed statute required cig packages to contain a warning that the surgeon general has determined that cig smoking is dangerous to one’s health, and banned advertising in any medium of electronic communication subject to the FCC’s juris. Statute also contained a preemption provision that stated: No requirement or prohibition based on smoking and health shall be imposed under state law w/ respect to advertising or promotion of any cig packages labeled in conformity w/ the provisions of this Act. I: Do federally mandated cigarette warnings pre-empt the Cipollones' common law claims against cigarette manufacturers?

In a complicated 7-to-2 decision, the Ct held that federally mandated warnings do not bar smokers from suing manufacturers under state personal-injury laws. The justices ruled that such suits cannot be based on claims that cigarette advertising failed to warn smokers of smoking dangers. But the justices also ruled that individuals may press claims alleging that the tobacco companies made fraudulent or inaccurate statements in their advertising or that the companies conspired to mislead people about the health hazards of smoking.

The FCLAA mandated cigarette warnings expressly pre-empt the Cipollones' common law failure to warn claim against cigarette manufacturers b/c state common law claims against cigarette manufacturers for not providing further warnings and education about the serious health risks posed by smoking would amount to an additional requirement or prohibition under §5(b) of the 1969 FCLAA [the other claims are permitted though].

In a preemption case there is a presumption for the state/“Shared Powers Federalism”:There is a presumption against preemption where the state is legislating with its Police Powers (i.e. for the public, health, safety, and welfare)

Dissent, Blackmun -[Congressional intent was not explicit here.]:

Preemption should not be inferred beyond that which is explicitly stated in the Congressional statute. (the ct should have applied a textual interpretation of the statute.)

Neither version of §5(b) of FCLAA is unambiguous as to what state action it preempts.

It is not clear that either version was ever intended to relate to state law damage claims.

All of the π’s claims should have been permitted.

When Congress expressly prohibits certain state action via a valid congressional statute the federal law preempts the state law, making the state law null and void.

Congress must be express in its intent to preempt state law.

“Until you strip it away we will assume the state may do it,” Barnes.

Slightly undermines preemption and the Supremacy Clause.

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2. Implied Preemptiona. Conflicts Preemption

If a fed and a state law are mutually exclusive, so that person cannot comply w/ both, the state law is deemed preempted. If the fed Govt. sets a minimum standard, the floor of regulation, then a stricter state law is not in

conflict with the fed law and would not be preempted.HOWEVER, if the fed Govt. made the express decision to allow, for example, pollution above “that”

level, then a stricter state regulation is in conflict w/ the federal law. Conflicts Preemption “Inevitable Collision”: Where there is no “inevitable collision” between

a federal and state law within an area where Congress may permissibly legislate Congress must explicitly preempt the state law in Q.

FL. Lime & Avocado Growers v. Paul, Director, Department of Agriculture of California

Case Facts, Nuggets, Issue Holding Etc RuleFL Lime & Avocado Growers v. Dept of Ag, CA (1963)p. 374 J. Brennan

Conflict Preemption

Facts: FL assoc. of citrus farmers is suing CA b/c of a CA law that requires avocados to have at least 8% oil in order to be sold or transported in CA.

A Federal Marketing Order [Calendar maturity] approved by the Sec. of Agriculture gauges the maturity of FL avocados w/out any significance placed on oil content. I: This case presents the Q of the constitutionality of the California statute insofar as it may be applied to exclude from California markets certain FL. Avocados which, although certified to be mature under the fed regs, do not uniformly meet the CA requirement of 8% of oil.

No, §792 of the CA Agricultural Code does not impermissible conflict with fed law b/c the FL growers may simply leave the avocados on the trees a little longer before shipping to CA.

There is no “inevitable collision” between the state law and federal law. b/c could comply with both

The S. Ct. will not conclude that Congress legislated ouster of CA statute adopting percentage-of-oil test as gauge of maturity of avocados by federal marketing orders adopting calendar test of maturity in absence of unambiguous congressional mandate to that effect.

The Agricultural Adjustment Act disclosed no congressional design that California statute adopting percentage-of-oil test as gauge of maturity of avocados should yield to federal marketing orders adopting calendar test of maturity of avocados grown in FL..

Rule: Where there is no inevitable collision between a federal and state law within an area where Congress may permissibly legislate Congress must explicitly preempt the state law in Q.

Problem is that this imposes the calif reg scheme on FL. Q: is then shouldn’t fed standard be the standard and the answer is not necessarily.

Barnes: this case is horrible b/c it is complete opposite of Wsh apple case. Court says rules have to be such where it is imp to follow both at the same time.

b. Preemption B/c State Law Impedes the Achievement of a Federal Objective- Federal Objective Preemption: Even if the fed and state laws are not mutually exclusive,

preemption will be found if the state or local law interferes w/ attaining a fed legislative goal.Pacific Gas & Electric Co. v. State Energy Resources

Conservation & Development Commission

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Case Facts, Nuggets, Issue Holding Dissent RulePacific Gas v. St. Energy Resources Comm . (1983)p. 375

J. White

Facts: A CA law dictated that before additional nuclear power plants could be built, the state energy comm. had to determine that there would be adequate storage capacity for spent fuel rods. Two utility companies challenged the law, arguing that its provisions had been preempted by the fed Atomic Energy Act of 1954. I: Did the CA law unconstitutionally intrude into areas of fed authority as defined by the AEA?

White: NO. In a unanimous decision, the Ct held that the CA law did not impinge upon congressional authority. The Ct found that b/c the rationale for enacting the law was an economic one, it did not interfere with fed regs governing nuclear safety. The Ct held that Congress had left "sufficient authority in the states to allow the development of nuclear power to be slowed or even stopped for economic reasons" and that the cts should not rework the division of regulatory authority created by Congress.

This is a Federalism Case:Shared Powers Federalism –Barnes loves this stuff!!!Ct does not give a reason as to what frustrates a federal objective. Problem here is pretext 1. Express preemption? Need explicit (e.x. we intend to lmt states as follows)statement by congress. You can have explicit statement that needs to be int [purpose/lmts]2. where you don’t have that Implied * a. field ? either [textually/intimately blended..] b. Conflict? [impossibility] *c. Catchall [impediment..] start w/purpose or intent of § and have to anlysis text gov/prevent or whether state is functioning outside traditional function of the state and then the state is acting outside of a traditional functionThe starred factors a and c are tough if we get this say it is tough b/c it is subjective

State law is preempted if it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress; however, the Ct will not interfere where there is a permissible basis for the state law.

In enacting the AEA, Congress intended that the fed Govt. regulate the radiological safety aspects involved in the construction and operation of nuclear plants but that states retain their traditional responsibility in the field of regulating electrical utilities for determining Qs of need, reliability, costs and other related state concerns.

c. Preemption B/c Federal Law Occupies the Field- Even if the federal law does not expressly preempt the state law, preemption will be found if

there is a clear congressional intent to have federal law exclusively occupy an entire field of law.

- Immigration and alien registration is one such field of exclusive federal law. Hines, Sec’y of Labor and Industry of Penn. v.

DavidowitzLorrilard Tobacco v. Reilly

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Case Fact Nugget, Issue Holding Dissent Rule/DPHines v. Davidowitz, Black, 1941Implied Field Preemption: implied b/c that is what the ct decides

F: PA passed an Alien Registration statute that required resident aliens to register once per year, and to carry with them, at all time, an alien registration ID card. A year later, Cong enacted a federal Alien Registration Act with different requirements and penalties – most notably the fed Act did not require the alien to carry the card at all times.

I: Is the Federal Act S.?

H: Yes. B/c immigration is a function of foreign affairs and the federal Govt. has exclusive control over foreign affairs, the states cannot enact laws in that field.

Stone dissent: Says the Ct should be looking to congressional intent. He says that there’s no proof in the Act that the Govt. was attempting to gain exclusivity. Says that for preemption, it must be express. Or at least a clear statement of intent and purpose.

Barnes: using originlist/framers int arg they claim foreign affairs including immigration and naturalization to the fed and not to the states using the sup clause b/c foreign affairs includes treaties the state cannot interfere w/this or upset fed law. In order to be effective this would have to be a field that is soley in the reg of the fed gov.When is a field exists if there are textual commitments then there are no answer that the area is the sole domain of fed reg. In an area where regs are intimately blended, the state should yield.Prob then b/c that the ct can make up law as it goes along i.e. structurally this standard of intimately blended Prob highly subjective

R: Federal laws regarding foreign policy occupy that entire field and thus the states cannot enact their own laws that relate to foreign policy.Barnes: Ct. is making a policy choice here that it would be best for federal Govt. to have exclusive control over immigration issues but is hiding behind a structural claim (the regulation of aliens is intimately blended with foreign policy and what you need a federal Govt. for). The ct is also using a textual argument in relying on the supremacy clause in regard to treaties.

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Case Fact Nugget, Issue Holding Dissent Rule/DPLorillard Tobacco Co. v. Reilly, O’Connor, 2001Barnes: Express preemption

1. textually fed has to indicate to state that (written) that state is lmt in ability to regulateState says that they are not violating lmts of §

F: The AG of Mass. enacted regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. Tobacky Co. filed suit challenging the regulations. Lorillard asserted that under the Supremacy Clause the cigarette advertising regulations were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings and that the regulations violated the 1st and 14th Ams. I: Does the FCLAA preempt portions of Mass's cigarette advertising regulations?

H: Yes. Mass’s argument was that it wasn’t making these regulations based on health so it’s not “in the box.” But the Ct says that the regulation was designed to include anything that touches upon smoking and health and so Mass is preempted.

Barnes: ct 1. express textual commitment a. Cong int and purpose (not what they say it is what they tell us it means)b. clear int of congress to supersede local or state pwr

Stevens dissent: Says that there should be an overwhelmingly obvious signal from Congress that state law should be preempted. Part of what he is saying is that the int and purpose was to regulate part a under Barnes notes. Question then b/c what do you do w/ ambiguous language. Take away:Text alone is not helpful. It requires int by the ct primarily that the int was to expressly lmt the states ability to augment or supp the fed reg in what ever area the fed gov is reg in. To some ext looks like imp b/c still have to int

Barnes: In the box v. outside the box of federal regulation. Also: Just b/c the preemption is express does not mean that there’s no statutory interpretation – the “wrinkle:” the line between express and implied blurs.

Summary of Preemption:Origin:

Art. VI, cl. 2 The Supremacy ClausePreemption exists where federal and state laws collide (sometimes).

Federalism As Supremacy:Broad application

Federalism As Shared Powers:Narrow application

Express Preemption:Explicit statutory language [however, still have to interpret the words] (Ex. Cippolene and Lorillard)

Implied (Congressional Intent):Conflict (Physically impossible for the two to coexist):

Standard comes from FL. Avocado Field (Congressional Intent):

Congressional control over the field is Exclusive!Standard comes from Hines v. Davidowitz [combo of structural and textual arguments]

Catch All/Impede Federal Objective (Congressional Intent/Policy Decision): Pacific Gas & Electric:

Ct. must find that Congress intended a federal objective that was not to be impeded by related state laws.

Barnes Test: Use for Express and Implied Field Preemption:(1) Look at the explicit language & intent of the statute.(2) Look at the intent and purpose of Congress.(3) Congressional intent must be strong enough to override the Presumption that the state law is valid.

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Barnes’ Wrinkle!:Express & Implied = distinction?!

There really is no distinction here because the ct. must interpret the words and intent of Congress in every preemption case, regardless of whether or not the cases is characterized as express or implied preemption.

B. The Dormant Commerce Clause- The dormant commerce clause or negative commerce clause is the principle that state and local laws are

unconstitutional if they place an undue burden on interstate commerce. This power is inferred from Art. I, § 8’s exclusive grant to Congress of the ability to regulate

interstate and foreign commerce. If Congress has legislated the issue is whether federal law preempts the state of local law. But, even if Congress has not acted or no preemption is found, the state or local law can be

challenged if it excessively burdens interstate commerce.- Commerce Clause has 2 Distinct Functions:

(1) An authorization for congressional actions; (2) To limit state and local regulation that affects commerce.

- Privileges & Immunities Clause Art. IV, §2: If the state of local law discriminates with regard to a fundamental right or important economic

activities, a challenge can be brought under the P & I’s Clause. - Equal Protection:

A law that discriminates against out of staters may also be challenged under the 14th amendment’s Due Process Clause.

- The Central Q in Dormant Commerce Clause Cases: Whether the state or local law discriminates against out-of-staters or whether it treats in-staters and

out-of-staters alike. - Three Steps of Inquiry:

(1) How is it determined whether a law is discriminatory? (2) What is the level of analysis for laws that are discriminatory? (3) What is the analysis for laws that are non-discriminatory?

- Barnes Qs: (1) What is the ct.’s opinion of the commerce clause (2) What does it mean for the ct? (3) Should we require explicit Congressional override of state actions viewed as conflicting or with

or burdening interstate commerce? (4) What is the test the ct. is using to determine whether or not the state law unduly burdens

interstate commerce?- Major Exceptions to the Dormant Commerce Clause:

(1) If Congress approves the state or local action. (2) The Market Exception:

A state or local govt. may favor its own citizens in receiving benefits from the state or local governments or in dealing with govt. owned business.

1. Why a Dormant Commerce Clause?Diff commerce clause is textual/Dormant is not textual

Traditional Arguments For A Dormant CC:(1) The Historical Argument:

The framers created the constitution to end state isolationism and protectionism and to foster a truly national economy.

(2) An Economic Justification:The economy is better off w/out state protectionism/isolationism.

(3) Political Justification:Out-of-staters, who have no political representation in other states should not be harmed by the laws of

other states.Argument Agaisnt For A Dormant CC:

Thomas’ Dissent in Camps Newfoundland/Owatonna Inc. v. Town of Harrison , 520 U.S. 564 (1997)[the Ct. held that Maine's tax exemption statute violated the dormant commerce clause

since it selectively awarded greater tax benefits to those institutions which served mostly state residents, while penalizing institutions that conducted mostly interstate business.]

Statement:

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Ineligible for any exemptions, Camps challenged the constitutionality of Maine's tax exemption statute.

Facts/Procedure:Maine's tax scheme exempts charitable institutions incorporated in the state, and provides a

more limited tax benefit for institutions which principally benefit non-Maine residents.Camps Newfound/Owatonna Inc. (Camps) operates a children's church camp in Maine and

finances its operations through a $400 per camper weekly tuition charge. The majority of its campers are out of state children.

Issue:Ineligible for any exemptions, Camps challenged the constitutionality of Maine's tax

exemption statute.Dissent (Thomas):

The negative commerce clause has no basis in the Constitution.Exclusivity and pre-emption by silence do not justify the negative commerce clause. All of the negative commerce clauses decisions are purely policy decisions. Belongs to the area of congress not the courts

Hood v. Du Mond Case Name Facts & Issue Holding Additional Points RuleHood & Sons, Inc. v. Du Mond, Comm. of Agri. & Markets of NY, 336 U.S. 529 (1939)

[A state may regulate in a way that effects interstate commerce if it has a legitimate public policy police power goal, however, a state may not use its admitted powers to protect health and safety of its people as a basis for suppressing competition.]

p. 382

F: The Hood Co., a Mass. co., owned 3 milk-receiving stations in NY. The co. distributed milk from these facilities in Boston. When the company sought a license for another receiving station in NY, state officials denied its request: on the grounds that expanding Hood's facilities would reduce the local supply of milk and result in destructive competition. The co. appealed the case to the S. Ct. I: Was NY's denial of the license unconstitutional under the [Dormant] CC?

Yes, NY’s denial of Hood’s application for a license to open a new milk receiving station is an unconstitutional burden on interstate commerce b/c "every farmer and every craftsman shall be encouraged to produce by the certainty he will have free access to every market in the Nation."The states are economically independent and we want to foster and encourage a national economy not foster "fantastic rivalries. . .and reprisals," which would ensue if the states were allowed to enact local protectionist measures.”

Framework/Test:Police Power v. Economic Suppression

A state may not use its admitted powers to protect health and safety of its people as a basis for suppressing competition.Barnes: Cardozo quote every one has to sink or swim together.

When protectionist to privillage that burden is per se unacceptable.

Barnes Qs:(1) What is the ct.’s opinion of the commerce clause?

Needed too prevent economic suppression and protectionism.Comes from out history and our law.National Concern v. Local Concern.

(2) What does it mean for the ct?A negative power to invalidate state laws that represent economic suppression and protectionism.Distinguishing between National Concern v. Local Concern.Not all areas of Commerce demand Congress’s Exclusive power.

(3) Should we require explicit Congressional override of state actions viewed as conflicting or with or burdening interstate commerce?

No, where the state law represents economic suppression or protectionism congressional override does not have to be explicit.

National v. Local Concern is key. (4) What is the test the ct. is using to determine whether or not the state law unduly burdens interstate commerce?

Motivation for the state law:National Concern v. Local ConcernUniformity needed v. Exclusivity not required

2. The Dormant CC Before 1938:The argument against the Dormant Commerce Clause is in part textual:

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The framers could have included a provision barring the states from interfering with interstate commerce. Separation of Powers Argument Against the Dormant Commerce Clause:

Congress should be the branch that identifies and addresses instances where state and local laws so burden interstate commerce that they must be invalidated.

Support for a Dormant Commerce Clause has been traced back to Gibbons v. Ogden:Marshall said: “when a state proceeds to regulate commerce with foreign nations, or among the several states, it is

exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do.”

Gibbons stood for a police power v. commerce interference distinction.Marshall drew a distinction between state police power regulation, i.e. regulation for the public health, safety, or

welfare, which are gen. valid and a state exercising the exclusively federal power over commerce.

Wilson v. Black Bird Creek Marsh Co., 27 U.S. 245 (1829) [Before 1938 the whether or not a state law was void under the Dormant CC hinged on whether the ct. characterized it as a permissible exercise of state police power, or in the alternative as an undue burden on interstate commerce.]

Facts/Procedure:State constructed a damn that effected access to an interstate waterway.

Holding:Ct. rejected a challenge by the owner of a federally licensed ship, b/c construction of the damn was a

permissible exercise of the state’s police power.Rule:

Before 1938 the whether or not a state law was void under the Dormant CC hinged on whether the ct. characterized it as a permissible exercise of state police power, or in the alternative as an undue burden on interstate commerce.

Mayor, Alderman and Commonality of NY v. Miln, 36 U.S. 102 (1837) [Before 1938 the whether or not a state law was void under the Dormant CC hinged on whether the ct. characterized it as a permissible exercise of state police power, or in the alternative as an undue burden on interstate commerce.]

Facts/Procedure:State passed a law requiring all ships arriving from foreign countries or from out of state have passenger ID

lists. Holding:

Ct. upheld the law as a valid exercise of the state’s police power. Rule:


2. The Dormant Commerce Clause before 1938Cooley v. The Board of Wardens of the Port of

Philadelphia

Case Name Facts & Issue Holding Additional Points Rule

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Cooley v. Bd. of Wardens of the Port of Philadelphia, 53 U.S. 299

[Natl. Power v. Area of Local Concern Whatever subjects of power to regulate commerce are in their nature national or admit only of one uniform system or plan of regulation require exclusive legislation by Congress.]

Barnes: this is a police pwr reg

F: A PA law required that all ships entering or leaving the port of Philadelphia hire a local pilot. Ships that fail to do so would be subject to a fine, which would go to a fund for retired pilots and their dependents. This fund was administered by the Board of Wardens of the Port of Philadelphia. Cooley was a ship owner who refused to hire a local pilot and he also refused to pay the fine. I: Does this PA pilotage law unduly burden interstate commerce, or is it instead a valid exercise of PA’s police power?

The PA pilotage law is a permissible exercise of PA’s police power b/c the law applies equally to all ships arriving from foreign ports.Though the subject to be regulated was commerce, the interesting twist here was whether the Commerce Power was exclusive. Some subjects demand a single uniform rule for the whole nation, while others, like pilotage, demand diverse local rules to cope with varying local conditions. The power of Congress was therefore selectively exclusive.

In this Era: Congress’s Commerce Power is Selectively Exclusive. Areas that demand natl. uniformity do not permit state interference. In areas that need local diversity concurrent state regulation is kosher.

Whatever subjects of power to regulate commerce are in their nature national or admit only of one uniform system or plan of regulation require exclusive legislation by Congress.

Welton v. Mo., 91 U.S. 275 [National Power v. Area of Local Concern Where uniform national regulation of an area of commerce is required no state interference is tolerated.]

Facts/Procedure:State law required a tax for salesman who dealt primarily in out of state goods, but required no such tax for

salesman who dealt in in-state goods. Holding [ Sometimes Commerce Demands Exclusivity ]:

State law unduly burdens interstate commerce b/c it discriminates against based on classification of whether a salesman sells or does not sell out of state goods.

Rule:Where the subject to which the congressional power to regulate commerce applies is national in its character,

or of such a nature as to admit of uniformity of regulation, the power is exclusive of all state authority.

Smith v. AL, 124 U.S. 465 [National Power v. Area of Local Concern Whatever subjects of power to regulate commerce are in their nature national or admit only of one uniform system or plan of regulation require exclusive legislation by Congress.]

Facts/Procedure:State passed a law that required that all train engineers who operated trains in the state, even if passing

through, had to be licensed by the state bd. of examiners.Holding:

State law is constitutional b/c it is a valid exercise of the state’s police power. Rule:


The Contemporary Test For The Dormant CC: The Shift To A Balancing Approach

Gibbons stood for a Police Power v. Commerce Interference Distinction. Cooley stood for a National Power v. Local Concern Regulation distinction.

o None of these cases has been explicitly overruled so keep them in mind, but the modern ct. has shifted its focus in determining Dormant CC Qs.

Balancing Approach:o Ct. now weighs the competing state and federal interests and the likely effects on interstate

commerce posed by the state or local regulation.

3. The Contemporary Test for the Dormant Commerce Clausea. The Shift to a Balancing Approach

South Carolina State Highway Dept v. Barnwell Bros. Southern Pacific v. Arizona Ex Rel. Sullivan, AG

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Case Name Facts & Issue Holding RuleSC State Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177 (1938)

[Local Concern &Uniformity of Application To In-Staters & Out-of-Staters: In absence of congressional action, state regulation of intrastate carriers, is not invalid b/c of its effect upon interstate commerce, especially where it effects in-staters and out-of-staters in the same manner. ]

F: Suit by Barnwell Bros., Inc., a trucking co., against SC Highway Dept. and others to enjoin the ∆s from enforcing a statute imposing restrictions on the use of highways by certain types of trucks, wherein the ICC and others were allowed to intervene. A SC law banned from its state highways trucks which were more than 90 inches wide and weighed over 20,000 pounds. I: Does this SC Truck Weight and Size Requirements law impose an unconstitutional burden on interstate commerce?

Stone: No, this SC truck weight and size requirements law does not impose an unconstitutional burden on interstate commerce b/c this case involved requirements for trucks traveling on state highways and it is inherently the province of a state to regulate the permissible weight and size limits for vehicles on its own state roads.

The law effects in-staters and out-of-staters in the same manner.

The SC legislature has acted here w/out contradiction from Congress, it is not for this ct. to intervene.

In absence of congressional action, state regulation of intrastate carriers, is not invalid b/c of its effect upon interstate commerce, especially where it effects in-staters and out-of-staters in the same manner. (looks like Ogden or a reverse notion of the rape cases w/in doc analogy)Barnes: Arg to this is interstate hwys needs uniformity and the effect on interstate commerce. Later cases ct looks externalization calculation and this case leads to balancing what harm is an benefit. Here the benefit outweighs the harm and state did a decent job, state also has to include fed int in its calculus

Barnes Qs:(1) What is the ct.’s opinion of the commerce clause?

Needed too prevent economic suppression and protectionism.Comes from out history and our law.Balancing Test:

National interest v. State interest Discrimination between in-staters and out-of-staters v. Uniformity in application to in-staters and

out-of-staters.(2) What does it mean for the ct?

A negative power to invalidate state laws that represent economic suppression and protectionism.Not all areas of Commerce demand Congress’s Exclusive power.Balancing Test:


out-of-staters. (3) Should we require explicit Congressional override of state actions viewed as conflicting or with or burdening

interstate commerce?No, where the state law represents economic suppression or protectionism congressional override does not

have to be explicit. Balancing Test is key:


out-of-staters.(4) What is the test the ct. is using to determine whether or not the state law unduly burdens interstate commerce?

Balancing Test:National interest v. State interest Discrimination between in-staters and out-of-staters v. Uniformity in application to in-staters and

out-of-staters.

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Case Name Facts & Issue Holding Additional Points RuleS. Pacific R.R. Co. v. AZ Ex. Rel. Sullivan, AG, 325 U.S. 761 (1945)

[Balancing of Interests Test: Ct. balances AZ’s purported safety interest v. the national interest of uniform rail transport laws safety argument is weak b/c train length limit means more trains + accidents, national desire for uniform train laws is strong AZ law struck down!]

F: AZ banned operation of trains more than 14 passenger cars or 70 freight cars long on its rails. Statistics showed that a large percentage of the trains traveling in AZ were passing through to other states. The AZ law would have a tremendous economic impact on the train co.’s running through their state b/c the trains must be loaded and hooked-up in stations and train yards in other states, which allow longer trains. I: Is the AZ Train Limit Law and unconstitutional burden on interstate commerce?

Yes, the AZ Train Limit Law is an unconstitutional burden on interstate commerce b/c interstate rail transport for passengers and cargo is a national concern and allowing disparate train length laws will allow whichever state adopts the lowest number of permitted cars to legislate for the entire nation. The AZ law imposes a stiff burden on the rr’s. It had to operate 30% more trains in the state, and it had to break up and remake trains passing through the state. The total cost was several million $s a year. Moreover, more trains would produce more accidents and the state's safety argument was empirically weak. The innovation in this decision was Stone's use of an "interest-balancing" standard of review, which proved more demanding than the earlier "rational basis" test.

Distinctions from Barnwell:1. State highways are more local than R.R.2. Greater safety concerns on highways individuals cars have to share the road with the semi-trucks not so on rails.3. Impact on interstate commerce is greater in S. Pacific.

Barnes: prob Thomas arg very compelling b/c this is judicial legislating but prob is what do you do? Someone has to preserve the ability of the state.

The Balancing Test [Rule is Facially Neutral]:

(1) Locally targeted regulation or National in effect? National in effect.

(2) The ct. performs the balancing.AZ’s safety argument is weak in comparison to the Natl. Concerns with uniformity in train length laws.

Rehnquist, Scalia, and Thomas object to the Balancing Test:These three argue that state laws that are deemed non-discriminatory, regardless of any incidental effects on

interstate commerce, should be upheld. Scalia advocates:

Eliminating the dormant CC review where the state is not discriminating against out-of-staters.Under this view a state statute is only invalid under the CC if it accords discriminatory treatment to interstate

commerce in a respect not required to achieve a lawful state purpose.

Determining If The Law Is Discriminatory: The balancing test is not the same in all Dormant CC cases:

o It varies depending on whether the state or local law discriminates against out-of-staters or treats in-staters and out-of-staters the same.

Where the ct. determines that a state or local law discriminates against out-of-staters:o There is a strong presumption against the law and it will be upheld only if it is necessary to

achieve an important purpose. If the ct. determines that the law is not discriminatory then:

o The presumption is in favor of upholding the law, and it will be invalidated only if it is shown that the law’s burdens on interstate commerce outweigh its benefits.

Facially Neutral v. Facially Discriminatory:o Discriminatory:

The law by its very terms draws a distinction between in-staters and out-of-staters. Facially discriminatory laws subject to strict scrutiny, meaning that the state must

demonstrate that no reasonable non-discriminatory alternatives are available to advance the same legitimate state or local concerns.

o Neutral: Facially neutral but might be motivated by a desire to help in-staters at the expense

of out-of-staters [discriminatory in purpose or effect] subject to strict scrutiny, meaning that the state must demonstrate that no reasonable non-discriminatory alternatives are available to advance the same legitimate state or local concerns.

If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

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b. Determining if a Law is DiscriminatoryFacially Discriminatory LawsCity of Philadelphia v. New Jersey C & A Carbone v. Town of Clarksown, New York Hughes v. Oklahoma

Case Name Facts & Issue Holding Dissent RuleCity of Philadelphia v. NJ, 437 U.S. 617 (1978)

[“Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.”]

F: NJ passed ch. 363 of 1973 NJ laws that prohibited the importation of most “solid or liquid waste which originated or was collected outside the territorial limits of [NJ].” Statute was worded as a police power regulation. Many waste disposers have Ks with NJ landfills to dispose of their waste, including a number in Philadelphia. They brought suit against NJ in state ct. State ct. held that the banning of “valueless” out-of-state waste did not violated the constitution. S Ct. reversed for Philadelphia and the waste disposers. I: Whether ch. 363 of 1973 NJ laws violates the commerce clause.

Could N.J. have done something else to avoid this unconstitutional attempt to achieve this.

Stevens: Yes, b/c this law is basically a protectionist measure, which is discriminatory on its face and in its plain effect.

The NJ law falls squarely w/in the area that the commerce clause puts off limits to state regulation.

“Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.”

The NJ law blocks the importation of waste in an obvious effort to saddle out-of-staters with the entire burden of slowing the flow of refuse into NJ’s remaining landfill sites.

Rehnquist: There are difficult environmental Qs here and NJ, as a state, has police powers to protect its citizens. There are serious health risks associated with landfills and NJ should be able to determine what is and what is not allowed in. The majority presents the dissent with a Hobson’s Choice: NJ has a duty to protect its own citizens, through its police powers, not the citizens of other states. NJ either has to abolish in-state landfills completely or it must continue to accept solid waste from all over the nation.

“Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.”

Economic burden of externalization [similar to NY v. U.S.]

Facially discriminatory heavy burden of proving the validity of the law and its just purposes.

(1) Ct. does not like Economic protectionism(2) State has a heavy burden of proving that the same goal could not have been accomplished through non-discriminatory means.

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Case Name Facts & Issue Holding Additional Points RuleC & A Carbone, Inc. v. Town of Clakstown, NY, 511 U.S. 383

[State and local govts may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities; States and localities may not attach restrictions to exports or imports in order to control commerce in other states.]

F: A waste sorting/waste removal co. is seeking injunctive relief against Clarkstown, stemming from Clarkstown’s Flow Control Ordinance, which requires all locally produced solid waste to be processed and sorted at a designated transfer station before leaving the town. Clarkstown passed its Flow Control Ordinance for purpose of retaining the processing fees charged at the transfer station to amortize the cost of the facility. The cost of the station was estimated to be $1.4 million. A private contractor agreed to build and run 5 years, after which time the town could buy it for $1. The town promised a minimum flow of 120,000 tons per year. If the tonnage was not met the town would make up the difference. In order to raise the revenue necessary to make it worth the contractor’s while the town imposed a “tipping fee.” The town required an $81 per ton tipping fee, which exceeded the private market price. π, Carbone runs a recycling center and waste removal business in Clarkstown. The town was requiring Carbone to pay a “tipping fee” on waste it had already sorted and packed. Clarkston seized Carbone trucks leaving the town. I: (1) Does Clarkstown’s flow control ordinance discriminate against interstate commerce? [from Philadelphia v. NJ](2) Does the flow control ordinance impose an excessive burden on interstate commerce that is “clearly excessive in relation to the putative local benefits?” [from Pike v. Bruce Church, Inc.]

Kennedy: (1) Yes, the flow control ordinance discriminates against interstate commerce b/c the ordinance hoards a local resource for the benefit of the local businesses that treat it. The flow control ordinance squelches competition in the waste-processing service altogether leaving no room for investment from outside. “Discrimination against interstate commerce in favor of local business or investment is invalid per se, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.” Maine v. Taylor Clarkstown had a number of non-discriminatory means to affect the same result: Adopt uniform safety regulations enacted w/out the object to discriminate.

(2) Ct. says it does not need to reach the Q of whether the flow ordinance imposes an excessive burden on interstate commerce b/c the ordinance clearly discriminates against interstate commerce and there is no legitimate local goal here.

Souter: There is no benefit to local waste disposers here. The town has merely come up with a novel financing scheme for a traditional governmental responsibility, waste disposal and sorting. There is no indication that any out of state trash processor was harmed here. The costs here are spread solely amongst local trash processors.

Barnes says:This case presents intrastate regulation that effects interstate commerce. Like Reno v. Condon in that the ct. is regulating Clarkstown as a private entity not as a locality. Clarkston is trying to make $ here.

State and local govts may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.

States and localities may not attach restrictions to exports or imports in order to control commerce in other states.

States and localities may not pass laws that unduly restrict access to competing markets.

Case Name Facts & Issue Holding Rule

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Case Name Facts & Issue Holding Additional Points RuleHughes v. OK, 441 U.S. 322 (1979)

[“When discrimination against commerce is demonstrated, the burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory adequate alternatives to preserve the local interests at stake.”]

F: OK passed a law that stated “no person may transport or ship minnows for sale outside the state which were seined or procured within the waters if this state.” OK justified the law as a legitimate “conservation effort.”

The law places no limits on the # of minnows an in-state minnow dealer may remove from the waters, but forbids the transport on any commercially significant # of natural minnows out of the state for sale.

I: (1) Does OK’s minnow transport statute discriminate against interstate commerce?

(2) If not, does the statute impose an excessive burden on interstate commerce that is “clearly excessive in relation to the putative local benefits?”

Brennan: The OK minnow transport statute violates the commerce clause b/c it is facially discriminatory and OK has not chosen the least discriminatory means.

The statute imposes no limits on the use or disposal of the minnows in state, but it forbids transport of any commercially significant # of natural minnows out of the state for sale.

“When discrimination against commerce is demonstrated, the burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory adequate alternatives to preserve the local interests at stake.”

Barnes: no restrictions on instate citizen or resident it is only. Looks like a discriminatory §burden is borne by interstate commerce.

Reciprocity RequirementsA state allows out-of-staters access to markets or resources only when the out-of-staters are from states that grant

similar benefits in return. Ct. has held that such agreements are facially discriminatory.

Great A. & P. Co. v. Cottrell, 424 U.S. 366 (1976)Holding:

Ct. unanimously invalidated a MS law that provided that milk could be shipped into MS from another state only if the other state would accept milk from MS on a reciprocal basis.

Rule:Reciprocal agreements between states are facially discriminatory.

Sporhase v. Nebraska, 458 U.S. 941 (1982)Holding:

Ct. found a state law discriminatory when it denied a permit to draw and use water for use in another state unless that state granted reciprocal rights to draw water for use in Nebraska.

Rule:Reciprocal agreements between states are facially discriminatory.

Facially Neutral LawsFacially Neutral Laws Facially neutral laws may be found discriminatory if they have either the purpose or effect of discriminating against

out-of-staters. Differs from the 14th amendment EP discrimination standard, which requires a discriminatory purpose and a

discriminatory effect. Facially neutral but might be motivated by a desire to help in-staters at the expense of out-of-staters [discriminatory in

purpose or effect] subject to strict scrutiny, meaning that the state must demonstrate that no reasonable non-discriminatory

alternatives are available to advance the same legitimate state or local concerns. If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate

commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative

local benefits. The difficulty for courts is in determining whether a particular law has a discriminatory purpose or a legit non-

discriminatory objective and whether a law should be deemed to have a discriminatory impact. Hunt v. WA Apple Advertising Commission:

The NC law was impermissibly discriminatory in its effects. Exxon v. MD:

119

MD had a legit purpose, preventing unfair gas pricing practices and the laws effects on interstate commerce were merely incidental, the ct. upheld the MD law.

Hunt v. Washington State Apple Advertising Commission

Exxon Corp v. Governor of MD West Lynn Creamery Inc v. Healy, Commissioner of

Mass Dept of Food and AgricultureState of Minnesota v. Clover Leaf Creamer

Case Name Facts & Issue Holding Add’l Points RuleHunt v. WA, 432 U.S. 333 (1977)

[NC law was discriminatory in effect and NC could not justify it by showing a strong local interest and by showing that it used the least discriminatory means available.]

F: WA has a superior apple grading and labeling system. Its apples are the best and it has invested significant amounts of $ in this system. NC passed a law that stated apple crates were to either bear only the FDA labels or no labels at all. This law would either require WA to leave the NC market or expensively alter its packaging to conform to the NC law.

I: (1) Does NC’s apple labeling statute facially discriminate against interstate commerce?

(2) If not, does the statute impose an excessive burden on interstate commerce in that it discriminates in purpose or effect?

Burger: The NC apple labeling statute is discriminatory in its purpose and its effect b/c the act allows apples to be shipped to and sold in NC with no labels, but it outlaws the sale of apples bearing and labeling system other than the USDA’s, even though states like WA have superior and more stringent labeling systems.

Discriminates in 3 ways: (1) Raises the cost of doing business in NC for WA growers and dealers, but does not affect NC growers or dealers.(2) Kills WA’s competitive advantage and investment in a superior labeling system.(3) The statute levels the field even though WA has gone to extra efforts.

NC did not use the least discriminatory manner to accomplish its purported goal of making the apple retail market less confusing: simply allow the boxes to carry the USDA and WA labels!

Allowing apple crates with no labels and refusing crates with WA labels does not serve to eliminate the problems of fraud and deception in the apple trade. (mentioned in class to indicate ct did not buy this arg)

If a state/local law is discriminatory in its purpose or effect:A heavy burden falls on the state/local govt. to justify the law in terms of a legit state/local interest and by showing that the state used the least discriminatory means to support the legit state/local concern.Barnes: ct talking about effect but the purpose is market protection but record does not give us enough to make this determination so we look at effect

Ct not willing to substitute opinion in cases such as this where the lower ct has determined the facts.

When a state law is discriminatory in its purpose or effect the burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailability of non-discriminatory alternatives adequate to preserve the local interests at stake. Barnes: California created a standard (Avocado case) here NC rule not pre-emptive perhaps Calif system created a dormant CC issue.

Raised Dormant CC in dist ct and said non-discriminatory but unable to review b/c not able to ascertain in record what factors the Dist ct used. Court stuck w/dist ct finding.

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Case Name Facts & Issue Holding Dissent RuleExxon v. MD, 437 U.S. 117 (1978)

[MD had a legit purpose, preventing unfair gas pricing practices and the law’s effects on interstate commerce were merely incidental & burden was not excessive the ct. upheld the MD law.]

Facially neutral

[opposite of Carbone]

MOST OF ANLYSIS IS П cliam and more likely either discrim in effect or more on the heavy presumption of invalidity

F: In response to the behavior of oil co. owned service stations during the 1973 OPEC Oil Embargo MD passed a law, which provided that a producer or refiner of petrol products: (1) may not operate any service station w/in MD and; (2) must extend all “voluntary allowances” uniformly to all service stations it supplies. At the time there were 3,780 total gas stations in MD, of this # 3,547 were locally owned and operated by non-integrated dealers. Of the 233 company owned stations, 197 belonged to out-of-state refiners. 99% of the insulated firms here were locally owned and operated.

I: Does the MD statute violated the CC?

Stevens: No, the MD statute does not violate the CC b/c the statute does not discriminate against interstate goods, nor does it favor local producers or refiners.

The act merely restricts refiners from operating stations in MD. Out-of-state independent dealers and in-state independent dealers are free to run stations in MD.

“While the refiners will no longer enjoy their same status in the MD market, in –state independent dealers will have no competitive advantage over out-of-state independent dealers.”

This is not about market structure says the ct.!

Blackmun:99% of the insulated firms here were locally owned and operated.

There is impermissible discrimination against interstate commerce here.

There is a discriminatory effect: the effect is to protect in-state retail service stations from the competition of out-of-state businesses.

“If discrimination results from a statute, the burden falls on the state or local govt. to demonstrate legit local benefits justifying the inequality and to show that less discriminatory alternatives cannot protect the local interests.”

There was no evidence here that any of the effected refiners have or would engage in unfair pricing and distribution practices, moreover there are already federal and state laws to punish this.

Jackson’s Hood quote: "every farmer and every craftsman shall be encouraged to produce by the certainty he will have free access to every market in the Nation."

If a state or local statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Class:Test:

Regulates evenhandedly?: Yes, continue, if not discriminatory [in purpose or effect] and there is a strong presumption of impermissibility Legitimate State/local interest: If yes, continue merely incidental effects on interstate commerce/ balancing test ?: are the burdens imposed clearly excessive in relation to the state interest?

Barnes says:The ct. is shifting the doctrine here, the effects prong was not intended to focus on the state’s

motive or intent, rather this should be a numbers game are the effects on interstate commerce burdensome yes.

Ct. situates its analysis in effects, but it says the effects are incidental. There is an underlying purpose argument. The Q is if there is a legit purpose that does not look pretextual is it okay that the burden is borne

by out-of-state interests. Ct. should have used the discriminatory in effect test!

MD would have to have shown a legit state interest, and;that MD used the least discriminatory means to support and further this interest.

What happened to Jackson’s quote from Hood?!:"every farmer and every craftsman shall be encouraged to produce by the certainty he will have free

access to every market in the Nation."

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Case Name Facts & Issue Holding Additional RuleWest Lynn Creamery, Inc. v. Healy, Commissioner of Mass Dept. of Food & Agriculture, 512 U.S. 186 (1994)

[Mass dairy pricing order impermissibly “benefits in-state economic interests by burdening out-of-state competitors.”]

F: In response to a declared state of emergency, i.e. Mass dairy farmers were going out of business, the Commissioner of Mass Dept. of Food & Agriculture created an Order requiring milk dealers to make payments into a fund that is distributed on a monthly basis to Mass dairy farmers.

I: Does the Mass Dairy Order violated the CC?

Stevens: Yes, the Mass Dairy Order violates the CC b/c, even granting ∆’s argument that the tax and subsidy are constitutional on their own, in combination they are an unconstitutional burden on interstate commerce.

The pricing order is funded principally from taxes on the sale of milk produced out of state the pricing order violates the cardinal principle that a state may not “benefit in-state economic interests by burdening out-of-state competitors.”

Its true that Mass dairy farmers are subject to the tax, but they are also the group that receives the subsidy, while the out-of-staters do not. Taxation w/out representation!!!!

The purpose & effect of the Mass dairy pricing order is to divert market share to Mass dairy farmers.

Discriminatory Purpose: The Mass dairy farmers are going out of business. The entire purpose of the statute was to benefit in-state economic interests!

A state may not “benefit in-state economic interests by burdening out-of-state competitors.”

Where a state/local law is discriminatory in its effects the burden is on the state to show:

(1) a legit local interest and;

(2) that there are no less-discriminatory means to promote the same legit interest.

Case Name Facts & Issue Holding Additional RuleMN v. Clover Leaf Creamery, 449 U.S. 456 (1981)

Take away:[MN statute regulates evenhandedly and the incidental burdens imposed on interstate commerce are not excessive given the local benefit it is constitutional.]

F: 1977 MN passed a statute that banned the retail sale of milk in plastic containers but permitted the sale of other non-returnable, non-refillable containers, like paperboard milk cartons.

MN claimed, in §1, that the purpose of the act was to prevent a solid waste problem posed by plastic milk containers and that the use of refillable and returnable bottles should be encouraged. MN has a large pulp-wood industry pulpwood is used to make milk cartons. MN does not make plastic resin.

Lower ct. held the law was unconstitutional.

I: Does the MN anti-plastic milk container law violates the CC?

Brennan: No, the MN anti-plastic milk container law does not violate the CC b/c MN has a legit purpose here, this is not “simple economic protectionism,” the effects imposed are merely incidental, and the burden is not excessive in relation to the local interest protected.

The MN law regulates all milk producers “evenhandedly” regardless of whether they are in-state or out-of-state.

Even though out of state plastic resin manufacturers are burdened that burden is not excessive in relation to MN’s conservation goal.

Ct.s 2 reasons the burden is low:(1) There is no reason to suspect that the gainers will be MN firms and the losers out-of-state firms.(2) Plastic resin will be used in other applications and some of the business generated by this act will go to out-of-state pulpwood manufacturers.

Exxon Rule: If a state or local statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Class:MN could claim that paper is bio-degradable, but plastic is not legit interest protect landfills from non-

degradable wastes. Balancing test:

Burden of incidental effects on interstate commerce v. Legit State InterestThe state interest here wins even though there are no MN plastic manufacturers, but the

pulpwood manufacturers are in state.Ct.’s response to discriminatory in effect:

The law applies to all milk producers whether in state or out of state. The law regulates evenhandedly.Landfill protection is a legit interest, not economic protectionism.

The burden on interstate commerce cannot be excessive in relation to the local interest/benefit.The excessiveness is not an objective measure, rather it is a relative measure in relation to the local

benefit.

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Barnes says “Where are the numbers!!!!”:The ct. is shifting the doctrine here, the effects prong was not intended to focus on the state’s

motive or intent, rather this should be a numbers game are the effects on interstate commerce burdensome yes.

Ct. situates its analysis in effects, but it says the effects are incidental. There is an underlying purpose argument. The Q is if there is a legit purpose that does not look pretextual is it okay that the burden is borne

by out-of-state interests. Ct. should have used the discriminatory in effect test!

MN would have to have shown a legit state interest, and;that MN used the least discriminatory means to support and further this interest.

Out of whack effects speak to purpose!!!!Barnes says Hood still does not allow open market access in all situations.

But, hood said that states could not use police power regulations to suppress competition. Exxon still seems to be suppressing competition give the statistics. Rule from Hood:

“A state may not use its admitted powers to protect health and safety of its people as a basis for suppressing competition.”

c. Analysis If a Law is Deemed DiscriminatoryThe crucial initial inquiry in Dormant CC cases is whether the law is discriminatory against out of staters in purpose or

effect.Simple Economic Protectionism Virtual per se rule of invalidity [Philadelphia v. NJ/Carbone v.

Clarkstown]The burden is on the state to show [Hunt v. WA]:

(1) a legit local interest and;(2) that there are no less discriminatory means to promote the same legit interest.

WHAT IS THE RULE USE THESE TO REFINE THE CURRENT STATEMENT OF THE RULE:

Dean Milk Co. v. City of Madison, Wisc Maine v. Taylor and U.S.

Case Name Facts & Issue Holding RuleDean Milk Co. v. Madison, WI, 340 U.S. 349 (1951)

[Madison Ordinance = discriminatory in effect burden was on Madison to show (1) a legit local interest and; (2) that there were no less-discriminatory means to promote the same legit interest unconstitutional.]RULE (and going to per se there is a prob)

F: Madison, WI passed a Milk Ordinance that made it illegal to sell any milk that has been pasteurized anywhere other than at an approved plant w/in a 5 mile radius from the central square of Madison. π is an Ill. milk distributor that purchases milk from WI and Ill. farmers and pasteurizes the milk 85 miles from Madison. Its milk is licensed as “Grade A” under the US Public Health standards.

I: Does the Madison Milk Ordinance violate the CC?

Yes, the Madison Milk Ordinance violates the CC b/c it is facially discriminatory in effect by erecting an economic barrier protecting local business and Madison did not use the least discriminatory means to effect its legitimate public interest of ensuring safe milk for its citizens.

Madison could have adopted the U.S. Model Milk Ordinance which does not impose a geographic restriction, but rather excludes milk not processed per the city’s standards. Madison could have requested the USDA to inspect the π’s facilities to ensure compliance.




[could still make Carbone Point]

123

Case Name Facts & Issue Holding Dissent RuleME v. Taylor & U.S., 477 U.S. 131 (1986)

[ME had a legit interest, ecological preservation & other methods short of its ban on out-of-state bait fish were impractical in ensuring that diseased and parasite infested bait fish did not destroy its aquatic ecology.]

p. 348

F: ME statute prohibited the importation of live bait fish. ∆ K’ed to import 158,000 live Golden Shiners. ME intercepted the shipment. Federal grand jury indicted ∆ for violating the Lacey Act, which makes it a crime to import/acquire fish, via interstate commerce, in violation of state law. ∆ moved to dismiss on the ground that the ME statute was an impermissible burden on interstate commerce.

I: Is the ME statute an impermissible burden on interstate commerce?

Blackmun: No, the ME statute is not an impermissible burden on interstate commerce b/c ME has a legit interest here, environmental protection, the effect on interstate commerce is incidental, and the burden is not excessive in relation to the local interest protected.

Case differs from Hughes v. OK b/c OK’s state interest was illusory, however ME’s interest here is valid & substantial. ME’s means of supporting the statute are also appropriate as the other options are impractical.

Stevens: ME is not the only state concerned about the effects of imported fish, but it is the only state that has been allowed to blatantly discriminate against out of state bait fish by flatly prohibiting them.

ME has a burden to develop feasible inspection procedures.

“If ME wishes to rely on its interest in ecological preservation, it must show that interest, and the infeasibility of other alternatives, with far greater specificity.”




There is an important distinction between incidental & affirmative discrimination.

Class:Barnes Sayz!:

Starting point should always be whether the ct. believes or buys the state’s purported interests.Hughes didn’t stand for the proposition that a state could never externalize the burdens of state

legislation; However, the level of scrutiny is higher.

Ct. says its stuck with the facts of the Dist. Ct., however:The ct. says that the Dist. Ct. erred in its interpretation of the facts.Bad facts in the lower ct. record hurt . . . sometimes.

d. Analysis If a Law is Deemed Non-Discriminatory- If the ct. concludes that a state’s law is non-discriminatory – that is, it treats in staters and out of staters alike –

then it is subject to lower scrutiny: Non-discriminatory laws are upheld so long as the benefits to the govt. outweigh the burdens on

interstate commerce.

Pike v. Bruce Church, Inc. Bibb, Director, Dept of Public Safety of Illinois v. Navajo

Freight Lines, Inc.Raymond Kassel v. Consolidated Freightways

Corporation of DelawareCTS Corp v. Dynamics Corp of America

124

Case Name Facts & Issue Holding Additional RulePike v. Bruce Church, Inc., 397 U.S. 137 (1970)

[AZ law regulated evenhandedly, however, the ct. found that the incidental burdens imposed on interstate commerce exceeded the state interest unconstitutional under the Dormant CC!]

p. 350

F: Commercial farming co. in AZ has a packing facility for its cantaloupe crop 31 miles away in CA. AZ passes a Cantaloupe Packing Statute requiring that all AZ cantaloupes and offered for sale must “be packed in a regular compact arrangement in closed standard containers approved by the supervisor.” AZ co. spent $3,000,000 constructing its farm in AZ and valued its 1968 crop at $700,000. The packing facility required would be very expensive, and it already had one only 31 miles away in CA. AZ attempted to enforce the statute against Bruce Church, Inc.

I: Are the burdens the AZ Cantaloupe Packing Statute imposes on interstate commerce excessive in comparison to the local interest purportedly protected?

Stewart: Yes, the burdens imposed on interstate commerce are excessive.

AZ has a legit interest here, protecting and enhancing the reputation of AZ growers, however, this interest compared to Bruce having to build a $200,000 packing facility when it already has one 31 miles away in CA is “clearly excessive.”

“ct. has view with particular suspicion state statutes requiring business operations to be performed in the home State that could be more efficiently performed out of state.” Ex. Carbone v. Clarkstown

This incidental effect on interstate commerce could perhaps have been tolerated if the state interest protected was greater.

DP: This is the same test that allowed state regulations to be upheld in Exxon & Clover Leaf, however, here the incidental effects on interstate commerce were “clearly excessive” in relation to the state interest.

If a state or local statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

Class:Outcome of the Balancing Test:

The burden here on interstate commerce > than the state interest.Economic cost to Bruce > Image and Reputation of AZ farmers

If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental [Balancing Test]

it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

The presumption is towards validity.

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Case Name Facts & Issue Holding Additional RuleBib, Ill. Director Public Safety v. Navajo Freight Lines, Inc., 359 U.S. 520 (1959)

[Ill. law regulated evenhandedly, however, the ct. found that the incidental burdens imposed on interstate commerce exceeded the state interest unconstitutional under the Dormant CC!]

p. 352

F: Ill. passed a Mud-Flap Statute, which required all semis traveling through Ill. to be equipped with countered mud-flaps. But, many other states required different mud-flaps and the swapping procedure between the different flaps, from state to state, would be excessively costly and time consuming. Most semi-truck companies operate in interstate commerce.

I: Are the burdens imposed by Ill. Mud-Flap Statute on interstate commerce excessive?

Douglas: Yes, the burdens imposed by Ill. Mud-Flap Statute on interstate commerce are excessive b/c the statute seriously interferes with the “interline” operations common in the trucking industry, and it has not been conclusively shown that these “contoured” mud-flaps are any safer than those required by the other states.

48 other states were not in step with this analysis

DP: This is the same test that allowed state regulations to be upheld in Exxon & Clover Leaf, however, here the incidental effects on interstate commerce were “clearly excessive” in relation to the state interest.



The burden here on interstate commerce > than the state interest.Economic cost to Trucking co.’s > Ill. interest in a proprietary mud-flap requirement [not proven

safer than the alternative].

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Case Name Facts & Issue Plurality Dissent RuleKassel v. Consolidated Freightways Corp. of Delware, 455 U.S. 329 (1981)

[Iowa law regulated evenhandedly, however, the ct. found that the incidental burdens imposed on interstate commerce exceeded the state interest unconstitutional under the Dormant CC!]

F: Consolidated is one of the largest trucking co.’s in the country and it operates 55 ft. singles, 60 ft. doubles, and 65ft. doubles. Consolidated travels through Iowa. Iowa passed a Semi-Truck Length Statute that outlawed the 65 ft. doubles.

Consolidated is faced with 4 options:(1) use 55ft. singles;(2) use 60ft. doubles;(3) detach the trailers of the 65 footers and transport them through Iowa separately;(4) go around Iowa.

The Iowa law actually requires a greater number of trucks on the road [similar argument in S. Pacific v. AZ]

I: Does the Iowa Semi-Truck Length Statute impose excessive burdens on interstate commerce?

Powell: Yes, the Iowa Semi-Truck Length Statute imposes excessive burdens on interstate commerce b/c this case is controlled by Raymond Motor v. Rice which held that WI’s ban on 65 ft. doubles imposed an excessive burden on interstate commerce. The doubles are as safe as the singles.

The Iowa law actually requires more highway miles be driven by a greater # of trucks state interest is illusory. [similar argument in S. Pacific v. AZ]

Marshall/Brennan say pretextual similar to portion of Rehnquist BUT PROTECTIONIST/EXTERNILIZATIONSugg any evenhanded claim is underminded

Rehnquist: Majority attempts to make Iowa seem like a renegade standing alone to block interstate commerce, but in reality other states have similar laws. States sovereign- entitled to make own policy choices(STRUCTURAL MOVE)(BARNES) thinks this is still being doneA special consideration: The safety inquiry shouldn’t focus on balancing; rather there should be a presumption that the state law is valid, not pretextual.

DP: This is the same test used to uphold state regulations in Exxon & Clover Leaf, however, here the incidental effects on interstate commerce were “clearly excessive” in relation to the state interest.


Barnes: if in the aggregate it will cost more money a lot of times it will be deemed excessive the balancing here is clearly excessive in the aggregate.


The burden here on interstate commerce > than the state interest.Economic cost to Trucking co.’s > Iowa’s interest in prohibiting twins [doubles might actually be

safer than singles]

127

Case Name Facts & Issue Plurality Additional RuleCTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1981)

[IN statute regulated even handedly, IN had a legit interest, and under Exxon v. MD the burden imposed on interstate commerce was not excessive.]

[opposite of Carbone] said that is not end of anayslis b/c just b/c equal does not mean that the law is fine.

F: Indiana passed a Corporate Takeover Act, which provided that a purchaser who acquired a “control of shares” in an IN corp. would acquire voting rights only if the transaction was approved by a majority of the preexisting disinterested shareholders. A takeover corp. sued challenging the constitutionality of the act.

I: Does the IN Corporate Takeover Act discriminate against out of staters or excessively burden interstate commerce to the extent that it violates the Dormant CC?

HERE not sure pref mkt struct to ext rule all instate corps ct sugg based on reasonas not will to enf a rule structure which results in this market.

Powell: No, the IN Act is not such a discriminatory act, nor does it excessively burden interstate commerce b/c nothing in the act imposes a greater burden on out of state offerors that it does on IN offerors.

The act only regulates IN corp.’s which are corp.’s created by and regulated by IN law. The act has no effect on out of state corp.’s takeover’s or mergers with other our of state corp.’s.

IN has a legit interest: “A state has an interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corp.’s have an effective voice in corp. affairs.”

Very similar to Exxon v. MD.

“We have rejected the notion that the CC protects the particular structure or methods of operation in a market.”

“The fact that the burden of state regulation falls on some interstate companies does not, by itself, establish a claim of discrimination against interstate commerce.”Barnes: look at facts inside/outside dist (says ok non-discrim) but no if you walk through this case not facially discrim- discrim in eff in that sort of looks like carbone or bait fish case shows how DCC can be tricky


Barnes Says: Purpose or eff analysis come up w/determination if purpose or effect dis or ANSWER Q: based on these facts and the way we discussed this choice(EXAM) CHOOSE COMMIT TO AND SHOW ME that the analsis you have chosen is discim or non discriminatory b/c the first way you tell this is b/c you treat them diff when the same can be both so have to say on these facts

Hypo b/c our roads are worn and want to be safe doing this § intra safety any state using this must pay 100 yr heavy trucks that travel on this sate: ask 1st if is discrim→ state claims safety heavy trucks take a

larger toll (not facially discrim) П business in state and out of state (chagrining AM TRUCKING CO) thinks these deciosns are tough b/c facts not clean SEE cases I sent west law.

128

Ct. seems to find a pretext when there is economic protectionism for the local market. Although the ct. may still find the interest legitimate even if there is some evidence of

protectionism if its incidental. Local Interest Query [areas where the state interest has been deemed legit]:

Health & SafetyEnvironmental ConservationConsumer ProtectionFamily LawEducationCriminal Business & Professional Relations

Discriminatory laws will only be upheld if it is shown that they are the least discriminatory means to uphold a non-protectionist interest.

The Liquor Cases: Conflict Between The Dormant CC & §2 of The 21st “The Modern Accommodation Standard”:

Art. I, §8:o Grants Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States,

and with the Indian Tribes....” §2, 21st Amendment:

o Prohibits “[t]he transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof....”

The issue of whether a state or local law that regulates intoxicating liquors, per the 21st Amendment impedes interstate commerce in violation of the CC is been an evolving area of law.

o Immediately after the passage of the 21st the ct.s used the broad standard and interpreted the 21st as providing unconfined powers to the states to regulate intoxicating liquors within their borders.

o Since the early 1960s the cts have narrowed the broad standard, & have applied the modern accommodation standard :

Where the federal interest in free trade and the states' interests in regulating intoxicating liquors are balanced in light of each other.

Ex., in Beskind v. Easley [NC], 325 F.3d 506, (4th Cir. 2003) & Heald v. Engler [MI], 342 F.3d 517 (6th Cir. 2003), the ct.s considered the modern accommodation standard, and held that state alcoholic beverage control (ABC) laws, which prohibited the direct shipment of intoxicating liquors to state residents from out-of-state liquor dealers, violated the CC, and the laws were not saved by the 21st, b/c the core concerns of the ABC laws did not fall within the core concerns of the 21st.

Core Concerns of the 21st Amendment:o Furtherance of :

(1) temperance; (2) ensuring an orderly market, or; (3) raising revenue.

o Cannot be “mere economic protectionism.”o Dormant CC & 21st Amendmento Heald v. Engler o Bainbridge v. Turner

129

Case Name Facts & Issue Holding RuleHeald v. Engler,342 F.3d 517 (6th Cir. 2003)

[MI’s law violates the CC b/c it discriminates and MI has not shown that it is: (1) in furtherance of a “core concern” of the 21st, or; (2) uses the least discriminatory means.]

Daugherty

F: Out-of-state winery, wine connoisseurs, and wine journalists brought § 1983 action, challenging Michigan's regulations governing distribution of alcohol as violative of the CC, b/c it discriminated against out-of-state wineries by preventing out-of-state wineries from shipping wine directly to MI consumers, while allowing MI wineries to do so. MI, like most states, uses a “3 tier” alcohol regulation system: (i)consumers must purchase from licensed retailers; (ii)retailers must purchase from licensed distributors; (iii) and distributors must purchase from licensed manufacturers. Under MI law out-of-state wineries are subject to the 3 tier system, but in-state-wineries, per MCL 436.1113(9) “may sell and deliver their wine directly to MI consumers.” πs contend that “that this differential treatment of in-state and out-of-state wineries violates the dormant Commerce Clause b/c it gives in-state wineries a competitive advantage over out-of-state wineries.”MI Contends: this is valid state regulation under §2 of the 21st Amendment b/c it is not “mere economic protectionism.” District Ct. found: the MI law was designed to “ensure the collection of taxes from out-of-state wine manufacturers and to reduce the risk of alcohol falling into the hands of minors.”

I: Does MCL 436.1113(9) violate the CC by affording MI wineries the ability to sell & ship directly to consumers, while not permitting out-of-state wineries to do the same? [how do the Dormant CC & §2 of the 21st interact?]

Daugherty: Yes, MCL 436.1113(9) violates the CC by affording MI wineries the ability to sell & ship directly to consumers, while not permitting out-of-state wineries to do the same b/c the MI law is facially discriminatory and MI has not (1) shown a legit state interest, and has not; (2) shown that it used the least discriminatory means to further its purported legit interest [the discriminatory state law “heightened scrutiny test”].

one thing is certain: “The central purpose of the 21st was not to empower States to favor local liquor industries by erecting barriers to competition.”

State alcohol regulations that facially, in their purpose, or in their effects discriminate against out of staters are subject to the same test as are other discriminatory state laws: If a state of local law is discriminatory in purpose or effect it is subject to heightened scrutiny, meaning that the state must demonstrate:(1) a legit state interest and that (2) no reasonable non-discriminatory alternatives are available to advance the same legitimate state or local concerns.

The difference in the alcohol context is: the state’s legit interest must be a “core concern” of the 21st.

MI’s discriminatory treatment of wineries based on state of origin does not support a legitimate core concern of the 21st. The law is not in furtherance of “temperance, ensuring an orderly market, or raising revenue.”

“πs in this case are willing to acquire MI permits and pay taxes on wines shipped; they simply want to be eligible for such permits on the same basis as in-state wineries.”

If a state's laws regulating distribution of alcohol violate the dormant CC by discriminating against out-of-state commerce, then the ct. determines whether the state has shown that it has no reasonable nondiscriminatory means of advancing the core concerns of the 21st.

Two Step Inquiry:(1) Does the state alcohol regulation discriminate against out-of-staters yes, then proceed to (2).

(2) Is the state law in furtherance of a “core concern” of the 21st and does the law use the least discriminatory means?

If the law fails (2) its an unconstitutional state alcohol regulation in violation of the CC.

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Case Name Facts & Issue Holding Dissent RuleBainbridge v. Turner,311 F.3d 1104(11th Cir. 2002)

[FL. statutory scheme prohibiting out-of-state wineries from shipping their products directly to FL consumers while permitting in-state wineries to do so may or may not be in furtherance of a core concern of the 21st the Trial Ct. did not allow a full inquiry reversed & remanded.]

Tjoflat

F: Wine consumers and out-of-state wineries brought action challenging FLs statutory scheme prohibiting out-of-state wineries from shipping their products directly to FL consumers while permitting in-state wineries to do so. The District Ct. granted SJ to state, and πs appealed. The Court of App. reversed & remanded holding: that if FL could demonstrate that its statutory scheme was closely related to “a core concern” of the 21st of raising revenue and not a pretext for mere protectionism, FL's statutory scheme could be upheld against a dormant CC challenge.

I: Whether FL. may prohibit out-of-state wineries from shipping their products directly to FL. consumers while permitting in-state wineries to do so via their own delivery services. [how do the Dormant CC & §2 of the 21st interact?]

Tjoflat: There was not a sufficient inquiry at the trial level as to whether FL.’s statutory scheme, allowing in-state wineries to directly deliver to FL. residents, via their own vehicles, but prohibiting out-of-state wineries from doing the same was in furtherance of a “core concern” of the 21st, therefore, if FL can demonstrate that its statutory scheme was closely related to “a core concern” of the 21st of raising revenue and not a pretext for mere protectionism, FL's statutory scheme could be upheld against a dormant CC challenge, SJ reversed and remanded.

“Webb-Kenyon Act & 21st do not constitute a reconveyance of authority enabling states to regulate liquor in a way that was immunized from CC scrutiny.”

Roney: FL.’s statutory scheme is constitutional under §2 of the 21st. The scheme is in furtherance of the core concerns of the 21st in preventing minors from securing and consuming alcohol & ensuring that the state can effectively tax and regulate alcohol merchants who sell to state citizens.

State alcohol regulations that facially, in their purpose, or in their effects discriminate against out of staters are subject to the same test as are other discriminatory state laws: If a state of local law is discriminatory in purpose or effect it is subject to heightened scrutiny, meaning that the state must demonstrate:(1) a legit state interest and that (2) no reasonable non-discriminatory alternatives are available to advance the same legitimate state or local concerns.

The difference in the alcohol context is: the state’s legit interest must be a “core concern” of the 21st.

Summary of Dormant CC & 21st Amendment Interaction: State alcohol regulations that facially, in their purpose, or in their effects discriminate against out of staters are

subject to the same test as are other discriminatory state laws: If a state of local law is discriminatory in purpose or effect it is subject to “heightened scrutiny”, meaning that the state must demonstrate:

o (1) a legit state interest and that; o (2) no reasonable, non-discriminatory alternatives are available to advance the same legitimate state or local

concerns. The difference in the alcohol context is: the state’s legit interest must be a “core concern” of the 21st.

e. Exceptions to the Dormant Commerce Clause

There are two main exceptions to the Dormant CC, each created prudentially by the ct.:o (1) Congress approves of the state’s or locality’s law:

“If Congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a State w/in the scope of the congressional authorization is rendered invulnerable to CC challenge.”

Ex. In re Rahrer, 140 U.S. 545 (1891): Facts:

o Ct. in an earlier case held that a state law restricting the importation and sale of alcohol violated the CC.

o Congress then adopted a law expressly permitting state regulation of the importation and sale of alcohol w/in their borders.

Holding: o “The power to regulate commerce is solely in the general govt., and it is an

essential part of that regulation to prescribe the regular means for accomplishing the introduction and incorporation of articles into and with the mass of property in the country or State.”

Exception to the exception:

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In spite of the congressional approval these state/local laws are still subject to judicial challenge in two ways:

o (1) 14th Amendment Equal Protection Challenge;o (2) 14th Amendment Privileges & Immunities Challenge.

This is one of the few areas where Congress has clear authority to overrule a S. Ct. decision interpreting the Constitution.

One of the principle areas where Congress has legislated to allow state statutes to regulate commerce in an otherwise impermissible manner is insurance regulation.

o (2) The “Market Participant Exception” Provides that a state may favor its own citizens in dealing with govt.-owned business and in

receiving benefits from govt. programs. If the state is laterally a market participant, such as with state-owned businesses, and not

a regulator, the Dormant CC does not apply.

Congressional ApprovalWestern & Southern Life Insurance Co. v. State Board

of Equalization of CaliforniaThe Market Participant ExceptionReeves, Inc. v. Stake South-Central Timber Development, Inc. v. Wunnicke

Case Name Facts & Issue Plurality Additional RuleWestern & Southern Life Ins. Co. v. CA, 451 U.S. 648 (1981)

[Congress passed an act giving the states the power to regulate & tax the Ins. regulation CA’s discriminatory Ins. taxing scheme is constitutional.]

F: CA passed an Insurance Code, specifically § 685, which imposes a retaliatory tax on out-of-state Ins. co.’s doing business in CA, whose state of Inc. imposes higher taxes on CA Ins. co.’s who do business there. π paid the disproportionately higher taxes from 1965-71 and brought this action seeking an injunction against CA under the CC.

I: Is CA’s retaliatory Ins. Co. tax violative of the CC?

Brennan: No, CA’s Retaliatory Ins. Co. Tax is not violative of the CC b/c Congress passed the McCarran Ferguson Act, which allows the states to regulate the insurance industry w/in their borders as they see fit.

§§ 1-2 of McCarran Ferguson Act: “Congress declares that continued regulation of the INS. industry by the several states is in the public interest, and that congressional silence shall not be construed to impose any barrier to the regulation or taxation of such business by the states.”

“The business of ins. shall be subject to the laws of the several states which relate to the regulation or taxation of such business.” [Ct. says the language is unequivocal!]

Congress via the McCarran Ferguson Act expressed it support of state Ins. industry regulation & taxation = CC violation framework does not apply.

However, perhaps the Ins. co. could have alleged an 14th Amendment or EP or P & I’s violation by CA.

“If Congress ordains that the States may freely regulate an aspect of interstate commerce, any action taken by a State w/in the scope of the congressional authorization is rendered invulnerable to CC challenge.”

Class:

Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946) p. 361Facts/Procedure:

A state imposed a tax on out-of-state Ins. co.’s, but exempted instate Ins. co.’s from the same tax.Holding:

Ct. held that such a tax scheme was permissible b/c Congress can approve state taxes that discriminate against interstate commerce and otherwise would be unconstitutional.

The federal McCarran Act again permitted this.Class:

However, perhaps the Ins. co. could have alleged an 14th Amendment or EP or P & I’s violation by the state in Q.

Metropolitan Life Ins. Co. v. Ward, 470 U.S. 869 (1985) p. 361Facts/Procedure:

A state imposed a tax on out-of-state Ins. co.’s, but exempted instate Ins. co.’s from the same tax.

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Holding:Ct. held that the state tax violated the EP Clause of the 14th Amendment even though the McCarran Act

permitted the state to enact the tax.Class:

The “Market Participant Exception”/State As A Market Participant Not As A Govt. Regualtor Provides that a state may favor its own citizens in dealing with govt.-owned business and in

receiving benefits from govt. programs. If the state is laterally a market participant, such as with state-owned businesses, and not


Hughes v. Alexandria Scrape Corp., 426 U.S. 794 (1976) [The “Market Exception” Is Born! ] p. 362Facts/Procedure:

MD required more voluminous and strict proof of ownership of abandoned or impounded vehicles for out-of-state scrap companies than of MD scrap companies.

If the out of state corp.’s did not comply with the higher level of proof of ownership MD took title and sold the scrap itself.

Holding:Ct. held that MD was a “market participant” as it was purchasing cars, and therefore its discriminatory

actions against out-of-staters did not violate the CC. Rule:

“Nothing in the purposes animating the CC prohibits a stare, in the absence of congressional action, from participating in the market and exercising the right to favor its own citizens over others.”

Class:

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Case Name Facts & Issue Plurality Dissent RuleReeves, Inc. v. William Stake, 447 U.S. 429 (1980)

[If the state is laterally a market participant, such as with state-owned businesses, and not a regulator, the Dormant CC does not apply.]

F: 1919-20 S.D. in response to a cement shortage built a state-owned cement plant to provide the material necessary for the growing state. Reeves, Inc. is a Wyoming Cement Corp. that gets its raw material from the S.D. cement plant. Reeves purchased 95% of its cement from S.D. 1978 plant mechanical problems & a booming construction industry combined to produce a cement shortage. In response S.D. declared that it would fill all S.D. resident’s orders first and the remainder would be available for out-of-staters. Reeves was forced to cut back 76% of its output and brought this action seeking an injunction under the CC.

I: Is S.D.’s preferential/discriminatory rationing of cement violative of the CC?

Blackmun: No, S.D.’s preferential/discriminatory rationing of cement does not violate the CC b/c S.D. was not acting as a State Govt. Regulator here, rather S.D. was acting as a “Market Participant.”

“There is no indication of a constitutional plan to limit the ability of the states themselves to operate freely in the market economy.”

This case also involves state sovereignty as S.D. is fulfilling its role as “the guardian and trustee of its people.”

“S.D. as the seller of cement unquestionably fits the ‘market participant’ label.”

Possibly a PQD issue as well:(2) a lack of judicially discoverable manageable standards for resolving it (more prudential);

Powell: This is the type of economic protectionism the CC was intended to combat.

The application of the CC should turn on the nature of the state activity:(1) States should be able to discriminate against out-of-staters when fulfilling a traditional or intrigal role of state govt.’s.

(2) But, when a state is acting as a participant in the private market the constitution forbids actions that would impede the flow of commerce.

Here S.D. fits (2) and is impermissibly discriminating against out-of-state market participants.

Barnes: also create the rules in which they have to follow but to their benefit. Dissent believes majority has abandoned the notion of acting in protectionist manner Dissent wants a diff test. IF STATES TRULY ACTING OUTSIDE INTEGRAL MARKET FUNCTIONS THEN ASK Q ABOUT DISCRIMINATION (NAT LEAGUE OF CITIES LINE IN DISSENT)

If the state is literally a market participant, such as with state-owned businesses, and not a regulator, the Dormant CC does not apply.

Barnes 3 types of concerns DCC- external reg, hyper reg, market protectionism – do not want ostate or locality to give advantage to local interest (here state is helping state citizens first, they still have a mission as states to create rule structures to protect (privileging instate over out of state concerns) IF WE CARE ABOUT MARKET PRO THEN ISN’T THERE A PROB W/GIVING STATES FREE REIGN NOT WITHSTANDING EXPTION.

Class:

Case Name Facts & Issue Plurality RuleWhite v. Mass., 460 U.S. 204[Ct. Holds the Boston Mayor’s Executive Order was an act of the city of Boston not as a regulator, but as a “market participant” constitutional]

F: Mayor of Boston passed an Executive Order requiring that all construction projects funded with city funds or funds distributed by the city had to have a work crew that was at least half comprised of Bostontonians. Contractor sought an injunction under the CC.

I: Does the Boston Mayor’s Construction Executive Order violate the CC?

Rehnquist: No, Boston in funding or partially funding these construction projects is participating in the private market, not as a regulator, but as an actual participant.

If the state is literally a market participant, such as with state-owned businesses, and not a regulator, the Dormant CC does not apply.

(does not mean Priv and immunities question here)

Class:o Mayor of Camden case suggests that in these situations a valid claim for state discrimination against out-of-

staters based on Art. IV’s P & I’s Clause can be brought in lieu of an unsuccessful Dormant CC challenge [See Infra].

o Why a different result than Mayor of Camden?o πs won below on dormant CC, so when the case made it to the S. Ct. there was no P & I’s

argument.

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o Was there a “substantial reason,” we’ll never know! ;) [But, of the set-aside will naturally force the contractor to pass up qualified out-of-staters the statute will likely violate P & I’s.]

Exception to the Market Participant Exception

Case Name Facts & Issue Plurality Dissent RuleS.-Central Timber Dev., Inc. v. Alaska, 467 U.S. 82 (1984)

[State Is Wearing 2 Hats! Bad State!: AK is not acting as a market participant AK is using its sales position to impose govt. regulations unconstitutional]

Barnes: theoretically why we have this market exception Also draw comparison to CarboneIf you get market participate question hard part is thinking back to DCC jurisprudence is this the type of activity we want to bless if straight DCC anlysis if not large problems under the analysis it does not look like situation where it is ok fine but if end up w/SS timber doing same as carbone they both are trying to privillage an instate pro of a service we have to say that this looks like a concern and should be fulled by sneaking sus that this is the type of reg DCC should be lmting

F: AK Dept. of Natural Resources passed a notice that it would open-up timber land in Icy Cape on 10/23/1983. primary manufacture requirement: AK conditioned access to the timber on a requirement that the timber companies process the timber in state [i.e. to provide Alaskans jobs]. The requirement did not apply to unprocessed timber not owned by the state. B/c of this imposed requirement AK charged significantly less for the timber than it otherwise would have [i.e. a round-about state subsidy]. S.-Central brought this action seeking an injunction against the enforcement of the primary manufacture requirement under the CC.

I: Is the Alaska primary manufacture requirement violative of the DCC clause?

White: Yes, the Primary Manufacture Requirement is violative of the DCC clause b/c AK is not acting as a market participant b/c it is imposing burdens on the timber co.’s after their market sale relationship has ended. AK is using its sales position to impose govt. regulations.

Case is distinguishable from Alexandria Scrap. MD was acting as a purchaser of scrap, but AK is acting as a seller & exploiting this position to impose post-sale state regulation.

“The market-participant doctrine permits a state to influence a discrete, identifiable class of economic activity in which it is a major participant.”

However, “the state may not impose conditions, whether by statute, regulation, or K, that have a substantial regulatory effect outside that particular market.”

Rehnquist: The plurality’s distinction between a state as a market participant and as a market regulator is artificial and unconvincing.

AK still has many ways to get the same effect: state could sell its timber only to instate processors (a la Reeves); State could directly subsidize its processors, making them cheaper (a la Hughes); the state could have its logs processed in state and only sell processed logs. [Sounds like Stevens Dissent in NY v. US i.e. the state has ways it can get the same result, even under the ct.’s holding.]

The states may not impose conditions, whether by statute or regulation, or K, that have a substantial regulatory effect outside of that particular market.

Barnes: what types of conditions would be ok. IF regulation they would get (regulator analysis) in this capacity leave alone, then we care about instate out of state and then the burden

Class:

Criticism & Support of The Market Participant Exception Criticism:

o (1) Protectionism should not be allowed regardless of whether the state is acting in a proprietary or a regulatory capacity [See e.g. Powell’s Dissent in Reeves]

o (2) There is no clear distinction between situations where the govt. is acting as a regulator as opposed to a “market participant.”

Support:o (1) Allows the states’ citizens to recoup the benefits of the state taxes they pay and out-of-staters do not.

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o (2) Professor Tribe’s argument: State spending programs are less coercive that regulatory programs or taxes with similar purposes and they seem less hostile to out-of-staters and less inconsistent with the concept of union.

o (3) Barnes says that if the states are participating in the market the issue cannot be market protection b/c they are subject to the regulation of the market, this theory, however, only works when the state truly acts only as a participant.

Summary [The Burden Shift Comes From the Attitude of The Ct. Re: the state’ purported interest]:If a state of local law is discriminatory in purpose or effect

it is subject to heightened scrutiny, meaning that the state must demonstrate:(1) a legit state interest and that (2) no reasonable non-discriminatory alternatives are available to advance the same legitimate state

or local concerns. The presumption under this test is towards invalidity.

If the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental [Balancing Test]

it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

The presumption is towards validity. Exceptions:

(1) Congress approves of the state’s or locality’s law:“If Congress ordains that the States may freely regulate an aspect of interstate commerce, any

action taken by a State w/in the scope of the congressional authorization is rendered invulnerable to CC challenge.”

(2) The “Market Participant Exception”Provides that a state may favor its own citizens in dealing with govt.-owned business and in

receiving benefits from govt. programs.If the state is literally a market participant, such as with state-owned businesses, and not


Exceptions to the Exceptions:(1) 14th Amendment Equal Protection Challenge;(2) 14th Amendment Privileges & Immunities Challenge.

C. The Privileges and Immunities Clause of Article IV, § 21. Introduction2. Analysis Under the Privileges and Immunities Clause

What Are the “Privileges and Immunities of Citizenship?”Toomer v. Witsell United Building and Construction Trades Council of

Camden County and Vicinity v. Mayor and Council of the City of Camden

Baldwin v. Fish and Game Commission of Montana What Justifications Are Sufficient to Permit Discrimination?S. Ct. of New Hampshire v. Piper

A Alternative To The Dormant CC Re: Challenging A State Law That Discriminates Against Out-Of-Staters

Art. IV § 2, cl. 1:o “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the

several States.” Limits the ability of a state to discriminate against out-of-staters w/regard to:

o (1) fundamental rights, or;o (2) important economic activities.

Usu. re: U.S. citizens’ ability to earn a livelihood. State discrimination in favor of its own citizens against the citizens of other states re: fundamental rights

or important economic activities can only w/stand scrutiny when:o The ct. finds that the state has a legit “substantial interest” that outweighs the federal interest in

equal treatment of all U.S. citizens by each state. The term “citizen” as used in Art. IV. § 2 is restricted to U.S. citizens.

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o A U.S. citizen’ s residency in a state is synonymous with citizenship in that state. The S. Ct. has said that there is a “mutually reinforcing relationship” between the CC and the P & I’s

Clause, however, there are a number of important differences:o (1) P & I can only be used when there is discrimination against out-of-staters, while CC can also

be used where the state law “unduly burdens” interstate commerce, regardless of whether it discriminates against out-of-staters.

o (2) Corp.’s and non-U.S. citizens may sue under the CC, but not under the P & I’s clause.o (3) The Market Participant & Congressional Approval exceptions to the CC do not apply to the P

& I’s Clause. Barnes Says: Realize where there is overlap

Dormant CC P & I’s [Law Must Be Discriminatory; must have U.S. citizens]

Who: Citizens; Corp.’s; Aliens Must burden interstate commerce Exceptions: Market Participant; Congressional

Approval Different Tests (COA): Discriminatory(optional) v.

Nondiscriminatory

Who: U.S. Citizens (individuals) Must Discriminate (required) Test (COA): If a state discriminates against

outsiders there is a strong presumption of invalidity & to survive scrutiny a state must show s legit “substantial relationship” to a state objective, which overcomes the federal interest in equal treatment of all U.S. citizens.

o State must show there is not a less restrictive alternative.

Dormant CC’s exceptions do not apply! NO EXEMPTIONS

Analysis Under the P & I’s Clause:

Two Basic Qs When Dealing W/a P& I’s Clause Issue:o (1) Has the state discriminated against out-of-staters w/regard to P & I’s it extends to its own

citizens?o (2) If there is such discrimination is it justified by a “substantial state interest?”

The P & I’s Clause is not absolute, but it creates a strong presumption against state and local laws that discriminate against out-of-staters w/regard to fundamental rights & important economic activities.

What Are The “P & I’s Of Citizenship”

Corfiled v. Coryell, (Cir. Ct. E.D. Pa. 1823)o The clause protects interests, “which are fundamental; which belong, of right, to the citizens of all

free govt.’s. They may be comprehended under the following general heads: Protection by the govt., the enjoyment of life & liberty, with the right to acquire & possess property of every kind, and to pursue & obtain happiness & safety; subject nevertheless to such restraints as the govt. may justly prescribe for the good of the whole.”

Baldwino The clause applies “only with respect to those P & I’s bearing on the vitality of the nation as a

single entity.” Mayor of Camden

o “The issue is whether the interest is sufficiently fundamental to the promotion of interstate harmony.”

Ct.’s Application of P & I’s Framework

Ct. has primarily applied the P & I’s Clause in 2 Contexts:o (1) When a state is discriminating against out-of-staters w/regard to constitutional rights;o (2) When a state is discriminating against out-of-staters w/regard to important economic

activities.

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Doe v. Bolton , 410 U.S. 179 (1973) [Ct. invalidates a state residency requirement to obtain abortions based on the P & I’s Clause]

o Facts: GA passed a law that allowed GA citizens to obtain abortions when a Dr. deemed the

procedure medically necessary due to: threat to the health or life of the mother, serious defect of the fetus, or rape.

o Holding: S. Ct. held that a state could not limit the ability of out-of-staters to obtain abortions in

the state. Ct. declared the law unconstitutional and invalidated the residency requirement for GA abortions based on the P & I’s Clause.

“Just as the P & I’s Clause protects persons who enter other States to ply their trade, so must it protect persons who enter GA seeking the medical services that are available there. A contrary holding would mean that a State could limit to its own residents the general medical care available within its borders. This we could not approve.”

Case Name Facts & Issue Holding RuleToomer v. Witsell, 334 U.S. 385 (1948)

[SC disparate fees for shrimp boat licensing, based on in-state v. out-of-state residency is unconstitutional under the P & I’s Clause b/c the law is plainly discriminatory & SC has no “substantial state interest” at stake.]

If yes to issue 1. get analysis close to DCC strong presumption that rule will fail.

F: Group of GA shrimpers sued for an injunction & declaratory relief against SC due to §3379 of the SC code, which required “payment of a license fee of $25 for each shrimp boat owned by a resident, and of $2,500 for each one owned by a non-resident.,” in order to shrimp in SC waters. πs contended: “The purpose and effect of this statute is not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for SC residents.” SC contends: §3379 is a conservation measure

I: (1) Under §3379, has SC discriminated against out-of-staters w/regard to P & I’s it extends to its own citizens?(2) If there is such discrimination is it justified by a “substantial state interest?”

CJ Vinson: SC Code §3379 is unconstitutional under Art IV § 2, cl. 1 of the Constitution , the P & I’s clause, b/c the law is “plainly and frankly discriminatory against non-residents, and the record leaves little doubt but that the discrimination is so great that its practical effect is virtually exclusionary.”

P & I’s Clause was designed to: “insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.”

Barnes says: Corp. co-party was dismissed b/c it was not a “citizen.” Like Hughes.

The P & I’s clause is not an absolute, but it bars discrimination against citizens of other states where there is no substantial reason beyond the mere fact that they are citizens of other states.

But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it.

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Case Name Facts & Issue Holding RuleUnited Bldg. & Constr. Trades Council of Camden v. Mayor & Council of Camden, 465 U.S. 208 (1984)

[SJ was improper b/c the ordinance discriminated against pursuit of livelihood, one of the P & I’s protected by the clause, and the trial proceedings did not provide enough info to determine whether Camden has a “substantial reason/interest” for the discrimination.]

(PI corp gets knocked out and ind remains also looks like DCC problem)

F: Camden, NJ passed a Municipal Ordinance requiring that “at least 40% of employees of contractors and subcontractors working on city construction projects be city residents.” State Treasurer approved the ordinance. πs contend: the Camden Ordinance violates the P & I’s clause by preventing out-of-staters from an equal shot at Camden construction jobs. NJ/Camden contends: (1) the P & I’s clause was only intended to apply to state laws, not municipal ordinances, and; (2) the P & I’s Clause only applies to laws that discriminate based on state, as opposed to city, residence.

I: (1) Does Camden’s ordinance discriminate against out-of-staters w/regard to P & I’s it extends to its own citizens?(2) If there is such discrimination is it justified by a “substantial state interest?”

Barnes-DCC market participant P&I No pwr to vilate Art IV

If you see DCC prob you need to ask if PI problem as well

Rehnquist: Camden’s Construction Ordinance is unconstitutional under the P & I’s clause b/c (1) we have never narrowly limited the P & I’s clause to solely state-wide govt.; (2) Camden’s ordinance has the effect of discriminating against out-of-staters b/c out-of-staters, by definition, do not live in Camden, and; (3) Camden does not have a “substantial interest” in this discrimination based on the incomplete trial proceedings alone. Reversed & Remanded.

“Certainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause.”

The ordinance was not immune from review under P & I’s Clause merely b/c some in-state residents were similarly disadvantaged.

Imposs to justify b/c not enough info in the facts.

Application of P & I’s clause entails two-step inquiry:(1) whether ordinance burdens one of those P & I’s protected by clause, and;(2) if so, whether there is substantial reason for discrimination against citizens of other state.

Similar to White v. Mass , but here the ct. was addressing a P & I’s Q not a CC Q [i.e. “market participant” exception does not apply to P & I’s Qs.].BarnesLower ct in white no P&I mass was dicrim against both/in and out camden says doesn’t matter but was not infront of the supreme ct but dicta in white says theat if this were in front of us it would be diff for out of staters to prevail b/c they would have to effect out of state so bad if the rule was so burdomsome on out of state interest if they seek instate instead of out of state (to the event dealing w/set aside high burden of proof inside interest prevailing.

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Case Name Facts & Issue Holding Additional RuleBaldwin v. MT, 436 U.S. 371 (1978)

[MT Disparate Hunting License Fees based on state citizenship was not unconstitutional under the P & I’s clause b/c sport hunting is not “one of those P & I’s protected by clause.”

Barnes:Bit of a DCC issue as wellBut everyone gets treated the same residents regarding the spoils of the natural environment

F: In its hunting licensing system for elk-hunters, the MT required nonresidents to pay a substantially higher fee than residents for a

hunting permit. The nonresident paid 7 1/2 times as much as the resident, and if the nonresident wished to hunt only elk, he paid 25 times as much as the resident.

I: Does the MT law violate the P & I’s Clause?(i) Does it discriminate against out-of-staters?(ii) Does MT have a substantial interest that justifies the law, despite its discrimination against out-of-staters?

Blackmun: No, the MT Hunting Licensing System does not violate the P & I’s Clause b/c: (1) access by nonresidents to recreational big game hunting in Montana did not fall within the category of rights protected by the P & I’s clause, and(2) the efforts of MT to allocate access to recreational hunting were rationally related to the preservation of a finite resource and to a substantial regulatory interest of the state and did not violate the EP clause.

P & I’s Clause only applies to activities which bear "on the vitality of the Nation as a single entity ." Since elk hunting is a recreational activity and not fundamental to the survival of nonresidents of MT it does not fall w/in the scope of the protections guaranteed by the Constitution. "Equality in access to MT elk is not basic to the maintenance or well-being of the Union.”

Distinguishable from Toomer b/c that case involved the pursuit of economic livelihood, or commercial enterprise the shrimpers were not shrimping for fun, it was work. Here, these hunters kill elk for sport.

Only with respect to those "privileges" and "immunities" bearing upon the vitality of the nation as a single entity must a state treat all citizens, resident and nonresident, equally.

Barnes: talk about approximation and does this go to the core or square in the ambit of commercial activity.

Application of P & I’s clause entails two-step inquiry:(1) whether ordinance unreasonably burdens one of those P & I’s protected by clause, and;(2) if so, whether there is substantial reason for discrimination against citizens of other state.

Barnes says: no standing problems here capable of repetition yet evading review.

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Case Name Facts & Issue Holding Dissent RuleS. Ct. of NH v. Piper, 470 U.S. 274 (1985)

[NH’s Bar Residency Requirement is unconstitutional b/c the pursuit of economic livelihood one of the P & I’s protected by Art. IV & NH did not use the “least restrictive means” in pursuing its goal of ensuring its bar members are effective attorneys.”]

Barnes: 2 part analysis. Not really diff from DCC test at the end if ct says think of ways reasons do not hold much water and weighted.

Barnes says the purpose as legitimate or if it is pretextual

F: VT resident/attorney brought action against NH S. Ct., challenging NH’s residency requirement for admission to the bar. NH argues that the requirement is necessary b/c nonresident members would be less likely to (i) become, and remain, familiar with local rules and procedures; (ii) to behave ethically; (iii) to be available for local court proceedings; and (iv) to do pro bono in the State.

I: Does NH’s requirement that an attorney be a resident of the state for admission to the state bar violate the P & I’s Clause? (1) Does the requirement burdens one of those P & I’s protected by clause, and;(2) if so, is there a substantial reason for discrimination against citizens of other state.

Powell: Yes, NH’s Bar Residency Requirement violates the P & I’s Clause b/c: (1) the pursuit of economic livelihood is one of the P & I’s protected by Art. IV, and; (2) NH’s arguments for a “substantial reason” fail.

(i) Unless a lawyer has, or anticipates, a considerable practice in NH ct.s, he is unlikely to take the bar examination and pay the annual dues of $125.(ii) A lawyer will be concerned with his reputation in any community where he practices, regardless of where he may live.(iii) a high % of nonresident lawyers willing to take the state bar & pay the annual dues will reside in places reasonably convenient to NH. And when nonresident counsel will be unavailable on short notice, the State can protect by allowing the trial ct. to require any out-of-state lawyer to retain a local attorney who will be available for unscheduled meetings and hearings.(iv) Most non-resident’s will still likely do pro bono work and the state can require them, from time to time, to represent indigents.

NH has not show that is used the “least restrictive means”or non-discriminitory means in pursuing its goal of ensuring its bar members are effective attorneys.

(court raises DCC language here and the test feels the same) whether it effects interstate commence is difference

Rehnquist: NH has a “substantial interest” in restricting its bar membership to state residents b/c the law varies from state to state and the states should have the discretion to determine who is best suited to practice and enforce their respective laws.

(regulatory and constituency argument)

Applying a “least restrictive means” analysis is improper here b/c the ct. is 2nd guessing the legislature, this is improper judicial activism. (Rehnquist says who appoved this analysis)

(STRUCTURAL/ PROCEDURAL)

There are legit reasons for requiring residency, e.g. short notice ct. proceedings, and requiring the appointment of local co-counsel will interfere with the attorney client-relationship.

Application of P & I’s clause entails two-step inquiry:(1) whether ordinance burdens one of those P & I’s protected by clause, and;(2) if so, whether there is substantial reason for discrimination against citizens of other state.

Barnes follow up on Piper Piper Case follow-up : There was no Dormant Commerce Clause (DCC) issue raised in the case. The Court does

not discuss why, but commenters have speculated that prior to Piper, there was no indication that the Court considered law licensing requirements to be an issue pertinent to the national economy or interstate commerce.

Related to our discussion today, there are at least two ways to consider the DCC issue on these facts. First, despite the Court’s recognition that the practice of law affects the national economy, you could argue—as the Court did in the Lester Baldwin case—that New Hampshire’s requirements for individual’s to be licensed to practice law were

not tantamount to regulating the business enterprise of law practice. Hence, the claim would be that New Hampshire’s rule really didn’t limit the ability of attorneys to do business across state lines; it only required that members of the NH bar maintain a residence in NH. Second, in the alternative, you could argue that NH facially

discriminated between in-state and out of state residents in a way that impeded the business enterprise in the practice of law across state lines. Then your next step would be to do the DCC burden shift and analysis that is substantially

similar to the analysis under Privileges and Immunities.

Summary: An Art. IV P & I’s Inquiry Is Really a 3 Step Process

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(1) Does the state/local law discriminate against out-of-staters? If yes continue.o If no Constitutional under P & I

(2) Does the state/local law burden one of those P & I’s protected by clause. If yes continue.o If no Constitutional under P & I

(3) Does the state have a substantial reason/interest justifying the discriminatory treatment of out-of-staters?

o If yes, the state has a substantial reason/interest the ct. will balance the state interest against the federal & individual interest in equal treatment.

State wins the balance Constitutional under P & I Federal/Individual interest wins the balance Unconstitutional under P & I

o If no, the law is automatically Unconstitutional under P & I at this point.

Barnes Exam Review:o Write your confusion, if you need 1 or 2 additional facts specify them and qualify your answer based upon those

assumptions. o Always state the correct doctrine!o 3 purposes:

est. natl. govt. allocate power amongst diverse branches limit the scope of govt. power

o A “lynch pin for relationships”: Fed Govt. v. Itself (horizontal relationships) Fed. Govt. v. States Fed. Govt. v. Citizens States v. Citizens (vertical relationships) Citizens v. Citizens

See critical instances where monumental turns have come w/either horizontal or vertical relationships but at the end of the day learn some method for saying not random there are repeated central themes

o Bring all materials!o Talk about structure, use as inter-doctrinal glue!o Fed. Jud. Power:

Origin Art. III Federalist Construction from Marshall (of federal judiciary/ yes case law gives us scope but mainly

art III and largely federalist national jud to decide what law is Breadth- can talk about in in lmts/how the ct defines there own role

The foundational cases [Marbury; Gibbons; McCulloch; Baker] how ct conseves of there own pwr of judicial review(baker the creation of pol question doc) (mucullahc how to use nec/proper to prop up sup) (breadth what ct does for us to prop up pwrs)

Limits Art. III Congressional Exceptions (checks art III) Self-imposed limitations (Justicablity)

o No advisory opinionso Standingo Ripenesso Mootnesso PQD/Sep. of Powers:

Brennan's PQ test: (1) a constitutionally demonstrable commitment of the issue to a coordinate

political department (more constitutional); (2) a lack of judicially discoverable manageable standards for resolving it

(more prudential); (3) the impossibility of deciding without an initial policy determination of a

kind clearly for non-judicial discretion (more prudential, but C/P); (4) the impossibility of the ct.s undertaking independent resolution without

expressing lack of the respect due coordinate branches of Govt. (more prudential);

(5) an unusual need for unquestioning adherence to a political decision already made (more prudential);

(6) Sees potential for embarrassment from multifarious pronouncements from different branches (more prudential, but C/P).

Courts (your) Tools!: (methods of interpretation: orginialism, mod orig, use of text v structure but we explicitly look at how methodology looked at text and outcome “text never does all of the work for us” 2nd AM cases

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Interpretation Structure/Sep. of Powers (where does ct yield/cong weigh in) Barnes Structure [pick & choose, do not regurgitate]: DO NOT SPIT BACK UNLESS RELEVENT

not for class to repeat back to him about trying to contextualize what we learned but use in a manner that makes sense.

o Context- o Content-o Progression-o Non-resolute nature-

o Fed. Leg. Power: (would organize this inquiry as follows) Authority [Enumerated Powers] more then other branches has authority more specific then other

branches textual art I authorization. Taxing & Spending Enforcement under §5 14th Amendment

Scope- ct defining in shifting contours for the textual authorization Commerce- we see swing backs or cong all pwrful Mcullach cong not states nec/prop life- 10th and 11th have

teeth, scope is def by ct contours Determined by the S. Ct. Shared Powers Federalism v. Supremacy

o McCulloch [Supreme] (Constitution as an organizing structure, its not a damn statute!) “plainly adapted” under Necessary & Proper Clause

Limits Limits: 10th & 11th, Presidential Veto, Judicial Review

Commerce Power!: (Hard Mapping doc diff b/c change in eras and what looks like a pronounced test (and then a case which brought market analysis which disturbed linerar direction of the doc. Is ct creating a zone of activities or ignoring it we keep questioning at any moment. Gonzolas)

3 Qs 14th § 5 Rule Development:

a) Congress may abrogate 11th when: (federalism and comp notions of fed supremecy)o (1) Clear Statemento (2) Valid Exercise

(a) § 5 enforcement (can’t be creation) of legislation remedying §1 14th amendment violations of:

(i) EPo Pattern of State discrimination widespread harm

means must be “congruent and proportionate” to the ends desired/i.e. the violation to be remedied.

o Ct. wants remedies w/limits (ii) Due Process

o Whether there is a protected class does not matter.Not as susceptible to Overbreadth as is EP.

State Sovereignty, 10th & 11th:o Normative Analytical Tools:

Trends- cts dislikes or things falling into rat basis/pref perportial reg hight scrutiny rejecting broad or unchecked leg pwr (narrow int tools)

Preferences Dislikes:

Dislikes Overbreadth of remedies purported to address state violations of federal law.

Ct. does not like broad Congressional power; ct. wants narrow congressional action to address specific tangible problems.

o Theoretic Analytical Tools: (technical analytical tools) Formalism v. Substantive Equality [TN v. Lane (more con w/structure then content

of laws); NY v/ U.S.] Doctrinal Progression: (here incremental shifting over a set of cases until we get to

a finalized doctrine talking about a widespread pwr) §5 of 14th goes from “plainly adapted”/substantive broad power

narrow “widespread patter of state discrimination” & robust Congressional Record.

What do you do w/Lopez and Morrison b/c of Reich (market analysis) unless you really do hard work with the facts.

o 11th counter textual o Text vs structure attp’s to justify what does this text say or supp or what does the structure

sugg it seems that the maj and dissent do whatever they want to make harmonious w/vantage point (Alden v. Maine) and it comes out diametrically apposed.

o Exec. Power: Broad themes Power:

Art. II, Textually broad due to a lack of textual limits. Not many enumerated powers leads to lots of Qs

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o Interpretation o Foreign Powers context the Ct. is deferential to the Pres.o PQD

Issues In Paradox- pres pwr b/c broad way ART II drafted if you talk about expanse of pres pwr 1. do to text absence pwr very braod where there is thin text pwr broad/ paradoxically due to a lack of text absence of lang performs opposite functions when contextualized prime example is foreign affairs vs dom affairs lmt talk about notions of exec privillage exists in absence but lmt, notion any inherent pwr at all is very broad

Issues in power delegation:o Textual limits- cant upset presentment and bicamarlizm o Structure- pwr of exec to execute laws not create them is pres legislating only can enforce

the law o Disputes over power sharing (def of scope)

Line item veto War Powers- cong or pres Removal- Treaties – who decideds treaty/exec orders Legislation v. Enforcement- could not deligate pwr to legislate and then could

not keep the remainder pwr (but we did talk about those cong lmt)o Analytical Tools Cont.

Doctrinal Convergence- notion of ct taking justiciability off the table and jumping into the fray w/pres cong whether exec had pwr to decide this or if pres could make a claim against this (ct says province of ct to say what law is Marbury)

Clinton v. Joneso Sep. of Powers PQD

Hamdio Sep. of Powers PQD

Exam- in question regarding the Keith case (ct would need to find a party meeting standing/injury ect if not maybe cong person could bring on the behalf the of party.

In question regarding the Hamdi- Hamdan stuff you could illustrate how the court when it has seen fit to go around justiciability does so and then punts on the issue or depending on the ct itself would step in and it is not my role to really determine how this can be decided possibly but based on how the ct has decided in the past what could be done to address issue. Ct did side step sep/pwr issue in Hamdi and then now may deal with having to confront that here. (but remember we have seen cases i.e. Goldwater where problem) DO NOT FORGET TO GET INTO NON-JUSTICABLE PQD (SEE CASES)

SHOULD ASK QUESTION TO BARNES IF CONGRESS DELIGATED WAR PWR SO TO SPEAK

ALSO- WHEN DEALING AND WILL DEAL WITH QUESTION ON LOPEZ ANALYSIS/REICH (MARKET) NEED TO GET INTO THE STRUCTURE OF THE ARG/ANALYSIS HOW THE CT HAS DEALT WITH EACH FACET OF THE TESTS THE (ANALYSIS IF IT IS STRUCTURAL….) AND THEN NEED TO MAKE A DETERMINATION THAT DEPENDS ON CT’S CURRENT POSITION OF FEDERALISM SEE (BOOK CLASS NOTES) AND ALSO HIGHLY FACT SPECIFIC DETERMINATION THAT TURNS THE ANALYSIS AND COULD PUT IN ONE DIRECTION OR ANOTHER

TAKE CASES USED IN EACH LOPEZ/MORRISION- A LOT OF THE FACTS AND ANALYSIS- AND DISTINGUISH FROM WHAT OCCURRED IN REICH ON THE FACTS WHILE USING AND ANALYZING MAJORITY AND DISSENT VIEW OF THE SITUATION AND ULTIMATLY EITHER CONCLUDE BASED ON FACTS GIVEN IN QUESTION AND CT’S POSITION THIS IS HOW CASE SHOULD TURN OUT

11th am may also want to compare board of trustees and tenn v lane

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