Constitutional Law I-Governmental Structure, Outline

8/7/2019 Constitutional Law I-Governmental Structure, Outline

1/21

Constitutional Law I: Governmental Structure

I. Introduction: The Constitution & the Supreme Court-Text and/versus InterpretationA. Internalist (Langdellian) vs. Externalist (Legal Realist)B. Constitution is the source of 4 modern tenets of governance

1. Federalism: divided authority between levels of government with some sovereignty at each

level; vertical division2. Separation of Powers: division of power among branches of government; horizontal division3. Judicial Review: courts have the power to pass on decisions of other courts4. Constitutionalism

II.The Judicial Power of the United StatesA. The Judicial Function & Judicial Review

1. Judicial review of congressional action:a)Marbury v. Madison (1803)

(1)Marshall, writing for the Court, argues (1) that Marbury has a right to thecommission, (2) that the laws of the country afford Marbury a remedy, and (3) that,even though the writ of mandamus is a proper remedy, the court cannot issue it

(2)On point (3), the Court found that the case implicated the Courts originaljurisdiction which Congress attempted to alter with the Section 25 of the 1789Judiciary Act. Because such alteration conflicts with Art. II, sec. 2, the statute isunconstitutional.

2. Judicial review of state laws and decisions:a) Martin v. Hunters Lessee(1816)

(1)Following the confiscation of Martins VA land, he challenged the states grantingthe land to Hunter; Martin won at the trial court level but was reversed on appeal

(2)The Court finds that they do have appellate jurisdiction over constitutionaldecisions of state courts, whereby upholding sec. 25 of the Judiciary Act

(a)No constitutional grounds for limiting Courts jurisdiction; state courts are

implicated in the judicial scheme established by the constitution (See Rationale)(3)Storys opinion: argues that the federal judiciary must have the power to fulfill Art.

III duties; the full federal judicial power must always be extant in some form; theConstitution grants broad judicial authority and its limitations should be construedin light of this broad responsibility

(4) VA Chief Justice Spencer Roanes argument: Courts decision entails the federalcourts reaching into and overriding state decisions

b) Fletcher v. Peck(1810): decision established Courts authority to strike down statelegislation if it violated the Constitution

3. Democracy & judicial review4. Judicial supremacy?

a)Cooper v. Aaron (1958)(1)AR refused to comply with federal courts order to comply with Brown on the

grounds that it was not bound by the Courts decisions and that compliance wouldlead to violence

(2)Question: Is the Courts enforcement of a previous decision the same as theenforcement of the Constitution


2/21

(3)Courts decision distinguished from previous judicial review because it involvedenforcing a previous decision, rather than an explicit constitutional provision

B. Judicial Interpretation1. Sources of judicial decisions I

a)McCulloch v. Maryland(1819)(1)Two questions

(a)Can Congress incorporate the National Bank?i) Yes: despite MDs argument that the Constitution does not delegate to

Congress the authority to incorporate a national bank and its 10thAmendment concerns, the bank is a means in pursuance of a legitimate,delegated power; the implication is that powers needed be expresslygranted by the Constitution

ii)Ace in the hole: Necessary & Proper (II, 8.18)(1)N&P: among Congress powers, not its limitations; is whatever is

convenient, or useful, or essential, any means calculated to producethe end

(b)Can Maryland tax the bank?

i) No: the power to tax is the power to destroy: representation reinforcement(there must be a check on the power of an inferior entity to tax its superior,J.H. Ely)

(2)Addenda(a)Decision contains implied immunity (viz. taxes) for federally created entities(b)To prevent pretextual legislation, exercises of N&P are subject to scrutiny

2. Note on constitutional interpretationa)Bobbitts Modalities of Constitutional Interpretation: Text, Structure (theory of

government), Prudence/Consequences, History, Precedent, National Ethos/Narrative3. Sources of judicial decisions II

a)Calder v. Bull(1798): following the Connecticut legislatures setting aside a judicial

decree and ordering a new trial in a will contest, the Court held unanimously that theaction did not violate the Art I, Sec. 10 ex post facto Law provision because the clauseonly applies to criminal cases

(1) Relevant to judicial decision-making for Chase and Iredells disagreement over theplace of natural law in constitutional interpretation (see CB 75-76 for quotes)

(a)Justice Chase: legislative powers are not limited just by constitutionalenumeration/delegation; there are limitations that inhere in the nature of thelegislative power.

(b)Justice Iredell: the principles of natural law/natural justice are not an adequateguide for judicial action.

b)District of Columbia v. Heller (2008)

(1)Court finds that the 2nd

Amendment guarantees an individual right to keep and beararms unconnected to military service or purposes and that the DC prohibition ofhandgun possession violates the 2nd Amendment

(2)Opinions of the Majority and Minority raise the question, what is the role of historyin constitutional interpretation?

(a)Text, history, and precedent are used by both sides to make arguments andjustify conclusions


3/21

C. Potential Constraints on the Supreme Courts Power1. External forces

a)Amendment, appointment, impeachment, informal pressureb)Congressional control of federal jurisdiction

(1)Ex parte McCardle (1869): McCardle was arrested pursuant to publishing articlesin a Mississippi newspaper; sought habeas corpus from MS federal court claimingthat there was no constitutional authority whereby Congress could impose militarygovernment in the states; upon losing in trial court, McCardle appealed on the basisof an 1867 habeas statute; while the case was pending Congress passed a statute thatrepealed the 1867 statute

(a)Court found that it did not have jurisdiction to hear the case because theCourts appellate power is granted by the Constitution with such exceptionsand under such regulations as Congress shall make

(b)As in Marbury, the case involves congressional attempts to alter the judicial

jurisdiction.In both the Court decides that it does not have jurisdiction.Whereas Marbury saw the Court/Marshall claim expansive power byinvalidating an addition to its original jurisdiction, McCardle seems to find the

Court looking weak by affirming Congress reduction of its appellatejurisdiction(2)Yerger: elevates the other avenues component of McCardle(3)U.S. V. Klein (1872): Klein sued for indemnification of property taken during the

Civil War and won; during the appeal a statute was passed which defined apresidential pardon as evidence of participation in rebellion, assurance of non-participation being required for relief; statute directed Courts considering suchcases to dismiss them

(a)Court invalidates statute on the grounds that it violated the separation ofpowers as it would prescribe rules of decision to the Judicial Department ofthe government in cases pending before it

2. Judicial discretion3. Case or controversy requirements and the passive virtues: Bickels Passive Virtues: isthe Courts ostensible deference and/or restraint a remedy for the undemocratic nature ofthe judiciary?

a)Advisory opinions: Established in the early years of the Republic, when PresidentWashington asked the justices for their views on a question arising from the warbetween England and France. The Court responded that it was impermissible onconstitutional grounds for the Court to issue opinions on the constitutionality oflegislative or executive action unless the question arose from a case or controversy. Therole of constitutional advisor has been assumed, in large part, by the Office of LegalCounsel of the Department of Justice. Declaratory judgement procedure, which enables

parties contemplating engaging in certain conduct to obtain from the court a declarationof their rights and duties, provides some of the benefits precluded by the advisoryopinion prohibition.

b)Ripeness and mootness: see notes, Cases and Controversies, I, for list of relevant casesc)Standing

(1)Allen v. Wright (1984): in a class action lawsuit parents of black school childrenalleged that the IRS hadnt complied with its obligation to deny tax-exempt status to


4/21

private schools that discriminated on the basis of race [precedent: Bob Jones Universityv. United States (1983), such schools are disqualified from receiving tax-exempt statusas charities]

(a)Court rejects plaintiffs injury claims, that (1) they were directly harmed by themere fact of the Governments actions and (2) the tax exemptions impair theirability to have their public schools desegregated.

(b)Fails the standing test: (1) not a judicially cognizable injury, (2) not fairlytraceable to Government actions; and (3) it is not clear that the requestedredress would lead to the desegregation of their public schools

(2)Lujan v. Defenders of Wildlife (1992): at issue was a construal of the EndangeredSpecies Act which limited the scope of its application to actions within the UnitedStates or on the high seas; Court found that the plaintiff did not have standing.

(a)Three-prong test for standingi) Plaintiff must have suffered an injury in fact an invasion of a legally-

protected interest that is (a) concrete and particular and (b) actual orimminent

ii)Must be causal connection between the injury and the conduct complained

ofiii)It must be likely that the injury will be redressed by(b)Court rejects plaintiffs injury claim(s) because it is not imminent, actual, or

perceptible andi) Citizens suit idea: does injury inhere in the violation of the act or the non-

efficacy of the acts implementation?ii)Court skeptical of Congress attempt to create rights and injuries

(3)Massachusetts v. EPA (2007): petitioners challenged EPAs compliance with aprovision of the Clean Air Act, alleging failure to regulate greenhouse emissionsfrom new motor vehicles. Presents two questions (1) Does the EPA have statutoryauthority to regulate greenhouse emissions from new motor vehicles? (2) If so, are

its stated reasons for refusing to do so consistent with the statute?(a)Majority Opinion: EPAs steadfast refusal to regulate greenhouse gasemissions presents a risk of harm to Massachusetts that is both actual andimminentThere is, moreover, a substantial likelihood that the judicial reliefrequested will prompt EPA to take steps to reduce that risk. (108)

i) Despite standing requirements annunciated in Lujan, the standards forredressability and immediacy can be lowered when a litigant is vested witha procedural right; in such cases, standing can be granted if the requestedrelief will possibly prompt the injury-causing party to reconsider itsallegedly harm-causing behavior

ii)Opinion hinges on the special position and interest of Massachusetts;

MAs ownership of the territory strengthens its claim to a stake(1)Depends on Holmes opinion in Georgia v. Tennessee Copper Co. (1907)

iii)Three part analysis(1)The Injury: concreteness trumps diffusion(2)Causation: tentative nature of relief is not grounds to reject standing(3)The Remedy: the question is not whether the EPA can reverse global

warming, but whether it has a duty to take steps to slow or reduce it


5/21

(4)FEC v. Akins (1998): interested citizens sought to require the FEC to classifyAIPAC as a political committee subject to public disclosure requirements; FECclaimed that the plaintiffs couldnt distinguish themselves from other citizens andtherefore lacked standing

(a)Court held that the generalized grievance ban was prudential but not rooted inArt. III. Standing was available because Congress had expressly defined theinjury in fact. By this definition, the petitioners claimed injury was not abstractor hypothetical but concrete.

(5)Regents v. Bakke (1978): plaintiff challenged an affirmative action program withoutalleging that he would have been admitted to the medical school in the absence ofthe program

(a)Court held that the trial court had found an injury likely to be redressed byfavorable decision of his claim, apart from failure to be admitted, in theUniversitys program. Therefore, the constitutional requirements of standinghad been met.

(6)Elk Grove v. Newdow (2004): Newdow was the father of a school aged girl whobrought suit alleging that the phrase under God in the pledge of allegiance, which

by state law was recited every school day, violated the first amendment(a)Court found that Newdow lacked standing on prudential groundsi) Distinguished between Art. III and prudential standingii)Decision hinged on the determination that Newdow lacked the power to

make final decisions on behalf of his daughter and was unable to bring suitas next friend due to the nature of his domestic relationship

(b)Dissent argued that it is not the daughter who is the source of Newdowsstanding but the relationship he has with his daughter

d)Political questions(1)Baker v. Carr (1962): challenge of apportionment scheme on equal protection

grounds; Court hears case, determining that a political question is not presented

(a)Brennans six categories of political questions (Note: not conjunctive list; canqualify as political question if only one condition is met)i) Textually demonstrable commitment to a coordinate branch

(1)Guaranty Clause (IV, 4)ii)Lack of judicially manageable standardsiii)Policy determination

(1)What is the timeline?iv)Lack of institutional respect, separation of powersv)Adherence to political decisionvi)Embarrassment

(b)Dissent (Frankfurter): if this case can go forward, then what qualifies as a

nonjusticiable political question?i) The plaintiffs claims involve every element that has made the Guaranty

Clause cases nonjusticiable(c)Luther v. Borden(1849): involved RI dispute over which government was

legitimate, which government was recognized by the national government asentitled to recognition; court held that the case was not proper for judicial


6/21

resolution because it was for Congress to decide which government is theestablished one in a state

i) Luther useful in Baker because it held that the Guaranty Clause is not arepository of judicially manageable standards which a court could utilizeindependently in order to identify a States lawful government

(2)Nixon v. US (1993): Nixon challenged procedures by which he was removed fromhis federal judgeship (the Senate did not try him in a constitutionally permissiblemanner); Court finds the case nonjusticiable because it presents a political question

(3)Powell v. McCormack (1969): Adam Clayton Powell challenged the House ofRepresentatives resolution forbidding him from taking his seat; involved eligibilityrequirements of Art I, sec. 2, clause 2, and the qualifications prerogative set forth inArt. I, sec. 5, clause 1.

(a)Court held that Congress lacked the authority to exclude a duly electedmember who meets the constitutional requirements; case does not present anonjusticiable political question because the determination requires no morethan an interpretation of the Constitution

(4)Bush v. Gore (2000): Because no political question was found the relevant question

is, should a political question have been found?(a)Could the Court not have determined that there is a textual commitment toanother branch?

(b)What about the equal protection claim (i.e., vote dilution)? What function doesit serve for the majority? Would granting the equal protection claim actuallyensure equal protection, or just prevent future violations of equal protection?

(c)Why is Bush the best plaintiff? Indeed, does he even have standing?III.Congressional Authority & Federalism

A. The Federal-State Balance & Enumerated PowersB. Federalism & Judicial Review

1. The Commerce Clause

a)Foundations(1)Gibbons v. Ogden (1824): Ogden, via Fulton (steamboat inventor) and Livingston,granted steamboat monopoly of NY waters; Gibbons challenges based on theconferral of a license to navigate NY waters based on a congressional statute; JamesKent held that NY/Ogden wins

(a)Court: commerce is intercourse, where other state is affected; among theSeveral States: intermingled, but it doesnt stop at the states borders

(b)Supremacy Clause: What does the Supremacy Clause mean? What kind ofconflict is required to implicate a Supremacy claim?

i) Marshall opts for the strong-form Supremacy view: any state legislationstanding in the way of supervening federal law must fall (modern day

preemption); federal law corrects invasive state lawsii)General question: removal of barriers or promotion of development? (a la

Marshalls vision of manifest destiny in McCulloch)(2)US v. E.C. Knight Co. (1895): Court finds that Congress is beyond its powers in

trying to apply the Sherman Act to prevent sugar refinery monopoly; Sherman Actdoesnt extend to the trust in question because of the nature of the act (manufacturevs commerce)


7/21

(a)Court (C.J. Fuller): manufacture is not commerce, and the effect on interstatecommerce of the activity to be regulated must be direct(if intrastate activity hasa direct effect on interstate commerce, then it falls within Congress power toregulate)

i) Central question: What is commerce? Where does it start, where does itend, and what does it comprehend?

(b)Other relevant cases: Stafford (1922) and Swift(1905) ( stream of commerce)b)The development of Commerce Clause doctrine

(1)Champion v. Ames (1903): Court upholds laws prohibiting interstate shipping oflottery tickets

(a)Lottery tickets are moving among states in commerce(b)How important was the nature of the lottery tickets? The fact that the federal

measure supplemented state actions?(2)Shreveport Rate Cases (1914): Court upholds law empowering commission to set

maximum rate for interstate shipping(3)Hammer v. Dagenhart(1918): Court strikes down a congressional child labor

statute (prohibition on commerce that involved child labor)

(a)Twofold repugnance:i) Exceeds congressional commerce authorityii)Exerts a power on a purely local matter to which the federal authority

does not extend(b)The goods themselves are harmless (Hammer) vs. The harmful nature of the

goods (Champion)(c)Holmes dissent: agrees that the purpose neednt matter; the question is

whether it is within Congress power to regulate, is this something Congress cando?

i) Internal limits analysis: if Congress can do it, let them do it and dont look

at the purpose (a la Champion)

ii)Contra external limits: limits outside of the Commerce Clause but still inthe Constitution

iii)The question is, is it interstate commerce? It cannot be that Congress canregulate oleomargarine but not the activity in question, and not because theissue at hand is child labor.

(4)Stafford v. Wallace (1922): Court upheld the Packers and Stockyards Act of 1921which allowed for the regulation of rates and the prescription of standards for theoperation of stockyards where livestock was kept for sale or shipment in interstatecommerce; located the stockyards in the current or stream of commerce

(5)Coronado Coal Co. v. United Mine Workers (1925): Sherman Act applied to a strikeagainst mine workers

(6)Carter v. Carter Coal Co.: distinguished E.C. Knightfrom Coronado [Check year;referenced in Wickard re: slippery slope]

c)The New Deal & the Commerce Clause(1)A.L.A Schechter Poultry Corp v. US (1935): challenge to Live Poultry Code, passed

pursuant to the National Industrial Recovery Act; Schechter brothers fined andarrested for selling sick chicken, and in so doing violating the code

(a)Court strikes down the (about to expire and increasingly unpopular) NIRA


8/21

i) Goods not in the stream of commerce, and do not have a direct effect oninterstate commerce

(b)How distinguished from/related to other cases?i) Chickens are not at this moment moving in interstate commerce, unlike

Champion; the goods of commerce have come to a restii)Chickens are not an instrumentality of commerce, unlike the railways in

the Shreveport Rate Cases(2)NLRB v. Jones & Laughlin Steel Corp. (1937):National Labor Relations Board

charged Jones & Laughlin with the unfair labor practice of firing employees becausethey sought to form a union

(a)Court reverses the lower courts decision, whereby upholding the NLRBsaction

i) Distinguished Schechter and Carter, finding them not controlling in thepresent case

ii)Claimed that Congress commerce power is not limited to just the flow ofinterstate commerce; rather, activities that have such a close andsubstantial relation to interstate commerce that their control is essential or

appropriate to protect that commerce from burdens or obstructions aresubject to congressional regulationiii)Found that the direct effect of the activity subject to regulation was

industrial strife, which had a close and substantial relation to interstatecommerce

(3)US v. Darby (1941): Darby was charged under the Fair Labor Standards Act of1938, which prohibited the shipment in interstate commerce of goods manufacturedby employees that were paid less than a minimum wage or worked more than amaximum number of hours; adopting Holmes Hammer dissent and overrulingHammer, Supreme Court reversed the lower courts decision and finds the actunconstitutional

(a)Court (J. Stone): Congress is free to exclude from interstate commerce goodsit deems injurious to the public health, morals, or welfare; as long as theregulation does not violate other constitutional provisions, Congresss motivesto restrict the use of certain articles do not preclude the exercise of itscommerce power

(b)The motive and purpose of a regulation of interstate commerce are matters forthe legislative judgment upon the exercise of which the Constitution places norestriction and over which the courts are given no control. (208)

(c)The [Tenth] amendment is but a truism: commerce clause as promotion ofnational economy

(4)Wickard v. Filburn (1942): Court upheld Agricultural Adjustment Act provision

allotting wheat production, finding that Congress was regulating activity that had asubstantial effect on interstate commerce

(a)Analytical principle: aggregation of economic effects

i) It is not just the individuals activity that is in question, it is the class ofactivities

ii)Essentially demolishes the sphere of behavior local in character that was(in Hammer and Schechter) beyond Congressional regulation


9/21

(5)Heart of Atlanta Motel v. US (1964) and Katzenbach v. McClung (1964)(a)Both concerned Title II of the 1964 Civil Rights Act

i) Why is the Commerce Clause a question? Why didnt Congress act underthe 14th Amendment?

(1)Congressional intent, reflected in the CRAs language, was to use thecommerce power

ii)In both cases, the Court upholds Title II(1)Employed aggregation principle

(a)BUT: Wickard is distinguished because it is talking aboutindividual behavior associated with commerce, whereas these casesconcern behavior that is (arguably) one step further removed fromcommerce

(2)Court announces rational basis standard of review for congressionalfact findings

iii)Are these cases extensions ofWickard? Can Congress now do nearlywhatever it wants under the its commerce power?

iv)Court vs. Congress (Wechsler argument): the Court is right to defer to

Congress because the Court is not good at regulating federalismv)If there is a problem with the Commerce Clause as interpreted and definedby the Court as ofWickard/Heart of Atlanta/McClung, is that problem bakedinto the clause?

(1)When the clause was formulated, the majority of commerce was notinterstate; the conditions which obtained when the clause wasestablished no longer obtain

(2)Its interesting that when we consider the evolution of the commercepower and return to the conditions that obtained at its formulation, wetalk about a very narrowly defined commerce (e.g., movement of tradebetween two states, strictly commercial behavior)

d)Modern Limits(1)US v. Lopez (1995): Court declares unconstitutional the Gun-Free School ZonesAct of 1990, which made it a federal offense to possess a firearm within 1,000 feet ofa school. For the first time since 1937 the Court held unconstitutional an act onCongress under its commerce power

(a)Rehnquists Opinion: 3 broad categories of activity that Congress may regulatei) Channels of interstate commerce

(1)Heart of Atlanta, Darby, McClungii)Instrumentalities or persons or things in interstate commerce

(1)Means of commerce + stuff moving in commerce(2)Lottery Case (Champion v. Ames), Rate Cases

iii)Activities having a substantial relation to interstate commerce, or whichsubstantially affect interstate commerce

(1)Jones & Laughlin, Schechter (?)(2)This is the real point of attention in Lopez

(b)Emphasizes the strength of the connection between the activity to be regulatedand interstate commerce (i.e., it must be substantial) as well as the nature of theactivity (i.e., it must be economic)


10/21

i) Both of these conditions are not satisfied(c)In the post-Lopez world, we must look at the nature of the underlying activity

and determine whether it is economic or non-economici) Rehnquist argues as though that has always been the case, that economic

nature of the activity has been central to the Courts Commerce Clausejurisprudence

(d)Should the Court have overruled Wickard?(e)Where does the economic/non-economic distinction come from?

i) At what point does the distinction become a question? Does a commerceconnection need to be established first?

ii)In what order is the test administer? [(Non)-economic determination thensubstantial effect, or substantial effect then (non)-economicdetermination?]

iii)Is it possible to administer the test without it collapsing? Is the same resultreached if it is applied in both directions

(f)Souters Dissenti) Makes a precedential argument

(1)Rational basis (Civil Rights Commerce Cases)(2)Aggregation principle (Wickard)(3)Perez v. U.S. (Loan Sharking Case)

ii)Emphasizes that the Court is imposing a new standardiii)Relies on Congress findings, and defers to them

(1)Is it up to the Court to apply the two-part test? Or, should the Courtdefer to Congress conclusions, even if only implicit?

(2)Contra the Circuit courts dismissal of the findings as insufficientiv)3 legal problems

(1)Decision runs contrary to modern cases(2)Commercial/Non-commercial distinction is tenuous

(3)Threatens legal uncertainty in a previously settled/stable field of law(2)US v. Morrison (2000): Court held unconstitutional a provision of the ViolenceAgainst Women Act; affirms the general thrust ofLopez

(a)Rehnquist: gender-motivated crimes of violence are not economic activity(3)Gonzales v. Raich (2005): Court upheld federal ban on private cultivation of

marijuana as applied to marijuana grown at persons home and intended for limited

use (Note: involved as applied challenge whole statute was not challenged; tacitly conceded thatCongress had some authority to legislate in this area)

(a)Distinguished from Lopez: already coordinated, broad national strategy tocontrol the drug trade, Raich challenged provision as it applied to her; Lopezinvolved the challenge of the whole statute

(b)What of the underlying activity? Citing Wickard, Stevens argues that purelyintrastate, noncommercial activity can be regulated if the failure to regulatethat class of activity would undercut the regulation of the interstate market inthat commodity (227)

(c)Court defined economic activities as those involving the production,distribution, and consumption of commodities (228)

i) Is this blurring a line that the Lopez Court was trying to keep distinct?


11/21

- Is there any way of defining the activity without looking at the effect? Doesthe inclusion of commodity logic presume effects on commerce?

- Implicit rejection ofLopez?- Contra Rehnquists argument in Lopez that even Wickard regulate economic activity

(4)US v. Comstock (2010): Court upholds act allowing civil commitment of mentally ill,sexually dangerous federal prisoners, making a strong N&P argument. The question

is, necessary and proper pursuant to what enumerated power? Although the Courtcant find a concrete enumerated power, it invokes preexisting federal powers (e.g.,federal prisons).

(5)Virginia v. Sebelius (2010), PPACA Challenges: In both the FL and VA case, theindividual mandate provision was found unconstitutional. Unlike the VA court, theFL court finds that the provision is not severable from the act and therefore struckdown the law in its entirety.

(a)Necessary & Proper argument: coming out ofComstock, its easy to argue thatCongress has broad regulatory power under the Necessary & Proper clause,especially if there are legislative precedents or a preexisting regulatory scheme.

(b)Is the fight really over the scope ofComstock?

(c)Relevance ofRaich? At issue is the application of the act to an individual(d)What about the argument about inactivity, as against activity?

(e)Precedent? Wickard? If the important point is the entry into the market, notactivity outside of the market. Civil Rights Cases: forced to provide services toclass of individuals that the proprietors would otherwise not serve

2. The taxing & spending powersa)United States v. Butler (1936): the issue was a provision of Agricultural Adjustment Act,

which taxed farmers who grew certain commodities in order to subsidize farmers whodid not grow them, struck down as means to an unconstitutional end (286)

(1)Court endorses the Hamiltonian view, that the taxing and spending power is itselfan enumerated power and neednt be restricted to use pursuant to some other

enumerated power; the key, then, becomes the relation between the tax and thegeneral welfare

(a)Contra the argument that the N&P clause must be attached to an enumeratedpower

b)Stewart Machine Co. v. Davis (1937): Court upheld federal unemployment tax againstthe challenge that it was unconstitutional coercion in contravention of the 10th Am

(1)Limit: the Court is not worried about identifying the outer limit, but makes clearthat the tax cannot be unrelated to the end legitimately national

(a)As long as Congress can articulate a general welfare-ish justification, somelegitimate national end, the tax stands a good chance of surviving challenge

(b)Shift away from coercion analysis is a shift away from Butler

(c)Completes New Deal turn around, redefining Congress power?c)South Dakota v. Dole (1987): At issue: federal funding made conditional on state action,

specifically raising the drinking age to 21(1)Limitations to spending power: formalization of Stewart test

(a)Must be in pursuit of the general welfare; congressional judgment deservessubstantial deference

(b)Federal conditions must be unambiguous


12/21

(c)Conditions on federal grants must be related to federal interest in particularprograms/projects

(d)Mustnt violate other constitutional provision(s)(2)Dissent: is conditional spending an end-run around other constitutional provisions?(3)Defense of conditional spending: Congress is justified in wanting to bring states in

line with federal policy and in pursuit of federal goals(4)At what point does conditionality become coercion?

3. The treaty power: granted to the Executive (II, 2) and the Senate (I, 8)a)Missouri v. Holland(1920): Court upholds Migratory Bird Act of 1918, passed pursuant

to the Migratory Bird Treaty of 1917; Strong support for expansive treaty power(1)Limit?

(a)The only question is whether it is forbidden by some invisible radiation fromthe general terms of the Tenth Amendment.

b)Reid v. Covert(1957): Court holds that the treaty power is subordinate to theConstitution and the Bill of Rights (here, the 6th Am guarantee of a jury trial applied);

limits Missouri(1)To the extent that the United States can validly make treaties, the people and the

States have delegated their powers to the National Government and the TenthAmendment is no barrier. (333)c)Medellin v. Texas (2008): Court holds that the treaty in question is not self-executing

and is therefore not binding(1)Main point: You cant challenge the treaty power on 10 th Am/state sovereignty

groundsC. Tenth Amendment Limits on Federal Regulation

1. National League of Cities v. Usery (1976): Court held that the commerce claise did notempower Congress to enforce the minimum wage and overtime provisions of the FLSAagainst the states in areas of traditional governmental functions; while the hours andwages of state and local employees affect interstate commerce, the application of the statute

to these workers was unconstitutional.2. Garcia v. San Antonio Metropolitan Transit Authority (1985): Court upheld minimum-wageand overtime requirements of the Fair Labor Standards Act over SAMTAs argument that itexercising a traditional government function which would exempt it from federal regulation(NLC v. Usery)

a)Court overrules National League of Cities, rejecting the integral or traditionalgovernmental functions test because it is inadequate to the task of determining theboundaries of federal and state power.

b)Court argued that state sovereignty was protected by the political process, rather thandiscrete limitations on federal authority.

3. New York v. US (1992): Court strikes down take-title provision of the Low-Level

Radioactive Waste Management Act Amendments of 1985 on the grounds that, whileCongress can under the Commerce Clause use financial rewards and access to wastedisposal sites as incentives for states, requiring them to take ownership and assume liabilityfor waste runs afoul of the 10th Amendment as is therefore unconstitutional.

a)Anti-commandeering doctrine announced: "Either type of federal action," wrote JusticeSandra Day O'Connor, "would 'commandeer' state governments into the service of


13/21


14/21

2. Central to the DCC is the prohibition on states facially discriminating against interstatecommerce. It does not, however, prevent states from benefitting their own citizens

B. Modern Doctrine1. Protection against discrimination

a)City of Philadelphia v. New Jersey (1978): Court holds that New Jersey was regulatingon the basis of out-of-state origin, which is virtually per se invalid; Court employs abalancing test to evaluate

(1)Virtually per se invalid because the Court recognizes the possibility that there is astate interest that could justify discrimination; the exception applies to non-protectionist interest where there are no nondiscriminatory alternative meansavailable, illustrated in Maine v. Taylor (1986)

b)Maine v. Taylor (1986): Maine law prohibiting importation of live baitfish upheld; theCourt held that the limitation imposed by the Commerce Clause on state regulatorypower was not absolute and that the States "retain[ed] authority under their generalpolice powers to regulate matters of 'legitimate local concern.'" The Court found thatMaine's ban on the importation of live baitfish served a legitimate local purpose thatcould not adequately be served by available nondiscriminatory alternatives. The Court

argued that the ban was not a simple case of "arbitrary discrimination against interstatecommerce."2. Subsidies

a)West Lynn Creamery, Inc. v. Healy (1994): MA nondiscriminatory tax-plus-localsubsidy program struck down

(1)Court makes clear that MA could implement the regulations if they were doneseparately, if the tax revenues went into a general fund from which subsidies aredisbursed.

(2)Strong political intuition: the Court is concerned with the closed regulatory scheme,with the airlessness between the tax and the subsidy; MAs scheme upsets thepolitical process by placating the interests that would otherwise oppose the tax,

rendering out of state interests vulnerable and voiceless(3)How convincing is the Courts political process argument?(a)Would the citizens of MA be less fooled by the tax-general fund subsidy

scheme than by the tax-direct subsidy scheme?(4)Is the essence of the Courts decision the attempt to find political checks? Hence the

focus on placating interests, interest groups, etc.3. Market participation: states may discriminate when they act as participants in the market,

but not when they act as regulatorsa)Hughes v. Alexandria Scrap Corp. (1976): MD preference for MD citizens in junked car

regulation upheld because the state was acting as a market participant4. Facially neutral regulation affecting interstate commerce

a)Hunt v. Washington State Apple Advertising Commission (1977): Court struck NCstatute requiring that apple containers bear the USDA, and no other, grade

(1)Sense that the Court felt the NC statute was not conceivably neutral; NC wasinterfering with a freely-operating market

b)Exxon Corp. v. Governor of Maryland(1978): Court upheld MD statute requiring thatno producer or refiner of petroleum can operate a retail gas station in MD


15/21

(1)Whos being burdened? Out of state oil companies that own retail stations in MD;Who benefits? There are no MD refineries, that is no entities that benefit in the waythat out-of-state refineries are disadvantaged -> Does this complicate the cost-benefitanalysis?

(2)Does MD benefit from the difficulty of determining what a freely-operation market(i.e., natural state of affairs) would look like

(3)Does the Court merely want to avoid doing a thorough realist analysis, scrutinizingthe legislatures findings and the economic effects

(4)What about the Courts West Lynn Creamery political effects analysis?(a)Dissent: discrimination should be defined in terms of effects, and that requires

a political process effects analysisV.Separation of Powers & The Presidency

A. Introduction1. Theory

a)Executive Branch: Article II(1)Hamiltons argument: the executives power must be independent and free-standing;

Herein granted appears in Article I but not Article II: this supports the free-

standing, non-enumerated nature of executive powers(2)Two views of executive power(a)Free-standing grant of power (Hamilton)(b)Limited to enumerated powers of Art. II

2. Youngstown Sheet & Tube Co. v. Sawyer (1952): Court finds that Truman was acting beyondhis constitutional authority when he authorized the Secretary of Commerce to takepossession of and operate the nations steel mills

a)Blacks Opinion: framing distinction between legislation and execution(1)Two-part taxonomy: looks in two places for justification for Trumans actions

(a)Act of Congress (take care clause): none justifies seizurei) In fact, in the drafting of the Taft-Hartley Act such a power was explicitly

withheld(b)Constitution itself: Military power, Executive power(2)Not saying that there must always be congressional permission for executive action;

rather, he is clarifying which executive powers require such permission and whichpowers are independent

b)Frankfurters Concurrence(1)Affirms Blacks (and Jacksons) two-part analysis of (1) an act of Congress or (2)

the Constitution itself, but adds another category: historical gloss or practice(a)Addition: (3) Deeply embedded traditional ways of conducting government

c)Jacksons Concurrence: subsequently emerged as the opinion ofYoungstown(1)Three situations concerning executive authority

(a)Presidential action fall under the express or implied authorization of Congressi) Maximum of executive power(b)President acts in the absence of either a congressional grant or denial;

Congress is silent--concurrent authority?i) Zone of twilight

(c)Measures incompatible with the expressed or implied will of Congressi) Minimum of executive power


16/21

(2)Trumans seizure qualifies in the third category: the seizure is incompatible withCongress will

(3)Jacksons analysis, though more subtle and nuanced, is consistent with Blacks two-part taxonomy; it also functions relative to Congress

(4)What Jacksons three-part taxonomy overlooks: an action in the third category mayhave recourse

d)C.J. Vinsons Dissent: articulates Hamiltons argument; answers the question, why arewe talking about Congress so much?

(1)The President is an independent political and constitutional actor: relevant to notethe gap that exists between the Presidents paper powers ad his real powers

(a)Criticizes Blacks messenger-boy concept of the [Executive] Office(2)There is an impending national emergency(3)In terms of the majoritys two-part taxonomy: Constitutional dimension emphasized

at the expense of the congressional component3. Dames & Moore v. Regan (1981): Court upholds the transfer of Iranian funds and

nullification of legal claims against Iran on the grounds that the International EmergencyEconomic Powers Act constituted as specific congressional authorization for Presidential

action (like transferring funds); though the IEEPA doesnt explicitly grant the powers thepresident exercised, the Court interpreted Congresss silence as tacit approval of suchactions

B. Domestic Affairs1. Judicial authority and the executive

a)Executive privilege: US v. Nixon (1974): Nixon identified as unindicted coconspirator inWatergate scandal; special prosecutor subpoenas tapes and other documents; Nixonrefuses to comply with the subpoena, citing executive privilege

(1)Two issues: (1) Justiciability/jurisdiction, (2) Executive privilege(a)Justiciability/jurisdiction: Nixons claims/arguments: Why is the judiciary even

involved? The Court lacks jurisdiction here because it is an inter-branch

dispute; cites Marbury (version of Political Question doctrine). The issue inquestion goes to the core of executive power and interfering would upset thebalance of powers. Emphasizes that he is an unindicted coconspirator and that theDistrict Court should not even entertain the case

i) Courts response: the president cant claim powers of that scopeii)How relevant is the special prosecutor, who serves at the pleasure of the

president?(b)Executive Privilege

i) Origin/justification: implied in the separation of powers, though there is notextual basis

(1)Scope of power: absolute, intermediate/qualified, or none

ii)What would it mean to find an absolute executive privilege?iii)Footnote (p. 403): fact of criminal proceeding is important; implies that a

broader executive privilege may exist in a civil context (a la Cheney v. U.S.District Court)

(1)If youre going to have an executive privilege at all, arent you focusedon protecting the executive (for candor, etc.) from encroachment by the


17/21

other branches? If this is true, then why should the judiciary have theauthority to delineate the boundaries of this privilege?

(2)Upshot: qualified executive privilege, in camera review(a)Success: Court finds some executive privilege(b)Failure: Court rejects claim that executive is immune from judicial

proceedings while in officeb)Immunity from suit: exemption from legal action

(1) Nixon v. Fitzgerald(1982): Court finds immunity for President Nixon from civildamages suit for actions taken while in office

(a)Court does a nuisance-type balancing analysis: requested action vsconsequences of that action and finds that the Presidents interest outweighs thebenefit of granting the claim

(b)Why is there immunity here and not in U.S. v. Nixon?i) Criminal vs civil suit; visibility/position of the president; damages litigation

magnet(c)Fitzgerald leaves open the question of when a president is subject to legal

actionwhich is taken up in Clinton v. Jones

(2)Clinton v. Jones (1997): Court finds that the suit for claims arising before Clintontook office can go forward even while he is in office(a)Fitzgerald distinguished

i) Timing of conduct: because it involved official conduct, whereas the case athand does not

ii)Timing of suit: brought during office, where legal action could strain thepresidents ability to fulfill his responsibilities

iii)Nature of conduct:(b)Rejects separation of powers claim in the grounds that the requested action

invokes a clear constitutional grant of power (Art. III) and, again, that theevents in question do not concern official conductIs the issue that the conduct is

not official or that it occurred when Clinton was out of office?(c)Is the strain-on-executive analysis employed when only one of these is present?c)Impeachment

2. Legislative authority and the executivea)Emporing the executive

(1)Delegation

(2)Line item veto: Clinton v. City of New York (1998): Court held that according to theConstitution, legislative actions required presentment to the president and bicameralratification; by partially passing bills from Congress the president is effectivelyamending legislation, which violates the Constitution; at issue was the Line ItemVeto Act; NY challenged Clintons exercise of the veto on two provisions

(a)Court invalidates the act on the grounds that the veto violates Art. I, sec. 7sdefinition of how a bill becomes a law

i) Refusal of the greater-includes-the-lesser (if president can veto the wholebill, why cant he veto a portion of it?)

ii)Formalist approach: emphasizes need for clear-line distinctions(1)Contra the functionalist approach outlined in Breyers dissent


18/21

iii)President is acting legislatively, and beyond his constitutionally-grantedpowers

(b)What is Congress doing here?i) Tying the hands of future Congresses? Lock-box provision avoids

bicameralism in future instancesii)Power grab?

(1)Accountability: provisions can be added to please interest groups withthe understanding that the president will strike them

(2)Politically: unified government could distort legislative process(crafting legislation for passage with knowledge that president canrefine it)

(3)Institutionally: entrenches non-delegated authority; repealing LIVAwould require presidents signature

b)Constraining the executive(1)Legislative veto: INS v. Chadha (1983): at issue was the legislative veto, which the

House exercised pursuant to the Immigration & Naturalization Act to overrule theAGs decision whether to deport individuals

(a)Court holds the Congressional veto provision unconstitutionali) Bicameralism and Presentment (emphasis of majority): argues that theHouses actions (changing the status of an individual) is legislative andtherefore subject to the requirements of bicameralism and presentment

(1)One-House veto violates bicameralismii)Non-Delegation: Congress must abide by its prior delegation and does not

retain on-going controliii)Separation of Powers: Is Congress doing something that it shouldnt be

doing?(1)Adjudication (Powell): Is it assuming adjudicatory powers by deeming

Chadha a non-citizen subject to deportation

(2)Legislation (Burger): Is it attempting to legislate in an unconstitutionalway?(b)Is there a democratic argument to be made in support of the legislative veto? Is

it defensive in character, rather than aggrandizing?i) Does the House exercising a legislative veto reconcile the uneasy position

of administrative agencies in the constitutional order?ii)Response: Legislature can maintain its role as principal lawmaker by

legislating through the constitutionally mandated procedure.iii)Objection to response (White, dissenting): This is too politically costly;

legislature is faced with a Hobsons choice(c)Post-Chadha: executive administrative agencies are not beyond control of

Congress, which still maintains substantial oversight, legislative, and budgetarycontrolc)Administrative agencies

(1)Humphreys Executor v. US (1935)(2)Bowsher v. Synar (1986)(3)Morrison v. Olson (1988)(4)Free Enterprise Fund v. PCAOB (2010)


19/21

C. Foreign Affairs & National Security1. Executive authority

a)US v. Curtiss-Wright Corp. (1936): Court upholds congressional resolution delegating topresident power to prohibit the sale of arms

(1)Can Congress delegate this way? Yes(a)Foreign vs. Domestic Affairs

i) Foreign affairs uniquely suited to being handled by Executive because ofhis access to relevant information

ii)Federal Government: states never had power to conduct foreign affairs;federal legislative powers were carved out of the powers possessed by thestates; the whole point of the federal government is to conduct suchbusiness

iii)May be a federal power, but why the executive?(1)President is the sole organ of federal government in the field of

international relations(2)President has special access to information

(b)Did the power need to be delegated?

i) Important that the case came before Youngstown and Black and Jacksonsopinions(c)Sutherlands Opinion: strong view of executive power, congressional

authorization (even on top of executive prerogative) helps justify presidentsaction

i) Dealing not only with a congressionally vested executive power, but theaddition of the very delicate, plenary and exclusive power of the Presidentas the sole organ of federal government in the field of internationalrelations

b)Medellin v. Texas (2008): concerns the status of international conventions in U.S. lawand the relation of the Executives power thereto

(1)Bush issues memo to Attorney General stipulating that state courts are to apply thedecision of the ICJ(2)Significant that case involved a directive to state courts

(a)Supremacy Clause? But the directive was based on something that is not law(b)Take Care Clause? Again, a duly ratified law must be the basis of the

presidents execution(3)Judicial safeguards of federalism: executive action prohibited (in part) on grounds

that it encroached in state powers2. Congresss role in the use of force

a)War Powers ResolutionWar Powers Resolution: passed over Nixons veto(1)What is Congress doing with this resolution?

(a)Just a restatement of the dispensation of constitutional authority?(b)Statement of non-acquiescence, removal of Frankfurters gloss?

i) To the extent that we havent done this before, we are no longeracquiescing

(c)Attempt to refine/define constitutional war making powers?i) Rooted in Necessary & Proper


20/21

(2)What is the significance of the War Powers Resolution in light of subsequentcongressional action?

(a)War(s) on Terror, authorization of the use of force(3)What is the role of the courts here?

b)Declarations of war, authorizations for use of military force3. Executive detention and military tribunal

a)Hamdi v. Rumsfeld(2004): concerns constitutionality and procedural requirements ofPresidents claim to indefinitely detain a US citizen in the US; Court holds that Hamdihas the right to challenge his detention and is entitled to certain procedural safeguards.(Plurality: Congress authorized detention; concurrence: Congress did not authorizedetention)

(1)Court skirts the question of the presidents plenary power to detain citizens, optinginstead to address Congress disputed authorization

(2)This is the point of contention between the plurality and the concurrence:congressional authorization vs natural incident of war-making

(3)Why is this a difficult case?(a)US citizen allegedly engaged in belligerent activity: permissible under Quirin

(383)(b)Indefinite detention?i) Detention authorized by Congress Authorization of Use of Military Force

Resolution (according to the plurality)(4)Thomas Dissent: Courts decision is an intrusion on military policy-making

(5)Legacy ofHamdi: six justices saying that there is judicial oversight of how theexecutive branch conducts war

b)Hamdan v. Ruumsfeld(2006): constitutionality of military commissions/tribunalsinstituted by executive order, limited to non-citizens; Relevant statutes and policy:Geneva Conventions, Uniform Code of Military Justice, Detainee Treatment Act

(1)Court: the President cannot unilaterally institute military commissions as he did

(a)Asserts jurisdictional authority(b)Finds problems with the military commissionsi) Procedural deficiencies: defendant unable to confront evidence against

him, conviction based on tw-thirds voteii)Violated incorporation of the Geneva Conventions: Common Article 3

required that trials occur in a regularly constituted courtiii)Conspiracy is not a crime that can be tried by a military tribunal

(c)Most important: the Geneva Conventions requirement that tribunals beconstituted is not an exclusive power of the president; rather, Congress plays arole in the execution of these treaty provisions

(2)Governments argument: the issue pertains to war-making and national security

and, as such, it is not appropriate for the Judiciary to involve itself(a)Courts response: in footnote (391) asserts presidential powers as well as the

limited nature of these powers, which are subject to some congressional action(3)Court invites congressional action and Congress responds with the Detainee

Treatment Act, provisions of which were held unconstitutional in Boumediene v.Bush (2008)


21/21

(a)Does the Courts decision limiting Congress authority contradict the spirit ofHamdan, which pushed back on Executive and indicated an important role forCongress to play

Documents

Constitutional Law I-Governmental Structure, Outline