Constitutional Law I Outline(1)

8/10/2019 Constitutional Law I Outline(1)

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Constitutional Law I Outline

A. Invalidation of State Laws- The power of the federal courts to invalidate state laws to nullify actions of

state and local officials as unconstitutional.

1.

Martin v. Hunters Lessee (1816)

Appellate power of the USSC does extend to cases pending in state courts; and that the sec 25 of the

judiciary act which allows for this review on a writ of error is supported by the constitution.

a. Facts: Hunter claims ownership of track of land given to him by Virginia land confiscation act.

Martin claims ownership of the same land because he inherited it from Lord Fairfax who got

it from England when they owned that land. The Court of Appeals of Virginia held that the

land Martin Inherited was considered null and void by the 1989 VA statute and the 1794

treaty confirming British land titles did not affect the seizure. The USSC reversed the VA

courts holding. But the VA court refused to obey the Supreme Court because the Appellatepower of the USSC does not extend to VA Appeals under the sound construction of the

Constitution of the US.The 25th

section of the act of congress to extend the appellate

jurisdiction of the supreme court to the state court is not in line with what the constitution

says.

b. Issue: Whether the Supreme Court has appellate jurisdiction over state courts?

c. Holding: Yes, Article III says in all other cases before mentioned the USSC shall have

appellate jurisdiction.

d. Reasoning: (J Story) The federal power was given directly by the people and not by the state.

It is the case then and not the court that gives the jurisdiction. The Supremacy Clause states

that the federal interpretation trumps the States interpretation. Art I Sec 10 Courts cannot

create Ex Post Facto laws. Constitution does not serve as a restrain on states. State judgesare pound to uphold the constitution. Federal courts are better at protecting individual

rights.

B. Interpretive Choices: the Second Amendment- Does the Second Amendment guarantees a citizen an

individual right to carry firearms?

1. District of Columbia v. Heller (2008)

a.

Facts: D.C. bans Handgun possession. Heller is a special police officer in DC. The District

refused Hellers application to register a handgun he wanted to keep at home. Heller sought

an injunction against the DC law baring handgun registration, the licensing requirement

prohibiting the carrying of firearms at home without a license, and the trigger lock

requirement. The Federal district court dismissed Hellers complaint. The court of appeals of

the DC Circuit court reversed and directed the District Court to enter into a summery

judgment in favor of DC. The court of Appeals held that the entire ban on handguns violated

the individual right to possess firearms under the 2nd

amendment. The

b.

Issue: What rights are protected by the 2nd

amendment?


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c.

Holding: The 2nd

amendment protects an individual right to posess a firearm unconnected

with service in a militia, and to use that arm for traditionally lawful purposes, such as self-

defense within the home.

d.

C. Limits on the Judicial Power- The court cannot impress its decisions against the will of elected officials

and the people. Congress and the court impose limits on the exercises of federal judicial power. 11

th

Amendment imposes limits on cases Congress may authorize courts to hear.

Habeas Corpus-a writ employed to bring a person before a court, most frequently to ensure

that the partys imprisonment or detention is not illegal.

Sec 14 of the Judiciary Act of 1789 allows federal courts to issue a writ to free those held, in

custody under ot by colour of the authority of the U.S.

1867 Reconstruction Congress passed an act which gave federal courts the power to grants

writs of habeas corpus in all cases where any person may be restrained of his or her liberty in

violation of the Constitution or of any treaty by law of the U.S.

Congress adopted the Military Reconstruction Act, which devided the south into districts

subject to military command

1.

Ex Parte McCardle (1869)

Congress has the power to change appellate jurisdiction of the Supreme Court

a. Facts: McCardle was a news paper editor arrested by a Major General for the nonmilitary

offense of disturbing the peace, inciting to insurrection and disorder, libel, and impeding

reconstruction. McCardle filed a petition of Habeas corpus under the 1867 act, his petition

was denied. He appealed to the Supreme Court. In March 1868 Congress repealed the act of

1867.

b. Issue: 1. Whether the act of 1868 takes away the jurisdiction defined by the act of 1867?

c. Holding: (Chief Justice) Yes, The act of 1868 does not except from that jurisdiction any case

but appeals from the Circuit Court under the act of 1867. It does not affect the jurisdiction

which was previously exercised.

d. Reasoning: Jurisdiction is power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the facts and dismissing the cause.

When an act is repealed, it must be considered, except as to transactions past or closed, as if

it never existed.

i. Norris v. Creckerand Insurance Company v. Ritchie, No judgment could be rendered

in a suit after the repeal of the act under it was brought and prosecuted.

2. Felker v. Turpin (1996)

Congress can place limits on second and subsequent habeas corpus petitions.

a. The court considered the Constitutionality of the Antiterrorism and Effective Death Penalty

Act of 1996. Act places several restrictions on second and subsequent habeas petitions. This

petition is only granted after a special appellate panel granted a motion for leave to file a

petition.

b. Court held that Congress had not infringed on the judicial power to hear cases on an

original writ of habeas corpus and that the limit on second and later writs did not

unconstitutionally cause a suspension of the writ.


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3. Boumediene v. Bush (2008)

Everyone has a right to habeas Corpus.

a. Facts: Boumediene was a class action suite by several alians captured on the battlefield all

over the world and detained in Guantanamo Bay Naval Station. None of them were U.S.

citizens. Congress has enacted a statute, the Detainee Treatment Act of 2005 that provides

certain procedures for review of the detainees status.

b. Issue: Whether they have the constitutional privilege of habeas corpus, a privilege not to be

withdrawn except in conformance with the Suspension Clause Art I Sec 9 cl. 2

c. Holding: Yes they do have a right to habeas corpus. And the Detainee Treatment Act doesnt

make up for it.

d. Reasoning: The framers saw habeas corpus a basic liberty to enjoy the freedoms of unlawful

restraint. The Suspension Clause ( Art 1 Sec 9 cl. 2) protects this as well, providing that it may

be suspended only in cases of a threat to public safety as in rebellion or invasion. However it

is clear that Gmo Bay has been under U.S. control for more than 100 years. The citizens are

all aliens, captured outside the U.S. and Gmo is in the U.S. jurisdiction. The petitioners are

entitled to a writ of habeas corpus.

D. Reversal of Judicial Decisions

1.

Miller v. French (2000)

Final Judgments are final other branches of government cannot reopen them.

a. Facts: 1975 class action. Prisoners received an injunction to remedy violations of the 8th

amendment regarding conditions of confinement. In 1995 Congress enacted the Prison

Litigation Reform Act, which sets a standard for the entry and termination of prospective

relief in civil actions challenging prison conditions. (allows for them to terminated

injunctions that does not meet the standard. Sec 3626 (e)(2) dictates that the motion to

terminate the injunction could act as automatic stay of that relief beginning 30 days after

the motion is filed and ending when the court rules on that motion. The Prisoners moved to

enjoin the operation of the automatic stay, arguing that it violated the due process and

separation of powers principles

b. Issue: Whether 3626 (e)(2) us constitutional under the separation of powers principle?

c. Holding: No, it does not violate the separation of powers principle.

d. Reasoning: Article III gives federal courts the power not just to rule on cases but to decide

them, subject to review only by superior courts in the Article III hierarchy. Congress cannot

retroactively command Article III courts to reopen final judgements. The PLRA does not

deprive courts of their adjudicatory role, but merely provides a new legal standard for relief

and encourages courts to apply that standard promptly.

E. Standing and Mootness

i.

Constitutional and Prudential Limits on Constitutional Adjudication: The Case or

Controversy Requirements

ii. Justiciability doctrines

iii.

Advisory opinion (prohibited)

iv. Ripeness

v.

Mootness

vi. Standing


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Political Question

Sources: Article III; Prudential limits (Congress can override this)

Advisory Opinions: question about legality or Constitutionality of an act or actions. Provides

early guidance. BUT with advisory opinions there is no case or controversy.

declines to issue opinion as it would violate separation of powers. Prohibition frees courts up to decide other issues. Also to hear case later on. Ensures finality.

Case or Controversy requirements:

Actual dispute

Likelihood of favorable decision that will bring about change or impact.

Standing: Can a specific party or individual bring a case?

Article III:

i. Injury in fact

ii. Concrete and particularized

Actual or imminent NOT conjectural/hypothetical

i. Causal connection

ii.

More direct the link, more likely to be satisfied (think proximate cause in tort law).

iii. Redressability

iv.

Relief requested must be designed to alleviate the injury caused by the defendants

actions.

Protects Against advisory opinions by making sure parties have a stake in the claim

i.

Prevents against abstract questions

ii. Preserves judicial economynot only cases likely redressable

iii. Promotes fairnessonly those w/stake in the game

iv. Promotes separation of powers by ensuring Courts will leave broader Qs of policy to

legislative and executive.

1. Friends of the Earth v. Laidlaw Environmental Services Inc. (2000)

i. Facts: Friends and others filed a citizen suit inder the Clean Water Act against Laidlaw,

alleging noncompliance with the NPDES permit, seeking injunctive relief and an award

of civil penalties. Laidlaw said FOE lacked standing. District Court issued Laidlaw a civil

penalty of $405,800, but denied the injunction. FOE appealed to the amount of the civil

penalty but nothing else. The court of Appeals dismissed the case on account of

mootness. The case became moot after Laidlaw complied with the terms of the permit

ii.

Issue: does FOE have standing? Can an interest group sue on behalf of a member? Did

this case become Moot?

iii.

Holding: No, the Court held that a citizen suitor's claim for civil penalties need not bedismissed as moot when the defendant, after commencement of the litigation, has

come into compliance with its NPDES permit. "A defendant's voluntary cessation of

allegedly unlawful conduct ordinarily does not suffice to moot a case," Justice Ginsburg

wrote for the Court. "Congress has found that civil penalties in the Clean Water Act

cases do more than promote immediate compliance... they also deter future violations,"

concluded Justice Ginsburg. The Court also ruled that FOE had standing to bring the suit

on behalf on its members.


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iv.

A case might become moot if behavior could not reasonably be expected to recur.

2.

Lujan v. Defenders of Wildlife:

i. challenge to Endangered Species Act and a limiting interpretation.

ii.

(H) SC for D, dismiss for lack of standing.

iii.

(R) (1) Harm (a) Concrete and Particularized (b) Real or imminent. (2) Redress ability(plurality)

iv. (A) No particularized injury. Injury cannot be merely speculative. Aesthetic injuries may

be cognizable.

v. Associational standing: interests seeking to protect are germane to their organizational

purpose.

b. Congress sometimes has power to confer standing. However Congress cannot give a procedural

right that is unconnected to a particular individual injury.

c. Citizen suits must show a nexus between injury and cause of action.

3. Los Angles v. Lyons (1989)

a. Plaintiff lacked standing to seek an injunction against the enforcement of a police chokehold

policy because he could not credibly allege that he faced a realistic threat from the policyb. No standing because there was no actual injury

4. Clapper v. Amnesty International USA (2013)

a. Facts: Section 702 of the Foreign Intelligence Surveillance Act of 1978 allows the Attorney

General to acquire foreign intelligence info by jointly authorizing the surveillance of individuals

who are not US persons and are located outside the US. Petitioners say Sec 702 is

unconstitutional, and seek an injunction against 702

b.

Issue: Whether the petitioners have Article III standing?

c. Holding: No they dont have standing because their theory of future injury is too speculative to

satisfy the well-established requirement that threatened injury must be certainly impending.

d. Reasoning: Article III limits federal courts jurisdiction to certain cases and controversies. To

establish Article III standing threatened injury must be certainly impending to constitute injury infact and that allegations of possible future injury are no sufficient.

5.

Massachusetts v. EPA (2007)

a. Facts: Massachusetts petitions the EPA to regulate gas emissions from cars. There is much

research to show such emissions add to green house gases that effect or cause global warming

which in turn affects the water on the coast. The EPA denied the request. Now the State of

Massachusetts is suing the EPA for not enforcing the Clean Air Act.

b. Issue: Whether a State has standing to sue the EPA for not enforcing the Clean Air Act.

c. Holding: Yes. In order to have standing a petitioner must have injury, causation and

redressability. Typically the injury of green-house gases would be too tenuous for an individual to

claim is a direct injury. However this is the State that is filing suit not the individual. The State has

a quasi-sovereign interest. The State has an interest in the land on its coast, and they haveshown the injury of losing coastal property as the water rises. The State has also shown the

casual connection, which the EPA does not deny, that global warming is a cause of the water

rising. As for redressability, that is shown as well. If the EPA regulates emissions from cars, that

will help the issue of global warming in the State of Massachusetts. Since all requirements are

shown, standing is proper.


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6.

Hollingsworth v. Perry(2013)

a. Facts:California citizens passed Proposition 8, which amended the California Constitution to

provide that only marriage between a man and a woman is valid or recognized by California.

The respondents, a gay couple and a lesbian couple, sued the state officials responsible for the

enforcement of Californias marriage laws and claimed that Proposition 8 violated their

Fourteenth Amendment right to equal protection of the law. When the state officials originallynamed in the suit informed the district court that they could not defend Proposition 8, the

petitioners, official proponents of the measure, intervened to defend it. The district court held

that Proposition 8 violated the Constitution, and the U.S. Court of Appeals for the Ninth Circuit

affirmed.

b. Issue:Do the petitioners have standing under Article III of the Constitution to argue this case?

Does the Equal Protection Clause of the Fourteenth Amendment prohibit the state of California

from defining marriage as the union of one man and one woman?

c. Holding: No, the petitioners do not have standing. The Court did not reach the question on the

merits of the case

d. Reasoning: The Supreme Court held that federal courts only have the authority to decide cases in

which there is an actual controversy, which means that the complaining party must havesuffered a concrete and particularized injury that can be redressed through court action. In this

case, because the petitioners had only a generalized grievance in the form of a desire to defend

Proposition 8, they did not have standing under Article III. The Court also held that the

petitioners could not invoke the standing of the state to appeal because a litigant must assert

his/her own rights and cannot claim relief through the intervention of a third party. Because the

petitioners did not have standing to appeal to the U.S. Court of Appeals for the Ninth Circuit, that

court did not have jurisdiction to reach a decision on the case.

7. U.S. v. Windsor (2013)

a.

Facts: Edith Windsor is the widow and sole executor of the estate of her late spouse, who died in

2009. The two were married in Toronto, Canada, in 2007, and their marriage was recognized by

New York state law. Thea Syper left her estate to her spouse, and because their marriage was notrecognized by federal law, the government imposed $363,000 in taxes. Had their marriage been

recognized, the estate would have qualified for a marital exemption, and no taxes would have

been imposed. Windsor filed suit in district court seeking a declaration that the Defense of

Marriage Act was unconstitutional. At the time the suit was filed, the governments position was

that DOMA must be defended. The district court denied the motion, and later held that DOMA

was unconstitutional. The U.S. Court of Appeals for the Second Circuit affirmed.

b. Issue: Does the executive branchs agreement with the lower court that the act is

unconstitutional deprive the Supreme Court of jurisdiction to decide the case?

c. Holding: The Supreme Court held that the United States Government, despite the executive

branchs agreement regarding DOMAs unconstitutionality, retains a significant enough stake in

the issue to support Supreme Courts jurisdictiond.

Reasoning: Because the judgment in question orders the U.S. Treasury to refund tax money, the

Government stands to suffer a real economic injury and therefore maintains standing in the case.

The Bipartisan Legal Advisory Group (BLAG) presented substantial arguments for the

constitutionality of DOMA that reflected an actual controversy under Article III, which allowed

the Supreme Court to address the case without needing to decide whether BLAG would have had

standing before a lower court. The Court also held that states have the authority to define

marital relationships and that DOMA goes against legislative and historical precedent by


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undermining that authority. The result is that DOMA denies same-sex couples the rights that

come from federal recognition of marriage, which are available to other couples with legal

marriages under state law. The Court held that the purpose and effect of DOMA is to impose a

disadvantage, a separate status, and so a stigma on same-sex couples in violation of the Fifth

Amendments guarantee of equal protection.

F. Political Questions-- The case or controversy requirement of Article 3, Section 2 limits federal

jurisdiction to onlyjusticiable cases: cases w/ substantial disputes affecting legal interests of genuinely

opposed parties, where specific relief can be obtained through judicial decision. Court will leave to

resolution to one of the other political branches.Purely political questions have been determined to be

nonjusticiable and should be left to other govt branches, under separation of powers.

i. - 4 factors are weighed in determining whether there is a political question:

1. A textually demonstrable constitutional commitment of the issue to political

branches f/ resolution,

2. the appropriatenes of attributing finality of action to political branches

3. lack of adequate standards for judicial resolution of the issue

4.

the lack of adequate judicial remedies.1. Baker v. Carr (1962)

a. TN voters seeking injunction and reapportionment of general assembly, arguing that

violation of equal protection clause of the 14th A.

b. S.Ct: justiciable question that federal court can intervene and decide.

c.

Reapportionment is not a political question that would require non-justifiability.

d. Claim asserted here is an equal protection claim under the 14th A.

that retreated from the Court's political question doctrine, deciding that redistricting

(attempts to change the way voting districts are delineated) issues present justiciable

questions, thus enabling federal courts to intervene in and to decide reapportionment cases.

Brennan reformulated the political question doctrine, identifying six factors to help in

determining which questions were "political" in nature. Cases that are political in nature aremarked by:

1. "Textually demonstrable constitutional commitment of the issue to a coordinate

political department;" as an example of this, Brennan cited issues of foreign affairs and

executive war powers, arguing that cases involving such matters would be "political

questions"

2. "A lack of judicially discoverable and manageable standards for resolving it;"

3. "The impossibility of deciding without an initial policy determination of a kind clearly

for nonjudicial discretion;"

4. "The impossibility of a court's undertaking independent resolution without expressing

lack of the respect due coordinate branches of government;"

5. "An unusual need for unquestioning adherence to a political decision already made;"6. "The potentiality of embarrassment from multifarious pronouncements by various

departments on one question."

Guarantee Clause always means the court will dismiss the case because it is a political question

2.

Vieth v. Jubelirer (2004)


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a.

Facts: Vieth, residents of Pennsylvania registered to vote as Democrats, brought suit in

federal district court against the State and officers involved in implementing the plan

(Jubelirer. Vieth alleged that the plan violated the one person one vote requirement of

Article I Section 2 of the United States Constitution, and that the plan was a political

gerrymander in violation of Article I and the Equal Protection Clause of the Fourteenth

Amendment. At trial, the court entered judgment for Vieth and retained jurisdiction over thecase pending the courts approval of a new plan. The governor then signed into law a new

redistricting plan designed to cure the apportionment problem. Vieth moved to impose their

own new redistricting plan in favor of the States new plan on the same grounds as its

predecessor. The district court denied Vieths motion, holding that the States new plan was

not malapportioned. Vieth appealed and the Supreme Court granted cert.

b. Issue: is political gerrymandering nonjusticiable?

c. Holding: Yes. Political gerrymandering is nonjusticiable. No judicially discernible and

manageable standards for adjudicating claims of gerrymandering exists.

d. Reasoning: the Constitution gives state legislatures the initial power to draw federal election

districts, but authorizes Congress to make or alter those districts. In Bandemer, the Court

held that the Equal Protection Clause also grants judges the power and duty to control thatpractice. However, neither Article I, 2 or 4, nor the Equal Protection Clause, provides a

judicially enforceable limit on the political considerations that the States and Congress may

take into account when districting. One of the tests for nonjusticiability or political question

is a lack of judicially discoverable and manageable standards for resolving the question

3.

Gilligan v. Morgan (1973)

a. student at Kent University sued for injunctive relief against an Ohio national guard. The

Plaintiff wanted a judicial evaluation of training weaponry and orders of the national guard.

Because the plaintiff sought broad call on the judicial power to assume continuing regulatory

JD over the activities of the national guard rather than a claim for past injuries or some other

against a specific imminent threat, the case was nonjudiciable. The court had no JD, the

constitution gave congress responsibility to prescribe discipline to the militia, and congressauthorized the president to issue appropriate regulations.

4.

Nixon v. U.S. (1993)

a. Court held that the issue of whether the practice of a Senate Committee hearing evidence

against an individual who has been impeached is constitutional under the Trial Clause (Art I,

3, cl 6) was non-justiciable issue b/c the power to try all impeachments is textually

committed to Senate.

b. He meshes together a number of the parts togethermeshes textural argument with a lack

of judicially manageable or discoverable standards

i. Texturallooks at text itself and the Article I language says the senate has the sole

power to try one for impeachment making non reviewable by the court

ii.

Manageable Standards - However, the opinion continues and points to the variousdefinitions in dictionaries of the term to try says the court lacks any principled

standards to determine whether a judge has been properly tried under the

constitution

iii. Either of these could have been independent, but he uses both


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G. Executive Violation of the separation of powers

Youngstown Sheet & Tube Co v. Sawyer (1952)

i. Korean War, ongoing dispute between steel workers who call a national strike. This can

affect the production of weapons necessary for the war. President Truman sees this

danger and seizes possession of the steel mills.

1.

Executive Order: order or regulation issues by the president or an executiveagency, promulgated for the purpose of trying to interpret or implement some

Constitutional provision or some law or treaty. Presidents attempt to execute

the laws.

2. HERE the affect of the order was to seize private property and make them into

nationalized entities.

ii. (Q) Was President Truman acting within his Constitutional Power?

iii. (H) No. Nothing in Article II gives the President explicit authority to seize these Steel

Mills.

iv. (R) The Presidents power, if any, to issue an order must stem from an act of Congress or

the United States Constitution.

1.

Justice Black (majority) draws quite a distinction between Executive andLegislative power. There is a very formal distinction between their powers.

2. Justice Frankfurter (Concurrence)

3. Disagrees with Justice Blacks formalistic approach. Believes the powers are

more intertwined. Has a functionalist approach.

4. He would allow the President to act so long as there is nothing that expressly

prohibits him from acting.

5. Generally the Executive has certain inherent powers, so long as theyre not

explicitly negated.

6. He supports the majority decision because Congress explicitly spoke out against

this act with the Taft Hartley Act.

7.

for the future.8.

Tri-part division of Executive Powers:

9. 1. Express or implied authorization

10.

Executive power at Maximum

11. 2. Absence of either a Congressional grant or denial of authority zone of

twilight

12. Look to Art. II for direction

13. President and Congress may have concurrent authority

14. 3. Measures incompatible with the express or implied will of Congress

15. Lowest authority

16. This is where the Presidents act in this case lies.

17.

President Truman was acting incompatibly with Congress express will.18. Functionalist approach to separation of powers

19. The President has at least some powers in the emergency context. Some

inherent powers although not unlimited.

20. Encourages Congress to place a check on this Emergency power.

H. Executive Powers, Privileges, and Immunity-

The Supreme Court of the United States ruled that the line-item veto as granted in the Line Item

Veto Act of 1996 violated the Presentment Clause of the United States Constitution because it


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impermissibly gave the President of the United States the power to unilaterally amend or repeal

parts of statutes that had been duly passed by the United States Congress. The bill must be

approved or rejected by the President in its entirety. Clinton v. NY

In some situations, Congress authorizes and appropriate funds for various programs but the

President impounds-refuses to send-the money. When congress has expressly directed that sums

be spent, the president has no constitutional power not to spend them. If congress does notmake such an explicit command to spend appropriated funds, Train appeared to agree that the

President could impound the funds. If the statute gives the President discretion to spend, no case

has rejected a Presidental Power.

Clinton v. City of New York (1998)

i. Return to Chadha Analysis against execPrez cant law-make

ii. FACTS: Line item veto act enabled prez clinton to cancel/change certain spending items

of his own volition.

iii. HOLDING: Court invalidated federal line item veto act - Predictable based on Chada.

Same principal as Chadabicameral processes for creating laww/ line item veto,

prezs altered legislation qualifies as NEW law (different spending budgets, etc) the

Framers intentionally meant to withold the power to veto particular items (espexpenditures) in particular legislation..

iv. NOTES: Why was the court divided if this was an obvious case?

1. The way the line item veto was enacted was a delegation

2. Delegationall delegations of the last 70 yrs have been permissible

3.

How can we say that bicameral passage is only way to create law when

agencies create law all the time?

4.

b/c agencies are acting under direct order from Congress to accomplish a

certain goal, and laws created under that premise are considered as getting

Congressional approval.

5. no delegation doctrine- agencies need specific doctrineoutdatedlast 70 yrs

of delegation have been permissible.6. Scalias argument- the cancellation permitted to prez under line item veto act is

same as permissible delegationlawmaking other than in specifically

prescribed for (via agency)

2.

Field v. Clark (p 130)

a. Court upheld the constitutionality of the Tariff Act of 1890

i. The exercise of the suspension of power was contingent upon a condition that did

not exist when the tariff Act was passed.

ii. Under the tariff act, when the President determines that the contingency had

arisen, he had a duty to suspend.

iii.

Whenever the President suspended an exemption under the tariff act, he was

executing the policy that Congress had embodied in the statute.b. In the foreign affairs arena, the President has a degree of discretion and freedom from

statutory restrictions which would be admissible were domestic affairs alone are involved.

I. Foreign Affairs

U.S. v. Curtiss-Wright (1936)

i. Facts:Congress passed a Joint Resolution authorizing the President to ban the sales of

arms to countries involved in the border dispute between Bolivia and Paraguay. The

President immediately made an Executive Order banning such sales. The Defendant was


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indicted for conspiracy to sell fifteen machine guns to Bolivia in violation of the Joint

Resolution and the Executive Order.

ii.

Issue: Whether the joint resolution as applied to the situation, is vulnerable to attack

under the rule that forbids a delegation of the lawmaking power.

iii.

Holding: The Court agreed that the President was allowed much room to operate in

executing the Joint Resolution; it found no constitutional violation. Making importantdistinctions between internal and foreign affairs, Justice Sutherland argued because

"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.

iv. Reasoning: The US Gov. has inherent powers when it comes to foreign/international

issues that is not proscribed in the constitution. It has inherent powers because it is a

state/gov according to international law. There is a fundamental difference in the role of

government in foreign affairs and domestic affairs. The federal government has both

constitutional and inherent authority to conduct foreign affairs as it sees fit. The

President is the United States sole representative to foreign nations. In order to achieve

the United States foreign policy aims, the President is better able than Congress tojudge conditions that exist in foreign nations and is afforded substantial discretion and

wide latititude in those decisions. The President has confidential information as well a s

consular, diplomatic and foreign affairs officers to help in his decision.

Dames & Moore v. Regan (1981)

i. Facts:Iran hostage crisis. Deal worked out to return hostages. In exchange for the

hostages, Irans frozen funds in the US would be unfrozen AND any suits against Iran

would be dropped. All Iranian assets would be transferred to the Bank of England.

ii.

(A) The Court uses Justice Jacksons framework.

iii. The Court has power under AEPA to allow second and third parts of agreement. The

harder issue is about the Presidents effort to suspend litigation.

iv.

(H) Court upholds the Presidents efforts v.

Historical practice of Presidents suspending claims concurrent to settlement

agreementssupports broad executive discretion

vi.

Congressional acquiescencethe President had this power because Congress never

questioned it before

vii. **In this case you see the Court willing to read in an ambiguous historical record,

congressional acquiescence. This is probably because we are in a foreign affairs context.

viii. Court wont do this in Youngstown Steel because of domestic context.

ix. Foreign affairs does not require reading this opinion in the absolute broadest sense.

Rather it is rooted in a very particular set of circumstances.

x. Executive Discretion in Times of War or Terrorism

xi.

War Powers: The Constitution suggests the President and Congress share war powers.xii. The dominant authority is vested in the legislaturedeclare war, finance defense.

xiii. President also has powersCommander in Chief, laws faithfully executed, use military

to protect national interest.

xiv. The President some say has an inherent power to defend the country against sudden

attack

xv. With war on terror Congress removed the need to answer the full scope of the

Presidents powers.


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xvi.

9/11, 2002, War Powers Resolution

xvii. Suspension Clause: The Privilege of the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may require it.

xviii. (executive agreement without statutory authorization having an effect on domestic

relations, president had the power to settle claims of the US against foreign government

through executive agreements) Congress has implicitly authorized the President tosuspend the claims of American citizens against foreign powers by its long history of

acquiescing to such Presidential conduct. The Court held that the International

Emergency Economic Powers Act constituted a specific congressional authorization for

the President to order the transfer of Iranian assets. The Court further held that

although the IEEPA itself did not authorize the presidential suspension of legal claims,

previous acts of Congress had "implicitly approved" of executive control of claim

settlement.

Medellin v. Texas (2008)

i. Facts: Medellin argued that the Vienna Convention granted him an individual right that

state courts must respect, a possibility left open by the Supreme Court's 2006 decisionin Sanchez-Llamas v. Oregon. Medellin also cited a memorandum from the President of

the United States that instructed state courts to comply with the ICJ's rulings by

rehearing the cases. Medellin argued that the Constitution gives the President broad

power to ensure that treaties are enforced, and that this power extends to the

treatment of treaties in state court proceedings. The President had no authority to

order the enforcement in state court of an ICJ ruling, because that would imply a law-

making power not allocated to him by the Constitution.

ii.

Issue:

Did the President act within his constitutional and statutory foreign affairs

authority when he determined that states must comply with the U.S. treaty obligation

under the Vienna Convention by enforcing a decision of the International Court of

Justice? Does the Constitution require state courts to honor the treaty obligation of theU.S. by enforcing a decision of the International Court of Justice?

iii. Holding: The Court held that the signed Protocol of the Vienna Convention did not make

the treaty self- executing and, therefore, the treaty is not binding upon state courts until

it is enacted into law by Congress. Furthermore, Chief Justice Roberts characterized the

presidential memorandum as an attempt by the executive branch to enforce a non-self

executing treaty without the necessary Congressional action, giving it no binding

authority on state courts. U.S. Constitution does not require state courts to honor a

treaty obligation of the United States by enforcing a decision of the International Court

of Justice. The Vienna Convention provides that if a person detained by a foreign

country asks, the authorities of the detaining national must, without delay, inform the

consular post of the detainee of the detention.J. Executive Privileges and Immunities

U.S. v. Nixon

i. Attempt to use executive immunity to block judicial branch

ii. FACTS: Nixon gets busted as a conconspirator in Watergate, subpoened to provide tapes

of private discussions b/w him and his cronies. He first tries to release limited, censored

versions of tapes and transcripts (18 min gaps)NIXON IS A SHADY MUTHAFUCKA.


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iii.

Executive Priviledge Defense - Nixon tries to exert executive priviledge, citing that since

he is President he is ABOVE THE LAW (he has absolute privacy b/c he is Commander and

Chief).

iv. Also, since executive branch has absolute power to decide which cases to try and what

evidence to use, therefore Prez has final decision in what evidence to be brought in

crimc case.v. Court responds by citing Marbury v. Madison is it the function of the Court to decide

what the law is. STERN doesnt find this a strong argument, as the court equated their

ability to interpret the law w/ some sort of of restriction on presidential power.

vi. Separation of Powers defense - Also, invokes separation of powers b/c matter was

between members of the executuive branch, and therefore was not subject to judiciary

interference.

vii. HOLDING: Give up the tapes assholethe judiciary and the appointed special

investigator and Constitutionally-based rights that override Presidential general right to

privacy w/o special excuse (national security secret, etc)

viii. BALANCING TEST OF BOTH SIDES

ix.

Constitutionally-endowed rights of justice in criminal law proceeding is greater thangeneral Presidential privacy right and claimed right of priviledge.

x. NOTES

xi. Court acknowledges that Prez has qualified executive priviledge, esp concerning nation

defensewhile this is not laid out in Const, its structurally inferred from separation of

powers and Article 2.

xii. NIXONS EFFICIENCY ARGUMENT

xiii.

that allowing everything said in Oval Office to go to the press would compromise candor

and efficiency of executive functioncourt dmisses that argument, saying it wouldnt

effect communicative openness b/c judiciary will not

xiv. COURT PROTECTING JUDICAL POWERby not letting the Prez dictate what evidence we

can and cannot hear.xv. SCARCITY OF OTHER EVIDENCE

xvi.

If special prosecutors couldnt get their hands on the tapes, there are no other sources

of evidencei.e. no case. Also, need for evidence in criminal suit is greater than that in

civil suit (b/c of higher degree of proof necessary).

xvii. see insider trading example with Attorney General in notes

xviii.

COURTS AND OVERRIDING EXECUTIVE PRIVILEDGEwhile in this case P attempted and

overcame exec privileged, in other

Clinton v. Jones (1997)

i. Facts: Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an

Arkansas state employee, she suffered several "abhorrent" sexual advances from then

Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton'sadvances ultimately resulted in punishment by her state supervisors. Following a District

Court's grant of Clinton's request that all matters relating to the suit be suspended,

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 District 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 Eighth Circuit affirmed the dismissal denial but reversed the trial deferment


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ruling since it would be a "functional equivalent" to an unlawful grant of temporary

presidential immunity.

ii.

Issue: 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?

iii.

Holding: No. In a unanimous opinion, the Court held that the Constitution does notgrant a sitting President immunity from civil litigation except under highly unusual

circumstances. After noting the great respect and dignity owed to the Executive office,

the Court held that neither separation of powers nor the need for confidentiality of

high-level information can justify an unqualified Presidential immunity from judicial

process. While the independence of our government's branches must be protected

under the doctrine of separation of powers, the Constitution does not prohibit these

branches from exercising any control over one another. This, the Court added, is true

despite the procedural burdens which Article III jurisdiction may impose on the time,

attention, and resources of the Chief Executive.

K. Legislative Authority

INS v. Chadha (1983)i. AG suspended deportation of a Kenyan national pursuant to the Immigration and

Nationality Act

ii. (Q) Has what Congress has done, in light of these delegations, permissible?

iii. (A) Under the One House Veto, one house can overturn a decision that had been

delegated to the AG. This is an action that is legislative in nature. The Constitution

outlines what Congress must do in their legislative capacity

iv. Chief Justice Burger is following a formalistic approach in that he supports each branchs

specific roles.

v. The House as overriding an executive action (AG) with an action that is legislative in

nature.

vi.

Concerned about checks and balances.vii.

Burger sees clear distinctions between executive and legislative authority.

viii. (H) Found the One House Veto to be Unconstitutional because neither Bicameralism or

Presentment requirements were satisfied.

ix. Concurrence: Unconstitutional NOT because action was legislative in nature but rather

because Congress attempted to adopt actions that were judicial in nature (deciding

Chadhas situation did not satisfy certain criteria).

x. Dissenting: Very functionalist in his understanding of separation of powers. We must

be more flexible in this modern world. In truth the branches are undertaking many

roles that overlap with one another. Is B and P required in pursuance of an already

passed law?

xi.

Bowsher v. Synar (1986)

i. Cong infringing into Exec againDifft Approach from Chadha

ii. FACTS: Graham Redner Act an attempt to eliminate federal budget deficit. Stop Me

before I Kill Again methodology- provides mechanism that allows for across the board

spending cuts every time the budget exceeds specified levels. i.e.ceiling is 250 billion,

actual spending is 270 billion20 billion of so called automatic cuts.Comptroller

general figures out WHERE the cuts should occur


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1.

Therefore, Comptroller General determines what budget deficit actually is

this kind of calculation is NOT objectivethere is much subjective analysis

(projections, estmiations, etc). Its the Comptroller Generals role in this case

that dooms the bill.

iii.

HOLDING: Court rules that what the Comptroller General is doing is executing the

provisions of the Graham Act, and because hes a part of the legislative branch he cantinterfere with executive functionslegislative branch cant infringe into executive

branch powers.

iv. Congress trying to take shortcut through Constitutional methodsrepresents

Congressional overreaching of power into executive branch.

v. NOTES: Court is adopting a strict formalistic categorical approach (i.e. Carter,

Hammercd)classifying Comp. Gen. as a legislative officer, and sharply dividing the

functions of the branches so that its UNCONST under separation of pwrs

1. Congress is having its officer both write and execute the law, and under

separation of powers that cannot happen

vi. BOWSHER UNDER CHADA ANALYSIS

1.

Court would say, What youre really doing is rewriting the law Comp Generalis rewriting the budgetand when you are creating federal policy you need

bicameral passageStern thinks it would be a reasonable opinion.

2. STERN: The Act would have been ok if the Prez had chosen the Comp Gen b/c it

is a position w/ exectuive power and can only be nominated by an executive

officer

3. Untitary Executivetheory is that the constitution created the position as one

to be given to a sngle person all executive power should be vested in the

president

4.

if someone was to adhere to these theory then they would not allow the act

regardless of who had delegated the powera legislative officer cannot act as

an executive officer. Morrison v. Olson (1988)

i. Facts: The Ethics in Government Act of 1978 created a special court and empowered the

Attorney General to recommend to that court the appointment of an "independent

counsel" to investigate, and, if necessary, prosecute government officials for certain

violations of federal criminal laws. The Act provides that the independent counsel can

be removed from office only by impeachment or by personal action of the Attorney

General for good cause, physical disability, mental incapacity, or other conditions that

impair performance.

ii. Issue: Did the Act violate the constitutional principal of separation of powers under

article III

iii.

Holding: No. The Court of Appeals, which invalidated the Act, is reversed.iv. Reasoning: the Appointments Clause, reads the Congress may by Law vest the

Appointment of such inferior Officers, as they think proper . . . in the courts of Law . . . .

Art II. This language seems to clearly give Congress the power to vest the appointment

of an executive official in the courts of Law. Thus, Congress is authorized to make

interbranch appointments.

1. Because the miscellaneous powers granted to the Special Division are mostly

either passive of ministerial, the Act poses no Art III difficulty concerning


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judicial intrusion into matters that are more properly within the Executives

authority.

2.

Theres no separation of powers problem with regard to the Act because the

statute (1) appropriately puts the removal power in the hands of the Executive

Branch: an independent counsel may only be removed by the Attorney General

for good cause and (2) does not impermissibly interfere with the functions ofthe Executive Branch.

Free Enterprise Fund v. Pcaob (2010)

i. Facts: The Free Enterprise Fund, a non-profit organization, brought suit challenging the

constitutionality of Title I of the Sarbanes-Oxley Act. It alleged that the creation of the

Public Company Oversight Board (the Board) by the Act violated the Appointments

Clause because it deprived the President from exercising adequate control over the

Board. The U.S. Court of Appeals for the D.C. Circuit held that the creation of the Public

Company Accounting Oversight Board did not violate either the Appointments Clause or

the separation of powers principle. It reasoned that the Boards members were inferior

officers under the supervision of the SEC and thus were not obligated to be appointed

by the President. Also, the court noted that the Presidents ability to remove membersof the SEC, who in turn could remove members of the Board, preserved the

Constitutions separation of powers.

ii. Issue: 1) Does the Sarbanes-Oxley Act violate the the separation of powers doctrine

by giving broad powers to the Board while simultaneously preventing the President of

the power to appoint or remove Board members?

1.

2) Did the court of appeals correctly hold that the Board members were inferior

officers under the direct supervision of the SEC even though the SEC cannot

supervise those members individually and can only remove them for just

cause?

2. 3) Does the Sarbanes-Oxley Act violate the Appointments Clause even if the

Boards members are inferior because the SEC is not an official department orbecause the commissioners are not the head of the SEC?

iii. Holding: Yes. Yes. Not answered. The Supreme Court held that the "for-cause" limitation

on the removal of Board members is unconstitutional because it contravenes the

Constitution's separation of powers.

iv. Reasoning: the Court reasoned because the Act protects Board members from removal

except for good cause, but withdraws from the President any decision on whether good

cause exists, the Act deprives the President the power to hold Board members

accountable. Such an arrangement contradicts Article II's vesting of the executive power

in the president. The Court further held that the unconstitutionality of the removal

provision did not make unconstitutional the entire Board. The Court concluded that the

Board may continue to function as before, but its members may be removed at will bythe Commission. Lastly, the Court held that the Board's appointment is consistent with

the Appointments Clause of the Constitution. The Court reasoned that Board members

are inferior officers, and, thus, their appointment may permissibly be vested in the

"Head of the Department." Here, the Commission constitutes the "Head of the

Department."


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L. Congress Article I Power and their Limits

All legislative Power herein granted Shall be vested in a Congress of the U.S. which shall consist

of a Senate and House of Representatives

Basic framework of Congress Powers: The Necessary and ProperClause:

Congress has the power to make laws which shall be necessary and proper for carrying into

execution the foregoing Powers, and all other Powers vested by this constitution in the

government of the U.S or in any department or Office thereof.

McCulloch v. Maryland (1819)

o Facts:Maryland (P) enacted a statute imposing a tax on all banks operating in Maryland not

chartered by the state. The statute provided that all such banks were prohibited from issuing

bank notes except upon stamped paper issued by the state. The statute set forth the fees to

be paid for the paper and established penalties for violations. The Second Bank of the United

States was established pursuant to an 1816 act of Congress. McCulloch, the cashier of the

Baltimore branch of the Bank of the United States, issued bank notes without complying

with the Maryland law. Maryland sued McCulloch for failing to pay the taxes due under the

Maryland statute and McCulloch contested the constitutionality of that act. The state court

found for Maryland and McCulloch appealed.

o Issue: Does Congress have the power under the Constitution to incorporate a bank, even

though that power is not specifically enumerated within the Constitution? Does the State of

Maryland have the power to tax an institution created by Congress pursuant to its powers

under the Constitution?

o Holding: J. Marshall Yes. Congress has power under the Constitution to incorporate a bank

pursuant to the Necessary and Proper clause (Article I, section 8). No. The State of Maryland

does not have the power to tax an institution created by Congress pursuant to its powers

under the Constitution.

o Reasoning: The Government of the Union, though limited in its powers, is supreme within its

sphere of action, and its laws, when made in pursuance of the Constitution, form the

supreme law of the land. There is nothing in the Constitution which excludes incidental or

implied powers. If the end be legitimate, and within the scope of the Constitution, all the

means which are appropriate and plainly adapted to that end, and which are not prohibited,

may be employed to carry it into effect pursuant to the Necessary and Proper clause. The

power of establishing a corporation is not a distinct sovereign power or end of Government,

but only the means of carrying into effect other powers which are sovereign. It may be

exercised whenever it becomes an appropriate means of exercising any of the powers

granted to the federal government under the U.S. Constitution. If a certain means to carry

into effect of any of the powers expressly given by the Constitution to the Government of

the Union be an appropriate measure, not prohibited by the Constitution, the degree of its

necessity is a question of legislative discretion, not of judicial cognizance. The Bank of the

United States has a right to establish its branches within any state. The States have no

power, by taxation or otherwise, to impede or in any manner control any of the

constitutional means employed by the U.S. government to execute its powers under the

Constitution. This principle does not extend to property taxes on the property of the Bank of


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the United States, nor to taxes on the proprietary interest which the citizens of that State

may hold in this institution, in common with other property of the same description

throughout the State.

Jefferson County, Ala v. Acker (1999)

o

A States taxation of federal employees salaries is permissible if the tax was not directlyimposed on one sovereign entity by another and was not discriminatory

United States v. Comstock (2010)

o Facts: Convicted sex offenders moved to dismiss petitions requesting their indefinite civil

commitment under the Adam Walsh Child Protection and Safety Act. A North Carolina

federal district court dismissed the petitions. On appeal, the U.S. Court of Appeals for the

Fourth Circuit affirmed. It held that the Protection and Safety Act exceeded the scope of

Congress' authority when it enacted a law that could confine a person solely because of

"sexual dangerousness," and the government need not even allege that this

"dangerousness" violated any federal law.

o

Issue: Did Congress have the constitutional authority to enact the Adam Walsh Protectionand Safety Act?

o Holding: Yes. The Supreme Court held that the Necessary and Proper Clause grants Congress

authority sufficient to enact the Adam Walsh Protection and Safety Act.

o Reasoning: 1) the Necessary and Proper Clause grants broad authority. (2) The Court

recognized that Congress has long delivered mental health care to federal prisoners. (3)

Congress had good reason to pass the statute as it has the power to protect nearby

communities from the danger prisoners may pose. (4) The Tenth Amendment does not

reserve a zone of authority to the states in this context. (5) The Court recognized that the

statute was narrow in scope and did not confer on Congress a general police power, which is

reserved to the states.

Kennedy wrote separately, concurring in the judgment. He maintained thatauthority under the Necessary and Proper Clause is dependent upon the "strength

of the chain" from Congressional action and its enumerated power, not on the

number of "links in the chain." Justice Samuel A. Alito also wrote separately,

concurring in the judgment. He cautioned that the majority opinion should not be

construed as granting an unlimited ability by Congress to extend its power.

The Commerce Clause Power

o Congress was given the power to regulate commerce so that national commercial interest might

prevail over local protectionist factions.

Classical View of the Commerce Power

Gibbons v. Ogden (1824)

Facts:New York granted Robert R. Livingston and Robert Fulton the exclusive right

of steam boat navigation on New York state waters. Livingston assigned to Ogden

the right to navigate the waters between New York City and certain ports in New

Jersey.


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Ogden (P) brought this lawsuit seeking an injunction to restrain Gibbons (D) from

operating steam ships on New York waters in violation of his exclusive privilege.

Ogden was granted the injunction and Gibbons appealed, asserting that his

steamships were licensed under the Act of Congress entitled An act for enrolling

and licensing ships and vessels to be employed in the coasting trade and fisheries,

and for regulating the same. Gibbons asserted that the Act of Congress supersededthe exclusive privilege granted by the state of New York.

The Chancellor affirmed the injunction, holding that the New York law granting the

exclusive privilege was not repugnant to the Constitution and laws of the United

States, and that the grants were valid. Gibbons appealed and the decision was

affirmed by the Court for the Trial of Impeachments and Correction of Errors, the

highest Court of law and equity in the state of New York. The Supreme Court

granted certiorari.

Issue:May a state enact legislation that regulates a purely internal affair regarding

trade or the police power, or is pursuant to a power to regulate interstate

commerce concurrent with that of Congress, which confers a privilege inconsistent

with federal law? Do states have the power to regulate those phases of interstatecommerce which, because of the need of national uniformity, demand that their

regulation, be prescribed by a single authority? Does a state have the power to

grant an exclusive right to the use of state waterways inconsistent with federal law?

Holding: No. A state may not legislation inconsistent with federal law which

regulates a purely internal affair regarding trade or the police power, or is pursuant

to a power to regulate interstate commerce concurrent with that of Congress.

a.

No. States do not have the power to regulate those phases of interstate

commerce which, because of the need of national uniformity, demand that

their regulation, be prescribed by a single authority.

b. No. A state does not have the power to grant an exclusive right to the use

of state navigable waters inconsistent with federal law.

Reasoning: The laws of New York granting to Robert R. Livingston and Robert Fulton

the exclusive right of navigating state waters with steamboats are in collision with

the acts of Congress. The acts of Congress under the Constitution regulating the

coasting trade are supreme. State laws must yield to that supremacy, even though

enacted in pursuance of powers acknowledged to remain in the States. A license,

such as that granted to Gibbons, pursuant to acts of Congress for regulating the

coasting trade under theCommerce Clause of Article I confers a permission to carry

on that trade.

The power to regulate commerce extends to every type of commercial intercourse

between the United States and foreign nations and among the States. The

commerce power includes the regulation of navigation, including navigation

exclusively for the transportation of passengers. It extends to vessels propelled by

steam or fire as well as to wind and sails.

The power to regulate commerce is general, and has no limitations other than

those prescribed in the Constitution itself. It is exclusively vested in Congress and no

part of it can be exercised by a State.
http://www.lawnix.com/cases/commerce-clause.htmlhttp://www.lawnix.com/cases/commerce-clause.html


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While the commerce power does not stop at the external boundary of a State, it

does not extend to commerce which is completely internal. State inspection laws,

health laws, and laws for regulating transportation and the internal commerce of a

State fall within the state police power and are not within the power granted to

Congress.

The Commerce Clause After the New Deal

o Wickard v. Filburn (1942)

Facts:The Agriculture Adjustment Act of 1938 (AAA) set quotas on the amount of

wheat put into interstate commerce and established penalties for overproduction.

The goal of the Act was to stabilize the market price of wheat by preventing

shortages or surpluses. Filburn (P) sold part of his wheat crop and used the rest for

his own consumption. The amount of wheat Filburn produced for his own

consumption combined with the amount he sold exceeded the amount he was

permitted to produce.

Secretary of Agriculture Wickard (D) assessed a penalty against him.

Filburn refused to pay, contending that the Act sought to limit localcommercial activity and therefore was unconstitutional because it

exceeded the scope of Congresss power under theCommerce Clause.

Filburn brought this lawsuit seeking to enjoin enforcement of the Act and a

declaratory judgment that the wheat marketing provisions of the AAA

were unconstitutional for exceeding the scope of Congresss commerce

power. The court below, a district court panel of three judges, entered

judgment for Filburn and the Supreme Court granted cert.

Issue: Can Congress regulate the production of wheat intended for personal use and

not placed in interstate commerce? Can Congress regulate trivial local, intrastate

activities that have an aggregate effect on interstate commerce via the commerce

power? Holding: yes. Congress can regulate the production of wheat intended for personal

use and not placed in interstate commerce.

Yes. Congress can regulate trivial local, intrastate activities that have an

aggregate effect on interstate commerce via the commerce power, even if

the effect is indirect.

Reasoning: The wheat marketing quota and attendant penalty provisions of the

AAA, even when applied to wheat not intended in any part for commerce but

wholly for consumption on the farm, are within the commerce power of Congress.

The power to regulate interstate commerce includes the power to regulate

commodity prices and practices affecting them.

The effect of the AAA is to restrict the amount of wheat which may be

produced for market and the extent to which one may avoid resorting to

the market by producing for his own needs. That the production of wheat

for consumption on the farm may be trivial in some cases is not enough to

remove the grower from the scope of federal regulation where the

aggregate effect of such behavior by many others is far from trivial.

Wheat grown for home consumption is a factor with great volume and

variability and it would have a substantial influence on price conditions.


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When prices are high the wheat may flow into the market and check price

increases. Furthermore wheat grown for personal consumption supplies

the need of the grower who would otherwise purchase wheat in the open

market.

o

United States v. Darby Sustained federal power to regulate production of goods for commerce

o U.S. v. E. C. Knights Co.

Sustained the exercise of national power over intrastate activity

commerce among the states is not a technical legal conception, but a practical

one, drawn from the course of business. (Swift & Co. v. U.S.)

o Shreveport Rate Cases

Railroad rates of an admittedly interstate character and fixed by authority of the

state might, nevertheless, be revised by the federal government because of the

economic effect which they had upon the interstate commerce. Federal intervention is constitutionally authorized because it has a close and

substantial relationship to interstate traffic that the control is essential or

appropriate to the security of that traffic, to the efficiency of the interstate service,

and to the maintained of the conditions under which commerce may be conducted

upon fair terms and without molestation of hindrance

o NLRB v. Jones & Laughlin Steel Corp. (1937)

Whether the National Labor Relations Act exceeded the commerce power?

Court looked at the application of statute

Court looked at huge steel companies involved in interstate commerce and fund

that the statute could properly be applied to the company under the authority ofthe Commerce Clause.

Heart of Atlanta Motel v. United States (1964)

o Facts: The Heart of Atlanta motel was a large hotel in Atlanta, Georgia, which

refused to rent rooms to African Americans. The owner of the hotel filed a suit in

federal court, arguing that the requirements of the Civil Rights Act violated his Fifth

Amendment right to choose customers and operate his business as he wanted

resulted in unjust deprivation of his property without due process of law and just

compensation.the United States countered that Congress, under the United States

Constitutions Commerce Clause, was certainly within its power to address such

provisions. In addition, the decision of Heart of Atlanta Motel v. United States

stated that the Fifth Amendment does not forbid regulations of interstate

commerce and incidental damage did not constitute the taking of property

without due process of law or just compensation.

o Issue: Whether Section 201(a), (b), (1) and (c) of the Civil Rights Act is

constitutional.


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o Holding: Yes,

o Reasoning:

Article I, Section 8, of the Constitution provides: "Clause 1: The Congress

shall have Power * * * Clause 3: To regulate Commerce with foreign

Nations, and among the several States, and with the Indian tribes;" and

Clause 18 "To make all Laws which shall be necessary and proper forcarrying into Execution the foregoing Powers

United States v. Darby "The power of Congress over interstate commerce

is not confined to the regulation of commerce among the states. It extends

to those activities intrastate which so affect interstate commerce or the

exercise of the power of Congress over it as to make regulation of them

appropriate means to the attainment of a legitimate end, the exercise of

the grant of power of Congress to regulate interstate commerce.

The action of the Congress in the adoption of the Act applied here to a

motel which concededly serves interstate travelers, is within the power

granted it by the Commerce Clause

United States v. Lopez (1995)

o Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any

individual knowingly to possess a firearm at a place that he knew or had reasonable

cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student,

carried a concealed and loaded handgun into his high school and was arrested and

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

the Act.The District Court denied Lopezs motion to dismiss the ind ictment,

concluding that the GFSZA was a constitutional exercise of Congress power

pursuant to theCommerce Clause of Article I. The Fifth Circuit reversed, holding

that the Act exceeded Congress power under the Commerce Clause and was

therefore unconstitutional. The Supreme Court granted cert.

o Issue: Does the GFSZA exceed Congress authority under the Commerce Clause?

What categories of activity may Congress regulate under its commerce power?

o Holding:Yes. The GFSZA exceeded Congress authority under the Commerce Clause.

o Reasoning: The three broad categories of activity that Congress may regulate under

its commerce power are: a) the use of the channels of interstate commerce; b)

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; and c) Congress commerce authority

includes the power to regulate those activities having a substantial relation to

interstate commerce, i.e., those activities that substantially affect interstate

commerce.

The Supreme Court held that the GFSZA exceeded Congress Commerce

Clause authority. The possession of a gun in a local school zone is in no

sense an economic activity that might, through repetition elsewhere, have

a substantial effect on interstate commerce. The section in question is a


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criminal statute that by its terms has nothing to do with commerce or

any sort of economic enterprise. Nor is it an essential part of a larger

regulation of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated. It cannot, therefore,

be sustained under the Courts cases upholding regulations of activities

that arise out of or are connected with a commercial transaction, whichviewed in the aggregate, substantially affects interstate commerce.

The statute contains no jurisdictional element which would ensure that the

firearms possession in question has the requisite nexus with interstate

commerce. Lopez was a student at a local school; there is no indication

that he had recently moved in interstate commerce, and there is no

requirement that his possession of the firearm have any concrete tie to

interstate commerce.

Neither the Act itself nor its legislative history expresses congressional

findings regarding the effects of gun possession in a school zone on

interstate commerce. To uphold the Governments contention that the Act

is justified because firearms possession in a local school zone does indeedsubstantially affect interstate commerce would require this Court to pile

inference upon inference in a manner that would convert congressional

Commerce Clause authority to a general police power of the sort held only

by the States.

ALA Schechter Poultry Corp v. United States (1935)

o Court struck down regulations that fixed the hours and wages of individuals

employed by an interastate business because the activity being regulated related to

interstate commerce only indirectly

o Activities that effect interstate commerce directly are within the Congresses Power

o Indirectly are beyond their powers

NLRB v. Jones & Laughlin Steel Corp (1937)o Got rid of direct and indirect effect principle

U.S. v Bass (1971)

o Issue: Whether the Omnibus Crime Control and Safe Streets Act of 1968 applied to

merely the possession or receiving of firearms without a nexus to interstate

commerce demonstrated.

o Holding: Since the statute was criminal in nature, such a broad reading as the

government asserted would be too intrusive to the police powers of the states. In

the absence of clear direction of Congressional intent to do so, the court would not

construe the statute so broadly as to not require a showing of nexus with

commerce.

Heart of Atlanta Motel v. United States (1964)

o Facts: Prior to passage of the Civil Rights Act of 1964 (the Act), the Appellant, Heart

Atlanta Motel, Inc. (Appellant) operated a motel which refused accommodations to

blacks. Appellant intended to continue this behavior to challenge Congress

authority to pass the Act.Heart of Atlanta Motel had 216 rooms available to

transient guests and had historically rented rooms only to white guests. Appellant

solicits business from outside the State of Georgia through advertising in national

travel magazines and other media. Approximately 70% of its guests are from


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outside the state. Appellant contends that Congress has overreached its authority

under the Commerce Clause in enacting the Act

o Issue: May Congress prohibit racial discrimination in hotel lodging under the

Commerce Clause?

o Holding:Yes. Appeals court ruling affirmed.

Congress heard testimony from many sources describing the hardships blacks facein securing transient accommodations throughout the United States. With an

increasingly mobile populace, this brought increasing difficulties to many United

States citizens. It does not matter that Congress was addressing a moral issue (see

the dissent in Hammer v. Dagenhart, 247 U.S. 251 (1918) and the Supreme Court of

the United States (Supreme Court) opinion in Darby, 312 U.S. 100 (1941). What the

Supreme Court is examining is Congress power to enact the legislation, not the

impetus behind the Act. Concurrence. Justice William Douglas (J. Douglas) concurs

in the judgment, but he is uneasy resting the decision on the Commerce Clause,

rather than Section: 5 of the Fourteenth Amendment of the United States

Constitution (Constitution). He feels that it is more appropriate to rest c ivil rights

legislation on the constitutional status of the individual, than the impact oncommerce. The Court held that the Commerce Clause allowed Congress to regulate

local incidents of commerce, and that the Civil Right Act of 1964 passed

constitutional muster. The Court noted that the applicability of Title II was "carefully

limited to enterprises having a direct and substantial relation to the interstate flow

of goods and people. . ." The Court thus concluded that places of public

accommodation had no "right" to select guests as they saw fit, free from

governmental regulation.

United States v. Lopez (1995)

o Facts: The Gun-Free School Zones Act of 1990 (GFSZA) made it unlawful for any

individual knowingly to possess a firearm at a place that he knew or had reasonable

cause to believe was a school zone. Alfonso Lopez, Jr. (D), a 12th-grade student,carried a concealed and loaded handgun into his high school and was arrested and

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

the Act. The District Court denied Lopezs motion to dismiss the indictment,

concluding that the GFSZA was a constitutional exercise of Congress power

pursuant to the Commerce Clause of Article I. The Fifth Circuit reversed, holding

that the Act exceeded Congress power under the Commerce Clause and was

therefore unconstitutional. The Supreme Court granted cert.

o Issue: Does the GFSZA exceed Congress authority under the Commerce Clause?

What categories of activity may Congress regulate under its commerce power?

o

Holding: Yes. The GFSZA exceeded Congress authority under the Commerce Clause. o The three broad categories of activity that Congress may regulate under its

commerce power are: a) the use of the channels of interstate commerce; b)

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; and c) Congress commerce authority

includes the power to regulate those activities having a substantial relation to


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interstate commerce, i.e., those activities that substantially affect interstate

commerce.

o The Supreme Court held that the GFSZA exceeded Congress Commerce Clause

authority. The possession of a gun in a local school zone is in no sense an economic

activity that might, through repetition elsewhere, have a substantial effect on

interstate commerce. The section in question is a criminal statute that by its termshas nothing to do with commerce or any sort of economic enterprise. Nor is it an

essential part of a larger regulation of economic activity, in which the regulatory

scheme could be undercut unless the intrastate activity were regulated. It cannot,

therefore, be sustained under the Courts cases upholding regulations of activities

that arise out of or are connected with a commercial transaction, which viewed in

the aggregate, substantially affects interstate commerce.

The statute contains no jurisdictional element which would ensure that the

firearms possession in question has the requisite nexus with interstate

commerce. Lopez was a student at a local school; there is no indication

that he had recently moved in interstate commerce, and there is no

requirement that his possession of the firearm have any concrete tie tointerstate commerce.

Neither the Act itself nor its legislative history expresses congressional

findings regarding the effects of gun possession in a school zone on

interstate commerce. To uphold the Governments contention that the Act

is justified because firearms possession in a local school zone does indeed

substantially affect interstate commerce would require this Court to pile

inference upon inference in a manner that would convert congressional

Commerce Clause authority to a general police power of the sort held only

by the States.

ALA Schechter Poultry Corp. v. United States (1935)

o

Court struck down regulations that fixed the hours and wages of individualsemployed by an intrastate business because the activity being regulated to

intrastate commerce only indirectly.

U.S. v. Morrison (2000)

o Facts: The Respondent, Morrison (Respondent), was sued under part of the

Violence Against Women Act of 1994 (Act), which penalized crimes of violence

motivated by gender. Now Respondent argues this section of the Act is beyond the

scope of Congress power to regulate commerce.In 1994, while enrolled at Virginia

Polytechnic Institute (Virginia Tech), Christy Brzonkala alleged that Antonio

Morrison and James Crawford, both students and varsity football players at Virginia

Tech, raped her. In 1995, Brzonkala filed a complaint against Morrison and

Crawford under Virginia Tech's Sexual Assault Policy. After a hearing, Morrison wasfound guilty of sexual assault and sentenced to immediate suspension for two

semesters. Crawford was not punished. A second hearing again found Morrison

guilty. After an appeal through the university's administrative system, 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 Court, alleging that Morrison's and Crawford's

attack violated 42 USC section 13981, part of the Violence Against Women Act of


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1994 (VAWA), which provides a federal civil remedy for the victims of gender-

motivated violence. Morrison and Crawford moved to dismiss Brzonkala's suit on

the ground that section 13981's civil remedy was unconstitutional. In dismissing the

complaint, the District Court found that that Congress lacked authority to enact

section 13981 under either the Commerce Clause or the Fourteenth Amendment,

which Congress had explicitly identified as the sources of federal authority for it.Ultimately, the Court of Appeals affirmed.

o Issue: Does Congress have the authority to enact the Violence Against Women Act

of 1994 under either the Commerce Clause or Fourteenth Amendment?

o Holding: the Court held that Congress lacked the authority to enact a statute under

the Commerce Clause or the Fourteenth Amendment since the statute did not

regulate an activity that substantially affected interstate commerce nor did it

redress harm caused by the state. Chief Justice Rehnquist wrote for the Court 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 Commonwealth of Virginia, and not by the

United States." Dissenting, Justice Stephen G. Breyer argued that the majorityopinion "illustrates the difficulty of finding a workable judicial Commerce Clause

touchstone." Additionally, Justice David H. Souter, dissenting, noted that VAWA

contained a "mountain of data assembled by Congress...showing the effects of

violence against women on interstate commerce."

Gonzales v. Raich (2005)

o Facts: In 1996 California voters passed the Compassionate Use Act, legalizing

marijuana for medical use. California's law conflicted with the federal Controlled

Substances Act (CSA), which banned possession of marijuana. After the Drug

Enforcement Administration (DEA) seized doctor-prescribed marijuana from a

patient's home, a group of medical marijuana users sued the DEA and U.S. Attorney

General John Ashcroft in federal district court.o The medical marijuana users argued the Controlled Substances Act - which

Congress passed using its constitutional power to regulate interstate commerce -

exceeded Congress' commerce clause power. The district court ruled against the

group. The Ninth Circuit Court of Appeals reversed and ruled the CSA

unconstitutional as it applied to intrastate (within a state) medical marijuana use.

Relying on two U.S. Supreme Court decisions that narrowed Congress' commerce

clause power - U.S. v. Lopez (1995) and U.S. v. Morrison (2000) - the Ninth Circuit

ruled using medical marijuana did not "substantially affect" interstate commerce

and therefore could not be regulated by Congress.

o Issue: Does the Controlled Substances Act (21 U.S.C. 801) exceed Congress' power

under the commerce clause as applied to the intrastate cultivation and possessionof marijuana for medical use?

o Holding: No. In a 6-3 opinion delivered by Justice John Paul Stevens, the Court held

that the commerce clause gave Congress authority to prohibit the local cultivation

and use of marijuana, despite state law to the contrary. Stevens argued that the

Court's precedent "firmly established" Congress' commerce clause power to

regulate purely local activities that are part of a "class of activities" with a

substantial effect on interstate commerce. The majority argued that Congress could


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ban local marijuana use because it was part of such a "class of activities": the

national mari

Documents

Constitutional Law I Outline(1)