CONSTITUTIONAL LAW I—CURRIENotes from first Class:-AOC said that states retained sovereignty and all powers not expressly delegated (see 10th Amend of Con); the Con omits the word "expressly"; thus the Con leaves room for implicit powers

the AOC created a very weak central govt with no executive and few reserved powers-two principal objections: power of central govt to tax, and state interference with other states' trade

Informal records of Con convention (no formal records exist)-show that central govt should only get what the states can't effectively do on their own--this principal was sent to a drafting committee with directions to make it more concrete; the result was Art. I-2 things were added: power to tax, and power to regulate commerce (in Act. I, Sec. 8)

Issue: was the constitutional convention authorized to throw out the entire AOC? (they were sent only to amend it)-at the time, the AOC had provisions for their own alteration, which said they could be amended by the state legis--Validity of the Con was also justified in terms of revolution, which basically threw out the AOC (termed the 2nd American Revolution).

where are the checks on the Ct? -can't impeach a judge on the basis of his decisions--appointments; this is why we don't was allow the Ct to appoint its own successors--amendments to the constitution---both of these are difficult to freely utilize--civil disobedience--What if other branches ignore the Ct's decisions?

Constitution can only not be amended so to keep States from their representation

A. JUDICIAL REVIEW

Marbury v Madison (1803) [P. 3]—“[A]n act of the legislature, repugnant to the Constitution, is void.” (Marbury had been named a justice of the peace by outgoing Pres Adams. Incoming Pres Jefferson refused to honor Marbury’s commission. Marbury filed a writ of mandamus directly to the Supreme Court to have Jefferson’s Sec. of State deliver Marbury’s commission. The Judiciary Act of 1789 authorized the Supreme Court to issue such writs.[note: Marbury’s commission had been signed off on by Marshall because he had been Adams’ Sec. of State.])● Can be argued that in dicta Marshall acknowledged the Political Question Doctrine [p. 6]--Currie says that Marbury is NOT the fountainhead of the pol question doc● Constitutional Convention History supports the argument that the Framers intended there to

be Judicial ReviewNotes from Class:--the Sct says that the stat purposes to give the Sct jurisdiction to issue mandamus writs, but that such wasn't allowed by the Con.--does the stat really purport to give orig. jurisdiction?---stat actually discusses mandamus writs within a sentence that is about appellate jurisdicition.

Marshall also says that the mandamus writ was proper in this case-was it proper to issue one to a cabinet officer--if it could, then it would allow the cts judicial review over the exec branch---this was allowed in the UK----this is one of the most important things established in the case (and is often overlooked)-----important to note the limitations that Marshall notes (ie discretion, which was a common law tradition)

court holds it has no jur based on questionable interpretation of Art. III and questionable interpretation on judiciary stat.--regardless, the ct says that Marbury should have been given his commission

Case does (correctly) establish judicial review of exec (which had precedent in UK)

Case also establishes judicial review of leg. (but it is established differently than its precedent in UK)-relies upon Art. VI sec. 1 clause 2 (supremecy clause)"law made pursuant Con"=constitutional laws

Marshall arguments for judicial review of leg. acts: 1) supremacy clause; Marshall says that laws not pursuant to the con aren't the supreme law of the land-real issue: who decides if a law conflicts with the Con.--is Marshall's definition of laws made in pursuance thereof?--Marshall misconstrues the supemeacy clause---in pursuance thereof refers laws made under THIS Constitution---in referring to treatises, the language suggests that prior treatises are still valid and supreme law (see Toth case, US, Black)

2) paramount language;

3) oath; --Marshall also relies upon the Oath of Office (see Art. VI, Sec. 1, Clause 3.---problem: oath is taken by all government bodies, so we come back to the question of who decides what is constitutional?

4) judges must decide casesMarshall says judges must decide as between conflicting laws-why judges? Marshall says that in deciding cases, judges cannot avoid determining whether the law is constitutional--problem: if the law was passed by congress, judges could just defer to congress as to questions of constitutionality

5) check/balance arg: without judicial review, there would be no limitations on leg. -problem: why is this a role for the judiciary?-what question should we ask: what about other checks?1) elections2) presidential veto- But if the Sct gets their interpretation wrong, there's no check on the Sct's power

In bill of rights, there were two limitation other than judicial review: 1) conscience and 2) constituents

6) Art. III gives jurisdiction to Sct to cases arising under the Con. Doesn't that mean that judicial review is implicit?-counter: this is the same arg as the Oath arg, so we still could argue that the Sct should defer to the Leg.-counter: constitutionality of legislation isn't the only issue that comes up in cases, thus this clause is completely irrelevant w/o judicial review

7) all written constitutions imply judicial review (top of page 9)-counter: at Marshall's time, no other Con had judicial review.

So is Marshall wrong? Not necessarily; we've only shown that his arguments aren't airtight. They could still be correct.

there is a considerable body of evidence that says the founders intended judicial review.-everything Marshall says is in Hamilton's Federalist Papers

When Madison proposed the Bill of Rights, Madison said that it would be the role of judges to enforce the Bill

In the early debates in congress, judicial review of legislation was assumed

there was precedent in UK; municipalities had corporate charters and cts struck down local laws if they conflicted with the charter

In colonial govt, the colony had a charter from the King, and if a law was contrary to the charter, the cts would strike such law down

thus judicial review was not made up by Marshall--Ware (1796) : state law was struck down by ct b/c is was contrary to Federal treastise--Hylton (1796): tax was struck down--Hayburn (1792): Congressional law said that Sec. of Treasury had authority to strike down ct's decisions on war benefits; this law was struck down by all federal judges---no one in congress cried fowl but instead amended the law in accordance with the judges' rulings

Real Issue: what are the limits on judicial reviewLimitation on Judicial Review-no advisory ops-standing--mootness/ripeness---mootness, unlike injury, is flexible (see Roe v Wade) when it stands in the way of judicial review--injury requirement

Marbury establishes judicial review of exec acts (always existed in UK); harder and less established in history was its establishment of judicial review of legislation-Marshall's args aren't airtight, but history shows that the framers intended to established judicial review

2 basic things Marshall puts forth (apart from Lang) in support of the argument that judicial review is implicit in the Con:1) checks and balances--ct acts as check and balance on other branches2) cts have a duty to decide a case, and judges must follow the Con (in this way, judicial review is a mere incidental byproduct of the ct's power to decide cases)

How we answer these questions regarding to what extent other branches of govt are bound by Sct decisions is determined by our reading of Marbury, and Marbury is not clear on this issue.-what we ID as the real basis of judicial review determines our answer of bounding

The Responsibility of other Branches [p. 21-27]● Thomas Jefferson —didn’t think that the executive was bound by the constitutional

interpretations of the Court

● Andrew Jackson —didn’t think that the executive or the legislature was bound by the constitutional interpretations of the Court

is the Sct's power to strike down unconstitutional laws affected by Jackson?--could argue no, that it just adds a separate check on the constitutionality on Congress' laws; could argue that the Pres has the same duty to check unconstitutional laws (this point Currie agrees with)

● Abraham Lincoln —argued that judicial opinions were supreme only as to the particular cases from which they were opined

-Lincoln says that he wouldn't set Dred Scott free, so he respects the ct's decision in the case it decided-Lincoln would argue that by passing a new law saying slaves are free doesn't conflict with the Sct's decree as long as that it doesn't upsets the Sct's prior decision

Does the Sct have the jur to forbid the Congress from passing a law? No, it only have jur over the parties in the case-Lincoln's distinction is in respecting its res judicata power, but denying its stare decisis powerWhat about the Sct's role as check/balance?-could be argued that the ct still has the power to strike down the subsequent laws, so the Sct's power isn't disturbed--problem: doesn't this require the Sct to strike down each school board's unconstitutional segregated school system? Doesn't this in effect destroy the power of the judicial branch's check against exec and lead to unnecessary transaction costs?

● Franklin D. Roosevelt —suggested open defiance of Court orders-can the Pres disobey a judicial decision of the Sct?--inconsistent w/ Marshall's check/balance arg--also contrary to Ct's power to decide a case

Cooper v Aaron (1958) [p. 25]—“[T]he federal judiciary is supreme in the exposition of the law of the Constitution.” (Arkansas argued that they were not bound by the Supreme Court’s desegregation decision in Brown v Board.)● Noted in the book that while in the US, only the parties to a case are “officially” bound by its

decision, in civil law countries courts exercising judicial review issue rulings of general invalidity binding on all. However, in practice, this is the effect of a Supreme Court decision invalidating a statute.

What about a state ct, which also swears to uphoad the Con? Can it hold a law unconstitutional after the Sct has said that it is constitutional?-if each state ct can hold differently than the Sct, judiciary would lose uniformity

City of Boerne v Flores (1997) [p. S98]—“Congress’ power under the 14th Amendment extends only to enforcing the amendment. The Court has described this power as ‘remedial.’ Legislation which alters the meaning of the Amendment cannot be said to be enforcing the Amendment.” (Ct invalidated the RFRA, which required a balancing test and gave a defense for any person prosecuted under laws who argued that their actions were part of their religious expression.)-here congress is arguing that the state law isn't constitutional--since the congress wouldn't be bound by the Sct's interpretation of a state law, the Sct isn't bound by Congress' view of the OR law

Martin v Hunter’s Lessee (1816) [p. 60]—The Supreme Court has the authority to review, and reverse, state court judgments resting on interpretations of federal law. (Virginia state courts had refused to obey a Supreme Court mandate, arguing that the Constitution did not authorize federal courts to act directly, upon, and reverse, state court rulings.)● Cohens v Virginia (1821) validated the Supreme Court’s authority to review state laws in

criminal proceedings.--one issue was uniformity of the Con among the states--another was the need of federal law to protect federal rights---Counter: what about the federal cts being biased against state rights--The Con provides that the Sct can hear any case arising under the Con so the above two issues can be protected (this purpose was mentioned in the Con convention notes)

Ex Parte McCardle (1869) [p. 76]—Although the Constitution holds that Congress can make “exceptions” to the Supreme Court’s appellate jurisdiction, it can also add to the Court’s appellate jurisdiction. If Congress grants new appellate jurisdiction, it may repeal such jurisdiction as well. (McCardle brought appealed a habeas corpus decision against him to the Sct under the a congressional Act. Before the decision, the Act was repealed. The Sct held that the Act was no longer valid and thus the Court did not have jurisdiction over the case.)● Prof. Hart has argued that this “exceptions” power of Congress cannot be exercised in a way

that would interfere with the “essential” or “core” functions of the Court.● The Constitution and recurrent statements in Supreme Court opinions suggest a broad

congressional authority over lower federal court jurisdiction. --Marbury holds that Congress can't add to Sct's original jur (only cases where state or foreign entity is a party)--McCardle says that Congress can deprive Sct of dif aspects of its appellate jur

If judicial review is an essential check on Congress, then we need to have great doubts regarding Congressional acts that would remove this check, as limiting the Ct's appellate jur could (this is basically Hart's arg on bot of p. 81)--this power of Congress depends on our interpretation of Marbury

Advisory Opinions [p. 27]—The Supreme Court does not give advisory opinions because its authority is only over “cases or controversies.” checks and balances aren't the same as separation of powers

-thus the advisory opinion issue isn't a check issue as much as it is a separation of power issue; if they give an opinion, it may be difficult for them to rule on it if a case came up

Reasons Sct gives to not give an advisory opinion1) checks and balances--but why can't this be another check2) separation of powers (not in book)--don't want two branches in bed with each other, or they won't be impartial if it comes up in a later case3) ct of last resort-what does this mean?--judgmts are final; why does this limit advisory ops?--would an advisory opinion bind the Pres? No, thus then an advisory op would not be final since it is by its nature only advice. If the pres chooses not to folow this advice, then the Pres would be negating the Sct's finality--to answer this question would go beyond the Sct's jur (Marbury)4) Art. II says Pres should go to heads of exec depts.-Problem: this would mean that Pres couldn't go to Congress; this clause was meant to say that those under Pres in the Exec MUST answer Pres' questions5) Extra-judicial--Currie says this is the most important arg-cts can exercise only judicial power--Art. III only expressly grants ct judicial power; 10th Amd says anything not listed is reserved to the States--we read "only" into Sct's orig jur (citing Marbury)--judicial powers are limited to certain types of cases which have been held exclusive-we can also look to the structure of the Con which implies that vests different powers with dif branches (weak arg, however)-Con convention discussed possibility of a Counsel of Review composed of the Justices; one arg made in defeating this was that they didn't want Ct ruling on laws before they come before them in a case

-Haybern's case gave precedent--Ct was asked, in a trial court capacity, to determine rev war vetrens' pensions. Ct said it was unCon to have the Ct do this was subject to review by the Sec of the Tres, and thus their decision would be non-judicial and the decision would not be final-complication arose: 1 year after Washington's request, the Chief Justice was chosen as a Minister to UK to devise a treaty between dif warring country--problem: CJ was acting as a non-judicial ambassador--J. Jackson was chief prosec. at Neumberg--Warren while on Ct led the investigation of Kennedy's assasignation--In Mistretta, Sct allowed justices to perform non-judicial roles if not acting as Justices while performing such non-judicial acts

Incompatibility provision says that members of exec branch from serving in Congress; thus, the framers considered this idea and was only worried only about the exec and leg getting mixed up

-giving advice isn't judicial--How do we know this? How do we know what "judicial" means when used in the Con?--How was the word used before the Con (tradition)? Was it a technical legal term? If so, we presume the legal term. Why? Cases before Marbury (chis v. GA--could citizen of one state sue another state? Ct said yes, b/c it was expressly stated in the Con; Calder v Bull--what was the meaning of ex post facto laws--could a leg set aside a will provision. Ct said this wasn't an ex post facto case, and it defined EPF; Hylton case--was tax agst carriges a direct tax or not? Since neither text nor tradition answered the question, Ct said we should look to whether reading was logical or not (consequence reasoning)

---Thus, sometimes the Ct looks to the text, and sometimes the ct refers to tradition; if these fail, then look to logic/consequences-each three cases took 3 very different methods; this is what we do today. No one method is considered the best when performing Con interpretation (think of it as a tool kit)

Prior to Con, cts decided issues BETWEEN PARTIES (no parties involved in advisory ops)

Cases were decided on CONCRETE FACTS (not so in advisory ops)

Must be ACTUAL controversy (can't be hypothetical)

Cases are FINAL; this is an essential function of cases. they must BIND the parties

One problem: UK cts gave advisory opinions; other countries, and even other states, have cts that give advisory ops. BUT UK cts weren't limited to judicial functions by a Con, so we don't necessarily look to UK cts. This is one way we distinguish between competing traditions

Standing to SueWhy do we need injury in fact? Why is congress limited by this factor?-tradition—look to tradition for defining case or controversy--problem: old UK cts gave advisory opinions and the writ of quo warranto, challenging a govt official or corporation c/be brought by anyone---Thus, tradition doesn’t fully support injury in fact, although the general rule in old UK was that an injury in fact was needed

Functional analysis-judicial economy—too many cases --BUT, allowing hypothetical cases would settle cases before the injury occurs

-good arguments (adverse parties)—we might make bad decisions unless we have parties who have something at stake arguing vigorously--BUT are we worried about the Sierra Club not arguing vigorously even if they haven’t been injured? BUT if we allow the Sierra Club, who wouldn’t be allowed to argue? (slippery slope argument)---Counter: Suing costs money so why would someone bringing suit not argue vigorously

-friction betw. branches/separation of powers—judicial review creates tension betw. ct and leg and so the ct wants to use judicial review sparingly, so the case or controversy requirement limits the amount of times that there is a need to use judicial review in order to address a wrong--portrays judicial review more as the ct’s duty rather than portraying the ct as reaching out

-when no one is injured, the standing requirement results in a failure of judicial review (this view would put some of Marbury at odds with the current Sct’s view on standing)

-when no one is injured, the standing requirement results in a failure of judicial review (Currie: this does damage to the strong reading of Marbury)

An interest in a problem is not enough. Why? In Tort Law, we usually don’t allow people to sue for emotional injuries only w/o physical injury

you must be able to trace your injury to the action complained of AND you must show that your requested redress will remedy your injury

Allen v. Wright (p. 36)-private schools segregate; schools get federal funds-Ps said they felt stigmatized--Ct denied standingScrap case (counter case to Allen v Wright)-Georgetown students complained about ICC’s raising of rates for transportation of scrap metal--students said that if rates went up, then less metal will be recycled and the students’ parks will be damaged --Case would likely not be followed today, but shows us how malleable this factor is

An interest unrelated to injury is insufficient to give a plaintiff standing; thus ct doesn’t just look at whether P has a stake in the case; the interest must be for protecting a right or for redressing an actual injury; A STAKE IN A CASE ISN’T ENOUGH; THERE MUST BE INJURY

Why case/controversy requirement?-tradition

But WHY should we have the requirement? (functional reasons)-adversarial process brings out the best args-separation of powers issues--don’t want ct unnecessarily spending its political capital-if the injured person doesn’t want to sue, no one else should upset the situation

How is this requirement enforced?-emotional not enough-must be real, actual not hypothetical-no counter that no one else has standing

2 levels to standing doctrine1) Art III inquiry-requires injury2) prudential inquiry-most important factor: must raise your own rights, not those of 3rd parties--exception #1: 3rd party can’t raise her rights --exception #2: non-constitutional requirement; thus Congress can override it (unlike Art III requirement)---FCC v Sanders Bros----stat said that any person aggrieved by the FCC could challenge FCC’s actions (thus ONLY the Art III inquiry was required)----competitor sued by grant of license to competitor----the stat had done away with the prudential requirement

● Warth v Seldon (1975) [p. 30]—The question of Standing involves both (1) constitutional limitations and (2) prudential limitations. The Constitutional Limitation is whether P has made out a “care or controversy between himself and the D within the meaning of Art. III. P must have suffered some threatened or actual injury resulting from the putatively illegal actions. Prudential Limitations include (a) prohibiting suits based on generalized grievances common to many; and (b) requiring P to assert his own rights, not the rights of 3rd parties. Injury exists solely by virtue of statutes creating legal rights. Ps must allege facts that show, absent D’s illegal actions, P would be able to enjoy his denied right, and that the court has the ability to fashion a remedy that will lead

to P being able to subsequently enjoy such right. (Ps sued a against a city zoning board arguing that they had excluded persons of low and moderate income.)

Congress may not alter standing barriers based on constitutional limitations, but may remove standing barriers based upon prudential limitations.

Why can’t parties sue on behalf of 3rd parties?-don’t want the ct meddling if the 3rd party has chosen not to sueNAACP v AL-ct said that when the injured party isn’t in a position to raise their rights, and a 3rd party is injured by the denial of the 1st party’s rights, the 3rd party may bring suitIMPORTANT: the party bringing forth the 3rd party’s rights must still show an injury resulting from the conflict betw. D and 3rd party

In Warth, ct says its not just refusing cases it really does have jurisdiction-Question really to be asked is whether the P has a cause of action? (See underlined sentence on p. 31)--who has a cause of action? ---42 USC § 1983, it provides a remedy only to those whose rights have been invaded---28 USC § 2201—declaratory judgment action; also uses the term “rights”; only those whose rights have been denied can bring a case

If your rights haven’t been invaded, no law gives you a remedy because only those whose rights have been infringed are provided remedies under Federal statutes

Data Processing Case-involved challenge of a bank’s activities by a competitor; competitor was violating limits that were proscribed by federal law--was the competitor injured? Yes, by hurting competition--was the competitor injured within the meaning of the relevant statute? to answer this we look to see if the competitor was within the zone of interest; ct said that they were b/c the law was developed to protect banks

Prudential Limitation Tests on standing1) 3d party rights2) generalized grievance (sometimes referred to as an “injury” factor)-gen grievance isn’t when anyone and everyone can sue; its when the harm is too abstract3) zone of interest (usually just a replay of the 3d part rights test)

● Massachusetts v Mellon (1923) [xeroxed]—A complaint that Congress has usurped the reserved powers of the several states brought by a state is a political, not judicial, question. While a state may in some circumstances sue on behalf of its citizens, it may not do so against the federal government.

● Frothingham v Mellon (1923) [p. 37]—Ps may not sue the government by merely citing their status as taxpayers. Such a concern is shared with millions and thus comparatively minute and indeterminable. (P sued to prohibit the government from making grants to state programs to reduce maternal and infant mortality.)

ct says that remedy is conjectural—there’s no substantial probability that T’s taxes will go down even if T wins (money c/ be spent somewhere else) [this is the heart of the ct’s reasoning]

Is Frothingham consistant with Marbury?-depends on your reading of Marbury

-Frothingham case basically allows no one to sue and yet judicial review, says Marbury is around to make sure laws are not violated (checks and balances)-BUT, if we look at the other side of Marbury, judicial review is just a necessary offshoot of the ct’s duty?!?!?

● Flast v Cohen (1965) [p. 37]—“[T]he Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the [Separation of Church and State].” (Sct upheld the standing of taxpayers challenging federal aid to religious schools.)

-Why is this case different from Mellon?--Ct says that in this case there’s a nexus:a) the law is a spending law, not an administrative program; thus T’s injury claim is stronger against a spending law (BUT Mellon was about a spending law as well)b) must look at the nature of the complaint: here the attack on the spending law was based upon a specific limitation on the spending power of Congress-in the Flast case, the ct said that one purpose of the Establishment clause was that govt s/not be supporting any one religion--James Madison’s arg (not quoted by the Ct) in support of the Establishment Clause was to protect the T against funding a religion against her conscious---Thus the Clause creates a right in the T; thus T is asserting his own right-ct said that in Mellon, T was asserting the right of the state -in this case, T may not save any taxes, but her consciousness won’t be injured by having her taxes funding religion

● Raines v Byrd (1997) [p. S3]—The Standing inquiry is heightened when a decision could force the Court to declare an act of another branch unconstitutional. “Congress cannot erase Art. III’s standing requirements by statutorily granting the right to sue to a P who would not otherwise have standing.” (Members of Congress challenged the Line Item Veto Act. The Act expressly allowed Congressmen to challenge the Act’s constitutionality. Ct says that because the Congressmen have not alleged that the Line Item Veto was used against any particular bill they voted for, they have not alleged a specific injury. The Court also held that the injury to Congress was abstract and that it had a remedy in that it could repeal the Act or exempt appropriations bills from its reach.)

Raines hypo:-can a 1st term congressman sue if there is a rule that says 1st congressmen can’t vote on appropriation bills? No, because this would be a suit regarding the rights of an institution-in contrast, an individual congressman could sue if he was individually stopped from voting (due to sanctions, etc. [Powell case]);-difference is personal v institutional --doesn’t the “no 1st termers” rule still single out

Ripeness and Mootness [p. 43]ripeness------------------------------OK to bring suit------------------------------------mootness

Ct is inconsistent in its application of ripeness (hardline) v mootness (makes exceptions)

● Mootness: involves litigants who had standing to sue at the outset of their litigation, but problems arise from events occurring aft the lawsuit has gotten underway—changes in facts or the law—that deprive them of the necessary stake in the outcome Sometimes relaxed for issues such as pregnancy (Roe v Wade (1973))

Roe v Wade-ct uses balancing test regarding mootness, but it, like ripeness, is a constitutional Art III requirement, not a prudential factor which is usually when balancing

● Ripeness: involves situations where the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action. United Public Workers v Mitchell (1947)—A case cannot be an attack on the political

expediency of a law, it must be a presentation of legal issues. (Fed exec employees sought a declaratory judgment that a law barring them from taking part in political campaigns)

When determining whether a case is ripe, the ct weighs the costs of waiting until more facts come in

Ripeness is part of the Art III no hypothetical case requirement

Political Questions [p. 45]Political question doc is different than Standing doc b/c all standing says is that you’re the wrong person asserting the question. PQD says that it doesn’t matter who asks the question

If a state asserts property rights it can sue, but not if its asserting sovergn rights, the state has no standing to sue b/c the ct has no jurisdiction

Ct doesn’t take political question cases b/c it doesn’t want use up its clout

Maybe the real significant issue is the lack of standards

coleman s/not be seen as to say that the entire amendment process is pol question material

Classic recent example: All cts avoided ruling on legality of the Vietnam War by saying it was a pol question-in cases like this, the ct is presevering its own power; ct sees that it has little power in this relhm. Currie says this is a dangerous reason to refuse to hear a case

● Baker v Carr (1962) [p. 47]—The mere fact that a suit seeks protection of a political right does not mean it presents a nonjusticiable political question. Political questions can involve: (1) many (but not all) foreign relation questions; (2) how long a proposed amendment remained open to ratification and the effect of a prior rejection upon a subsequent ratification (Colman v Miller (1939)); (3) constitutional commitment to another branch; (4) lack of judicially discoverable and manageable standards; (5) impossibility of deciding without an initial, clearly nonjudicial discretionary policy determination; (6) impossibility of deciding without showing lack of respect for another branch; (7) unusual need for unquestioning adherence to a political decision already made; (8) potential for embarrassment from different answers by multiple governmental departments; (9) whether a state has valid republican form of government (decision reserved to Congress—Luther v Borden (1849)—thus cts can’t use the Guarantee Clause to invalidate state action); (10) determination of proper means to ensure lack of civil domestic violence (reserved to Congress); . (Ps said TN’s districting denied them equal protection because they were based on a 1901 census.) In his Dissent, Frankfurter stated that Slave cases were NOT an exception to the

political question doctrine. He also said that while he agreed that the Guarantee

Clause isn’t enforceable by cts, this case presented a Guarantee Clause question under a different name.

Baker=leading case on Pol question-Sct finally held that cts could decide cases regarding reapportionment vs Equal Protection protections (prior to Baker, Sct refused to hear such cases on pol question grounds)

Review of args against cts hearing pol question cases1) pol signif isn't a valid ground b/c the Ct always decides politically significant cases2) pol structure also isn't valid arg b/c cts hear such cases oftenSee Caroline case, FN4--outlines cases that Sct is particularly strict-Bill of Rights-minority rights-integrety of pol process3) there is more need for jud review b/c if voters aren’t represented, they can't vote to correct these problems (no pol [non-justiciable remedy])4) Guar clause arg-Clause says that "US", not only Congress guarantees Rep form of govtBUT, in Luther Sct said that cts had no role in Guar Clause(In Pac T&T, Sct said Guar Clause was for Leg, not cts to decide)5) lack of judicial standards-Frankfurter in a prior case had said that a case where city boundry was Gerrymandered was not a pol question (see his para #3)-What's the diff? Standards were straightforward in Black cases vs Baker6) Chaos--b/c if districts are wrong, then the laws passed by the state govts are void-this arg is answered by de facto govt doctrine7) lack of remedy--weak arg b/c there are options

Hard to construe Frankfurther's arg w/strong arg of Marbury-What about weak arg (says that when judge has jurisdiction, judge must apply to law)?

Frankfurter says that reapportionment isn't just a matter of numbers; Harlan said that one person=one vote isn't a hardline rule(cities c/overwhelm reping of rural areas)-thus the issue regarding standards depends on one's stance on the merits of the one person/one voteVagueness of standards is essential to his arg regarding the justiciability of the case, and the standards are dependent on the merits on the issue

Currie prefers Harlan's approach to Frankfurter's

--stands for notion that even where issue is committed to another branch, the ct can limit that power to decide the issue

Most important factors:1) lack of standing2) commitment to another branch--3 sub-branchesa) discretion is given to another branch; found in Marbury. No violation if branch has discretion on the meritsb) power to decide--ex: Luther v Borden (decision rests solely in Congress to acknowledge Rep govt)c) in Nixon case, p 56 1st full para, commitment strand--framers intended to exclude judicial review-if the ct didn't think "try" limited the Senate, why didn't the ct stop right there (White's concur arg)?

Powell v McCormack (1969) [p. 53]—(Congressman challenged House of Reps refusal to seat him. Ct held that the issue was justiciable even though Art. I, § 5, cl. 1 states that “each House shall be the Judge of [the] Qualifications of its own Members.”)

--even though the issue is committed to the legislature, its a con question as to the extent of the commitment. Powell said Congress was limited by expressed provisions in the Con

Goldwater v Carter (1979) [p. 53]—(Rehnquist’s plurality opinion held that the question whether the President has authority to terminate a treaty without participation of the Senate was a nonjusticiable political question.)

-ct refuses to hear the case, and 4 judges said it was a pol question (Currie disagrees)--involves authority of Pres (So what? Ct has heard other cases on Pres' power)--foreign relations (same counter)--Con is silent (Ct often interprets silence of con all the time)---Case shows us that the pol question doc lives and sometimes is extremely vague

Goldwater case (See below)--Pres unilaterally cancels treaty-ct refuses to hear the case, and 4 judges said it was a pol question (Currie disagrees)--involves authority of Pres (So what? Ct has heard other cases on Pres' power)--foreign relations (same counter)--Con is silent (Ct often interprets silence of con all the time)---Case shows us that the pol question doc lives and sometimes is extremely vague

analogy was made to the fact that the Pres only needs senate approval to appoint officers, not to discharge them. Thus there may not have to be symmetry betw the making and breaking a treaty

analogy was made to the fact that the Pres only needs senate approval to appoint officers, not to discharge them. Thus there may not have to be symmetry betw the making and breaking a treaty

C/be argued that since the founders thought that getting involved w/other countries was unfavorable, getting out of treaties w/not have such a high bar. In 1798, we abrogated 2 treaties w/France via congressional statute. In 1850's, a treaty w/Denmark it was done by 2/3 vote of the senate w/the Pres as well. In the '70s, Carter tried to get out of a treaty on his own. this was accepted by the lower cts, but the Sct refused to hear the question

Nixon v US (1993) [p. 54]—Judicial review of Senate impeachment proceedings would be inconsistent with impeachment’s role as a check on the judiciary. (Impeached federal judge argued that Senate rule that used a committee to gather evidence was unconstitutional because the entire Senate was required to try the case. Ct held that the issue was a nonjusticiable political question.) Stevens concurred but held that the majority’s opinion gave the legislature too much power

and the word “sole” in the Constitution was used to distinguish the Senate from the House of Representatives rather than from the Sct.

Souter also concurs but says there could be a case where the Senate would take such unreasonable measures that the Sct could hold they failed to “try” the case

-why was it decided to be a pol question case?1) lack of standards-how can cts have a lack of standards as to "trial"? Why is it more vague than "due process", etc.?2) commitment of issue to other branch of govt (ie Guar clause)--this factor is recognized by Marbury in its discretion args

-Senate is the "sole" body to try impeachments--Ct said this implies a constitutional limitation b/c the final decision rests in Senate (it is not an issue of discretionary functions)

-Where does the Congress get its power to impeach? Art I Sec 2. Where does the Senate get the power to hear impeachments? Art I, Sec 3.

-the fact that the elements of impeachment are scattered throughout the Con supports an arg that the crimes listed in Art II, Sec 4 are not a limited enumeration. It merely states a lists the minimum sentencing. What else w/be done b/c of impeachment for other crimes? censure

B. FEDERALISMCongress can't regulate commerce for pretextual purposes of regulating acts they would otherwise have no power to regulate

Congress s/not be able to tax an activity that they aren't allowed to regulate through the Commerce Clause.

Many justices, Holmes, Frankferter, etc, agree that Congress can't use the tax power as a pretext, but don't use pretextual args to control the Commerce Clause -Why are these justices more concerned with pretextual uses of the tax power as opposed to the commerce power?--Taxation is a more effective means of destruction than the Comerce power; Taxation is a greater threat

-C/be argued that the reason Congress was given the power to regulate interstate commerce b/c the states had shown they were incompetent in doing so; thus Congress was given the power so Congress can look with a national view and can limit or promote it (this is how the Ct has interpreted the Commerce Clause--the whole subject of Commerce has been transferred to Congress)

-Later Congress wanted to help refugees from Haiti (known then as St. Domingo); it was difficult, however, to say that helping refugees was in the general welfare of the US. So they helped them based upon loans due to France since the refugees were from France. (Congress has full authority to tax in order to pay off debts.)-then came a case regarding the TVA. The Ct upheld spending on the dams, etc, not based upon the spending power b/c it would have required a broad definition of spending. Instead it is upheld on the Commerce Clause b/c it improved navigation of the TN river.

3 separate questions as to limitations of the Treaty power-There are limitation as to the treaty-But it is not limited to Congressional enumerated powers but arises for any subject that requires 2 countries working together-there is an open question as to when the nature of international treaties changes as it has today

Why was the power to regulate commerce given to Congress?-the whole purpose of the clause was to take the power away from states b/c they were botching it

McCulloch v Maryland (1819) [p. 89]—The federal govt is supreme within its sphere of action. The states are bound by the Constitution. The federal govt isn’t limited solely to the Constitution’s expressed powers. If the federal govt has the right to do an act, it also

has the right to choose the means to accomplish that act, and the burden rests on he who would challenge the means chosen. “Necessary & Proper” is NOT limited to only the most simple and direct means.(MY state had a tax that applied to the National Bank. The National Bank had refused to pay the tax, saying it was illegal. The State said that the Congress didn’t have the authority to make a national bank. MY lost.) Johnson v Maryland (1920) [p. 352]—Relied on McCulloch to reverse a federal postal

employee’s conviction for driving a post office truck without a state license.Even w/o N&P Clause, all expressed powers carry with them the power to carry them out- N&P Clause (like the 10th Amendment) is redundant

Marshall says that necessary can't equal absolutely necessary b/c the Con uses the term "absolutely necessary" (currie seems to agree)

-Necessary doesn't mean indispensible--If necessary means indispensable, then it could disable Congress doing their job--Marshall decided prior case (US v Fisher (1805), p. 102) that supported McCulloch in rejecting the strict definition of "necessary"

What does Marshall mean by "Congress’ discretion must be consistent with the “spirit of the Consitituion"? (From p. 95, Marshall's 4 part test)1) legitimate end=enumerated power2) means must be "plainly adapted"--can't be conjectural or flimsy3) within spirit of Constitution-spirit=federalism, Congress is limited to its expressed powers4) withing letter of Constitution-letter=actual words(this is really the definition Marshall means, and not his references to "convenient")-essence of Marshall's understanding of N&P Clause--carefully crafted and limited

Why can't a state tax a bank?-there are pol checks on state taxes upon state residents, but not such a check upon taxes upon non-res--But how does this make it unconstitutional? What part of the Con does the state tax violate?-state could potentially tax the fed govt out of existence--absurdity arg--can't have a Con that allows a state to destroy the fed govt--this prohibition is found not in any one section but in the whole structure of the Con-Counter: this arg is too broad; Ct s/have waited until a particular tax had threatened the bank--counter-counter--tax wasn't applied to state banks, so the national bank was at a competitive disadvantage-Marshall isn't clear as to whether that the tax conflicts with the Con itself or with a fed law (such as the law that created the bank [the only law it could conflict with])Congress could just pass a statute in order to protect the bank (and later in fact did)

Collector v Day (1871) [p. 351]—State activities enjoy a reciprocal immunity from federal taxation.

State tax on fed activ--NOState reg of fed activ--NOFed tax on state activ--YES (says Marshall)-c/be argued that just as w/state tax on fed, such a tax could destroy state activ

--counter: state has representation w/in the fed govt so its OK (top of p. 98)---Counter: con doesn't rely on pol checks on fed vs state---Fed govt can protect itself from state tax by passing a law; state can't do this (Supremecy Clause)---there is a stronger arg for an immunity for stat activ from fed tax---Ultimately, Collector v Day held that fed can't tax state govt and this is still the law today

National League of Cities v Usery (1976) [p. 207]—(Ct struck down a federal law regulating state and local government employee hours and wages on the grounds that it interfered with local government functions.)-In Natl League of Cities, ct made a distinction as to state proprietary activities; when state enters into the marketplace, it has no immunity. this is to be contrasted w/essential state functions (this distinction was rejected in Garcia)

Garcia v San Antonio Metropolitan Transit Authority (1985) [p. 209]—(Ct rejected a rule of state immunity from federal regulation that turned on a judicial appraisal of whether a particular governmental function was ‘integral’ or ‘traditional.’) overruled National League of CitiesFed reg of state activ--YES (only after swaying back and forth, and the law is open to change)-Currie thinks this is wrong since all the args in for the tax immunity in Collector v Day apply similarly-Garcia says Fed can regulate states

New York v US (1992) [p. 212]—While Congress may attempt to encourage the states to regulate in certain ways, it cannot compel a state to enact and enforce a federal regulatory program regardless of the importance of the federal interest. (Ct struck down as unconstitutional an act that required states to take title to all radioactive waste within their boarders that was not properly disposed of.) Sct says that the Federal Govt can encourage states by attaching conditions to the receipt of

federal funds (provided that such conditions bear some relationship to the purpose of the federal spending); the Court also stated that Congress my offer States the choice of regulating activity according to federal standards or allow state law to be pre-empted by federal law.

The Sct says that one of the primary concerns is that if Congress could compel states to enforce federal programs, state officials could be held responsible for such programs by voters, instead of the federal authors of the programs.

The Sct says that federal statutes enforceable in state courts do not constitute compulsion because such enforcement is required by the supremacy clause.

The Sct says that “[w]here Congress exceeds its authority relative to the States, such acts cannot be ratified by the ‘consent’ of state officers” because “the Constitution divides authority between federal and state governments not for the protection of state governments, but for the protection of individuals.”

Printz v US (1997) [p. S16]—Congress cannot circumvent New York’s prohibition against compelling States to enact or enforce federal programs by compelling the State’s officers directly. (Ct struck down portion of the Brady Bill that required state and local law enforcement officers to conduct background checks and other related tasks.) Sct cites Testa v Katta (1947) for the proposition that, because of the Supremacy Clause,

state courts cannot refuse to apply federal law.

-ct says (in both Printz and New York) that fed can't force states to regulate a 3rd party; but if the state willingly takes up the practice in question, then the fed can regulate the states' action. As to the former, state officials are forced to be agents of federal law (cooptation of state officers)

Inter-govt immunity-NY v US (Leg officers)-Printz (Exec officers)-unlike exec and Leg, state judicial officers may be compelled to hear fed cases--Why a distinction for state jud officers?---Scalia bot p S21 says that Supremacy clause, BUT it applies to exec and leg officers as well so it doesn't distinguish judges from other state officers-thus there is a tension betw judges and other state officers and there is no one theory that adequately explains the distinction

Reno v Condon (2000) [p. S27]—New York and Printz do not limit Congress’ ability to regulate the commercial vending of personal DMV data by the states. In Reno Ct says that its OK to use the state in regulating the state's own action

MotorVoter--says that when states issue drivers' licenses, they must register people to vote-Art I, sec 4, clause 1 specifically says Congress can make laws as to the states' registering voters (example of area of Con that requires acts of States that can be altered by congress)

Kentucky v Dennison (1860) [p. 353]—Extradition Clause (Art. IV, §2) is unenforceable in federal courts.-Ct supported its decision by citing to Printz

Puerto Rico v Branstad (1987) [p. 353]—Overruled Kentucky v Dennison--Sct overruled Dennison, but said that the extradition clause was special b/c it expressly proscribes a duty upon the states; Ct said that Congress can't add to those duties

Gibbons v Ogden (1824) [p. 159]—“Commerce describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by rules for carrying out that intercourse.” “The completely internal commerce of a state is reserved for the state itself.” (NY legislature granted P the exclusive right to operate steamboats in NY waters. D’s ferries were licensed pursuant to a federal law.)--Sct said that concerns that affected 2 or more states c/be regulated even if the portion so regulated is completely within a single state

Note: Interstate travel=interstate commerce

US v E.C. Knight Co (1895)—Local activity could not be regulated federally unless it had a “direct,” rather than an “indirect,” effect on interstate commerce. (Congressional attempts to regulate a sugar refining monopoly were invalid because the relationship between “manufacturing” and “commerce” was deemed “indirect.”) -refused to apply Sherman act b/c the case revolved around Manufacturing that preceeds and is not the same as commerce--what about nec and proper clause?

Shreveport Rate Case (1914)—Vehicles that are instruments of both inter and intra-state commerce may be regulated to prevent the intrastate transactions from injuring the interstate commerce. In such cases, Congress, not the state, has the final say. (“Local”

railroad rates were reachable because of their practical, economic impact on interstate transportation.)-Congress sees that low state rates divert commerce that w/have been placed into interstate commerce into instead intrastate congress

Southern Railway Co v US (1911)—Congress’ power to regulate commerce may be exerted on items of intrastate commerce if necessary to secure the safety of items traveling via interstate commerce. (Ct sustained a penalty under a Federal Act imposed on railroad car that had defective couplers, even though some of the cars were used solely for intrastate commerce.)

Coombs case--1840-D steals goods from shipwreck and is charged under fed regulation-c/be argued that if you can't protect interstate commerce, then Congress won't be able to regulate efficiently (just like making stealing mail federal crime)-Ct in this case said that commerce powers wasn't limited to commerce when it was in transit

A.L.A. Schechter Poultry Corp v US (1935)—(Ct ruled that an Act allowing the President to promulgate “codes of fair competition for a trade or industry” was unconstitutional when applied to merchants who sold only to local customers.)

Carter v Carter Coal Co (1936)—Congress cannot legislate activities affecting the nation as a whole if the Constitution does not so allow, even if the states are unable to adequately deal with such activities. The distinction between a direct and an indirect effect turns not upon the magnitude of either the cause or the effect, but entirely upon the manner in which the effect has been brought about. Production is not commerce. (Ct invalidated an Act that attempted to regulate the maximum and minimum hours coal workers could work.)- case says that it doesn't matter that it has a big effect on commerce b/c the affect is indirect

NLRB v Jones & Laughlin Steel Corp (1937)—Acts which directly burden or obstruct interstate commerce are within the reach of Congressional power. Such power is not limited to transactions deemed to be an essential part of a “flow” of interstate commerce. Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential to protect interstate commerce, Congress may regulate such activities. (Ct upheld the constitutionality of the National Labor Relations Board Act.) Ct held that the fact that workers were engaged in production to be “not determinative.”

Wickard v Filburn (1942)—Even though an activity may be local and not regarded as commerce, it may still be regulated by Congress if it exerts a substantial economic effect on interstate commerce, regardless whether such effect is “direct” or indirect.” (P sued to enjoin a Act that penalized any farmer whose wheat crop was in excess of a market quota. P personally consumed all the wheat he grew on his farm within his state. The Court concluded that his consumption of wheat, when combined with others like him, could lessen the demand for interstate wheat.)Currie thinks Wickard went too far. The question is at which step in the line up to Wickard that the Sct erred

US v Darby (1941)—“The power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those intrastate activities which so affect interstate commerce as to make regulation of the appropriate to the attainment of legitimate interstate commerce regulation.”

US v Lopez (1995)—Congress may regulate (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce, even though the threat may come only from intrastate commerce, and (3) those activities which have a substantial relation to interstate commerce. For (3), the proper test is whether the regulated activity “substantially affects” interstate commerce. (Ct struck down the Gun-Free School Zones Act because it neither regulated a commercial activity nor required that the prohibited possession on school grounds be connected in way to interstate commerce.) Kennedy’s concurrence states that Congress has the authority to regulate those things which

affect “the national market.” Thomas’ concurrence argues that the test for regulation of interstate commerce should be

even more narrow than the majority suggests: “Much if not all of Art. I, § 8 would be surplusage if Congress had been given authority of matters that substantially affect interstate commerce.”

Breyer’s dissent (joined by 3 other justices) argues that the question should not be “Does the activity ‘substantially affect’ interstate commerce, but rather “Whether Congress could have had a ‘rational basis’ for concluded that the activity ‘substantially affects’ interstate commerce.”

Essence of Lopez is 2 things:1) extreme remoteness cuts against upholding the law ("house that Jack built")2) activity regulated must be economic, along the spirit of the New Deal--BUT note that often the focus of the econ activity is upon the actor.

In Lopez 4 justices argued that bringing guns into school had an affect on interstate commerce-Lopez Ct focuses on the weakness "house that Jack built" args in support of the Act-Note that case is 5-4 and 5 are split 3/2.

Why is Wickard different than Lopez?-In Lopez, we are dealing with the police power-Wickard was regulating economic activities whereas carrying guns into schools is not primarily economic-the Ct focus on the armed child and do not see the child as acting economically--dissent says that this is a slippery distinction b/c it can just as easily be argued that schooling is an economic activity

Ct doesn't make the econ test clear; difficult to determine upon what act the determination is made as to whether there is econ activity-Wickard was not overruled, even though the act wasn't commercial, since it was still economic activity

-commerce clause is about interstate trade is about the national market, and today things that in earlier times were local now have effects on the national market. The ct is saying that Congress can regulate actions that affect the national market--this is what the New Deal was about--regulating the national economy post-depression-Currie thinks this is a clever distinction b/c it relys on historical rationale

Three categories of Lopez case (channels, instrumentalities, and affects upon commerce) can be reduced to 2:1) Commerce itself can be regulated (and this power is not limited to commercial commerce)2) activity affecting commerce (b/c w/o regulating these, you can't effectively regulate interstate commerce)-Congress finds its power to regulate this category under the Nec and Proper Clause

US v Morrison (2000)—Congress may regulate pursuant to the commerce power only where the activity is economic in nature. Congress cannot regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce, even if evidence supports a connection between the violence and such commerce. (Sct struck down an Act that provided a federal civil remedy for victims of gender-motivated violence.) As with Lopez, 4 justices dissented.Morrison case says that it doesn't matter whether Congress finds that something affects the market; it's up to the ct to determine the affects

Lopez and Morrison show us that there is a limit to the Commerce clause , but they do so w/o overruling the New Deal by allowing Congress to regulate the national economy

The Lottery Case (Champion v Ames) (1903) [p. 169]—(D was charged under federal statute that prohibited shipping lottery tickets across state lines. D argued that lottery tickets were not “commerce.” Ct ruled against D.)the ct suggests that there are some areas in which the states have supreme authority

--purpose of the commerce clause was to promote interstate commerce; if you forbid lotto tix, you're not promoting interstate commerce. Congress is not supposed to frustrate interstate commerceIn 1807, MA Federalists made this arg to attack an embargo; but the embargo passed, so there is a history of using the commerce clause to frustrate commerce. There are many examples of items that are limited via the Commerce Clause:-explosives-diseased animals

Hoke v US (1913) [p. 172]—Congress may adopt not only means necessary but convenient to its exercise of the commerce power. (Ct upheld the constitutionality of the Mann Act.) Caminetti v US (1917)—(Ct upheld constitutionality of the Mann Act even when the

transportation of the woman was for activities not constituting “commercialized vice.”)

Hammer v Dagenhart (1918) [p. 173]—“The mere fact that goods are intended for interstate commerce does make their production subject to federal control.” “There is no power vesting in Congress to require the States to exercise their police power so as to prevent possible unfair competition.” (Ct struck down a federal law that excluded the products of child labor from interstate commerce.)Hammer says that Congress can't regulate acts that occur before the interstate commerce occurs (Holmes said as long as Congress is regulating the commerce, it doesn't matter when the harm occurs)-Ct said that the child labor rule was infringing on states' police powers

US v Darby (1941) [p. 191]—“Hammer v Dagenhart was a departure from the principles which have prevailed in the interpretation of the Commerce Clause. It should be and now is overruled.” “It is no objection to the commerce power that its exercise is attended by the same incidents which attend the police power of the states.” (Ct upheld federal act prohibiting interstate shipment of goods produced under “forbidden substandard labor conditions.”)-ct upholds a new child labor law by stating that the motive for regulation is irrelevant; ct also upheld a law forbidding child labor in manufacturing on the grounds that the manufacturing of goods via child labor has effects on interstate commerce; ct also said that since Congress has banned the shipment of child labor goods, Congress s/be allowed regulate the manufacturing in order to implement the ban on the shipment of the goods

Ct says that purpose of legislation should not be examined

Railroad Retirement Board v Alton Railroad Co (1935) [p. 177]—(Ct invalidated law establishing a compulsory retirement plan for RRs.)

Bailey v Drexel Furniture Co (Child Labor Tax Case) (1922) [p. 229]—“There comes a time in the extension of the penalizing features of a so-called tax when it loses its character as a tax and becomes a regulation and prohibition.” (Ct struck down a tax on goods made with child labor.)

US v Kahriger (1953) [p. 232]—“Unless there are penalty provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.” (Ct refused to strike down a tax on gambling.)

US v Butler (1936) [p. 235]—“The view that the phrase, ‘to provide for the general welfare,’ grants power independent of the taxing power” is incorrect; however, taxation for “the general welfare” isn’t limited to Congress’ enumerated powers. Regulation and control of agriculture is a matter reserved to the states and beyond the powers delegated to the federal government. (Act authorized the federal government, in order to stabilize farm prices, to make contracts with farmers where the government would pay farmers to reduce their acreage.) Ct stated that “If this Act is a proper exercise of the federal taxing power, then the

regulation of all industry may be accomplished by similar means.”general Welfare provision (Art. I, sec. 8)-c/ be argued that only the power to tax is given and the other "powers" aren't really powers but rather are limitations on the taxing power

-don't these 2 holdings contradict each other? If general welfare isn't limited to the enumerated powers, then why does Sct say that spending for agriculture was a power reserved for the states--currie thinks this is a terrible opinion that contradicts itself

Once you concede the general welfare point, as the Sct did in Butler, there are really no limitations that can be placed on Congress's ability to placing conditions on the spending power-Butler rejected the spending provision in the case but in doing so it validated a broad definition of the spending power that the Ct in later cases tried to curtail

the proper conclusion may be that the Butler case gave away the store by accepting Hamilton's broad definition of the spending power. Regardless of the effects thereof, was the Ct right in accepting this defintion?-Ct says that to accept Madison's definition instead would make the general welfare clause redundant, and no other section of the Con is redundant.--Counter: there are many examples of redundancies in the Con (N&P Clause, 10th Amendment, etc.)---the taxing power was the most important change the Convention was making after the Articles of Confederation-C/be argued that the text implies Hamilton's reading b/c they didn't use a n&p limitation on the taxing power--Counter: the phrase "general welfare" came from the Articles of Confederation and in that context it placed a limitation on the power to spend money---in the light of the Articles, it c/be argued that general welfare only indicates the source of the funds that will pay for the enactment of the enumerated powers [Madison used the Articles to defend his position]

South Dakota v Dole (1987) [p. 244]—“Congress may attach conditions on the receipt of federal funds.” “Objectives not within Art. I’s enumerated powers may be attained through the use of the spending power.” Conditions on federal grants must be related to the federal interest authorizing the grants. (Ct upheld law by which Congress would withhold 5% of federal highway funds from any State that had a drinking age lower than 21.)-says that while Congress doesn't have the power to regulate drinking age it does have the power to bribe them into compliance-Note that this is done by the current conservative Sct

Were there any limitations outlined in Dole?1) amt must not be too high2) must be for general welfare (can't be used for local uses); general welfare=national (US) welfare (can't be used for other countries; although Congress can spend $$$ under its foreign affairs power)3) Can't be for something unConstitional4) must be unambiguous5) condition imposed must be related to the purpose of the grant-thus Congress c/not condition highway money upon laws banning guns in schools

What if congress passed a law banning drinking under the age of 21?-Couldn't this be justified under the Commerce Clause?--While it's arguable, its definitely not clear whether Congress c/have passed such a law under the Commerce Clause; and if its arguable that the power is allowable then it seems OK for Congress to attach a condition to the grant of tax $$$

Woods v Cloyd W. Miller Co (1948) [p. 250]—“The war power does not necessarily end with the cessation of hostilities.” (Ct upheld authority of Congress to regulate rents. The regulation was passed because of the rise in rents due to WWII, which had ended just before passage of the Act authorizing Congress’ actions.) Ct cites to Hamilton and Ruppert v Caffey (1920), where prohibition laws enacted after WWI

were upheld under the war power because they conserved manpower and increased efficiency of production

--Hamilton case regulated manufacture and sale of liquor based on "House that Jack Built" args to have it fall under umbrella of War Powers Act

Missouri v Holland (1920) [p. 252]—Properly enacted treaties (made by the President and approved by 2/3 of the Senate) are part of the “supreme law of the land” and thus supreme to state laws. (Missouri argued that a treaty between the US and the UK that protected bird species was an unconstitutional interference with the States’ 10th amendment powers.)---Treaties are subject to the Con when the correct reading of the Supremacy Clause is done-the Supremacy Clause doesn't differentiate betw laws and treaties as to judicial review

--the Holmes position (updated by Black), the Treaty power is not limited by the enumerated powers in the Con for the Congress--States can't enter into treaties according to the Con (explicitly)--Holland is still good law

The Treaty power was given originally to the Federal govt only for issues that need 2 or more nations to resolve-but today, the idea of what countries negotiate about has changed dramatically

Reid v Covert (1957) [p. 255]—No agreement with a foreign nation can confer power on the Congress, or on other branch of Government, which exceeds the powers provided for in the Constitution.

Gibbons v Ogden (1824) [p. 261]—“When a state regulates interstate commerce, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is authorized to do.” (NY legislature granted P the exclusive right to operate steamboats in NY waters. D’s ferries were licensed pursuant to a federal law.)

Mayor of the City of New York v Miln (1837) [p. 265]—(Upheld a NY statute requiring ships to report information about their passengers. Ct said that it was “not a regulation of commerce, but of police.”)

Buck v Kuykendall (1925) [p. 269]—State statutes designed to protect safety are not contrary to the Commerce Clause, but are so when they are designed to prohibit competition (Ct struck down state denial of certificate to carry passengers and freight.)

Bradley v Public Utilities Comm’n (1933) [p. 269]—(Ct upheld state denial of certificate to carry passengers and freight.) Ct said that in this case, unlike in Buck, “The purpose of the statute was to promote

safety. The effect upon interstate commerce was merely an incident.”

The Passenger Cases (1849) [p. 265]—(Ct struck down state statutes that imposed taxes on ships for each passenger.)

The License Cases (1847) [p. 265]—(Ct upheld state laws requiring licenses for the sale of liquor, even when brought in from outside the state. Ct only agreed on the decision, however; no opinion maintained a majority.)

Cooley v Board of Wardens (1851) [p. 265]—“The mere grant to Congress of the power to regulate commerce did not deprive the States of the power to regulate [ships, although they

be interstate commerce].” (A PA law required ships to get a local pilot to guide them through their harbor, or to pay a fee. A federal statute said that all pilots were to be regulated as they had under existing laws of the states, or with such laws as the states may enact.)3 possibilities1) Congress forbids restriction by state2) Congress is silent3) Congress allows restriction

#3 came up in Cooley-first case that said that state restrictions are invalid-establishes the uniformity test-case holds that Congress' can't give a power to states that the Con denys them, but agrees that the entire commerce power was not taken away from the states

Wabash, St. Louis & P. Ry. Co. v Illinois (1886) [p. 268]—Regulation of interstate shipments were of a national, not local character. (Ct struck down state ban on freight rate discrimination.)

Smith v Alabama (1888) [p. 268]—State regulation of interstate commerce is allowable if its impact is merely “indirect.” (Ct upheld a state examination requirement for RR engineers.)

Di Santo v Pennsylvania (1927) [p. 269]—(Ct struck down state law imposing license fee on travel agents was a “direct” burden on interstate commerce.) In his dissent, Stone argued that “We are doing little more than using labels.

Interferences with commerce are not deemed forbidden because a consideration of the facts and circumstances lead to the conclusion that the regulation concerns interests peculiarly local and does not infringe upon the national interest” in maintaining free commerce among the states. (This approach would later be taken up by the Court.)

Pike v Bruce Church, Inc (1970) [p. 297]—“Where a state statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the alleged local benefits.”

South Carolina State Highway Department v Barnwell Bros (1938)—“So long as state action does not discriminate,” regulations affecting interstate commerce are permitted. Congress may, however, curtail such state regulations. (Ct upheld a SC law prohibiting use on state highways of trucks that were over 90 inches wide or weighed over 20,000 pounds, even though nationally 85% of all trucks exceeded these limits.)

Southern Pacific Co v Arizona (1945) [p. 300]—“The principle that, without controlling Congressional action, a state may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by ‘simply invoking the convenient apologetics of the police power.’”(Ct struck down an AZ law that prohibited trains of mare than 14 passenger or 70 freight cars.) Stone, in a footnote, noted that state laws that affect out of state interests are problematic

because the out of state interests have no say in the state government. (Representational Reinforcement theory)

Currie: Southern Pacific case by Stone is the case that best states the Pike balancing test

S. Pacific test says that only if the law doesn't discriminate against foreign goods, then you use the balance test

-discriminatory laws are almost always per se invalid-if neutral then you apply the balancing test

Bibb v Navajo Freight Lines, Inc (1959) [p. 305]—“This is one of those cases—few in number—where local safety measures that are nondiscriminatory place an unconstitutional burden on interstate commerce.” (Ct struck down an Illinois law requiring contour mudguards on trucks operating on Illinois state highways. An AK law required straight mudguards, and forbid contour mudguards; in addition, 45 states allowed the use of straight mudguards.)

Welton v Missouri (1876) [p. 271]—(Ct invalidated a license requirement that applied only to non-Missouri salesmen as “discriminating State legislation.”)- holds can't place a tax on out of state widgets

Hypo: what if NY places a tax on cotton (which isn't grown in NY)? On this type of question the ct has not been clear. It isn't clear if discrimination has to be explicit on its face or the per se rule will apply to implicit discrim laws

Philadelphia v New Jersey (1978) [p. 271]—“Where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected. Where other legislative objectives are credibly advanced, an inquiry must be directed to determine if the state law is basically a protectionist measure, or whether it can be fairly viewed as a law directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.” The Commerce Clause will not allow one State to isolate itself in the stream of interstate commerce from a problem shared by all.” (Ct struck down a NJ law which prohibited importation of waste from outside of the state.) Ct distinguished the case from valid quarantine laws because they “did not discriminate

against interstate commerce, but simply prevented traffic in noxious articles, whatever their origin.”

“A State may not accord its own inhabitants a preferred right of access over consumers in other States to natural resources located within its borders.”

The Commerce Clause will not allow one State to isolate itself in the stream of interstate commerce from a problem shared by all.

Reeves, Inc v Stake (1980)—The Commerce Clause places no limitations on a State’s refusal to deal with particular parties when it is participating in the interstate market in goods. (Ct upheld state policy of restricting the sale of cement from a state-owned plant to state residents.)-the doc often allows states to evade the restrictions of the commerce clause-subsidies are NOT treated the same as taxes. Does this make sense?

South-Central Timber Development, Inc v Wunnicke (1984) [p. 323]—“If a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities. BUT the State may not impose conditions that have a substantial regulatory effect outside of the market in which it is a participant.” A State

may not avail itself of the market-participant doctrine in order to effect downstream, post-purchase regulation. (Alaska offered to sell timber owned by it, but required that the purchaser would partially process the timber in Alaska before it was shipped out of the state. P sued arguing that the requirement violated the Commerce Clause. Alaska replied that as a “market participant,” it was free to place whatever restrictions it wanted to on its sale.)

United Building & Construction Trades Council v Mayor and Council of Camden (1984) [p. 329]—“What would be unconstitutional if done directly by the State can no more readily be accomplished by a city.” There is no ‘market participant’ exception to the Privilege and Immunities Clause. “The Privilege and Immunities Clause does not preclude discrimination where there is a ‘substantial reason’ for the difference in treatment. The inquiry must be whether such reasons do exist and whether the degree of discrimination bears a close relation to them.” “Only with respect to those ‘privileges and immunities’ bearing upon the vitality of the Nation as a single entity must the State treat all citizens, residents and nonresidents, equally.” (Ct struck down city ordinance requiring at least 40% of city construction project workers be city residents.)PRIVILEGES AND IMMUNITIES CLAUSE-says citizens of any one states get the same rights within a foreign state as it would its own citizens (New Yorker can't be treated as a foreigner in CA)-only applies to fundamental privileges and immunities (does apply to jobs, doesn't apply to elk hunting)-ban isn't absolute and the state can override the restriction if it has a even larger rationale -doesn't apply to the use of state money (this is why in-state tuitition can be lower)-doesn't apply to political privileges

Paul v Virginia (1869) [p. 328]—Corporations enjoy no protection under the Privileges and Immunities clause.

Edwards v California (1941) [p. 336]—(Ct invalidated a law forbidding anyone from knowingly bringing an indigent person into California. Some justices struck down the law as contrary to the Commerce Clause; others found it repugnant to the privileges and immunities clause of the 14th Amendment.)

C. SEPARATION OF POWERSchecks and balances aren't the same as separation of powers

Sep of Powers concerns aren’t only about protecting the leg from the ct, it’s also about protecting the ct from be forced to stretch itself too far

Why was legislative power given to Congress?1) numbers/collective body-Congress is a representative body and its variety s/hopefully provide better debate of the issues2) separation--b/c the Pres is empowered to execute laws, he w/have too much power if he c/also make laws (such a body c/usurp people's liberties)-Hamilton argued against concerns about the Con giving the fed govt the power to raise armies by saying that only congress, the best representative of the people

In a dissent in Myers v US (1926) [p. 354], Brandeis stated: “The doctrine of the separation of powers was adopted not to promote efficiency but to preclude the exercise of arbitrary power.

The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.”

Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure Case) (1952) [p. 356]—(Truman took possession of the nations steel mills near the end of the Korean War because the workers were about to go on strike. Congress had considered giving the President express power to do this, but had rejected it in passing the Taft-Hartley Act.) J. Black—Argued that the President did not have authority, even under implied powers

from his role as Commander in Chief. “The power of Congress to adopt such policies is beyond question. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.”

As viewed by these 4 justices, the case in Youngstown stands for nothing more than the Supremacy of Law. BUT Black's opinion goes further by saying that the Pres can't act in the absence of a law and concludes that only Congress c/authorize the seizure of the Mills. (reservation of law)

Black says that Pres' role in enforcing laws implicitly argues that Pres is not to make laws. BUT the Pres wasn't portending to make law, only to act in the absence of law.-BUT Black says that if the Pres can act in the absence of the law, he is in effect making law

Black says that not only does the Pres have to obey the law, the Pres can only act on the authorization of law J. Frankfurter—“In view of the Taft-Hartley Act, Congress has expressed its will to

withhold this power from the President as though it had said so in so many words.” Argued that although prior similar acts by Presidents do provide a “gloss” to the Constitution, they did not support Truman’s actions here.

J. Jackson—“Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He then outlined 3 scenarios: (1) The President can cat pursuant to an express or implied authorization from Congress: in this case, the President’s power is at its maximum and is supported by the strongest of presumptions and widest latitude, (2) When the President acts in the absence of Congressional proclamations, “he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority.” Cases in this scenario must be judged by their circumstances. (3) When the President acts in opposition to Congress’s will, “he can only rely upon his own constitutional powers minus any constitutional powers of Congress.” Jackson said this case fell into (3). Jackson then reviewed the Constitution clauses that the President argued gave him

the power to seize the steel mills: (1) As to the vesting of the “executive power” in the President, Jackson disputed the President’s argument that this provided “all conceivable executive power.” (2) As to “Commander in Chief,” Jackson said that the military power could not be expanded to such extremes, for the Constitution also expressly places in Congress power “to raise and support Armies.” (3) As to taking “Care that the Laws be faithfully executed,” Jackson said this power was limited by the Due Process clause of the 5th Amendment.

-implies that the issue is more complicated that Black's opinion lets on-divides these types of cases into 3 categories1) Congress authorizes Pres to act

2) Congress is silent and must look to Pres' power under the Con3) congress has forbidden the power to act--easiest cases unless the con itself gives the Pres authority-note that Jackson doesn't tell us what to do w/congress is silent (2) since he thinks this case is under (3)

Jackson looks to the due Process clause and compares it to the commander and chief clause-Jackson says that no one can be denied life, liberty or property unless through law, and here the pres acted in the absence of law

Dissent argued that the President was acting to enforce the spending bills designated for the War, that the President has the power to act in a national emergency, and that there was no explicit act of Congress forbidding his action.

Vinson (in part of opinion not in book) listed precedents regarding presidential action:1) Whiskey Rebellion—Pres put down rebellion in order to enforce revenue laws; this was justified by law that said that Pres c/call out a militia (carrying out of expressly given power)2) blockade (Prize cases)—Where did Pres get the power to blockade Confederate states; ct says that Pres was putting down a rebellion (civil war) (expressly given power—but a little broad)3) LA Purchase—what law allowed Jefferson to make the purchase? Treaty power; ALTHOUGH Jefferson at the time didn’t think he had express power but he believed it was the right thing to do (just like the Amer Revolution)4) Neutrality proclamation—Washington declares US will be neutral in UK-France war; then Washington prosecutes Americans who were helping out French (under Law of Nations); c/be argued that Pres has broad powers in foreign affairs; theory was at the time he was seen as threatening to enforce existing laws, BUT are the Law of Nations within the scope of laws that the Pres is authorized to execute? 5) Monroe Doctrine—Where did the pres get the power to make the declaration? Not same problem as in mills case b/c it didn’t affect private rights of citizens6) Emancipation Proclamation—Lincoln justified it as within his powers as Commander in Chief (Note that Lincoln only freed slaves behind enemy lines so that it would encourage rebellion in the South)-Note that Black wrote only for himself in writing the "opionion of the court"-3 dissenters said that Congress had forbid the Pres from taking over the steel mills

Pres said that there were 3 clauses that allowed the Pres to seize the mils1) exec power is vested in the Pres-what is the executive power? Frankfurter looks at past Pres' acts to find a gloss on the Con; Black says these c/be mistakes. Frankfurter counters by arguing that these initial acts were done by people closer to the founders who had better understanding of the meaning of the language used in the Con. Thus this isn't an arg that the Con can be changed by accepted usurpation. They are evidence of the meaning of the words used in the Con.-Pres argues that we should look to the executive powers wielded by contemporary execs at the time of the Con. The King of England, for example, had the power to take actions necessary to deal w/emergencies.--Jackson says that we s/not look to King of UK as example. also counters that the Con didn't grant general exec power to Pres. Truman counters that Art I grants only leg powers "herein granted", but does not use such limiting language for the Pres. BUT it c/be argued that Art II, §1 is worded so only to clarify where the exec power is vested.-History shows us that the changes relied on by Pres were changes made by "style" drafters who weren't empowered to make substantive changes and that the founders were focused on distinguishing betw 1 pres as opposed to a "counsel" style executive

2) Commander in Chief

-Isn’t an issue of limitations on Fed power b/c there’s no disagreement that Congress c/have acted-Issue is one of sep of powers; while Pres is Commander in Chief, the Congress is also vested with some war powers as well--Pres c/not issue a war tax, b/c that power is vested to Congress (thus it limits the Pres’ war power)--Only Congress can declare war--Congress is vested with the power to raise armies and provide navy thus the Pres can’t (this is intended as limitation on the Pres’ power)--Congress is also given the express power to support and maintain the troops (Jackson argues that this is what the Pres was doing)--Black characterizes Pres’ power as to determining what occurs what happens on the battlegrounds

3) “take are that laws are faithfully executed” clause (Pres executes the laws)-Black argues that the problem with this arg is that there isn’t a law here; Pres was carrying out his own policy--What is the counter to this? What laws is the Pres carrying out here?---Congress, by passing appropriation and procurement laws, showed support for the war, and by seizing the mills, the Pres was carrying out the congressional decision to support the war; Congress had also acted to control inflation, and the Pres was seeking enforce these goals----Currie says this is the crux of the controversy: How much discretion does the Pres have in executing the laws passed by Congress? Is it only those means authorized, or is it any means not forbidden?

Currie says Strongest support for Pres’ seizure is in the precedent of the Flying Fish, Debs and Neagle

We still don’t know how broad the Pres power to enforce laws

A.L.A. Schechter Poultry Corp v US (1935) [xeroxed]—“Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” Ct implies that such delegations are only permitted when they prescribe rules of conduct to be applied to particular facts with clear standards to follow. (Ct ruled that an Act allowing the President to promulgate “codes of fair competition for a trade or industry” was unconstitutional because Congress illegally delegated its legislative powers to the President.)

-Ex#2: Creation of Patent Office and grant of power to determine which apps get patented--Can't it be argued that Congress has laid down a general principle, albeit vague? there are multiple examples of vague stats that leave room for judgment.

Ex#2: embargo restricted trade w/UK and France b/c they were interfering with our shipping while battling each other. Stat went on to say that if one of the 2 stops harassing us, then the embargo only applies to the other country. The Pres was to decide whether a country had stopped harassing us-Was this an unCon delegation, or just a setting of a primary standard of policy?-this was upheld by Sct; Ct said all that was left to the Exec was a finding of fact

Ex#3: List of goods that can be imported free of tariffs, but there is some concern about other countries' tariffs regarding unfairness, discriminatory, and excessive. Stat said that if the Pres finds that a country had imposed an unfair tariff by one country, the Pres can impose a tariff on that country's goods. Is this a delegation or just a principle?-Ct said it was principle and said it was similar to embargo case

Touby v US (1991) [p. 399]—The nondelegation doctrine “does not prevent Congress from seeking assistance, within proper limits, for the coordinate branches so long as Congress lays down by legislative act an intelligible principle to which the body authorized to act is directed to conform.”

Mistretta v US (1989) [p. 400]—“In our increasingly complex society, Congress simply cannot do its job absent an ability to delegate power under broad general directives. The Framers did not require—and indeed rejected—the notion that the three Branches must be entirely separate and distinct. Congress’s decision to create an independent rulemaking body to promulgate sentencing guidelines and to locate that body within the Judicial Branch is not unconstitutional unless Congress has vested in the Commission powers that are more appropriately performed by the other Branches or that undermine the integrity of the Judiciary. The Constitution does not forbid judges from wearing two hats; it merely forbids them from wearing both hats at the same time.” (Ct upheld the creation of the US Sentencing Commission, established sentencing guidelines and on which several federal judges were appointed to serve.)

US v Curtiss-Wright Export Corp (1936) [p. 403]—The federal government’s foreign relations powers do not depend upon affirmative grants of the Constitution. “The President alone has the power to speak or listen as a representative of a nation.” In Youngstown, Sutherland’s remarks as to the President were referred to as “dictum.”-Sutherland, one of the 4 horsemen who was a strict constructionist as to domestic powers, said that there were no limitations on the Fed Govt's power in foreign affairs--this is the accept view today, and it restricts the powers of the states to limit the rights of non-citizens

Clinton v New York (1998) [p. S42]—(Clinton used the Line Item Veto to eliminate certain programs from a bill. Organizations that would have benefited from the programs sued claiming the Line Item Veto was unconstitutional. The Sct agreed, finding that the exercise of the veto was an illegal act of legislating by the President.)

Buckley v Valeo (1976) [p. 390]—“Any appointee exercising significant authority pursuant to the laws of the United States is an Officer of the United States, and must be appointed in the manner prescribed by” the Appointments Clause. (Ct held that members of the Federal Election Commission, which by congressional act were appointed by Congress, were yielding too much power. It held that the members had to be appointed as set forth in the Appointment Clause (Art. II, § 2, cl. 2).)Buckley case makes distinction betw officers vs employees

Myers v US (1926) [p. 391]—“Just as the President’s selection of administrative officers who act for him under his direction is essential to the execution of the laws, so must be his power of removing those for whom he cannot continue to be responsible.” (Ct struck down a legislative provision that certain groups of postmasters could not be removed by the President without the consent of the Senate, finding it to be an unconstitutional restriction on the President’s control over executive personnel.)

Humphrey’s Executor v US (1935) [p. 391]—Myers is limited to purely executive officers. The FTC acts in part quasi-legislatively and in part quasi-judicially. (Ct held that Congress could limit the President’s power to remove FTC Commissioners.)

Wiener v US (1958) [p. 391]—As to officers who are not purely executive, the President may remove them from office “only if Congress may be said to have conferred” to the President such power. (Ct held that the War Claims Commission had an “intrinsic judicial” function” and thus required “absolute freedom from Executive interference.”)

Morrison v Olson (1988) [p. 391]—The Independent Counsel is an “inferior officer” and thus need not be appointed pursuant to the Appointments Clause. As to the restriction that the IC could only be removed by the Attorney General “for good cause,” “Although the IC exercises no small amount of discretion, we simply do not see how the President’s need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require that the counsel be terminable at will by the President.” The “good cause” restriction is “essential in order to establish the necessary independence of the IC’s office. We do not think that this limitation sufficiently deprives the President of control of the IC to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws.” (Parties subpoenaed by the Independent Counsel charged that because the Independent Counsel derived its power from the executive branch, the position had to be filled pursuant to the Appointments Clause.) In his dissent, Scalia argued that the vesting of the executive power in the President did

“not mean some of the executive power, but all of the executive power. It is irrelevant how much the state reduces Presidential control.”

Important to Note that Special Prosecutor was not under any control; Congress has not attempted to aggrandize any of the Pres' exec power. Thus no branch has more than one power- This case and Humphrey’s Executor tell us that the sprinkling of powers among admin agencies as long as no branch has more than one power. Is this OK? Framers were very intent on putting the exec power in a unified Pres

Art II requires the Pres to execute the laws--c/be argued that this means that exec authority can only be given to officers under the Pres's control-Morrison says that some exec authority can be given to officers not under Pres' control if:1) the authority is not central to the Pres' power (Currie: whatever that means)2) officer isn't under control of Leg

INS v Chadha (1983) [p. 375]—“The bicameral requirement and the Presentment Clause serve essential constitutional functions.” (A Congressional Act authorized the AG to suspend deportation of an alien under certain circumstances. It also allowed either house of Congress to override the AG’s suspension. Chadha’s suspension was overruled, and he challenged that the law was unconstitutional.

Bowsher v Synar (1986) [p. 385]—“Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws, except by impeachment. To permit an officer controlled by Congress to execute the laws would reserve in Congress control over the execution of the laws. Such is an intrusion into the executive function.” (A Balanced

Budget Act delegated executive powers to the office of Comptroller General. It also provided that Congress could remove the CG.)

Metropolitan Wash. Airports Authority v Citizens for Abatement of Aircraft Noise, Inc (1991) [p. 398]—(Congress struck down, as contrary to the separation of powers, a Congressional Act that placed members of Congress on a board that would oversee the transfer of DC airports from federal power to city officials.)--said members of Congress c/not sit on board of airport (or appointment such members); they must be appointed by Pres w/advice and consent of the Senate

Northern Pipeline Constr. Co v Marathon Pipe Line Co (1982) [xeroxed]—(Ct held that decisions of nontenured judges in Congress-created bankruptcy courts violated Art. III.)Crowell wasn’t a Public Rights case; nevertheless the ct allowed an admin agency to decide the case b/c they were deciding a Congressionally created right-why w/Brennan be willing to uphold such a decision?-Crowell is hard to reconcile w/N. Pipeline-Argument is that since Congress didn’t have to create the right, it didn’t have to provide an Art. III trial; BUT Parnell case (from Civ Pro I) says that w/such rights you have to have a jury trial-Brennan says that there was a more liberal review BUT that is a mis-characterization

Art III says that judges get tenure and irreducible salary in order to be independent; yet the Sct has allowed what looks like judicial power by tribunals that don't meet Art III requirements:-state ct decisions (state ct judges don't often meet such requirements)--Counter: comprise at the time of the Con contemplated having state cts hearing fed cases (Con initially didn't set up lower federal cts, only said they c/be set up); this "exception" is supported by interests of federalism and such judges aren't tied to the other 2 branches-DC cts--Counter: Act III doesn't apply to territories-Military Cts--Counter: exception is found in 5th Amendment and has been held to be implicit in Art III-Fed Magistrates--Counter: subject to de novo reviewharder exceptions include:-Public Rights cases--narrowly applied; essence is that there are 2 requirements (1) govt must be a party; (2) an issue that other party could handle outside of a ct. Hardest case to explain: Crowell v Benson--use of admin tribunal that suggested that only appellate judges need to be independent (which can't be true); if it does stand for such holding, its in tension w/N. Pipeline---Bottom Line: Constitutionality of FTC: As Sct understands it, its OK that the FTC has powers that c/be attributed to each branch. Its an indication of how far we've come

US v Belmont (1937) [p. 366]—The President has the power to enter into international compacts without the advice and consent of the Senate. Such international compacts are superior to state laws. (President, in recognizing the USSR, accepted assignment of all Soviet claims against Americans. The Sct found that the recognition, the establishment of diplomatic relations, and the assignment were all part of an “international compact.”)the Con says that Pres have the authority to receive ambassadors. Pres's have read this say that the Pres has the right to recognize countries.

Belmont says that there are some Ks that don't require treaty elements

Ct in Belmont isn't saying that there is no agreement that is required to meet the requiremt's of the Con

Dames & Moore v Regan (1981) [p. 367]—(An Executive Agreement suspended claims by Americans against Iran and terminated all legal proceedings. P was in the process of suing an Iranian governmental agency. In making the Agreement, Carter was acting pursuant a congressional act. Because of the congressional act, the Sct said that the Agreement was to be given “the strongest of presumptions” as outlined in Youngstown. The Agreement was upheld as valid.)-Ct was more concerned about whether the statute actually did approve of the Pres's actions (statutory question vs constitutional question of it was valid)--ct supports this by saying the there is a tradition of acknowledging exec Ks for claim settlements (gloss on the con)

-there must have been internat'l Ks that the founders thought didn't constitute treaties b/c in talking of the States, it IDs treaties and compacts (Art I, Sec. 10)

Belont and Reagon say that some things can be done w/o treaty, but other things are required to meet the treaty requirements (Postal internat'l Ks from the beginning of the country were authorized to be entered into by the Pres alone--gloss on the Con)

War Powers Resolution (1973) [p. 372] Stated that its intention was not to limit or expand Presidential authority. Required the President “in every possible instance” to consult with Congress before sending

troops into battle, and to consult with Congress after troops were sent. If there had been no declaration of war, it required a report from the President within 48

hours of sending in troops Required the President to terminate the use of troops after 60 days, unless Congress (a)

authorized their continued use, or (2) was unable to meet-According to War Powers Resolution, the Pres can call troops into action if:1) war is declared2) statutory authorization3) attack on US

This is basically a legislative interp of the Con; the Ct is not bound by it

Where does Congress get the power to require the Pres to follow sec. 3 and 4 of the WPR?-C/be justified under N&P Clause so that Congress can better decide whether to declare War

What about Sec 5(b)? If someone else attacks us, can't it be argued that at that point there is a war, and the Pres is empowered to take any steps in continuing attacking?-But the Pres' power to repel sudden attacks is only for instances when congress has no time to meet. Thus §5(b) simply places a limitation on this defensive power

What about §5(c)? Concurrent resolutions need not sent to the Pres for potential veto (Nixon especially found this section to be unCon). Isn't this a violation of the Chadha principle? -Counter: if the Pres keeps troops after Congress has met, the troops themselves w/be there against the power given to the Pres

US v Nixon (1974) [p. 404]—“Neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process, absent a claim of need

to protect military, diplomatic, or sensitive national security secrets.” To allow Presidential immunity would “impair the role of the courts under Art. III.” (President contested a subpoena from a court hearing criminal charges against the Watergate burglars. The subpoena requested audio tapes of Oval Office meetings. Nixon had argued that turning over such tapes could dissuade consultants from being candid in future meetings.)---Exec privilege--if these tapes are required to be turned over, discussion c/be chilled----Ct needs to recognize this b/c it refuses to have its deliberations recorded----did exec priv extend to these tapes? s/not extend to discussions that are about the theft----Ct holds that tapes c/not be protected by general exec priv as against their use in determining the guilt of parties

Nixon v Fitzgerald (1982) [p. 408]—The President has absolute (not merely qualified) immunity from civil damage liability for his official acts. (A whistleblower who had been fired sued Nixon among other officials.) Important to note that the Constitution expressly provides immunity for members of

Congress in Art. I, § 6. There is no such clause for the President. The clause does not provide immunity for unofficial acts, such as bribery (US v Brewster (1972) [p. 413]

Clinton v Jones (1997) [p. S49]—Separation of powers principles are not violated by allowing a private lawsuit against the President, regarding actions taken before his term in office began, to go forward. “That a federal court’s exercise of its traditional Art. III jurisdiction may significantly burden the time ant attention of the President is not sufficient to establish a violation of the Constitution.” (Jones sued Clinton for actions he had done before taking the Presidency. He argued that Presidential immunity should allow him to postpone the case until after his term in office.)