SMU LAW SPRING 2013 -- CON LAW I -- BLOOMHistorical Overview:Judicial Review / Constitutional StructureFederalismCommerceRestraints on Federalism Under CommerceTaxing and SpendingDormant Commerce ClauseSeparation of PowersJusticiability

Historical Overview: 1. Articles of Confederation

a. Problemsi. Had Run Up Debt during Rev Warii. No Revenue for Fed Gov

1. No Taxing Power2. Relied on States’ Largesse for Support

iii. Poor interstate relations1. Tariffs2. Debtor laws favoring state residents3. Three empires with outposts in NA and interests contrary to those of US

iv. No proportional representations1. One vote each

v. No Courtsvi. No means of dealing with foreign affairsvii. No interstate relation structureviii. No means of enforcing Congress’ laws

1. no Exec 2. no Courts

b. Statesmen assembled @ Mt. Vernon 1785c. Convention held in Annapolis 1786 which resolved:

i. Need for additional convention (1787 Philly)2. Constitutional Convention (1787)

a. Structurei. One vote per stateii. GW Presidesiii. JMadison provided agendaiv. Secrecy Maintained

1. Rather than amending AoC as charged, they scrapped and started anewb. States Present

i. Rhode Island stayed homeii. NY left mid-summer

c. Proposalsi. Virginia Plan

1. Madison (after meeting with Jefferson)a. Stronger Cent Gov

i. Bicameral Lege1

1. Both popularly electedii. Three Branches of Gov

1. Chief Exec Appted by Legeii. New Jersey Plan

1. 1 House - 1 Vote per state like AoC2. Exec Elected by Congress3. Weak fed ct system

d. Obstaclesi. Representation

1. Interests differed by state size2. Great Compromise

a. Bicamerali. House representative by sizeii. Senate 2 per state

1. Not popularly elected until 17th amend2. Could vote separately

ii. Slavery1. To what extent, if at all, slaves counted for apportionment for House

a. 3/5s Clause (Art. I § 2)2. 3 other mentions

a. Slave Trade Protected for 20 years (Art. I § 9 )i. Cannot be amended (Art V)

b. Fugitive Slave Clause (Art IV § 2)iii. Chief Executive

1. Need was recognized2. How to Select?

a. Popular, Governors, Legislators, Congress, Electors3. Terms?

a. Life, 3, 4, 6 yeare. Committees & Drafting

i. Committee of the Whole1. General Principles

ii. Committee on Detail1. Hammered out details of general principles

iii. Committee on Style1. Some Substantive changes were made

f. Group in the convention was unsatisfied with product that was coming outi. Mostly fear of too powerful a central governmentii. One argument in September: There’s no bill of rightsiii. Madison promised BoR if Constitution was ratifiediv. One other significant change was made:

1. Articles of Confederation provided that it could only be amended by unanimous vote of all states

2. Framers afraid that unanimity was unlikelya. Changed rules of game – Will go into effect when 9 of existing

states ratify – could argue that illegitimizes Constitution

g. 9/17/1787 -- Constitution Day

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i. Franklin speaks on the Constitutionii. Sent to Congressiii. Congress sends to states who call conventions to vote on the constitution

1. Some states ratify almost immediately (Delaware)2. Some states deliberated

a. 9th state was NH in June 1787b. But NY and VA were still yet to convene

i. Federalists had unified strategy1. Federalist Papers

a. Pamphlets, mostly in NYii. Anti-Federalists were disparate

h. Bill of Rightsi. Initially 12 Amendments

1. 1st – Size of Legislative Districts – Not Passed2. 2nd – No congress may raise its salary during said congress – Lingered for

200 years before finally being ratified in 1992ii. Arguments against bill of rights

1. We’ve created a limited govt that doesn’t have these powers, therefore bill of rights implies congress has those powers

2. You can’t enumerate every right, and therefore those left out are in peril

3. Dominant Themes in Marshall Court Jurisprudencea. Judicial Review

i. Marbury v. Madison (Congressional Acts; Executive Officers (dicta))ii. Martin v. Hunter’s Lessee (Acts of States)

b. Court Largely Deferent to Congress / Support Feds as Against Statesi. Martin v. Hunter’s Lesseeii. McCulloch v. Maryland iii. Gibbons v. Ogden (Preemption)

c. Preference for Business / Investment / Economic ExpansionGibbons

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Judicial Review / Constitutional Structure1. Background

a. 1800/1801 was First ever change of power from Federalist to Republicani. President & Congress

b. Tie between Jefferson & Burri. Went to House of Repsii. 36 Ballots

c. Meanwhile -- Outgoing Adams Admin:i. Circuit Courts Act --

1. Created 16 Circuit Courts and Packed with Federalists2. Reduced Sup Ct from 6 to 5 (upon departure of one current Justice)

ii. Meanwhile DC Courts created by DC Court Act1. Marbury Appointed, appointment signed & sealed (by Marshall as Sec

State awaiting confirmation to Sup Ct, no less) but not delivered2. Marbury then Sues Madison (Jefferson’s Sec State) for Specific

Performancea. Writ of Mandamusb. Filed directly with Sup Ct as allowed by 1789 Judiciary Act

d. Jefferson takes overi. Congress repeals CCA

1. Removing lifetime appointees from office by eliminating their office2. Fears Sup Ct will Overturn3. Cancels Sup Ct 1802 Term

2. MARBURY v. MADISON (1803) -- Marshalla. Issues presented:

i. Did the court have jdxn?ii. Did Marbury have a right to the commission?iii. Is there a remedy?iv. Was a writ of Mandamus the appropriate remedy?

b. Holdings:i. Did he have a right? Yes

1. Upon Seal (Like Patents)2. Delivery not necessary

ii. Is there a remedy? / Is Mandamus Appropriate?1. Yes

a. Marshall cites Blackstone: where a right has been violated, there should be a remedy

b. Delivery is merely a Ministerial act, with no discretionary authority2. Mandamus correct

a. No Legal Remedyb. Damages Insufficient because it denies right to exercise the office to

which he was appointediii. Does Court have Jdxn?

1. NO2. Marshall says

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a. RULE:i. Sup Ct has the power to review acts of Congress and, if

found to violate Constitution, strike them down1. Steps to get there (Structural):

a. Constitution Establishes Fundamental Principles

b. Congressional Powers defined/limitedc. They are written to emphasize their limitsd. Constitution is a Lawe. In fact, it is the Supreme Lawf. Judges must apply all relevant law, including

Constitution, in deciding casesg. Therefore a legislative act contrary to

Constitution is not law at all h. Otherwise there would be no limits

i. (ignoring that Congress would want to act constitutionally)

b. Section 13 of Judiciary Act sets forth original jdxn for mandamusc. Ignores other obvious constructions of Judiciary Act

i. Appellate jdxnii. Not a jdxn at all -- mandamus is a remedy, does not give you

jdxn (Bloom’s Preference)d. Marshall also ignores:

i. That favored reading would be the one that gives Constitutionally valid meaning to the law (either Appellate Jdxn or No Jdxn)

ii. First Congress (who passed Judiciary Act) would have known Original Meaning/Constitution

iii. Jdxn of Court should have been first question resolved 1. but that would not have allowed him to assert Judicial

Review over Executive Branch officials (in dicta)e. Marshall’s Weak Textual Argument

i. Judges swear to uphold Constitution (Oath arg)ii. “All cases Arising Under constitution” argumentiii. Supremacy clause (but that addresses relative position

between federal and state law)c. Policy under Marbury

i. Argument for Narrow Application of Judicial Review1. Judicial Review is necessary evil and as such should be used sparingly b/c

it is arguably anti-democraticii. Argument for Broad Application of Judicial Review

1. Constitution was designed to keep other elements of govt in check so judicial review is a good and necessary thing from structural POV. The more Judicial Review the better.

iii. Limited Power: if we turn a blind eye to the violation of the constitution, constitution and its power become an nullity

iv. Parallel argument to Hamilton’s: Judiciary is not threatening - have neither purse nor sword

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3. STUART v. LAIRD (1803) (Paterson)a. Court upholds Repeal of Circuit Courts Act even though Circuit Judges (with life appts

were already in place)b. Marshall Recuses

i. Argument in Suit:1. “My case shouldn’t be moved all over the place if it’s already in the circuit

court”c. Tradition based approach

i. Judges been circuit ridin’ long timed. Diffused Congressional Concern

i. Congress was afraid repeal would be found unconstitutionalii. That’s why they cancelled 1802 Sup Ct Termiii. Sup Ct ended up ruling with them

4. COOPER v. AARON (1958) - Warren (and all the justices)a. Little Rock resisted Integration

i. Doctrine of Interposition1. State claiming right to find fed action unconstitutional

b. Decisioni. Our ruling on Constitutional issues is THE ONLY ruling - Applies to allii. All 9 justices listed as Authors

5. MARTIN v. HUNTER’S LESSEE (1816) -- Storya. Questions Virginia’s confiscation of private landb. Issue: who had the final say in the matter (state or SC)c. Holding:

i. Even in cases involving State Sup Ct ruling, Sup Ct can review and is Final Arbiterd. Argument:

i. Textual Argument: Constitution speaks of cases, not courts. Expressly grants appellate jurisdiction to SCOTUS

ii. Intratextual Argument:1. Art. III: If it gave all appellate jdxn for federal questions, that would be

burdensome2. Art. I: Discretion in Congress to establish lower courts3. Supremacy Clause: By binding state courts to Constitution, Constitution

assumes that state courts will interpret federal law (including Court law)e. Virginia’s Argument

i. Would impair the sovereignty and independence of the state courts1. States gave up some sovereignty under Constitution

a. e.g. Art I § 10 has list of impositions on sovereignty2. Precedent

a. Peck v. Fletcher has invalidated acts of Legislaturesii. State is bound by Constitution, but can interpret it for itself

1. UNIFORMITY is PARAMOUNT in Constitutional Interpretationiii. Analogous to Canada applying US law to itself

6. MICHIGAN v. LONG (1983) --O’Connora. 75 lbs of pot found in trunk

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b. HOLDING:i. Court can review state sup ct decisions unless they are explicitly based only on

state law7. CALDER v. BULL (1798) -- Chase

a. Justice Chase: There is an “unwritten” natural law not in the Constitution that is enforceable against the states

b. Justice Iredell (Concur): The fact that the Constitution is written suggests that there is no “natural law” to apply against the states

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Federalism1. MCCULLOCH v. MARYLAND (1819) - Marshall

a. Necessary and Proper Clause:i. Maryland argues that necessary means essentialii. Bank argues that necessary only means convenient

b. Issues I: Constitutionality of creation of the bank1. This issue has been hotly and vigorously debated2. Origin of Constitution

a. From the People not the states3. Nature of Congressional Power

a. Defining Necessary and Properii. HOLDING: Bank Constitutional under Necessary & Proper Clauseiii. Arguments:

1. Textual: If a word is used at one place in the text it probably means the same thing if it used elsewhere in the text, unless there is good reason for presuming otherwise

a. Necessary does appear elsewhere; the connotation of absolutely does apply to necessary elsewhere

i. If in another place necessary does not seem to mean essential or absolute then it probably doesn’t mean so here either

b. Necessary and Proper likely have different meanings: one word probably has some kind of influence on the other

2. The clause is placed among the powers of congress, not among the limitations on those powers (look to the context)

3. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted

4. “We must never forget it is a Constitution we are expounding”5. Structural: The conception of power that Maryland is arguing is wrong

because it would defeat the purpose of the structure

c. ISSUE 2: Constitutionality of Maryland’s taxes levied on the banki. HOLDING: Maryland cannot tax bank in that manner

1. Congress has power to create and protect what it createsa. Power to Tax is Power to Destroyb. Thus power to tax would conflict with power of feds to preserve what

it createsc. Fed Law is supreme, therefore no state taxes on federal

instrumentality2. Tax on Bank of U.S. by Maryland is effectively tax on other states

a. No political remedy available to other states’ citizens3. Nondiscriminatory Taxes would be okay (e.g. property tax on land)

d. Marshall Doctrinal Test to determine whether Scope was w/in Necessary and Proper (Rational Basis test PLUS)

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i. Ask whether1. Includes Rational Basis test

a. The legislative end must be within the scope of the constitutionb. The ends must be a legitimate constitutionally authorized objectivec. Means cong chooses rationally related to the end soughtd. Plainly adapted to that ende. Not prohibitedf. Consistent with the spirit and letter of the Const

2. Necessary to have a link b/n an explicit power and the means through which congress has chosen to give that power an effect

3. Deferential standard giving Cong every benefit of the doubt4.

2. US TERM LIMITS INC v. THORNTON (1995) - Stevensa. Issue

i. Whether a state can speak to the qualification of the members of Congressb. Holding

i. No; this is a completely federal issueii. Constitution was created by the people of the nation, not by the states

c. Concurrence - Kennedyd. Dissenting - Thomas/Rehnquist/O’Connor/Scalia

i. If Const. silent on issue, power is reserved for the statesii.

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Commerce 1. Three Faces of Commerce Clause

a. Congressional Power – Affirmativei. To what limit, if any, does Congress’ interstate commerce power extend

b. State Power – Dormanti. To what extent does state have power to regulate where Congress has left the

issue untouched?ii. If Congress chooses not to regulate interstate commerce, it’s an argument it

shouldn’t be regulated at allc. Conflict – Preemption

i. To what extent are state and federal law actually in conflict

2. Three Theories (Powerful exceptions to the “Dual Federalism Theory” which is relatively constrictive of Congressional power)

a. Substantially Affects Theoryi. Most significant theory Congress relies on in its exercise of commerce clause

authorityii. Shreveport Rate Case

1. Court required Texas to raise RR rates in order to prevent price discrimination

iii. Southern Railway Co. v. United States1. Court upheld application of Safety Appliance act for railcars used

exclusively for intrastate commerceb. Stream or “In” Commerce Theory

i. Subcategory: prohibition or regulation of channelsii. E.C. Knight v. US (1895) (See below)iii. Swift & Co. v. U.S. (1905) - Holmes (Meat Packing Case)

1. Different from E.C. Knight because the stream had come to a halt or had not yet begun

2. Here, it was continuing to move3. When Congress passes a law today based on the CC, it will generally say

that it applies to areas that are in and substantially affect Interstate Commerce

iv. Stafford v. Wallace (1922) - Taft1. Upheld regulations over sales transactions in stockyards after livestock had

arrived in interstate shipments and before they left in interstate shipments2. Court said that the regulated transactions are “essential” to the current of

commerce v. Champion v. Ames (1903) - Harlan

1. Lottery tickets are articles of commerce 2. Power to regulate Interstate Commerce includes the power to prohibit

Interstate Commercevi. Hammer v. Dagenhart (1918) - Day

1. Consideration to ban child labor through CC10

2. Dissent by Holmes: Congress has the right to shut down interstate shipments

3. Overturned by Darbyvii. A.L.A Schecter Poultry Corp v. U.S.

1.c. Instrumentality

i. Regulating methods of interstate commerceii. Least Used by courtiii. Court allowed regulation of steamboat though it never left Michigan waters

(Michigan Boats Case)1. Just because this one boat never left state is inconsequential given the

need to regulate large amount of boat traffic on Lake Michigan that does participate in interstate commerce

iv. “Conveyor belt” by which things move from state to state

3. Commerce Case of First Impression (AFFIRMATIVE / DORMANT / PRE-EMPTION)a. GIBBONS v. OGDEN (1824) -- Marshall

i. Gibbons operated steamboats in violation of Ogden’s Monopoly claiming that under federal law he had the right license.

ii. “Among the Several States” = Marshall’s focusiii. Issue:

1. Was the monopoly NY granted to Ogden an unconstitutional regulation of interstate commerce

iv. Argument: 1. Textual:

a. “Commerce” includes commercial intercourse and not just buying and selling

i. Original understanding argument that the power over commerce, including navigation, was one of the primary objects for which people adopted the government

b. “Among the states” includes commerce that extends or affects more than one state

i. Congress is not limited to simply up to the state linec. “Regulate:” The power to regulate is plenary and Congress controls.

i. Political safeguards check this plenary power2. Structural

a. Supremacy Clause / Pre-Emptioni. Where NY Monopoly Law conflicts w/ Fed Law - Fed Law is

supreme. b. Inspection Laws / Dormant Commerce

i. Inspection laws different / passed for different reasonii. Occur after interstate transaction has ceasediii. If Congress doesn’t act (grey area)

1. Could open to states2. or could be sign Congress wants it left alone

v. Holding: (Broad Interp. of CC)1. Injunction against Gibbon’s was invalid; no area of interstate commerce is

reserved for state control2. Limitation: no Federal reach to commerce which is wholly within the state

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4. AFFIRMATIVE COMMERCE POWERa. What are the limits of Federal Commerce Power?

i. Marshall laid out his view in Gibbonsii. Court did not follow up for about 60 years

1. Congress did not apply Affirmative Commerce Power until about 18802. Progressive Era / Industrial Revolution brings about economic regulation

a. Interstate Commerce Actb. Sherman Antitrust Act

iii. Up until 1930s, Court operated under concept of Dual Federalism1. States and Feds did not overlap much

a. “Is it a federal matter or state matter? It’s not both”

b. United States v. E.C. Knight (1895) (Note Case)i. Monopoly of 95% of Sugar Refiningii. Limited the Commerce Clause

1. Must have a direct and logical relationship w/commerce2. Manufacturing/production =/= Interstate Commerce

iii. Formalistic Approach1. Two “boxes” - one for state reg. one for fed reg.2. Mutually Exclusive

5. Lochner Era - a. Reduction of Congressional Commerce Power through SUBSTANTIVE DUE PROCESS

i. SDP asks whether the govt has an adequate reason for taking away a person’s life, liberty or property. “Is there a sufficient justification for the govt’s action?”

ii. Under SDP, Court not simply concerned with issues of Federalism in Commerce...1. ... but also with justification for govt action.

b. LOCHNER v. NEW YORK (1905) - Peckhami. Issue:

1. Whether Lochner’s conviction violated Due Process (convicted when his bakery workers worked more than a certain number of hours set by a NY law)

ii. Holding: 1. Lochner’s conviction under the statute violated Substantive Due Process

iii. Court’s Questions1. Was there a legitimate purpose?

a. Yesb. Health (TB and other disease)

2. Are the means that were chosen reasonably related to the purpose? a. No (Apply Rational Basis Test)

i. Court views this “health” regulations as meant to regulate labor

ii. Police powers don’t extend to regulation of laboriv. Dissent - Harlan

1. Court insufficiently deferential because record shows the State had reasonable grounds for its decision

v. Dissent - Holmes (Important)1. The Constitution doesn’t embody a particular economic theory2. There must be a big, obvious infraction of liberty in order to overturn a State

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law

6. New Deal Revolution (1937) - Expansion of Congressional Commerce Powera. Lochner Era takes Substantive Due Process to its extremes

i. Lochnerii. Adkins v. Children’s Hospital (1923)

1. Overturns limits on women’s work hours on SDPb. Sup Ct Radically changes direction

i. FDR announced court-packing plan1. Immediately shot down in Congress2. Sup Ct gets the message though3. Sup Ct rejects Substantive Due Process limits on Commerce Power

a. Had previously hinted at rejection in Nebbia (1934 milk price-setting case in NY state)

b. Fully rejects Adkins in West Coast Hotel (1937)i. Establishment of min. wage for women allowed under state’s

police powers protecting women’s health and ability to support themselves

ii. Nothing special about right to K that stands in way of police powers

c. NLRB v. JONES & LAUGHLIN STEEL CORP. (1937) -- Hughesi. Rule: Cong has the power to regulate if the activity has a substantial effect on

interstate commerce (effects theory)ii. Issue: Whether the court had the right to regulate production at a steel plant in

Penn.iii. Holding:

1. Court found that steel mill strike could substantially affect interstate commerce

2. Court rejected the distinction between direct or indirect effect, but rather focused on substantial effect

3. Hughes wanted to exemplify his ruling was not out of the ordinary but rather was the natural progression of precedent

iv. Dissent: says that this sort of step radically changes the law of regulating commerce

v. 1st of 3 cases in the revolution of CC

d. WEST COAST HOTEL v. PARRISH (1937) -- Hughesi. Facts: State law established an minimum wage for womenii. Court upheld a state law establishing a minimum wage for womeniii. Rejects substantive due processiv. Shift away from Lochner Era theories

e. US v DARBY (1941) -- Stonei. Federal Fair Labor Standards Act

1. Min Wage, Max Hours, & Minimum conditions2. Prohibits shipment of goods that fail to comply with standards

ii. Child Labor Redux1. Hammer v. Dagenhart had said merely shipping goods is unimportant –

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2. “[Dagenhart] was a departure from the principles which have prevailed in the interpretation of the commerce clause both before and since the decision. It should be and now is overruled.”

3. Labor conditions are sufficiently related to commerceiii. Motives are unimportant as long as the regulations are within congressional power

– thus 10th amendment does not apply hereiv. Essentially adopts the Holmes Dissent in Hammerv. Says that Min Wage/Max Hours:

1. provides standards for the states to prevent race to the bottom and competition between the states.

2. Poor standards pervadevi. Also says that in regulating interstate commerce, if necessary to do so, congress

may also regulate INTRAstate commercevii. WHAT ABOUT 10th AMENDMENT?

1. Says there’s no substance there2. Doesn’t reserve any power to the states, just a residual clause3. Doesn’t prevent Congress from reaching what they see fit

f. WICKARD v. FILBURN (1942) (Jackson) -- Wheat Regulationi. Farmer was regulated for growing too much wheat, even though just for personal

use.ii. Aggregation Principle: Gov’t can regulate the individual’s non-interstate acts, if he

is part of a group that would together impact interstate commerce1. if lots of farmers did this, would have major impact

iii. Economic Approach - looks at economic impact of actions, not the label of the activities

iv. Deferential Approach - defer to legislature in determining the scope of the impact

g. HEART OF ATLANTA MOTEL v. UNITED STATES (1964) - Notes Casei. Issue: Civil Rights - whether racial discrimination by private persons in public

accommodations can be prohibited by CCii. Holding: All hotels affect interstate commerce as a matter of law

h. PEREZ v. U.S. (1971) - Loan Shark Casei. The specific loan shark was regulated, even though no proof of economic impactii. RULE: if congress can regulate a class, it can regulate individuals within that class

7. Rehnquist Court - 1995 and Beyond

a. U.S. v. LOPEZ (1995) -- Rehnquisti. Gun Free School Zone Act made it a federal crime for an individual to possess a

firearm near a school zoneii. To analyze a case like this, ask: on what basis does Congress believe there is a

CC connection here? iii. Three ways in which Congress can regulate commerce:

1. Regulate instrumentalities2. Regulate channels3. Regulate activities that have a substantial relation to Interstate Commerce

iv. Argument: Cong says activity does substantially affect the economy b/c

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1. Possession leads to violence and cost of outcome affects commerce through the cost of insurance

2. May result in violent crime which deters people from traveling to crime ridden areas

3. May also interfere in education process = loss of productivityv. Holding: Does not substantially affect interstate commerce

1. reject the argument that a gun could lead to violence and further affect the economy

2. If congress can’t give a theory that has a discernible limit, the government has gone too far

vi. Significance: 1. Return of Federalism and the limited scope of Congressional Authority --

abandons giving total deference to Congress2. Court MUST enforce meaningful Constitutional boundaries

vii. Concurrences:1. Kennedy provides factors for establishing boundary

a. CC is vague and uncertain -- Lacks a limiting principleb. Not an economic or commercial situationc. No jurisdictional hook -- no actual commerce going on, there was

nothing saying that the gun moved in intrastate commerced. No fact findings - hazy connection b/n this and commercee. Criminal statutes - must be a higher degree of care in justifying a

criminal as opposed to a civil lawf. Generally local mattersg. No great federal need

2. Thomas: Court should abandon the substantial effects test since it results in federal police power

a. Rejects Wickard aggregation principle - there would be no stopping point

b. Original understanding -- commerce used to mean trade and we need to remember that

viii. Dissent:1. Breyer: Criticize majority for abandonimg precedent.

a. Say that if there is a rational basis, then an activity affects interstate commerce.

b. Guns are inherently a part of interstate commerce and should be regulated by commerce

2. Souter:b. GONZALEZ v. RAICH (2005) (Stevens)

i. Conflict between Fed. drug law and California medicinal marijuana lawii. Holding: Congress can regulate marijuana use under commerce clause; Fed law

preempts California lawiii. Argument:

1. Return to rational basis test abandoned in Lopez2. Similar to regulating wheat in Wickard

iv. Justice Scalia (Concurrence) 1. Not a commerce clause issue, but valid under Necessary and Proper

v. Justice O’Connor (Dissent)1. There was no fact finding to prove relationship. Just assertions

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vi. Justice Thomas (Dissent)1. Rejects substantial effects theory2. Most commerce clause cases are wrong

c. NFIB v. SEBELIUS (Commerce portion) (2012) - Robertsi. Issue

1. Is Individual Mandate to have Health Insurance valid under commerce clause

ii. Three different concepts that are all interrelated1. Guaranteed Issue

a. Cannot be refused coverage2. Community Rating

a. Cannot be discriminated against in terms of the cost of policy based on pre-existing medical condition

3. Cost-Shiftinga. Not having insurance shifts costs of care to those who do

iii. Government’s 3 Arguments1. Court should think about this as a case involving healthcare, which is

inarguably interstate commerce2. Primary Argument: This case involves economic or commercial activity

a. Failure to buy health insurance is an economic decisionb. It is simply a decision over WHEN to pay for healthcare: up

front/when services rendered/someone else pays3. This is limited to healthcare - Healthcare Unique (combats the “parade of

horribles” argument)a. Court need not worry about broad precedentb. This is product Everyone Needsc. Individual Need is unpredictabled. It’s very expensivee. Problem of Cost Shifting

iv. HOLDING:1. Roberts plus dissenters reject govt arguments

a. Case is about Buying Insurance not about healthcareb. Regulates economic INactivity rather than activityc. No stopping point

i. Broccoli (healthy eating)v. CONCURRENCE (which dissents from Roberts on this issue)

1. Ginsberg

Restraints on Federalism Under Commerce1. GARCIA v. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985) - Blackmun

a. Largely follows Brennan’s dissent in Nat’l League of Cities v. Usery (Application of FLSA unconstitutional in re state employees)

b. Why Overrule Nat’l League of Cities?i. Test too difficult to applyii. Fails to recognize evolving nature of state gov’t (vast functions)

c. State Sovereignty still protected by Political Process16

d. DISSENT (Powell):i. Disagrees with Political Process protections

1. Still fed employees2. Fed power has grown without end and political process has done nothing to

stem tide3. We don’t turn power over to Congress on bill of rights, even though:

a. They’re all individualsb. Presumably they don’t want their individual rights preculded

4. Most bills written by permanent staff insulated from political controle. DISSENT (Rehnquist):

i. Not that concerned with detail -- federalism will return to court eventually

2. NEW YORK v. UNITED STATES (1992) - O’Connora. Issue: Whether the Constitution confers upon Congress the ability to compel states to

provide for the disposal of radioactive wasteb. Holding: NO. Take title provision is unconstitutional. Congress can encourage but not

compel.c. 10th Amendment

i. A reminder that there are two levels of govt--does not provide immunity for statesd. Why is Federalism valuable?

i. The reason for federalism is not to protect state govts, but to diffuse power and create more liberty

ii. We don’t care whether NY wanted this; we care about the citizense. Incentives for states to get on board

i. Money with conditions attached1. State can say yes/no—as long as they can say that, it’s not an intrusion in

state’s autonomy2. This is a national issue -- states should act b/c:

a. Congress has powerful tools to deal w/ national issueb. Can use the spending power to pay states some of the cost

provided that states follow the attached conditionsc. Conditions are not unconstitutional b/c state has the ability to refuse

i. Doesn’t intrude on state autonomyii. Take title provision (Court doesn’t like)—Congress goes too far

1. Handing it to state to pass it2. One does not simply force the states to have liability for something they’re

not responsible for3. Can’t commandeer the state legislature—responsibility and accountability—

a way to deny political responsibilitya. Each could shift the blame b/c no one wants to be responsible for

unpopular policyb. ( States have the right to set their own legislative agenda (core of

autonomy)4. Take Title creates two unconstitutional alternatives and that leaves no

choice at alla. Choices were to

i. take title of nuclear waste (and thus associated liabilities)ii. ORiii. adopt specified legislation

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b. There were permissible alternatives that Congress did not use:i. Conditional Congressional Spending Power with state choice

to accept or decline ii. Co-Operative Federalism:

1. Dormant Commerce clause allowing discriminatory taxes by state

2. Congress could have just done the job themselves

3. PRINTZ v. UNITED STATES (1997) - Scaliaa. Case arising under the Brady Act: which mandated background checks on gun purchases.

Required State Law Enforcement to administer the law.b. Issue: can federal law require state level officials to administer the law?c. Holding: no, unconstitutional to make state police officers enforce background checksd. Arguments:

i. Historical1. No precedent that requires state administration. Need consent.2. N.Y. v. U.S. holds government cannot compel states to enact federal

regulationii. Structural

1. Constitution creates authority of federal gov’t over people, not federal gov’t over states

2. If Congress could mandate the states to enforce their laws, no need for executive branch

iii. Accountability1. Fed. Gov’t takes credit but ducks blame and hides behind state actors

e. Justice Stevens (dissent)i. this falls under the textual meaning of the commerce clauseii. could also fall under necessary and properiii. believes founders intended states to be an extension of Fed. Gov’tiv. Historically, state judges handle federal issues; can’t other state actors do the

samev. Ultimately, this will force a larger federal gov’t to come in and create more

agencies to enforce their federal laws on the state level

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Taxing and Spending1. TAXING

a. Taxation power had not been addressed for years prior to Sebeliusi. In Sebelius, District Courts had largely rejected taxing powerii. Most circuits did not even address taxing issue

b. BAILEY v. DREXEL FURNITURE CO. (CHILD LABOR TAX CASE) (1922) - Tafti. NOT DISCUSSED IN CLASSii. tax on child labor was unconstitutional because it was a penalty, not a tax, on

employment of children. In addition, the Child Labor Tax Law is a regulation on businesses instead of a tax.

c. US v. KAHRIGER (1943) - Reedi. NOT DISCUSSED IN CLASS ii. federal occupational tax on bookies under the 1951 Revenue Act was

constitutional

d. NFIB v. SEBELIUS part 2 (Penalty)i. Issue: penalty or tax?

1. Penalty = punishes people for violating the law2. Tax = justifiable under tax power and is for raising revenue

ii. Holding: Taxiii. Dissent - Scalia/Kennedy/Thomas/Alito

1. This is a penalty2. Two arguments

a. Mutually exclusivei. Can’t be both a tax and a penaltyii. Fulcrum of the case: have you violated the law by not

purchasing insurance? If yes, it’s a penalty. b. Congress calls it a penalty

iv. Lower Courts Justices’ Arguments1. Congress knows how to write legislation. If they want something to be

called a tax, they call it a tax2. In several earlier versions of the Act, they called it a tax. Final version, they

changed it to penaltya. If Congress changes word in drafting process, we’ll assume they

know what they’re doing

2. SPENDINGa. SOUTH DAKOTA v. DOLE (1987) --Rehnquist

i. Congress attaches condition of drinking age change to highway spending moneyii. Rehnquist creates Dole Test and finds law okay under it:

1. Whether or not that provision promotes the general welfare19

a. Says as a general rule it is for the general welfare2. Whether or not the condition is clear

a. Requires clarity so there is no confusion among the statesb. States must have to have a voluntary choice for the condition to be

valid3. Should Relate to the federal interest

a. Means-Ends (Does interest in creating safe hwys relate to giving conditional money to build hwys?)

b. Illegitimate if unrelated to the federal interest, but defer to Congress’ judgment

4. Can’t be Unconstitutional under other Const. provisionsa. Minor concern of 21st Amendment (states have power to regulate

alcohol), but this is about safe highwaysiii. Dissent (O’Connor): Courts attempt to link funding and drinking age are too

unrelatediv. Court is pretty generous in considering congressional attachment of conditions

1. Gives congress a large benefit of the doubt2. Rarely will say congress has gone too far

b. NFIB v. SEBELIUS part 3 (Medicaid)i. Issue: Whether current medicaid funding could be contingent on State expanding

Medicaid Coverageii. Holding: No, this was coercive and fails the Dole test (no choice)iii. Facts

1. Congress expands Medicaid coverage up to 133% of poverty line2. Previously 37/63 ON AVERAGE3. Also extends extent of coverage4. Congress covers 100% at first, then down to 90%

iv. Court applies Dole Test1. For Conditional Spending, there has to be a choice for the states2. This choice is overly punitive, not allowing states to say no3. Either they can eat ALL the costs of Medicaid4. Or they can eat the costs of Expansion

v. Concurrence (Alito/Thomas/Kennedy/Scalia)1. Would have struck entire provision because it was invalid and the mandate

was invalid so the whole PPACA had to govi. Dissent (Ginsberg & Sotomayor)

c. US v. BUTLER (1936) - Robertsi. Issue: Whether Congress had regulatory authority over taxing farmers’ agricultural

production under the spending clauseii. Holding: Noiii. Madison and Hamilton disagreed on the “general welfare” clause

1. Madison (narrower): “general welfare” means that Congress can spend $$ to carry out any other Article I powers

2. Hamilton (broader): “general welfare” is a category unto itself. There are things Congress could do that might not be justified by any other power

iv. Argument:1. Court adopts Hamilton’s view, but turns around and strikes down the act

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2. Congress is coercing individuals/states in violating 10th Amendment by trying to regulate agriculture by giving incentives

v. Dissent (Stone)1. Coercion is the threat of loss, not hope of gain2. Congress can contractually give people money and use it in a certain way

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Dormant Commerce Clause1. INTRO

a. Answers the question “To what extent can state regulate interstate commerce where feds have taken no action to regulate?

i. In Gibbons (dicta), Marshall said fed commerce power was exclusiveii. Did recognize that state could have some control over interstate commerce

through police powers1. Health & Safety laws not seeking to affect transactions

b. Possibilities when a state wants to aid its own industries (4 Categories)i. Direct tariff on out-of-state goods - UNconstitutionalii. Neutral tax on everybody but an exemption for out-of-staters

1. E.g., Bacchus caseiii. Tax on specific product with redistribution to instate producers

1. Kennedy agrees that it’s UNconstitutionaliv. Direct subsidy to local businesses -- OKAY

1. Widely used and widely accepted if from general revenuec. Article IV: Privilege and Immunities

i. Aimed at interstate comity—smooth and fair relationship btwn states and citizens of other states

ii. A citizen of one state is entitled to all privileges and immunities that another state provides its own citizens when that citizen is there

1. Relative principle—only entitled to that which the other state gives its own citizens—you’re not entitled to it if it doesn’t do it

2. Does not create immunities, only entitled to what already exists3. Not everything counts

a. Must be fundamental—sort of important to interstate travelb. Out of stater who is visiting a state

4. Most of these cases are concerned with employment5. As a practical matter, when citizen from State A goes to State B, they are

entitled to all the privileges and immunities unless State B has a pretty good reason for denying them

6. Not absolute: there is a balancing testa. Intermediate scrutiny standardb. Example: State has right to limit voting from out of staters

iii. 5 different ways in which privileges and immunities are different than dormant commerce clause challenge

1. Corporations not protected under P&I, only citizens2. Market participant doctrine does not apply to P&I3. Notion of congressional override does not apply

a. SC can find that a regulation violates dormant commerce clause and congress can disagree

b. Rationaleiv. Congress, under Const., has been given the primary authority to police interstate

commerce to determine to what extent state regulation can interfere22

v. But doesn’t have time to think about all the state lawsvi. SC filling in in the interim when someone challenges the law, then if congress

wants, it can change the ruled. Federal Preemption

i. This doctrine not simply a CC doctrine—it applies with respect to any fed law under any means Congress can act

ii. If fed law and state law are in conflict then under Supremacy Clause, fed law takes precedence

iii. Problem: putting that to applicationiv. 3 different ways in which Preemption Doctrine can arise

1. Explicit preemptiona. Congress specifically says to invalidate this law or this group of lawsb. Difficulty: how far can Congress go?

2. Implied preemptiona. Congress didn’t say anything about whether state laws are

invalidated when it passed this fed lawb. How to analyze implied preemption?

i. Whether or not its preempted depends on whether congress intended to preempt

ii. Look at text and purpose of statuteiii. Court would look at:

1. What was the purpose of the fed law? Don’t want it to be non-uniform

2. Or did it set minimum standards? Max standards?3. Court has to concern itself with what Congress wants

to accomplish3. Conflict preemption

a. Strike down any law which seems to be in conflict with the federal law or its purposes

i. Field preemption1. By entering this field, congress intended to cover the

whole field—not leave room for state to regulate at all

2. WILLSON v. BLACKBIRD CREEK MARSH CO (1829) -- Marshalla. State control of navigable waters (and dam-making) okay in absence of Congressional

action3. COOLEY v. BOARD OF WARDENS (1851) - Curtis

a. Harbor requires boats to hire local pilotb. COURT:

i. Upheldii. Cooley Test:

1. Does issue require national uniform legislation (here “no”)2. Is it of a local nature instead (here “yes”)

iii. Cooley Test is still good lawiv. Problem with Cooley Test -- It’s Conclusory in nature

4. PHILADELPHIA v. NEW JERSEY (1978) - Stewarta. NJ law prohibited out of state waste from being brought into NJb. Holding: State’s discrimination of other states commerce is invalid under the dormant

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commerce clausei. Heavy presumption against legislation discriminating on out of state producersii. Court will always strike protectionist attempts

5. SOUTHERN PACIFIC CO. v. ARIZONA (1945) - Stonea. State law placed on how long a train could be in order to pass through AZ

i. Sought to eliminate potential safety hazards of long trainsb. Holding: Court invalidated in 2 ways:

i. Discrimination: 1. If a state law discriminates against interstate commerce in favor of its own

business it will be invalidateda. This particular law discriminates against all trainsb. and the law purports to be neutralc. BUT this can still be a violation of the CC

ii. Burden standard: 1. Balances safety benefit of the state against the burden on interstate

commercec. Dissent (Black):

i. Balancing approach is legislative, not judicialii. The more the court gets involved in interest balancing, the more we act like the

legislature1. There is no way of setting of proper balance (can’t equate apples and

oranges)6. KASSEL v. CONSOLIDATED FREIGHTWAYS CORP. (1981) - Powell

a. Iowa law limiting the size of freight trucks on Iowa roadsb. Issue: Is Iowa’s statute a reasonable safety measure pursuant to its police powers?c. Holding: NO. Violates the CC b/c its its burdensome

i. Not discriminatory because it applied to instate and out of state truckersii. BUT burdensome because causes truckers to have to go around Iowa and to

around Iowa and use more trucks1. No evidence that 10ft smaller trucks were much safer

d. Concurrence (Brennan): 3 principles:i. Courts are not empowered to second-guess judgments of lawmakers concerning

the utility of legislation.ii. Burdens imposed on commerce must be balanced against the local benefits

actually sought to be achieved by the State's lawmakers, and not against those suggested after the fact by counsel

iii. Protectionist legislation is unconstitutional, even if the burdens and benefits are related to safety rather than economics

7. DEAN MILK CO. v. MADISON (1951) - Clarka. State law requiring milk sold in Madison must be pasteruized within 5 miles of the city. b. Unconstitutional because it discriminated against out of state suppliers, even though it

also discriminated against some in-state (non-Madison) milk suppliers.8. HUNT v. WASHINGTON STATE APPLE AD COMMISSION (1977) - Burger

a. N.C. enacted statutes on Apple containers requiring that they print USDA quality “grade” on the container

b. State of Washington opposed claiming they had their own, superior standardc. Holding: the statute was no good and discriminatory against out of state vendorsd. Burdensome because Washington already had a standard that exceeded USDA

standards, and leveling the playing field is discriminating against Wash.

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e. N.C. argues that they have police power over “consume confusion” but here, not applicable because other non-discriminatory methods available

9. EXXON CORP v. GOVERNOR OF MARYLAND (1978) - Stevensa. Read but not discussed in detailb. Does state law burden or discriminate against out of state gasoline?

i. NO. Because there is no in-state production of gasoline, no discriminatory resultc. DISSENT (Blackmun): But it is protective of in-state retailers

10. WEST LYNN CREAMERY, INC. v. HEALY (1994) - Stevensa. Mass. taxed all milk equally (both in state and out of state vendors), but then used that

revenue to subsidize in state vendorsb. Court finds this unconstitutional, combining the tax and subsidy creates a discriminatory

effect (tariff)c. Justice Scalia (Concurrence)

i. A discriminatory tax equates to a tariff and is unconstitutionalii. A tax on the entire industry with in state exceptions is unconstitutionaliii. If dairy subsidy came from general tax fund, would be ok.

d. Justice Rehnquist (Dissent)i. The dormant commerce clause doesn’t turn on the validity of in-state subsidies

11. MARKET PARTICIPANT DOCTRINEa. If State engages in business with itself, like a company, it can be discriminatoryb. Came out of Hughes

i. Govt acting as Market Participant (e.g. buying junked Autos)ii. Businesses can choose their customers, so can state acting as biz

c. Reeves v. South Dakotai. State selling cement to in-state customers is okay

d. SOUTH-CENTRAL TIMBER DEVELOPMENT, INC. v. WUNNICKE (1984) - Whitei. Alaska went too far in requiring timber from state lands be processed by state mills

1. Imposes Future Limitations on products2. Court Says:

a. We allow you to choose your customers, but such choice applies only to specific market (here: raw timber sales)

b. We will not allow you to further regulate downstream related markets

3. State admits on face that this was protectionism

12. PRIVILEGES AND IMMUNITIES CLAUSEa. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in

the several States.”b. Does not apply to Corporations; only individual citizensc. Market Participation Doctrine does not applyd. No congressional override of P&I

i. Dormant Commerce Clause is only area where Congress can override a Constitutional Decision of the Sup Ct)

1. Congress, under the COnstitution, has been given primary (near plenary) power to regulate interstate commerce, and therefore to limit the extent of

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state regulation thereof.e. UNITED BUILDING & CONSTRUCTION TRADES COUNCIL v. CITY OF CAMDEN

(1984) - Rehnquist i. Privileges and Immunities clause Caseii. A city can pressure private employers to hire city residents, but the same exercise

of power to bias private contractors against out-of-state residents may be called into account under Privileges & Immunities clause.

13. FEDERAL PREEMPTION DOCTRINE (as it arises under Commerce)a. Three Different Ways to Pre-Empt:

i. EXPLICIT PREEMPTION1. Congress Specifically indicates it is pre-empting inconsistent state laws

ii. IMPLIED PREEMPTION1. CONFLICT PREEMPTION

a. Federal law and state law in direct conflict2. FIELD PREEMPTION

a. No direct conflict, but federal law meant to preempt all state laws relating to that area of law

b. Analyzed on “intent” of Congress when not expressed means court considers “what Congress would have intended had they considered the issue” -- See Gade below

b. GADE v. NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION (1992) - O’Connori. We think Congress was trying to insure that there was only one standard for how

waste mgmt training took placeii. By entering the field of wast mgmt training, they intended to regulate that entire

field1. State law cannot stand

14. COMPLETE AUTO TRANSIT, INC. v. BRADY (1977) - Blackmuna. DID NOT DISCUSS

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Separation of Powers1. YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (Steel Seizure Case) (1952) - Black

a. Factsi. There was an impending strike in the steel industry that would adversely affect the

Korean War effortsii. President Truman ordered the mills to be seized by the federal gov’t arguing that

he has broad discretion in war related activitiesb. Issue:

i. Is it within the power of the president to seize the steel millsc. Holding

i. No, power does not fall within any held by the presidentd. 4 Constitutional Theories

i. Commander and Chief (Bloom thinks this is his best argument)1. President doesn’t have absolute war power. Congress has power to fund

and declare war2. Doesn’t allow domestic seizure for foreign war3. Slippery slope

ii. “Faithfuly Execute”1. His job is to execute, not to legislate. This is legislative in nature.2. Congress expressly declined to extend this power in 1947 under Taft-

Harley Actiii. Executive power shall be “vested” in the President

1. If there are vested powers, why would the Constitution list enumerated ones?

iv. Inherent/Emergency Powers1. Not something to even consider here. Too ridiculous.

e. Justice Frankfurter (Concurring)i. 60 page analysis of precedent.ii. Concludes there isn’t enough historical basis for this (even considering Roosevelt)

f. Justice Douglas (Concurring)i. This amounts to a “taking” which is a legislative power requiring just compensation

g. Justice Jackson (Concurring) (More important than Majority)i. 3 Zones of Presidential Power (Tri-Part Analysis)

1. President acts w/ Congressional Approvala. Maximum amount of authorityb. Approval can be express or impliedc. Only question is “can government do this at all?”

2. Twilight Zone - Absence of Congressional Approvala. Acting solely on executive authorityb. Question is “does President have power to do this”

3. Contrary to Congressa. Weakest amount of authorityb. When President acts contrary to express or implied will of Congressc. Power only valid if question falls within Presidential powers

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d. Case at bar falls hereh. Justice Clark (concurring)

i. President has power to meet emergencies, but was limited by Congress herei. Justice Vinson (Dissent)

i. President has broad emergency related powersii. Both Lincoln and Roosevelt took similar measures

2. MORRISON v. OLSON (1988) (appointment power) - Rehnquista. DID NOT DISCUSS IN CLASSb. COURT:

i. Independent Counsel was “inferior” Executive Officer1. No need for Prez appt followed by Senate Confirmation2. (Here, requested by AG and appointed by DC Circuit Court)3. Factors in finding “Inferior”

a. Subject to removal by AGb. Limited in Duties (investigate and prosecute certain crimes)

i. No policy delegationc. Limited in jurisdiction

i. Statutory limitations for all independent counsel; andii. In grant appointing that specific IC

d. Limited in tenure/term (Olson, not independent counsel)c. DISSENT (Scalia):

i. Independent counsel is “Principal” Executive officer subj to Appt/Conf

3. MORRISON v. OLSON (1988) (removal power) - Rehnquista. Constitutional Challenge of Independent Counsel Actb. HOLDING:

i. Does not diminish Executive Power:1. No Aggrandizement of Congressional Power2. No Encroachment upon Executive or Judicial Power

ii. Power to remove an independent counsel when limited to For-Cause only is still the power to remove, therefore AG has not been deprived of that right

1. For-Cause requirement merely provides Political insulation2. Purely FUNCTIONAL approach

c. DISSENT (Scalia -- formalistic):i. Congress can’t prescribe terms for the Executiveii. Investigation/Prosecution is core of Executioniii. Limiting control over that (as done here by limiting to For-Cause) is encroachment

4. UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. (1936) - Sutherlanda. Weapons manufacturer exporting weapons to South America in violation of Executive

Orderb. Issue: Does Pres. have lawmaking authority over Congress in relation to foreign affairs?c. Holding: Pres. doesn’t need enumerated powers to deal w/ foreign affairs

i. Press power and authority to act is extra constitutional in nature1. Power:

a. From the states

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b. From when we broke free from Englandc. Had this foreign power even before Const. existence

d. Argument: Functional:i. Pres is best suited to deal w/ foreign affairs

1. Leader who has power to negotiate2. Has access to confidential information3. Makes decisions in an expeditious way

ii. Has greater knowledge of foreign affairs over Congress

5. DAMES & MOORE v. REGAN (1981) - Rehnquista. Facts

i. Jimmy Carter gave executive orders regarding the Iran hostage crisisii. Iran had complied with their end of the deal, but we didn’t want to fully perform

b. Issue: Did pres have right to end all of the litigation against Iran?c. Holding: Court upheld executive orders to end litigation against Iran

i. President’s order was constitutionalii. Court struggles to find congressional endorsement under these circumstances b/c

courts kind of paint it into the corner; uphold even though its difficult on the meritsd. Argument:

i. Invokes Jackson’s 3 part analysis in his Youngstown concurrence1. However, it doesn’t “fit” into the category in which he places it2. Expansive reading--the Court struggled to uphold

ii. Functional approach: 1. Cong can’t pass a law for everything2. Court looks to see if Congress indicates that it is opposed at all3. Congress has implicitly approved of the exec power by acquiescence

6. THE PRIZE CASES (1863) - Griera. Facts

i. Lincoln proclaimed a naval blockade of Southern ports and ordered seizure of any ships carrying goods to or from Confederate States

b. Issue: whether seizures are valid even though Congress never declared warc. Holding: Yes

7. War Powers Act (1973)a. Congress thought the Pres’s power had gotten out of hand, so it defined instances where

the Pres can get troops w/out prior Congressional authority for a limited amount of timei. Congress needs to know why and for how long

b. “Quasi-Constitutional”i. It attempts to mandate a process for presidential use of armed force w/out a

declaration of warc. Two arguments that it’s Constitutionally invalid:

i. It intrudes too deeply into executive authorityii. So-called legislative veto

d. Judicial resolution doesn’t happen because this is a power struggle between Congress and the Pres

8. Prisoners (Notes cases)a. Milligan (1866)

i. Civil warii. Court threw out his conviction

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iii. Issue: suspension of the writ of habeas corpus1. Constitution doesn’t really say who can do it

iv. Deals with military commissions—they are limited in terms of jdxnb. Quirin (1942)

i. WWIIii. Executed the saboteurs

c. Rasul (2004)i. Guantanamoii. Held: as long as fed courts have jdxn over the custodian of the prisoners, that’s

really all they neediii. Can’t hide prisoners away and isolate them from judicial process

d. Hamdi (2004)i. Question: what process, if any, do you have to give to a prisoner (unlawful

combatant)? Can you arrest members of terrorist orgs who we are fighting against and simply hold them until hostilities have ceased?

ii. To what extent, if at all, are they entitled to some kind of process, at least to dispute the fact that they were taken?

iii. Court: they’re entitled a hearing before a neutral magistrate to learn the facts and try to respond to the facts

iv. Scalia and Stevens (dissent)1. Argued that, given the writ of habeas corpus had not been suspended, you

can’t just lock up a citizen and hold him in perpetuitye. Hamdan (2006)

i. Question: whether military commissions could be applied under the circsii. Held: no, at least not the way it’s been done

1. They are entitled to writ of habeas corpus2. Under Geneva etc., even unlawful combatants are entitled to a fairly wide

variety of procedural rightsiii. Congress responded by passing an act saying they will deny habeas corpus to

unlawful combatants—no opp to come into fed court and challenge9. MISSOURI v. HOLLAND (1920) - Holmes

a. Issue: Whether enforcing a treaty between the US and another country is unconstitutional (Migratory Bird Treaty Act with Great Britain)

b. Holding: Enforcing the treaty is constitutional because the states have no power to overrule a treaty under the Supremacy Clause

c. Congress can do things under the treaty implementation power that it can’t under other power

10. Treatiesa. Negotiated by Presb. Ratified by 2/3 of Senatec. One of those laws of the land that applies to States quite explicitly under Supremacy

Claused. To what extent can Congress enlarge its power under the Treaty Clause?

i. Congress cannot violate civ rights and libertiesii. Also, some treaties are self-executing, others aren’t

1. If self-executing it goes into legal effect domestically2. If not, doesn’t have domestic effect until a law

11. WOODS v. CLOYD W. MILLER Co.

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12. US v. NIXON (1974) (Burger) (Presidential Privilege)a. Case arising out of the subpoena to provide Oval Office tapes regarding incriminating

discussions about Watergateb. Issue: Was President Nixon able to exercise privilege over the tapes and documents?c. Holding: No, he was required to respond to the subpoena

i. Finality1. Court says it is appealable, won’t hold President in contempt

ii. Justiciability1. Nixon contends it is a dispute within Executive Branch (Nixon v. Nixon) and

there is no need for the courts to step in2. Court holds there is enough insulation between President and the special

prosecutoriii. Amenability

1. Court holds that the President can be party to the proceedingsiv. Who decides?

1. Nixon says he has absolute privilege, he’s decided to use that privilege, and it’s not subject to judicial review

2. Court Responds Marbury v. Madison - Court says what the law is.3. Court decides who decides

v. Privilege1. Nixon argues there is privilege and a need for privacy and freedom for

advisors to speak their minds to the President2. Court agrees, but says there were no issues of national security, war

secrets and no “chilling effect” on advisors3. Must balance privacy issues against due process and criminal justice

concerns

13. INS v. CHADHAa. Congress had delegated decision making to immigration to streamline immigration status

resolutionsb. Congress sets up a procedure by which it can disapprove decisions by a vote in either

housec. Issue: Was the one house legislative veto Constitutional?d. Holding: No. Court invalidated the legislative veto

i. Court is actually overturning 200 decisionsii. Unconstitutional because:

1. The ability to delegate certain powers but hold others back created too much power than if it was held together in the first place

2. Structure of the Constitution doesn’t allow for delegation in that matter3. Congress is essentially legislating

a. Avoid bicameralism and presentmentb. But they are altering peoples rights and changing their positions

4. They are able to bypass the Art. I process5. Congress is able to delegate independent agency rulemaking

a. These rules are not created by bicameralism or presentment b. Looks like legislation but:

i. reviewable in federal courtii. permitted to enact rules only when given authority to do so

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e. Powell (Concurrence):i. Its ok for congress to delegate legislative type authority with proper procedures

and judicial review, BUT it is not ok for Congress to delegate legislative authority to itself

1. Cong is required to abide by Article I and IIIii. Congress cannot legislate w/out going through procedures (agrees but for different

reasoning)1. They aren’t legislating but rather adjudicating

f. White (Dissent):i. Court isn’t thinking practicallyii. Functional approach:

1. This has been utilized for a long time (200 previous laws)2. Congress acts out of necessity

a. Require aid and must delegate to other institutions14. CLINTON v. CITY OF NEW YORK (1998) (Stevens) - Line Item Vetoes

a. The Line Item Veto Act allows the President to veto individual items from legislation without sending the bill back to Congress

b. Issue: i. Are line item vetoes constitutional

c. Holdingi. No, crossing out sections of law invariably changes the nature and meaning of the

law and effectively allow the executive to legislated. Scalia (Dissent)

i. President has discretionary spending power, no difference here?ii. Violates no Constitutional provision.

15. BOWSHER v. SYNAR (1986) - Burger (Notes case)a. Issue: Gramm-Rudman Act (Sequestration)

i. Comptroller could only be removed by Congress (and for-cause)ii. But Comptroller is exercising Executive-like powers

b. Holding: FORMALISTICi. Congress by itself cannot remove any executive officer except by impeachment

c. Argument:i. Because the functions performed by the Comptroller General under the Act were

executive, by placing responsibility for the execution of the Act into the hands of someone who is subject to removal only by itself, Congress in effect retained control over execution of the Act and has intruded into the executive function

ii. So, it’s unconstitutional d. Dissent (White) -

i. We should focus on the domain the action is occurring in--the domain of the actorii. Comptroller General resides in the legislative branch

e. Concurrence (Stevens) - FUNCTIONALi. Like dissent says look at domainii. BUT, says Congress can’t delegate to itself (see Chadha) therefore

unconstitutional

16. US v. MISTRETTA (1989) -- Blackmuna. Congress appoints an expert body to establish sentencing guidelines

i. 3 members were Federal judges

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b. Issues:i. Is it permissible to give non-judicial authority to Federal judges?ii. Is writing sentencing guidelines permissible?

c. Holding:i. Yes. Rely on precedent that judicial people have been engaged in rulemaking

1. Textual: There is no issue w/ judges on federal commissionsa. There is a strong precedent of judges “wearing two hats”b. Ex: Justice Warren as head of assassination prosecution

i. Justice Jackson prosecuting Nuremberg trialsc. Judges have decided sentencing on an individualized basis -- here

they are doing the same thing but on a global basisii. Delegation of the sentencing committee was not too broad

1. Told what to draft/how to draft etc.2. This is not an aggrandizement of power and does not encroach on other

branches3. Delegations of extreme breadth are regularly upheld today

17. EX PARTE MCCARDLE (1869) -- Chasea. FACTS / PROCEDURE:

i. 1867 act creates a specific writ of Habeas Corpusii. McCardle files his case under the act

1. Unjustly confined2. Challenges constitutionality of Reconstruction Act

iii. After arguments, Congress repeals Habeas Corpus activ. Court holds case over to the next termv. Case Re-Argued over new issue:vi. Could Congress repeal the habeas corpus remedy midstream?

b. COURT:i. Yes. Exceptions and Regulations Clauseii. Congress usually uses the Exceptions and Regulations power by failing to give the

Sup Ct jurisdiction that it COULD give to the Sup Ct under Article III.1. e.g. Sup Ct did not have appellate Jdxn over crim appeals until late 19th

century2. e.g. Diversity Amount-In-Controversy limits are actually authorization of

jdxn for cases over those amounts3. Thus, normally exceptions are those which Congress failed to grant

iii. BUT HERE:1. Congress first granted jdxn in 18672. But revoked jdxn affirmatively in 1868

c. McCARDLE ARGUED:i. It’s fishy here because of legislative motive

d. COURT:i. Legislative motive is not important (Fletcher vs Peck)ii. McCardle is not left without remedy

1. There is a Writ of Habeas Corpus which is constitutional in its creation2. Court kicks case back down to start over

18. OTHER EXCEPTION/REGULATION ISSUES a. Certain things Congress can’t take away

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i. Function of ensuring Uniformityii. Function of Certainty (Final say in Adjudication)iii. Function of Checking other Branches of Gov’tiv. Function of Insuring Individual Rights

19. UNITED STATES V. KLEIN (1872) -- Chasea. Presidential Pardons for Southern Sympathizersb. Issue:

i. Can Congress limit rights of Southern Sympathizers pardoned by the President on basis of their treasonous activities?

c. COURTi. Congress has no right to reverse Constitutional ruling of the Sup Ct

1. Act pre-empted court’s ability to rule on status by prescribing a rule or decision in a particular cause.

ii. Congressional act in question encroaches on Presidential Power of Pardon

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Justiciability1. Four (4) Primary Doctrines under Justiciability

a. Standing = whoi. Must have standing to litigate in a Federal Court

b. Ripeness (timing doctrine) = wheni. Not quite justiciable but may become

c. Mootness (timing doctrine) = wheni. Was justiciable but is no longer

d. Political Question Doctrine = whati. If it is a political question, the court cannot consider it

2. In Detaila. Standing

i. Must have standing to litigate in a Federal Courtii. Ensure that party has a legally cognizable injury, rather than by an officious

bystander lacking a personal grievanceiii. 3 Elements

1. Injury in Facta. Generalized grievance not enough—have to be affected as an

individualb. Both sides of the issue must be argued fully, so, you need to have

something at stakec. Ensures that they will adjudicate thoroughly and welld. Court possibly can’t appreciate the nature of the dispute without

having concrete facts 2. Causation

a. The illegality had to have caused the injury3. Redress

a. To avoid an advisory opinion, court has to be able to address your problem

iv. Everyone suffering the same injury is NOT good enoughv. Critique of standing:

1. Court uses standing to attempt to block out cases that it doesn’t like on the merits

2. May be some sort of predictable harm but may be great difficulty in claiming particularized injury or redressability

b. Ripeness (timing doctrine)i. Not quite justiciable but may become

1. At some point in the future I may want to violate X law2. And if I did, the government might prosecute me3. Not Ripe

ii. Manifestations of Ripeness problems:

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1. Double Contingency (e.g. that I may violate this law and that government may prosecute me if I do)

a. Examplei. Labor Laws prohibit govt employee from engaging in political

conductii. Employee seeks to have law struck down but has not

violated it2. No confrontation on the issue yet (surveillance)

a. Example:i. Army surveillance of public meetings of radicalsii. Don’t know what they’re going to do with that but it’s

inhibiting our meetingsiii. COURT:

1. The distant contingency that the army will do something with that information that violates your rights is not sufficient

c. Mootness (timing doctrine)i. Was justiciable but is no longerii. Example: DeFunis v. Odegaard

1. UW Law applicant got admitted and was about to graduateiii. Exception: Roe v. Wade

1. Capable of repetitioniv. “Watered Down in Crim Law”

1. Convict may have already completed sentence, BUT still issues to adjudicate

a. Collateral Consequencesi. More severe future penaltiesii. Civil Disabilities (jobs, rights, etc.)

b. Still has stake in clearing the conviction

d. Prudential/discretionary element of standing: even if above factors met, Court can still decide it shouldn’t have standing because of other factors

e. Political Question Doctrinei. If it is a political question, the court cannot consider itii. Decision beyond the competence of federal courts to decideiii. Usually would require an overreach of SOPiv. 3 ways of thinking of Political Question doctrine:

1. No legal right to claim2. A legal issue does not exist but we will defer to Congress (Souter’s

concurrence in Nixon)3. Pure political questions (Harlan’s dissent in Baker)

a. No right to a specific type of apportionment so there is no need to consider whether the challenge is a political Q

3. THE CORRESPONDENCE OF JEFFERSON AND THE JUSTICES (1893)a. Must be Case in Controversyb. No Advisory Opinions

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4. LUJAN V. DEFENDERS OF WILDLIFE (1992) -- Scaliaa. Issue of specific injury

i. Must have injury in factii. Personal (particularized injury)

b. Standing requirements: i. Current, immediate injuryii. Show gov is interfering w/ a legally protected interest of yours

c. Held: No standing; not specific enough of an injuryi. Procedural Injury:

1. Claims that cong has given them a right to sue by granting all citizens the right to sue for violations of the act in question

ii. Redressability: Legally uncertain that judicial resolve of their injury would have mattered because there is no reason to believe the agencies would be obliged to honor an incidental legal determination the suit produced

d. Arguments: 3 theories for standing (court rejected all 3)i. Ecosystem Doctrine - “circle of life” theoryii. Animal Nexus - people who enjoy looking at endangered animals have standingiii. Vocational Nexus - people who study have standing

e. RULE: Only individuals who have suffered concrete harm have standing to seek judicial review of agency rules

5. MASSACHUSETTS V. ENVIRONMENTAL PROTECTION AGENCY (2007) -- Stevensa. 3 Criteria analyzed

i. Peculiarized Injury1. Coastline state has peculiar interest in sea levels

ii. Causation1. May have some impact, may cause other nations to follow2. Small incremental step

iii. Remedy1. Regulation will slow rise2. Just because it’s incremental step doesn’t mean it shouldn’t be done

b. DISSENT (Roberts) i. Global warming is as generalized a grievance as one could imagineii. Chain of Causation weakiii. Redressability doesn’t really have any measurable effect

6. BAKER v. CARR (1962) -- Brennana. FACTS: A 1901 Statute apportioned members of the TN Assembly among the state’s

counties. By 1961, the population had experienced substantial redistribution due to urbanization (rural areas were thus getting more political power than they deserved). Certain individuals filed a district court action challenging the apportionment system as arbitrary and capricious, seeking reapportionment.

b. Holding: This challenge can come to court.c. Explanations for PQ Doctrine meaning

i. Strongest: There are certain issues which the SC simply cannot decide (someone else has the right to have the final say)

d. HELD (Brennan): i. Overwhelming number of PQ questions originate in respect for SOP

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e. 6 Principles of Evaluating a Political Questioni. *Textual commitment to another branch (90% of PQ Analysis)

1. Explicitly within the province of someone else to decideii. *Lack of judicially manageable standards (court can’t figure out how to adjudicate)iii. Policy decision requiring non-judicial discretioniv. Lack of respect for coordinate branchv. Need of adherence for decisions already madevi. Potential embarrassment from multifarious pronouncements from various branches

of gov’tvii. Differs from Colgrove v. Green b/c Colgrove argued under different theory

f. DISSENT (Frankfurter)i. What makes it a PQ is the nature of the underlying dispute -- Not the theory of law

under which the case is broughtii. Court should not deal w/ the reapportionment of the legislative branch

1. Equal Protection aspect (1 person 1 vote) has been exception rather than rule

2. Must still decide issue of Guaranty clause, which we’ve established we can’t

iii. Questions w/ serious political consequences should not be decided by the court1. Let political branches fight it out

g. Luther v. Bordeni. Guaranty Clause provides no definition of Republican form of governmentii.

7. NIXON V. UNITED STATES (1993) -- Rehnquista. Senate assigns impeachment evidence to subcommitteeb. Nixon: Argues this violates his right to senate impeachment trialc. HELD: It is a political question

i. There are serious functional concerns if SCOTUS were to get involvedii. Checks and Balances

1. Impeachment is a primary check that the leg. has on the court2. If SC had final word they would overcome check

iii. Textual commitment1. Const. says impeachment trial was duty of Senate

d. Stevens (concurrence)i. Court should not have any role at allii. The distinction to be made is not between the Court and the Senate; rather the

Senate and the House

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