Fed - State _Con Structure_ Outline -- Pepperdine Law -- Kmiec _3_

THE PHILOSOPHICAL AND NATURAL LAW BASIS OF THE AMERICAN ORDER i. The Continuing Search for Universal Truths that Advance Human Good a. Jerusalem – John Winthrop, A Model of Christian Charity (1630) i. We shall be a City upon a Hill ii. A good and worthy government will be a reflection of its people, of what human nature consists of. Purpose was a government that obeyed God and worked for his purpose. iii. Religion has done much to civilize men and make them accountable to a higher order. God governs human freedom and gives consequence to it. – John Adams b. Athens – Aristotle, Politics (circa 330BC) i. Prescription for good life and good government – seek the mean – moderation – appeal to those in the middle class ii. Highlighted the importance and superiority of the rule of law – ―He who commands that law should rule commands that God and Reason should rule.‖ iii. America sought a balance between democracy and oligarchy. c. Rome – Cicero, De Legibus (circa 45BC) i. Natural law is discoverable by human reason – everyone can discover this law and can know what is good and what is bad ii. Claimed a non-religious basis for the law (thus laypeople can also know the natural law). iii. Natural law‘s basic elements: not injure others without cause, respect private/common property, fulfill contracts, and be kind/generous to others according to their worth and our means iv. Law is more than utility – there is an outside standard for what is good and right d. Bethlehem – Saint Augustine, The City of God (426) i. Government is the means to larger ends – skeptical of human knowledge, corruption, and power – government is a necessary evil ii. America could be said to derive from his conception of man‘s transcendent nature (Declaration) and his limitations and imperfections (checks and balances) iii. To observe the character of a particular people, we must examine the objects of its love. e. Thomas Aquinas (1270) i. The state possesses a positive function which is to promote the moral well-being of the citizens, so far as this can be done by legislation supported by sanctions, and to ensure them a sufficient supply of material necessities – to promote the good life ii. Government was to be encouraged as a means to seek the common good f. Tocqueville i. Christianity and liberty are linked in America, and Christianity contributes to maintaining the Democratic Republic. ii. Enables men to see themselves as equals – as they are before God – and to be moral, which facilitates good government ii. The Late Middle Ages a. Bracton, The Laws and Customs of England (1256) i. First complies the evolving legal understanding in the middle ages ii. Law consists of natural law, positive law, and jus gentium (law of nations) iii. The King should not be under any man, but is under God and the Law iv. ??? b. Sir Edward Coke and James I, Prohibitions Del Rey (1609) i. Coke‘s principal assertion is that the King should leave matters of determining the law to his common law judges ii. The King and some of his judges were dispensing ―justice‖ but bypassing the common law courts to not adhere to precedent iii. The First English Revolution a. James I, Monarchy; James I, Speech to Parliament (1610) i. The state of monarchy is the supremest thing upon earth; for kings are not only God‘s lieutenants upon earth, and sit upon God‘s throne, but eve nby God himself they are called gods. ii. I will not be content that my power be disputed upon, but I shall ever be willing to make the reason appear of all my doings, and rule my actions according to my laws b. The Five Knights’ Case (1627) i. Writ of habeas corpus – explain why the knights were held ii. That the prisoners were held by order of the King is sufficient in law c. Petition of Right (1628) i. Request that any private citizen might make for a grievance perceived or a request that the laws be observed – here martial law and no due process ii. Tries to avert civil war – King is still incapable of doing wrong d. The Events Leading up to Civil War and Charles I‘s Trial i. King forced to abolish the Star Chamber, and agree to other reforms ii. During the trial the King denies authority for the House of Commons to judge him iv. The Interregnum, the Restoration and the ―Glorious Revolution‖ a. Milton, The Tenure of Kings and Magistrates (1649) i. An apologist for the execution of Charles I – people can change the King when he becomes tyrannical and abuses his authority ii. Authority and power is fundamental in each person, united in them all, lest each man should be his own partial judge b. Hobbes, Leviathan (1651) i. Abused authority is better than no authority (after Cromwell and the Interregnum) ii. Natural state is war between ourselves – better to put up with an abusive king iii. Advocated the necessity of an absolute monarchy iv. State of nature for men – solitary, poor, nasty, brutish, and short c. The Glorious Revolution and John Locke i. The Declaration of Indulgence (1687) 1. granting subjects the free exercise of their religion (not popular) 2. no more oaths and allegiances and other tests for official positions ii. The English Bill of Rights (1689) 1. Basis for the American Bill of Rights 2. William and Mary agreed to it in order to succeed to the throne over James iii. John Locke, The Second Treatise of Government (1690) 1. men are naturally in a state of perfect freedom and equality 2. God appointed government to restrain the partiality and violence of men, and while men were all equal and independent, they may be restrained from invading the rights of others 3. Human nature is self love and men should not be judges in their own cases 4. Consent of the majority is sufficient to govern, rather than unanimity FASHIONING A WRITTEN CONSTITUTION FROM DECLARED NATURAL RIGHT I. The Natural Rights Foundation a. The Declaration is the promise, the Constitution its fulfillment – Amar, Kmiec b. The Declaration is the best possible condensation of the natural law-common law doctrines as they were developed and expounded in England and America for hundreds of years prior II. The Declaration of Independence a. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed—That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. b. The Declaration and the Formation of the Constitution i. The Declaration was not intended to invent new ideas, but to re-state well-grounded common or natural law ideas – Thomas Jefferson ii. The first of the best guides to the distinctive principles of government – James Madison iii. The great fundamental principle upon which our free institutions rest – Lincoln iv. The promissory note to which every American was to fall heir – MLK Jr. v. Federalist 43 – Constitution is ―to secure natural rights‖ – law of nature and nature‘s God – unanimity is not necessary to ratify the Constitution (single corruption ruin the good) c. The Written Constitution—A Substitute for the Declaration? i. Constitution could itself be a self-executing source of Law – Hamilton ii. a written, freestanding, enforceable document of positive law A STRUCTURALLY-DIVIDED, BUT WORKABLE, GOVERNMENT I. II. Historical Antecedents a. Dividing Governmental Power – Montesquieu, The Spirit of Laws (1748) i. His conception of the division of governmental powers—legislative, executive, and judicial—that was the structural foundation of the Constitution ii. Purpose was to protect liberty, as unification in one body or person leads to tyranny iii. Legislature had the power of the purse, not always in session to burden the executive, and should have turnover to avoid corruption, should be bicameral to check one another iv. Executive had the might of the military, and should be in a single hand to act with dispatch more than deliberation v. the judiciary was next to nothing b. Checks and Balances—Public Good From Individual Interest i. Power corrupts. Absolute power corrupts absolutely – Lord Acton ii. self-interest checked by self-interest = selfish bees yield a productive beehive iii. Federalist 47 – the legislative, executive and judiciary departments are by no means totally separate and distinct from each other – not a single instance in which the several departments of power have been kept absolutely separate and distinct iv. Federalist 51 – ambition must be made to counteract ambition – men are not angels – in republican government the legislative authority necessarily pre-dominates (bicameralism) – the weakness of the executive may require, on the other hand, that it should be fortified The Separation of Powers—In Constitutional Practice a. Federal Court Jurisdiction and the Justiciable Case i. Justiciability – deals with the suitability of cases being in federal court and defines the scope of the judicial role. It is not laid out in the Constitution – the judicial power shall extend to all cases and controversies – rather it is a gloss arising from the Court‘s decisions (standing, mootness, ripeness, political question) ii. Standing – determines whether a specific litigant has the requisite personal interest to present a particular matter to a federal court for adjudication. The doctrine preserves the separation of powers by restricting who may sue, preventing courts from using generalized claims to impede the policy decisions of other elected branches. 1. To satisfy the constitutional requirements, a litigant must allege he (1) has suffered or will imminently suffer an injury, (2) that it is fairly traceable to the defendant‘s conduct, (3) and that a favorable court decision is likely to redress the injury. a. Injury in fact requires a constitutional, statutory or common law right to have been injured in a ―concrete and particularized‖ manner i. To meet the prudential requirements, generally a party must assert only his own rights and the injury must fall within the zone of interests sought to be protected 1. General taxpayer interests are minute and indeterminable and are restricted to avoid abuse of litigation (no generalized relief) a. Exception – 3rd party cannot assert own rights; close relationship; broad statute substantially chills political speech (Broderick v. Oklahoma) b. DaimlerChrysler v. Cuno – hypothetical/speculative injury asking for generalized relief 2. One exception to generalized relief – Flast v. Cohen – Establishment Clause and a ―logical nexus‖ test 3. Generally reluctant to recognize legislative standing a. Legislator denied something he is individually entitled to – Powell v. McCormack b. Group can claim a specific legislative result would have occurred – Coleman v. Miller b. Causation, the farther away the other party is from being the direct cause of the injury, the more difficult it is to establish (proximate) c. Redressibility asks whether the court can give the relief sought i. Laidlaw – Court allows civil penalties to be paid to the government because of their deterrent effect (indirect remedy ok) a. Dissent argues private wrongs should not be married with public remedies b. Also, it would invite litigation of generalized grievances III. ii. Lujan – treated prohibitions against generalized grievances as constitutional rather than prudential 1. prohibition against citizen standing is from Article III and thus not subject to statutory override iii. Clarke v. SIA – in cases where the plaintiff itself is not the subject of the contested regulatory action, if plaintiff‘s interests are so marginally related it cannot be assumed Congress intended to permit such a suit (zone of interests protected) iii. Ripeness – relates to when review is appropriate – two fundamental considerations 1. the hardship to the parties of withholding court consideration 2. the fitness of the issues for judicial decision – Abbott Labs v. Gardner a. Questions that depend heavily on facts or have a poor factual record are less likely to be found ripe. iv. Mootness – a particular plaintiff must have a personal interest in the litigation from the commencement to the termination of the litigation, with several exceptions 1. Exception – a primary injury is resolved but a secondary/collateral injury remains 2. Roe v. Wade / Weinstein v. Bradford – wrongs capable of repetition yet evading review (abortion) 3. US v. WT Grant – voluntary cease but the behavior is free to resume at any time 4. Sosna v. Iowa – class action may continue if named plaintiff‘s claims are moot v. Political Question – where there are no standards for courts to apply, and where they should not intrude b. Subject-Matter of Supreme Court Jurisdiction i. Federal Question ii. Diversity Jurisdiction iii. Original Jurisdiction – Congress may not add to, or subtract from, the Supreme Court‘s original jurisdiction – Marbury v. Madison 1. original jurisdiction should be exercised only in appropriate cases (rare) iv. Appellate Jurisdiction 1. Ex parte McCardle – Congress cannot touch the original jurisdiction of the Court but it has sweeping textual authority to make exceptions to its appellate review a. Unless Congress enacted affirmative statutory grants of jurisdiction, there is not jurisdiction – ―an implied negation of that not granted‖ c. The Essence of Judicial Review i. Federalist 78 (Hamilton) – the judiciary has neither force nor will, but merely judgment. 1. executive holds the sword and dispenses the honors 2. legislature commands the purse and prescribes the rules 3. Judiciary – least dangerous, cannot attack a. No legislative act contrary to the constitution can be valid ii. Marbury v. Madison (1803) (Marshall, C.J.) – serving a writ of mandamus 1. It is emphatically the province and duty of the judicial department to say what the law is. 2. an act of the legislature repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument iii. Martin v. Hunter’s Lessee (1816) (Story) – VA court wants to interpret the constitution 1. It is not merely that the constitution and federal law is supreme, it is also that Article III judicial power places the ultimate interpretation of federal law in the U.S. Supreme Court, subject only to congressional exception. iv. Cooper v. Aaron – the Court‘s interpretation establishes a constitutional minimum v. Most sweeping review occurring in INS v. Chadha—invalidating over 200 statute parts 1. Court is not the sole expositor of Constitutional meaning, but it is the final 2. Executive – refuse to enforce / veto; Legislative – attempt enactment The Legislative Power a. The Constitutional definition of legislative power can be found in Art. I, including qualifications for serving in the House and Senate, and enumerated powers in § 8. b. INS v. Chadha (1983) (Burger, C.J.) – AG recommends suspending deportation; House vetoes i. Even useful political inventions are subject to the demands of the Constitution which defines powers – efficiency and convenience are not the hallmarks of this government ii. The bicameral passage and presentment clauses are the process for making laws IV. iii. Although not hermetically sealed from one another, Buckley v. Valeo, the powers delegated to the three Branches are functionally identifiable 1. Retaining and using the veto had an essentially legislative purpose and effect – alters the legal rights, duties and relations of persons outside the legislative branch 2. Houses can only act individually in Constitutionally limited and enumerated roles 3. Not subject to judicial review iv. Congress must abide by its delegation of authority until it is legislatively altered or revoked 1. To review delegations of its power, Congress must resort to other mechanisms: ―intelligible principles,‖ oversight hearings, budgeting, report and wait periods 2. Presidents do not like ―bundling‖ of legislation to get past a veto v. The formal/textual method of interpretation prevailed (Scalia, Madison, Montesquieu) vi. The dissent (White/Rehnquist) advocated the functional approach – does the constitution assign a function specifically to the executive, is there a blending of powers between branches, and it the result overall impairment or impermissible interference 1. Hobson‘s Choice – refrain from delegation or delegate with nauseating specificity c. Political Questions i. Baker v. Carr (1962) – it is a political question when there has been (1) a textually demonstrable constitutional commitment to a coordinate political department, or (2) where there is a lack of judicially discoverable and manageable standards for resolving it (that is, purely political or policy decisions) ii. Nixon v. US – Senate has ―sole‖ power to try impeachments and can make up the rules d. Line Item Veto – George Washington – when a bill comes before you, you must sign all or none i. Clinton v. NY – Congress cannot authorize a President to create a law whose exact text was not voted on by either house (amending or repealing by an unconstitutional method) 1. See also Powell v. McCormack (Congress cannot change qualifications for office) e. Intelligible Principles and Delegation i. The bicameral process is not necessary as a check on the Executive‘s administration of the laws because his administrative activity cannot reach beyond the limits of the statute that created it (a statute passed pursuant to the bicameral/presentment process) ii. Such delegation is always subject to check by judicial review (or congressional repeal) iii. JW Hampton v. US (1928) (Taft, C.J.) – if congress shall lay down by legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power.s 1. Only two unconstitutional delegations (Panama Refining and Schechter Poultry) 2. Acceptable formulations—just and reasonable; public interest; public convenience, interest, or necessity, unfair methods of competition… 3. When agencies interpret and promulgate regulations there is still judicial review (See Auer, Chevron, Mead, and Skidmore) 4. If found to be too vague and thus an improper delegation (rare), Buckley v. Valeo held invalid portions of statutes are to be severed unless it is evident Congress would not have enacted those provisions independently of the struck portion 5. How to check the delegation—more frequent oversight (McGrain v. Daughtery); report and wait requirement (Sibbach v. Wilson) 6. Congress cannot delegate executive functions to solitary legislative officers under Bowsher v. Synar (once congress makes its choice enacting legislation, its participation end and it can only control the executive action by new legislation) a. The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. (in the right placement) 7. Constitutional Amendments do not require presentment (2/3 + 3/4 of states) or when the constitution provides for single house action (impeach, treaties…) The Executive Power a. Federalist 69 & 70 (Hamilton) – grants and limitations – four-year term; removal + prosecution; fear of monarchy— energetic executive; decision, activity, secrecy and dispatch b. Examples—TR (canal), FDR (depression), Lincoln (war), Taft (no undefined residuum)—John Locke – lawmaking power is too slow and numerous c. Source of Domestic Authority i. Youngstown Sheet & Tube v. Sawyer (Youngstown Steel) (1952) 1. Justice Jackson‘s concurrence emerged as the citable authority (three categories) a. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate (zenith) b. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain (imperative of events) c. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter (courts can sustain exclusive Presidential power only by disabling the Congress from acting upon the subject) i. Three clauses of the Executive power 1. The executive power shall be vested in a President 2. The President shall be Commander in Chief of Army/Navy 3. he shall take Care that the Laws be faithfully executed a. Founders did not include emergency powers and congress may grant emergency authority b. Did Congress default in its responsibility? c. Is it more domestic or more foreign? d. Few cases have recognized any inherent authority in the Executive in domestic matters—limited protective actions to preserve status quo may be OK (In re Neagle and US v. Midwest Oil) d. The Practical Exercise of Executive Authority—The President and the Bureaucracy i. Power of Appointment 1. Federalist 77 – the power of nomination is unequivocally vested in the Executive 2. President nominates, Senate advises and consents, the President appoints 3. Constitution—ambassadors, public ministers and consuls, Supreme Court judges, and all other officers of the US (principal executive officers) 4. Congress—may vest the appointment of inferior officers in the President alone, in the Courts, or in the heads of departments (lesser functionaries subordinate to officers of the US – Buckley v. Valeo – FEC commissioners = principals) 5. The Theory—He who fires may also direct. 6. Myers v. US (1926) (Taft, C.J.) – postmaster; exclusive power of removal? a. Act of Congress provided removal only with Senate advice and consent b. Vesting, nominating and appointing clauses = full and complete power c. James Madison – separating the branches unless expressly blended i. President alone has the power to execute the laws, but not unaided ii. The fact that no express limit was placed on the power of removal by the executive was convincing indication that none was intended iii. Does not make sense to make the Senate part of the removal iv. The President needs the aid of disciplinary influence d. US v. Perkins – when Congress vests the appointment of inferior officers in the heads of departments it may limit and restrict the power of removal as it deems best for the public interest i. Dissenting argument – civil service reform ii. Dissenting argument – duration and pay depend on Congress alone e. Ultimately—Congress may determine the qualifications for executive offices so long as it does not manipulate the qualifications in such a way as to effectively deprive the President of the power of appointment or removal i. Dicta – some cannot have limited removal (cabinet officers, purely executive officers in the White House – subordinates can ―theoretically‖ be limited by cause ii. Power of Removal 1. Humphrey’s Executor v. US (1935) – FTC Commissioner (restrict/limit removal) a. Fixing a definite terms subject to removal for cause – congressional intent b. Whether members of quasi-legislative and quasi-judicial bodies (within the executive branch) may be given restrictions or limits on removal? c. Myers confined to purely executive officers—President alone removes d. Constitutional birth of the Independent Agency i. Hallmarks—fettering of presidential removal authority, independently submit budget to Congress, provide Congress information (cc president), bring litigation and enforcement proceedings without the AG (SEC, FCC, FTC, FR) ii. But no meaningful control – persuasion rather than discipline iii. Core distinction between executive and independent agencies is in truth a fiction—pretense is necessary to make the distinction 1. The idea is that the agencies operate through their expertise and impartially rather than as a presidential policy implementing department iv. Executive wants to resist the Balkanization of its authority v. Is this the Functional approach? iii. Executive Bounded by Statutory Meaning 1. Gonzales v. Oregon (2006) (Kennedy, J.) – CSA, death with dignity, statute interpretation by executive (independent too?) agencies with what deference? a. If an agency is interpreting its own ambiguous ruling, the administrative rule may receive substantial deference under Auer v. Robbins. b. Under Chevron v. NRDC, if congress has spoken to an issue, the agency must follow Congress‘ lead. If the statutory language is not ambiguous, the Court may interpret the statute itself and say what the law is (Marbury v. Madison) c. However, if Congress defers to the agency or the statute is ambiguous and the Court finds the agency‘s interpretation reasonable, the Court must defer to the agency under Chevron. Reasonable interpretations are often made with formal notice and comment rulemaking. i. Deference is appropriate because agencies are considered to have familiarity and expertise in their fields of authority. d. If the Court finds that the agency‘s action was more informal (memo or letter rulemaking), under US v. Mead it is only entitled to respect to the extent it has the power to persuade with thoroughness, logic and expertness (Skidmore v. Swift inquiry). i. FDA v. Brown & Williamson Tobacco – found against the FDA interpretation because under the first step of Chevron it determined Congress had spoken to the precise issue (?) ii. Whitman v. American Trucking – Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not hide elephants in mouseholes 2. Scalia does not like Mead because it takes the power out of the hands of future presidents running their agencies iv. Executive Privilege, the President, and Judicial Review 1. US v. Nixon (1974) (Burger, C.J.) – subpoena of tapes; claim of privilege a. An intra-branch dispute without more does not defeat justiciability b. There is no absolute and unqualified executive privilege (overarching – a man should not be the judge in his own case – Locke) c. Such an inquiry calls for great deference from the courts, however there must be distinctions between the several areas privilege may be claimed i. Absolute for protection of military, diplomatic, or sensitive national security secrets ii. Middle Balance between needs for confidentiality and candor and the legitimate needs of the judicial system (criminal particularly) 1. a generalized assertion of privilege on the grounds of public interest must yield to the demonstrated, specific need of criminal prosecutions 2. Open litigation files, etc. – which way do these go? 3. Cheney v. US – burden on plaintiff to be specific + civil case needs + confidential and internal deliberations iii. General deliberative process assertion of privilege is the lowest—does not protect documents which reflect final opinions, etc., actually adopted by agencies… (based on candor, etc.) iv. No governmental attorney-client privilege (government attorneys do not work for the president or first lady—get a private attorney) 1. White House Counsel must also take care to execute laws v. Sitting President not immune to suits for actions outside the scope of his office (court deference, however) – Clinton v. Jones, Agnew vi. Sitting President has absolute immunity from civil damages for decisions within the scope of his office (broadly construed) vii. Presidential aides have qualified immunity for acts within the scope of their offices so long as they do not violate clearly established statutory or constitutional rights that should have been reasonably known v. The Independent Counsel 1. Ethics in Government Act – benign theory – no man should be his own judge 2. Morrison v. Olson (1988) (Rehnquist, C.J.) – purely executive, removal for cause a. Functionalism takes the day over textualism b. In determining the ability to place limitations on the removal of executive officials exercising purely executive functions, the Court first must consider whether there is a blending of powers (Court appoints), whether the result is an overall impairment of the President‘s power to control and supervise the official (usurpation? – AG control still, but politics?), and whether there is an adverse affect on the other branch (de minimus effect on judiciary) i. Not a principal officer – limited jurisdiction, limited tenure, and can be removed for cause = subordinate inferior officer ii. The Humphrey’s Executor ―purely executive‖ functions analysis now becomes whether the president‘s supervisory control is impermissibly burdened iii. Law died – now the DOJ appoints special prosecutors c. Dissent (Scalia) – separation of powers, meaningful supervision (politics) e. The President and the World (Herein of Foreign Policy) i. US v. Curtiss-Wright (1936) (Sutherland, J.) – joint resolution; foreign arms dealings 1. The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations (John Marshall as a Congressman) a. Foreign policy power belongs to the President exclusively except when the Constitution delegates it to Congress (ratify treaties, ―declares‖ war, regulates foreign commerce, retains the power of the purse) – Jefferson b. Needs of national security, caution, unity of design, secrecy and dispatch 2. Traces back to the start of the Union – the sovereign authority was vested somewhere after the break from Britain and it must have been with the executive 3. Despite a possibly unconstitutional joint resolution, the president had the power (but there was still a joint resolution, so was the President acting within his zenith under Jackson‘s Youngtown Steel concurrence?) a. President has the constitutional authority to protect diplomatic and intelligence secrets apart from a congressional grant – D. of Navy v. Egan ii. Treaties 1. President negotiates and gets consent from 2/3 of Senate – if Senate amends the President can reject or assent 2. There is no express constitutional limit on the scope or subject matter of treaties, however it would be manifestly contrary to the Constitution to allow the US to exercise power under an international agreement without observing constitutional prohibitions (individual rights) – Reid v. Covert 3. Congress is permitted to exceed constitutional limits placed on its legislative power under a treaty (migratory birds) – Missouri v. Holland a. May be self-executing (needs only interpretation, no legislation or money) b. May be non-self-executing (needs to go to Congress for further action) 4. Under the Supremacy Clause, treaties have the lame legal force of statutes and the most recent surpasses the earlier 5. If US breaks a treaty, the only foreign cause of action is political/diplomatic 6. It is presumed that a president can terminate a treaty upon giving proper notice (Goldwater v. Carter, not decided) 7. Sanchez-Llamas v. Oregon (2006) (Roberts, C.J.) – detained; consul notification a. ??? b. ??? iii. Executive Agreements 1. Generally executive agreements are enforceable as the law of the land despite the fact that Congress had no part in their making 2. Based on Treaty – has the same effect as long as it is consistent therewith 3. Invited by Legislation – same effect as a treaty 4. Unilateral Authority a. Valid if the agreement is clearly traceable to constitutional power committed to the president (diplomatic relations = receive ambassadors) b. May also make proclamations iv. War Powers 1. Hamdan v. Rumsfeld a. Rasul v. Bush – habeas corpus review of detention of non-citizen enemy combatants in Guantanamo Bay does exist but has not created the exact contours (statutory right? Constitutional right?) ??? b. Hamdi v. Rumsfeld (plurality) – American born being detained as enemy combatant is allowed due process right to challenge detention and to have access to counsel ??? c. Padilla v. Rumsfeld – American citizen captured on American soil as an enemy combatant – petition of habeas corpus filed in wrong court ??? d. Ex Parte Quirin – upholding the use of military tribunals to try German army saboteurs, including one who was a US citizen, who came ashore on the East Coast out of uniform, in violation of the laws of war e. Zadvydas v. David – aliens being removed cannot be indefinitely detained – it can only be for a period ―reasonably necessary‖ to secure removal f. Johnson v. Eisenthroger – Germans captured fighting for Japan tried for war crimes by military tribunal – no constitutional right to habeas corpus i. ??? ii. ??? A LIMITED GOVERNMENT OF ENUMERATED POWER I. Limitations on Federal Power a. Enumerated Powers of the Federal Government i. The issue of allocation of governmental responsibility between state and federal governments is called ―federalism‖ ii. Article I, § 8 – enumerated grants of federal legislative power to Congress iii. Necessary and Proper Clause iv. Supremacy Clause of Article VI v. Federalist 33 (Hamilton) 1. acts of the larger society which are pursuant to its constitutional powers will become the supreme law of the land 2. an enumerated power must be a power to pass all laws necessary and proper for the execution of that power (logical) 3. James Wilson – not a general legislative power, but the power of carrying into effect the laws, which the Congress shall make under the powers vested in them by the constitution b. Implied Powers of the Federal Government i. The Implied Powers of Congress Through the Necessary and Proper and Supremacy Clauses 1. McCulloch v. Maryland (1819) (Marshall, C.J.) – power to incorporate a bank a. The 10th Amendment omits the word ―expressly‖ for reserved powers b. All members of the state legislatures, judicial and executive departments take an oath of fidelity to the Constitution – and its supremacy c. A government intrusted with such ample powers must also be intrusted with ample means for their execution d. The Constitution does not profess to enumerate the means by which the powers it confers may be executed, nor does it prohibit means e. Ordinary means, but also convenient means? ―Necessary‖ does not control the whole sentence i. Let the end be legitimate (is the power enumerated?) ii. Let it be within the scope of the constitution, iii. And all means which are appropriate (proportionate), which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. 1. Identify the enumerated power 2. are the means appropriate to advance that power 3. are the means prohibited (expressly or impliedly under the 10th and 11th Amendments? City of Flores v. Boerne) f. The Constitution‘s nature requires that only its great outlines should be marked, its important objects designated, and its minor ingredients deduced 2. Supremacy Clause gave rise to the preemption doctrines a. Express – Congress may expressly provide states have no authority in a certain area of federal power (statute, treaty, or executive agreement) b. Implied – Congress may impliedly deny authority to states i. Field preemption – where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. 1. more likely when the federal government has substantial interests or expertise 2. State law does not need to conflict or frustrate ii. Conflict preemption – where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress (Gade v. NSWMA) iii. Courts are reluctant to find preemption ??? c. Savings Clauses ??? d. Madison and Randolph on where the line should be drawn i. Where separate states are incompetent or the harmony of the union would be interrupted or disadvantaged ii. Is There a Federal Common Law as Well? 1. After Erie there is only federal common law in several areas (international law, maritime, patent, etc.) c. The Commerce Clause – to regulate commerce with foreign nations, among the several states, and with the Indian tribes (Art. I, § 8, cl. 3) i. What is ―Commerce‖ 1. Gibbons v. Ogden (1824) (Marshall, C.J.) – interstate navigation; monopoly a. Includes the buying and selling of goods and services b. It also includes navigation at least in an interstate setting c. There is a limit to interstate commerce however i. It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same state, and which does not extend to or affect other states. Such power would be inconvenient and is certainly unnecessary. ii. Commerce that does not affect the states generally or the functioning of the federal government or an international government is not included ii. Distinguishing the Commerce and Police Powers 1. US v. EC Knight (1895) (Fuller, C.J.) – sugar manufacturing monopoly a. That which belongs to commerce is within the jurisdiction of the US, but that which does not belong to commerce is within the jurisdiction of the police power of the State. b. Manufacture precedes commerce – not under the Sherman Antitrust Act 2. Champion v. Ames (The Lottery Case) (1902) (Harlan, J.) – traffic of lotto tickets a. Dissent believes this more properly belongs to the states – police power for public health, good order, and prosperity b. Beginning of broad commerce power – plenary power c. Prohibitions and moral objections are now included if they are commerce d. 10th Amendment does not reserve anything that is commerce i. Contracts, insurance policies, lottery tickets not transported? iii. What is ―Interstate‖? 1. Wickard v. Filburn (1942) (Jackson, J.) – Agricultural Adjustment Act; wheat a. Commerce among the States is not a technical legal conception but a practical one drawn from the course of business (Swift v. US) b. Shreveport Rate Cases – economic effects of railroad rates i. Matters having such a close and substantial relation to interstate traffic that the control is essential or appropriate to the security of that traffic, to the efficiency of the interstate service, and to the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance c. Even if the activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantially economic effect on interstate commerce… d. Individually or cumulatively in the aggregate i. ALA Schechter Poultry v. US – selling chickens in state = no ii. Wickard emerged as the standard – the ―substantial affects‖ test 2. US v. Lopez (1995) (Rehnquist, C.J.) – GFSZA, single subject statute, a. US v. Darby – upholding federal regulation for wages and hours b. NLRB v. Jones & Laughlin Steel – manufacturing unions = yes i. But warned the scope of the interstate commerce power must be considered in light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government c. Congress can regulate (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and persons and things in interstate commerce, and (3) activities that substantially affect interstate commerce (the largest category) i. In order for an activity to have substantial affects it must be (1) an economic activity, (2) must have a jurisdictional hook tying it to commerce, (3) should have congressional findings, and (4) cannot be too attenuated and pile inference on inference. d. US v. Morrison – section of VAWA was invalidated; single subject statute e. Dewey Jones v. US – arson, unanimous, Congress must convey purpose clearly to significantly change federal-state balance (show actual affect) i. Kmiec – VA Resolution foundation 1. general interests of the union? 2. promote harmony among the states? 3. address regulatory questions states cannot accomplish separately? 3. Gonzales v. Raich (2005) (Stevens, J.) – medicinal marijuana; ―commerce;‖ CSA a. Case law firmly establishes Congress‘ power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce. b. Congress only needs a rational basis for believing that when viewed in the aggregate (or individually) the activity would have a substantial affect on interstate commerce (need not conclude there actually is such an affect) i. Effects here are on supply and demand for the commodity (fungible commodity, similar to Wickard) c. That a regulation ensnares some purely intrastate activity is of no moment—do not need to excise individual components out of a larger valid commercial regulatory scheme (trivial individual instances) d. Also, supremacy clause means the commerce clause wins any conflict e. Scalia’s ―nuanced?‖ concurrence i. The substantial affects test is now bolstered by the necessary and proper clause as well ii. ―where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. 1. Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce f. Lopez and Morrison are relegated to single subject statute precedents g. Dissent asks, what about the Lopez factors, traditional state functions, and purely local activities? 4. Commerce Connected to Civil Rights a. 14th Amendment only prohibits discrimination by state governments b. In order to regulate private discrimination needed the commerce clause c. Heart of Atlanta Motel v. US – banning discrimination because of affects d. Katzenbach v. McClung – extending ban to restaurants due to affects d. If Legislative Commerce Power Were Not Enough—Is There Also a Judicial or ―Dormant‖ Commerce Power? i. Commerce power is not exclusive to the federal government under Cooley. The theory underlying the dormant commerce clause is that, by its silence, Congress has implicitly chosen to keep a certain field of interstate commerce free of regulation; hence, the courts are authorized to invalidate state laws that discriminate against interstate commerce. A necessary corollary of this foundational rationale is that Congress may, under the positive Commerce Clause, authorize states to treat interstate commerce differently than intrastate commerce. ??? 1. Cooley v. Board of Wardens (1851) – pilotage fees for local port navigation a. States may regulate where the federal government has not, but subject to a judicially grafted limit that such state and local laws not unduly burden interstate commerce. b. Congress had not acted in the area except by adopting the existing state laws – thus state regulation is appropriate i. Is there a health and safety justification? ii. Cooley‘s pragmatism has proved enduring – applied to all vessels 2. Oregon Waste Systems v. DEQ (1994) (Thomas, J.) – landfill fees for hazardous waste are different for in-state waste and out-of-state waste a. The Commerce Clause has long been understood to have a ―negative‖ aspect that denies the States the power unjustifiably to discriminate against or burden the interstate flow of commerce. The Framers granted Congress plenary authority to avoid tendencies of Balkanization b. The first step in analyzing any state law subject to judicial scrutiny under the negative Commerce Clause is to determine whether it ―regulates evenhandedly with only ‗incidental‘ effects on interstate commerce, or discriminates against interstate commerce. i. Discrimination simply means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter ii. If a restriction on commerce is discriminatory, it is virtually per se invalid. The statute is unconstitutional unless the state can show it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives. ??? 1. A strict scrutiny standard of review is applied iii. By contrast, nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless ―the burden imposed on such commerce is clearly excessive in relation to the putative local benefits—the Pike v. Bruce Church balancing test, a strange but much easier review to pass. 1. Economic or resource protectionism is not a valid interest 2. Compensatory tax – must identify burden, approximate amount, and show they are substantially equivalent 3. Fair share – must be substantially equivalent ??? 4. Health and safety reasons? II. iv. Rehnquist in dissent claims this is like Sporhase in that it is valid protection of a threatened natural resource (water; land) 3. Camps Newfound/Owatonna – property tax scheme unconstitutional a. Tax treatment is discriminatory against non-local-serving charities b. Majority applied the per se test of Oregon Waste Systems c. There is a distinction between an exemption and a subsidy d. Dissent – Thomas (real estate, not commerce; do away with dormant) e. Dissent – Scalia – only relieving a burden the state would otherwise pay 4. Granholm v. Heald (2005) – functional approach won over the textual approach a. Even in the face of a constitutional amendment, state statutes cannot be facially discriminatory b. Dissent – Textual approach would say that 21st Amendment was later in time than the Commerce Clause and later interpretation would have exempted it from the dormant commerce clause jurisprudence ii. The Marketplace Exception and the Shelter of Other State Powers 1. South-Central Timber v. Wunnicke (1984) – timber sale, processing restriction a. State regulatory activity is within the scope of the dormant commerce clause power, but state proprietary activity is outside of the power. b. When a state acts as a marketplace participant rather than regulator (buying and selling), the dormant commerce clause places no restrictions on its activities and States may discriminate between in-state and out-of-state citizens. c. If a state is running an enterprise it can buy on terms favorable to its own citizens (Hughes v. Alexandria Scrap) and it can sell on terms favorable to its own citizens (Reeves v. State), but it still cannot place additional conditions on downstream commerce (South-Central Timber) as that would unduly restrain commerce (cannot bootstrap regulation onto a proprietary choice). (IP exception?) State Law and Federal Elections—The Question of Term Limits a. US Term Limits v. Thornton (1995) (Stevens, J.) – Arkansas Constitutional Amendment i. Constitution‘s qualification clauses do not permit Congress to impose additional qualifications other than those set forth in the Constitution (Powell v. McCormack) ii. This case extended the precedent to the States as well iii. Federalist 60 – the qualifications of the persons who may choose or be chosen…are defined and fixed in the Constitution, and are unalterable by the legislature iv. Democratic principles—allowing additional qualifications would violate the fundamental principle of our representative democracy—that the people should choose whom they please to govern them. v. 10th Amendment cannot reserve powers to the states that never existed before vi. Qualifications Clauses were intended to preclude the States from exercising any such power and to fix as exclusive the qualifications in the Constitution 1. diverse interests of the states would undermine the national legislature 2. overriding concern for potential state abuse vii. Kennedy concurring – a distinctive character of the national government, the mark of its legitimacy is that it owes its existence to the act of the whole people who created it 1. The states may not invade the sphere of federal sovereignty is a corollary to the principle that the federal government must be held within its boundaries. (Lopez) viii. Thomas dissenting – nothing in the Constitution deprives the states to prescribe additional eligibility requirements 1. Times, places, and manners clause – congress can change all but places 2. Other state practices upon ratification ix. Madison – a republic may be converted into an aristocracy or oligarchy as well by limiting the number capable of being elected, as the number authorized to elect. x. Cook v. Gralike – statements next to names on ballot – invalidated 1. struck down as in opposition of the Term Limits case 2. first amendment has always protected requests and petitions to the representatives, but has never permitted a binding direction from the people; that would defeat the purpose of a deliberative body A GOVERNMENT MINDFUL OF DUAL SOVEREIGNTY I. The Rise and Fall of Traditional State Functions II. III. a. The question of dual sovereignty asks what is Congress‘ ability to regulate states as states? b. National League of Cities v. Usery – FLSA no longer exempted states from paying overtime i. Question of whether the Commerce power overrides state sovereignty ii. 10th Amendment is not without significance—Congress may not exercise power in a fashion that impairs the States‘ integrity or their ability to function effectively in a federal system 1. Federal statute must regulate the states as states 2. statute must address matters that are indisputably attributes of state sovereignty 3. state compliance must directly impair the states‘ ability to structure integral operations in areas of traditional governmental functions??? 4. relation of state and federal interest must not be such that the nature of the federal interest justifies state submission??? iii. Dissent – The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution—the power of the state is subordinate to the constitutional exercise of the granted power (US v. California) c. Garcia v. SAMTA (1985) (Blackmun) – the extent SAMTA may be subjected to the minimum-wage and overtime requirements of the FLSA under the affirmative commerce clause i. Federal government can regulate states when states are market actors or treated like individuals ii. The attempt to draw boundaries of state regulatory immunity in terms of traditional governmental functions is not only unworkable but is inconsistent with the established principles of federalism—Usery is overruled. 1. identifying which state functions were immune was too difficult 2. relying on historical functions limits states too much iii. It is the structure of the federal government itself that protects the states—if the power was not given, Congress could not exercise it 1. state territorial integrity, role in elections, influence in the senate iv. The federalism balance will now be found through the political process – state interests will be accommodated in the political process, if at all v. Rehnquist in dissent vows a revenge against the minimization of the 10th Amendment No Commandeering Allowed—The States Are Not Sub-Agencies of the Federal Government a. NY v. US – states cannot be compelled to enact or administer a specific federal law. The distinction between NY and Garcia is that congress was commanding was regulating the public and private in the same manner in Garcia, while in NY it was commanding the legislature b. Printz v. US (1997) (Scalia) – Brady Bill commands state and local law enforcement officials to conduct background checks and other related tasks i. The federal government cannot compel the states to enact or administer a federal regulatory program. ii. States provide ―double security‖ and have concurrent authority over the People, and when states were particularly expected to cooperate with the federal government, the text of the Constitution explicitly authorized it (republican government, etc., const. amendments, 10th amendment powers not delegated, ) iii. Judges are distinct from this under Article III, and they apply federal law all the time. (Testa v. Katt) iv. Additionally, it is the President who must ―take care‖ and execute federal laws, and his force would grow tremendously and his new servicemen would be unaccountable and unfairly blamed 1. Federal government can threaten preemption under Hodel and make compliance with federal standards and additional state regulation a precondition to participate in an otherwise pre-empted field v. Reno v. Condon – statute regulating the disclosure of personal DMV information 1. directing state as a market actor (not in its sovereign capacity) is okay 2. not allowed to direct the states to regulate private citizens (provisions cannot apply solely to states) 3. federal law can regulate state activities, but it cannot seek to control or influence the manner in which states regulate private parties (SC v. Baker) a. Cannot require SC to enact any laws or require state officials to assist in the enforcement of federal laws regulating private individuals In Light of the ―Spending‖ Powers, Does the Restriction on the Commerce Clause Matter? i. The spending power is a logical inference from the power to tax ii. Hamilton‘s view won over Madison‘s – spending is not limited to enumerated powers 1. US v. Butler – spending paid to farmers iii. Federal objectives not within the Constitution‘s enumerated legislative fields may nevertheless be obtained through the use of the spending power and conditional grants of federal funds b. South Dakota v. Dole (1987) (Rehnquist) – highway funds tied to drinking age IV. i. Five articulated restrictions with which the spending power must comply 1. the exercise must be in pursuit of the general welfare (substantial deference to Congress is given by the Court) 2. Congress must condition the receipt of federal funds unambiguously a. like a contract – Barnes v. Gorman (punitive damages) and Arlington Central School District v. Murphy (Alito – consultant fees were not within reasonable attorney‘s fees) 3. the condition must be sufficiently related to the federal interest in particular national programs a. relationship requirement must only be related to a general national interest so there is no requirement to connect bribery with specific use of federal funds (Sabri v. US) 4. there cannot be an independent constitutional bar to the conditional grant of funds (cannot make states engage in unconstitutional activities) 5. Financial inducement cannot be so coercive that is turns from pressure into compulsion ii. Query – if the 21st Amendment is not broad enough to trump the dormant commerce clause, is it also subordinate to the affirmative commerce clause? Duel Sovereignty in Court—Herein Eleventh Amendment Sovereign Immunity a. The dual sovereignty concept is very much alive when the subject is the jurisdiction of federal courts – non-justiciable cases under the 11th Amendment b. Seminole Tribe v. Florida (1996) (Rehnquist) – state sued by its own citizen under federal law? i. Notwithstanding Congress‘ clear intent to abrogate the States‘ sovereign immunity, the Indian Commerce Clause does not grant Congress the power to so abrogate and there fore the federal law cannot grant jurisdiction over a state that does not consent to be sued 1. Distinctly non-textual 2. Congress cannot abrogate immunity under Article I 3. Seminole Tribe overruled Union Gas – relied on commerce clause abrogation 4. Central Virginia Community College v. Katz (2006) (Stevens) – held that the history of the Bankruptcy clause shows that the Framers intended for there to be no sovereign immunity for bankruptcy claims 5. State Sovereign immunity does not extend to municipal corporations or counties (Northern Insurance Company of NY v. Chatham County, Georgia) ii. The text of the 11th Amendment appears to only affect diversity jurisdiction suits, but the presupposition behind the amendment is that each state is a sovereign entity in the federal system and it is inherent in a sovereignty not to be amenable to the suit of an individual without its consent. 1. Chisholm v. Georgia was wrongly decided and the states were immune from suits already— common law…states could waive or consent to suit iii. The question of whether Congress has abrogated state immunity has two parts— 1. Was Congressional intent to abrogate unequivocally expressed? a. Cannot be a general authorization for suit, must be unmistakably clear in the language of the statute (Dellmuth v. Muth) b. Here the authorization was clear 2. Did Congress act pursuant to a valid exercise of power? a. The type of relief requested is of no importance here b. Congress may abrogate under the 14th Amendment (Fitzpatrick v. Bitzer) i. § 5 expressly provides that Congress shall have the power to enforce § 1 by appropriate legislation ii. 14th amendment altered the pre-existing 11th amendment balance iii. Congress may authorize a private cause of action pursuant to its enforcement authority under § 5, but only when it is enforcing, not redefining, a constitutional right of privilege or immunity, equal protection, or due process protected by § 1 iv. Such enforcement is bound by proportionality and congruence under City of Boerne v. Flores 1. Remedial power – show a pattern of violation and a suspect or quasisuspect class (otherwise states can discriminate between non suspect classes) a. Age is not a suspect class – Kimel v. Florida Board of Regents V. b. Disability is not a suspect class – Board of Trustees v. Garrett – thus states can draw rational distinctions based upon such traits c. Ex parte Young – there is federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to end a continuing violation of federal law i. Must sue a state official, named individually in his official capacity ii. Idaho v. Coeur d’Alene - ???? iii. If the statute envisions a particular remedial scheme, Ex Parte Young does not apply (Seminole Tribe) 3. States must be able to avoid the indignity of being sued in federal court at the insistence of private parties (also protect the state treasuries) iv. Alden v. Maine extends the sovereign immunity concept and holds that states are immune from suit in state court as well a. Federal government cannot create a private cause of action to sue the state for money damages in either federal or state court b. Money damages can be secured on behalf of private individuals by a federal officer suing in federal court 2. The federal government can always sue the state for damages or injunctive relief a. Principality of Monaco v. Mississippi – when states entered the union they conceded immunity against the federal government to resolve conflicts 3. The state can consent to suit – interstate compact (Petty v. Tennessee-Missouri Bridge Commission), 4. As a condition of federal funds – spending power (SD v. Dole) v. 11th Amendment is a limitation on the executive branch as well – Federal Maritime Commission v. SC State Ports Authority – federal agency could not hear a private suit against a nonconsenting state c. Nevada Department of Human Resources v. Hibbs (2003) (Rehnquist) - FMLA i. Gender is a quasi-suspect class ii. Congress may use its 14th Amendment enforcement authority to deter a violation 1. In other words, Congress may enact so-called prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct 2. It is the Court‘s job, not Congress‘, to define the substance of the § 1 guarantees 3. § 5 legislation must exhibit congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end Individual Rights Limitations on the Power of the States a. State Sovereign Immunity i. Eleventh Amendment 1. Seminole Tribe v Florida a. Indian Gaming Regulatory Act of 1988 – contained authorization to allow a State to be haled into court, to order a State to negotiate in good faith with the native Americans. b. 11th Amendment – ―The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.‖ i. Referring to diversity cases. Lawsuit by A, citizen of State A, against state B. Article III jurisdiction in the Constitution. ii. Eliminates diversity jurisdiction against a State itself. iii. Why the 11th Amendment? - Chisholm v. Georgia (1793) – 11th amendment added as a direct reaction to this case – designed to overturn this case 1. Chisholm v. Georgia – action for debt, for supplies furnished to Georgia, debt unpaid, out-of-state holder of debt filed suit against GA under original jurisdiction. S. Court held that debt was owed, and state had to pay. a. Remember states under common law could consent, or waive sovereign immunity. c. On its terms, 11th amendment does not prohibit suits by a states OWN citizens. Seminole tribe is in Florida. i. This is a federal question matter – federal question jurisdiction ii. Only one case has federal question jurisdiction been extended to include a suit by a state‘s citizen against a State. 1. Union Gas d. Other ways a state can be sued: i. if it consents, or if Congress abrogates the immunity; Two requirements: 1. Congress must have unequivocally expressed its intent to abrogate the immunity, and 2. Whether Congress has acted pursuant to a valid exercise of power. ii. if it participates in an interstate compact; OR as a result of federal spending ii. Dellmuth v. Muth 1. ―To temper Congress‘ acknowledged powers of abrogation with due concern for the Eleventh Amendment‘s role as an essential component of our constitutional structure, we have applied a simple but stringent test: Congress may abrogate the States‘ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.‖ e. Two different ways to abrogate immunity: i. § 5 of the 14th Amendment – valid abrogation, state power was curtailed/limited by this amendment. 14th did follow 11th amendment, thus it modifies the amendment. Text of the amendment reads ―No states shall….‖ Valid. See Fitzpatrick v Bitzer. ii. Interstate Commerce Clause, Art. I, § 8, cl. 3 – 1. Pennsylvania v. Union Gas Co. (1989) – plurality opinion, not wellsettled 2. ―The plurality‘s conclusion – that Congress could under Article I expand the scope of the federal courts‘ jurisdiction under Article III— ―contradicted our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal court jurisdiction.‖ f. Hans v. Louisiana (1890) – court stated that it recognized here that Chisholm was contrary to the well-understood meaning of the Constitution. i. This too was a case of a citizen vs. his own state – the Court held for the State, using the 11th Amendment. g. History – States are sovereign and cannot be brought into court unless they consent— common law i. Souter says common law is overruled by the legislature, and argues that this is what happened. Congress exercised its plenary power and decided to hold States liable if they did not negotiate in good faith. h. Is there a form of common law that cannot be overridden by state legislature or Congress? Irrevocable? Bullet-proof? i. Rehnquist says yes – States can‘t be sued for money damages without their consent. ii. Says Chisholm v. Georgia was simply wrongly decided – no 11th amendment was needed. iii. Hans found its roots not solely in the common law of England, and in the much more fundamental ―jurisprudence of all civilized nations‖ [Natural law] iv. Pierce v. Society of Sisters – absolute prohibition against sending children anywhere BUT state school 1. Court said the right to educate your children in the way you see fit is fundamental to the concept of ―ordered liberty.‖ i. Ex Parte Young -- exception allowing you to sue a state officer for a continuing violation of a federal right, so long as it is not an indirect attempt to bind the state, and so long as it involves only injunctive relief and NOT monetary damages. i. The fallback in this case for the Seminole Tribe was Ex Parte Young – but Court says that the complex remedial measures in the IGRA precluded the implication of an Ex Parte Young right to sue the named state officer. 2. Limitation on Ex parte Young doctrine: Idaho v Coeur d’Alene Tribe of Idaho a. Ct held the exception could not be used to settle a title dispute between an Indian tribe. This case suggests disagreement on the Court as to the availability of the Young exception, with CJ Rehnquist and J Kennedy tendering the view that the exception applies as the result of a balancing test evaluating whether there is an adequate state forum in which to vindicate a claimed federal right, the need for uniform interpretation in federal courts, and the level of intrusion to state sovereignty. Js O‘Connor, Scalia, and Thomas strongly disavowed any balancing notion, stating simply that Young applies whenever there is a need to remedy a continuing violation of state law by a federal officer. 3. Immunity in state ct: Alden v Maine a. Sovereign immunity is a concept that is alive and well in both federal and state court b. Extends the concept of sovereign immunity to state as well as federal courts c. Congress cannot create a private individual coa to sue the state for money damages in either federal or state court d. Concept of sovereign immunity does not apply to federal government suing a state. Federal gov can bring the precise coa that an individual cannot e. Sovereign immunity does not apply to suit by one state against another f. Why allow suits by fed gov and not individuals? i. Principle of Monaco: when states entered union, they conceded as the price of entrance to suits by federal gov against themselves, and to resolve conflicts between themselves through litigation. They did not consent to private suits against them. g. Congress cannot abrogate sovereign immunity under article 1. h. Sovereign immunity is traced by CJ Rehnquist not just to mere CL or text of Eleventh Amendment, but to something that is implicit in our Constitutional structure. This is the majority (5 judge) view. (called by Kmiec ―Rehnquist’s revenge‖ b/c of his dissent in Garcia (case held that tenth amendment is not judicially enforceable, that it does not put a limit on the commerce clause)) i. Rehnquist would say that Chisholm v Georgia was wrongly decided. The reaction to that case is an affirmation of Rehnquist‘s view of history. The reason eleventh was focused on diversity alone was to overturn a precedent, not to establish sovereign immunity. That already existed and did not need to be established. j. Article III and its grant of jurisdiction is what tends to mislead people on sovereign immunity. Rehnquist views it as a grant of jx, but not as a waiver of sovereign immunity. k. Sovereign immunity does not preclude a coa against individual state officers for injunctive or declarative relief (Ex parte Young). This is only not true where Congress constructs an elaborate remedial mechanism. This exists b/c of supremacy clause, to make sure states follow federal laws. l. Why have sovereign immunity at all? i. Always been there. ii. OW Holmes: exists b/c you cannot sue the source of your own rights. This explanation sits uneasily with natural law heritage of the Const. iii. Gives life to the dignity of states –CJ R iv. Prevents an unexpected financial drain on the state‘s treasury. Forces states to pay based on policy choices they did not make. v. If a state is liable, it should be based so on its own policy, not on federal policy. vi. Allowing states to make these decisions themselves w/o the federal government, the buck will stop at their desks 4. Implied Consent: College Savings Bank v Florida Prepaid a. Sovereign immunity can be waived by the states, but not constructively. States must expressly waive. Waiver must be clear and unequivocal. General recitals not enough. i. College Savings Bank expressly overturned Parden, which had held that when a state participated in a federal program, there is an express waiver. CSB held that this would allow circumvention of Seminole Tribe and that would not be okay. b. Sovereign immunity can be abrogated by Congress under amend. 14 §5. This is b/c 14th rebalanced and superceded previous federal state balance of power. i. In CSB, ct found no §5 abrogation under property rights from due process clause. Property is ability to exclude somebody, and the claim does not implicate this ii. §5 empowers Congress to legislate to enforce 14th Amendment against States. iii. What if there is a 14th amendment interest? What is the scope of 14th amendment abrogation? 1. Remedy must match injury. In order to be well matched, there must be defensible findings of a pattern of state violation of a 14th amendment right. There has to be a showing of ―Congruence and proportionality‖ between the constitutional injury and the abrogating cause of action. ii. Congress‘s Power to abrogate State Sovereign Immunity under the Fourteenth Amendment 1. Kimel v Florida Board of Regents a. Elaboration of College Savings Bank. Must be congruence and proportionality. Is age a suspect class? No. Since everyone ages, state employers can discriminate based on age. Must just have a compelling rational justification. (When it is not a suspect class, use a rational relation standard) Congress can not legislate broader than the right protected under 14th amendment. Congress was giving the aged protection broader than what the Const required here under 14 amend. Thus, no abrogation. 2. Board of Trustees v. Garrett a. Disability is not a suspect or quasi-suspect class (like race and gender respectively) so, states could draw rational distinctions based upon this trait. 3. FTC v South Carolina State Port Authority: South Carolina sued Fed Maritime Commission. Said they had sovereign immunity that applied even before a trial like proceeding of a federal agency. Ct agreed. a. South Carolina saw a cruise ship coming, told it to go away, cruise ship line brought an action against S.C. in an agency proceeding (by Federal Maritime Commission) alleging that S.C. was violating the shipping act. Had the agency concluded the merits, then S.C. would‘ve been liable but the courts held that Sovereign immunity barred the agency from adjudicating a private party‘s cause of action, b/c the proceeding is basically a lawsuit (if 11th amendment precludes states being liable in federal and state courts, then they are immune in federal administrative proceedings) 4. Nevada Dept. of Human Resources v Hibbs a. Deals with family and medical leave act and a COA against NV based on gender discrimination. Was the remedy sufficiently congruent and proportional to the showing of state misbehavior? Must show a pattern of state unconstitutional behavior to abrogate. Kimmel says you have a non-suspect class, and if Congress creates a remedy for it, must show a pattern of unconstitutional behavior. b. With a suspect class, pattern need not be at all extensive. Here it WAS a quasi-suspect class (gender) and therefore requires a higher standard than a rational relation (between the statute and the interest). ―Any use of gender in a law, by a gov‘t, must serve an imp‘t governmental objective and the use of it must be substantially related to the achievement to that objective.‖ c. Congress can abrogate 11th amendment immunity if it is acting under section 5 of 14th amendment, must be congruent and proportionate to a states‘ pattern of discrimination that is within the 14th amendment, Congress‘ ability to legislate under section 5 is going to be given more deference when it is dealing w/ suspect classes such as race and quasisuspect classes such as gender (states need to show an imp‘t governmental objective and that it is substantially related to achieve that objective) and less deference when it is dealing w/ non-suspect classes such as age or disability (states only need to show rational basis and a reasonable relation to that basis) d. Dissent: Kennedy, Scalia, Thomas i. 11th amendment ensures fiscal responsibility of the state (protects state treasury) AND evidence that is shown against states regarding the gender discrimination, most of it is private entity discrimination, most of it relates to parental leave and not family leave, and then he points to difference between the genders, says that it makes sense for the states to give pregnancy leave to women and not men. Does not violate equal protection clause b/c that clause says that you treat similarly situated people similarly. So…Congress and the states are allowed to treat women differently in that they can give birth and men can‘t so they aren‘t similarly situated. 5. Tennessee v. Lane a. Criminal ∆ was disabled, etc., relied on Title II under ADA to sue state for not making a reasonable accommodation for him in prison i. Garrett had held that Title I of ADA (dealing w/ employment Q‘s) was blocked by 11th amendment immunity when brought against a state employer b/c States are allowed to draw rational distinctions based upon this trait. ii. Here, no suspect classification, but there is a fundamental right (due process) using Title II to vindicate access to the courts iii. Using principle in Hibbs they say that Congress has wider latitude to legislate regarding a fundamental right (Due process), just like they do when it is a suspect class (gender discrimination) b. Individual Rights Limitations on the Power of States: Judicial Incorporation i. Barron v Mayor of Baltimore 1. Plaintiff argued that fifth amendment applied to the state (just compensation for takings) 2. Ct disagreed. Marshall said Fifth Amendment, and none of the amendments, apply to the states. 3. He gives a textual reason for this: when the framers wanted a constitutional provision to apply to the states, they did so expressly. See Art. I, §10. Also Fifth Amendment speaks of itself as expressly applying to Congress. Says nothing about applying to states. 4. Matters such as that covered by the Fifth Amendment were usually covered by state constitutions, or at least natural law. 5. Ct simply held that when founders intended to limits states, they did so expressly ii. Palko v Connecticut 1. Introduces judicial incorporation: the incorporating on a case by case basis of the Original 8 amendments (selectively) against the states. Some are incorporated against the states, others are not. 2. Standard for whether to incorporate under the 14th amendment against the states: must be ―found to be implicit in the concept of ordered liberty.‖ Must be a principle so rooted in the traditions of our people to be ranked fundamental. (Benton v Maryland overruled Palko). 3. Though overruled as to result, this standard and language are still the judicial incorporation test of the courts. 4. It is an evolving standard 5. Example: 7th Amendment not incorporated against the states iii. Adamson v California 1. Applied Palko standard, allows prosecutor to comment on D‘s failure to testify. Says fifth doesn‘t apply to states. This is later overruled 2. Here, Frankfurter defends Palko test, and Black argues that 14th Amendment incorporated the Bill of Rights 1-8 against the states, and gives much history supporting his view. He thought this would be easier to apply, and the absence of his std would be an invitation to judicial misbehavior, allowing judges to incorporate whatever they want. 3. Frankfurter goes back to text of constitution, says Congress knows how to limit states when it wants to, so it could be expected that if they wanted to incorporate the first 8 amendments against the states, they could do so explicitly. He is saying text doesn‘t support Black‘s incorporation theory. 4. Frankfurter and Black debate the utility of natural law as a tool of Const interpretation. 5. Frank. says incorporation of all of the first 8 amendments, puts due process in a cage 6. Kmiec says selective incorporation is a very weak and perhaps inappropriate form of natural law. 7. Theory: Judges will incorporate as they believe principles of justice and fairness in the interest of ordered liberty require. a. So….Which one (all amendments apply or judicial incorporation) is more loyal to democratic ideals; separation of power, etc.?? i. Don‘t know, BUT…Judiciary hasn‘t been content to simply apply the bill of rights to states; they have begun to invent them (ex: right to privacy), so it‘s possible that applying all amendments and taking the judiciary out of it may be more in line w/ democratic ideals and separation of powers, etc. iv. City of Boerne v Flores 1. Church wants to expand, but it is not allowed to do so, due to zoning law. 2. Church argues it is allowed to expand despite the zoning law because of the Religious Freedom Restoration Act (RFRA). 3. In Employment Division v Smith, Ct held that as long as a law is neutral and generally applicable, free exercise/establishment cause is not implicated. The law must just not be directed at harming a particular religion 4. Congress didn‘t like this, and passed the RFRA, which prohibits government from substantially burdening a person‘s exercise of religion, unless the gov can demonstrate that the burden is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling government interest. 5. Ct strikes this down. Allows Congress to pass enforcement legislation, but says that Congress can not redefine at will constitutional provisions. Amendment 14 §5 is solely remedial, does not give Congress substantive power of final Constitutional interpretation, because allowing such a power goes against the very rationale for having a Bill of Rights in the first place: taking some things out of the Congressional domain. So, not allowed to redefine what free exercise of religion means (Court did this in Smith and only way for Congress to alter this definition is to overrule Smith or to pass a Constitutional amendment) 6. ―While preventive rules are some times appropriate, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented‖ a. Here, court said there was not enough of a showing of a pattern of constitutional violations occurring from the passage of generally, applicable laws so…Congress passing RFRA to make gov‘ts defend these laws under strict scrutiny analysis is not remedial and it does not suffice to deter (b/c it is redefining the right rather than deterring a present violation of the right) 7. This is the same as the test for abrogating the eleventh amendment for 14th amendment reasons: congruence and proportionality.