Fed - State _Con Structure_ Outline -- Pepperdine Law -- Kmiec _1_

Brian Simas 1. THE PHILOSOPHICAL AND NATURAL LAW BASIS OF THE AMERICAN ORDER: REMOTE AND IMMEDIATE ANCESTORS A. THE CONTINUING TRUTH FOR UNIVERSAL TRUTH AND ADVANCE HUMAN GOOD i. Natural Law – content is set by nature and valid everywhere  Known by every man, regardless of which belief system. Thus, there is something higher than the Constitution. The Constitution. is a means to accomplish a goal, not the goal itself. The following great thinkers formed the context in which our Constitution was created, and their works informed the founding fathers. ii. John Winthrop (Jerusalem) – ―A Model of Christian Charity‖ i. Equality and Necessity of Society – Winthrop believed ―[n]o man is more honourable than another.‖ he believes God gave people free will to make their own gov‘t and draw their own way. Thus, he accepts majority determination and rejects monarchies and aristocracies where somebody by heredity has a special right to govern. Though we are equal under God, we are not equal in our talents. The fact that everyone is created for different reasons indicates we are meant to live together and dependant upon one another. ii. Basis for Civilization – Religious “City upon the Hill” – Winthrop attempts to set forth a deeply religious basis for civilization in Mass. But, this is a call to the people, not the Government. A good and worthy gov‘t will be a reflection of it‘s people and human nature. He wouldn‘t necessarily agree with a gov‘t hand in religion. E.g.: He wouldn‘t necessarily agree w/ the judge who put the ten commandments up in the courtroom. a. Influence on the Const – Constitution is a reflection of human nature and rooted in religion, but gives no power over religion to the government. b. John Adams (2nd Pres.) Adopts Approach – Religion has done much to civilize men and make them accountable to a higher order. No need for an ―all powerful gov‘t‖. God picks up where gov‘t falls short. iii. Plato (Athens – ―The Laws‖ i. Man‘s power of reason is a divine gift. God‘s plan is to use reason properly to make laws. (Utopian / Idealistic) iv. Aristotle (Athens) – ―Politics‖ i. Necessity of Society – Artistotle asserts that humankind can only realize its true nature by living together in a community where people can engage in a common and cooperative endeavor to promote justice ii. Basis for Society – The Golden Mean – Prescription for good life and a good gov‘t  structure gov’t around the middle class. Forming a gov‘t that pursues the common good will put enough people in a comfortable condition to not just think about the basics of survival for themselves, but the greater good. Otherwise the rich will insulate themselves from economic consequences and the poor will be too devastated to care. iii. Superiority of Natural Law – law is commanded by God and Reason (informed by Plato)  Natural Law is based upon human nature and human nature‘s consciousness of good. Aritstotle recognizes the existence of superior universal laws that cut across all times and places and deeply imbedded laws based on customs and traditions of a people [that are not necessarily right or wrong] iv. Form of Gov’t – Aristotle promotes a form of gov‘t with features of an aristocracy, monarchy, and democracy so that no group in society can totally dominate the others a. Influence on Constitution – advocates checks and balances v. Cicero (Rome) – ―De Legibus‖ i. Basis for Law – Non-Religious: Thus, laypeople can also know the law. True law is right reason in agreement with nature ii. Superiority of Natural Law – Distinguishes Positive Law and Natural Law – Positive Law is that created by man; Natural Law is created by God’s Reason (discoverable through human reason), is universal, and is a check on Positive law. Natural Law trumps, thus, gov‘t (good ones) should not create positive law that contradicts the nature of man a. Judicial Review Standard – Natural law trumps  thus, a positive law governing an action or the absence thereof doesn‘t necessarily make the law or the action okay under natural law  how we justify overturning prior decisions b. Four Natural Law Duties – (correlation to our positive laws): (1) do not injure others w/out cause (criminal law); (2) respect common and other‘s private property (property rights); (3) fulfill viii. Alexis de Tocqueville i. Religion’s Influence on Gov’t – Christianity ―powerfully contributes to the maintenance of a democratic obligations after pledging your word (contract law); and (4) be kind and generous to others, according to their worth and our means. vi. St. Augustine (a.k.a. – Mr. Pessimistic Pants)(Bethlehem) – ―The City of God‖ i. Necessity of Gov’t – skeptical of human nature – men are fallen, sinful and imperfect  gov‘t is a necessary evil needed to mitigate the harm mankind‘s imperfection and dumb choices might reek on others. a. Influence on the Const – Constitution is derived from his conception of man‘s transcendent nature (in the Declaration) and his limitations and perfections (Checks and Balances) vii. St. Thomas Aquinas (Bethlehem) i. Necessity of Gov’t – Opposite of St. Augustine – Gov‘t can do more than create peace, order and justice, it can make people more moral by enacting positive laws in harmony w/ natural law republic.‖ Believe Liberty and Christianity were linked, but that Americans were freer because they had no state church a. Equality – Religion helps men think of themselves as equal to each other as they are before God B. THE LATE MIDDLE AGES i. English Legal History i. In General – ―ours is a government of laws, not men‖ (‗ruled by law, not men‘) ii. Magna Charta – Wealthy people angry the King could forfeit their estates  Due Process origins iii. Common Law Origins – Henry II transformed royal advisors into lawyers and sent judges to the countryside to bring justice to the provinces regularize the content of law. a. Juries: Judges summoned a group of locals to help them determine facts b. When reports filled a small library, Bracton wrote about them in the first legal treatise ii. Bracton – ―The Laws and Customs of England‖ i. Law consists of: a. Natural Law – virtues and rights exist in the soul, thus, natural law is allowed to each man b. Positive Law – statute law of a particular city that prevails by custom or force c. Jus Gentium – Law of Nations precedent by resolving each case as it struck the King. James argued the law was based on reason, and that he had reason because of his direct chain with God. He did not deny there needed to be uniformity, but he was the final arbiter of what uniformity was. He thought since he appointed the judges, they listened to him ii. Prohibitions Del Rey – Coke believed the King was above all men, but below God and the law (i.e. gov‘t of laws, not men) and began issuing prohibitions forbidding Church Courts from hearing certain cases a. Coke’s Principle Assertion – King should leave matters of determining the law to his common law judges iii. Sir Edward Coke and James I i. King’s Discretionary Power – ―Church Courts‖ (a.k.a. prerogatives courts) bypassed common law court C. THE FIRST ENGLISH REVOLUTION i. James I on Monarchy – ―Speech to Parliament‖ i. Divinity of the Monarchy – James believed his powers are not to be disputed because: a. Monarchy is the supremest thing upon earth b. Kings are God‘s lieutenants on earth and sit upon his throne c. In scriptures, kings are called gods ii. Five Knights Case i. Facts – King Charles denied ―habeas‖ to accused knights ii. Disposition – Court relied on tradition, held the prisoners being held by order of the King was sufficient iii. Effect – introduced Due Process, Separation of Powers, rejection of Divine Rights, and push for Uniformity in the Law iii. Petition of Right i. The King is asked to acknowledge that he has must observe certain rights. In reality, the petition is an assertion by Parliament that king is overstepping his prerogatives. a. Effect – Ideas in the Petition of Right show up in the Bill of Rights iv. Events Leading up to Civil War and Charles I‘s Trial i. Charles dissolves parliament and seeks to arrest malfactors. Instead King is taken into Custody and put on trial ii. Kingship re-established in 1660. Charles II governs reasonably successfully but he is a Catholic in an Anglican country. Parliament is a Puritan faction seeking to purify the country from popish or Roman things. This disagreement manifests itself in particular over the a. Declaration of Indulgence – declared freedom to exercise religion, property rights to everyone, protected the minority protestant church, and eliminated religious laws D. THE INTERREGNUM, THE RESTORATION AND THE “GLORIOUS REVOLUTION” i. Milton – ―The Tenure of Kings and Magistrates‖ i. Power in the People – King‘s power is conferred in trust from the people in whom the power fundamentally remains and cannot be taken  Thus, a people may remove a tyrannical king ii. Hobbes – ―Leviathan‖ i. Necessity of an Absolute Monarch – (God on earth)necessary to keep order because in his natural state, man is destructive  better to have an abusive king than war in man‘s natural state (Hobbes had just endured Cromwell) iii. John Locke – ―The Second Treatise of Government‖ i. Equality and Unalienable Natural Rights – Locke believed all men were naturally in a state of freedom and equality ii. Necessity of Gov’t‖ – Self-interest is relieved by forming societies and living under the rule of law. iv. Note – all the qualities above find their way into the Declaration of Independence i. Preamble  equality under God, unalienable rights, self-evident (like Cicero, cannot be denied) 2. FASHIONING A WRITTEN CONSTITUTION FROM DECLARED NATURAL RIGHT A. The Natural Rights Foundation i. The Declaration is the promise, the Constitution is the fulfillment i. The Declaration is the best condensation of natural law and common law doctrines B. The Declaration of Independence i. 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 C. The Declaration and the Formation of the Constitution i. The Declaration was not indended to invent new ideas, but re-state well-ground natural and common law – TJ ii. Federalist #43 – Constitution was written to secure ―natural rights.‖ Unanimity is not necessary to ratify Const. iii. Self-Executing – Constitution is a written, freestanding, enforceable document of positive law. (Hamilton) 3. A STRUCTURALLY DIVIDED, BUT WORKABLE, GOVERNMENT A. HISTORICAL ANTECEDENTS i. Dividing Government Power i. Montesquieu – ―The Spirit of the Laws‖ a. Structure of our Constitution is based on Montesquieu‘s conception of the Separation of Powers i. Necessary to avoid tyranny. b. Legislative – bicameral with the power of the purse and turnover to avoid corruption, c. Executive – power of the ―sword‖ (military), thus the power ought to be in the hands of a single monarch because this branch requires ―dispatch‖ d. Judicial – power is ―next to nothing‖ and the least dangerous in terms of abuse i. Today we realize judges may act outside their power as the executive or legislature by executing laws or creating them instead of just interpreting them. 1. Judges can‘t really be fired, or voted out of office ii. What can we do when judges do this? 1. Cgrs can write clearer statutes w/ less ―wiggle room‖ for judges; 2. Under Art. III sect. 2 cl 2, Congress can take away the supreme court‘s appellate jd and take away lower courts‘ jd (or even eliminate the lower courts); ii. Checks and Balances – Public Good from Individual Interest i. Power corrupts. Absolute power absolutely corrupts. ii. Bee Analogy – Self-interest checked by self-interest: selfish bees make a productive beehive iii. Federalist 47 – three branches are by no means absolutely separate. Montesquieu did not mean that one branch ought to have no control over the acts of the other, only that where the whole of the power of one dep‘t is exercised in the same hands which possess the whole power of another dep‘t, the principles of the constitution are subverted iv. Federalist 51 – primary check on gov‘t  people / polictal process, BUT there must be axuilliary precautions. Ambition must be made to counteract ambition. The remedy for a predominating legislative authority is bicameralism. B. THE SEPARATION OF POWERS – IN CONSTITUTIONAL PRACTICE i. The Judicial Power i. The founders intended to correct the deficiencies of the judicial branch in England a. Uniform Laws  So one supreme court  (power check) Congress can create/abolish inferior lower federal courts and take away the Court‘s appellate jurisdiction b. Difficulty of Congress Electing Judges  Pres nominates  (power check) majority of senate must approve c. Judges Must be Independent from the King/President  Lifetime tenure  (power check) impeachment allowed after crim and conviction (they sit in ―good behavior‖) ii. Federal Court Jurisdiction and the Justiciable Case (Art. III Sec. 2) i. Justiciability – Not laid out in the Constitution, it is a judicially created doctrine that defines the scope of the federal court‘s power to hear ―cases and controversies‖1 a. Standing – party must have a personal interest in the case for the fed. Court to adjudicate i. There are Constitutional and Prudential requirements: 1. Constitutional Requirements – P must allege 3 things a. Injury – party must have suffered or will imminently suffer injury i. Violation must arise from a statute, common law, or Constitutional right (but see Sierra Club -- aesthetic injuries have been found sufficient2) ii. ―Imminently‖ – Substantial likelihood party will be subjected to attacked policy in future b. Causation – injury must be fairly traceable to D’s conduct3 c. Redressibility – injury must be likely to be redressed by the requested relief i. Laidlaw – Court allows civil penalties to be paid to the government because of their deterrent effect (indirect remedy ok) 1 The doctrines limit the power of the judiciary, conserve judicial resources, improve judicial decision-making, and promote fairness, especially to those who are not litigants before the court. 2 United States v. Students Challenging Regulatory Agency Procedures – Court upheld the standing of a group challenging the Interstate Commerce COmmissoins rate decision. The group alleged that the decision would increase pollution and would lessen their enjoyment of the lakes, streatms and mountains around Washington D.C. The Court held that the aesthetic and environmental injuries were sufficient to confer standing since the group members claimed they would personally suffer the harms 3 Allen v. Wright – the plaintiffs claimed that the IRS providing benefits to private schools that discriminate on the basis of race stigmatized their children, and second that the IRS policy diminished their children’s chances of receiving an integrated education. The court denied standing because the independent action of third parties (the schools) and not the IRS, had segregated the schools. ii. Lujan – Court treated prohibitions against generalized grievances as Constitutional (prohibition is in Art. III, not subject to statutory override) 2. Prudential Requirements a. Personal – assert own rights only4 -- prohibition against 3rd pty. standing with the following exceptions: i. 3rd party cannot assert own right – if there are obstacles to assertion of right and advocate will effectively represent their interests ii. Close relationship5 iii. ―Overbreadth Doctrine‖ – allows a party to challenge a statute on the ground that it chills the 1st amendment rights of 3rd parties b. Particular – no generalized grievances (see Lujan) i. Prevents taxpayers from suing for indefinite, common injuries where their interest is comparatively minute or indeterminable (exception – P challenges a gov‘t expenditure violating the Establishment Clause) c. Protected – assert claims within the zone of interest protected by the statute i. Clarke – P‘s must be part of the group Congress intended to benefit from the law ii. Congressional Standing 1. Generally – no congressional standing to sue, with few exceptions: a. Powell v. McCormack – standing for congressman who was excluded from the house on the theory that he had been duly elected and was personally entitled to his seat b. Coleman v. Miller – standing where 20 state legislators challenged the propriety of a tie-breaking vote by Liet. Gov. w/ respect to a const. amendment because, as a body, the group had the power to defeat or enact specific legislation c. Raines v. Byrd (1997) – No standing for six members of Congress alleging that the Line Item Veto hurt their voting power because the members could allege no injury to themselves as individuals (general, no particularized) AND Congress has its own remedy of repealing the legislation. b. Ripeness – tests when pre-enforcement review is appropriate – courts want to separate out speculative injuries that may never occur from those that are ripe, or imminent, and appropriate for present review i. Two Fundamental Considerations: 1. Hardship to the Parties of withholding the court‘s consideration a. 3 Situations where hardship justifies review i. P must forgoe action he contends in lawful, or risk prosecution ii. Enforcement of a statute against P is certain and imminent iii. Collateral Injuires6 2. Fitness of Issues and Record for Judicial Review a. Questions that depend heavily on the facts (instead of the law) are less likely ripe c. Mootness – P must have a personal interest in the litigation from the commencement to the termination7 i. Exceptions: 1. Collateral Injury Remains after primary injury is resolved 8 4 Sierra Club v. Morton – the Court held that the environmental vroup lacked standing to challenge the development of a park in California because they failed to allege that any of the Sierra Club’s members had ever used the park. 5 E.g. – exceptions have been made for a religious school representing the rights of parents and for vendors representing the rights of customers 6 Duke Power Co. v. Carolina Environmental Study Group, Inc. – P’s challenged an Act that limited the liability of a nuclear power plant in the event of a nuclear accident. While the primary injury – an uncompensated loss for a nuclear accident – was not ripe, the court concluded that since the act facilitated the building of a power plant which subjected residents to radiation, pollution, and the fear of nuclear accident, these collateral injures were sufficient to render the case ripe 7 E.g. – a criminal defendant’s appeal is moot if she dies during the appeal process. Likewise, a civil suit is moot if the parties settle. d. Political Question i. Baker v. Carr (1962) – Nonjusticiable Political Question when there‘s one of the following: 1. A textual commitment of the issue to another branch (plenary power) 2. Lack of judicially discoverable and manageable standards; 3. Impossibility of deciding w/o initial policy determination; 4. Impossibility of a ct‘s undertaking independent resolution w/o expressing lack of respect for another branch; 5. Unusual need for unquestioning adherence to prior political decision; 6. Potentiality of embarrassing divided pronouncements by various departments ii. United States v. Nixon -- Senate has ―sole‖ power to try impeachments 1. The Court reasoned the word ―sole‖ committed the issue of procedure to the Senate iii. Subject Matter Jurisdiction of Supreme Court (Art. III Sect 2) i. Appellate Jurisdiction (Ex parte McCardle9 – Congress can‘t add to but can sub from) a. Four forms conferred by Constitution: i. Federal Question (const law or interpretation of a federal statute) – 28 U.S.C. 1331; 1. Fed Q must be on the face of the complaint, not just in the answer or anticipated defenses; 2. Can be brought in lower fed ct. or state court (due to supremacy clause); D can remove ii. Diversity (controversy b/w citizens of different states) – 28 U.S.C 1332; 1. Each P from dif state than each D a. Based on domicile; citizens have only one, corps have 2 (place of incorporation and principal place of business) 2. Amount in controversy over 75k iii. Admiralty or Maritime Law; iv. Controversies naming US as a party; b. Exceptions to Appellate Jurisdiction i. Ex parte McCardle – Article II, Section 2 enumerates the Supreme Court‘s appellate jurisdiction which Congress has the authority to make exceptions to 1. The necessary inference is that Congress has the power to take away the jurisdiction of the lower courts  Congress has the power to create or destroy lower courts, thus it would be presumed that Congress can limit their jurisdictional reach as well. a. However, congress may not take away power such that a right guaranteed under the Constitution can‘t be vindicated when violated. 2. Wrong Capable of Repetition that evades review – ie. Injuries that are short term in nature and therefore always likely to disappear before they can redressed by a court a. Roe v. Wade – abortion case – by the time the case reached the Supreme Court, the woman had given birth b. Weinstein v. Bradford – Court emphasized that i. There must be a reasonable expectation that the same complaining party would be subjected to the same action again ii. The injury must be one of inherently limited duration 3. D Voluntarily Ceases, but Could Resume Anytime a. United States v. W.T. Grant Co. – Case is moot where there is no reasonable expectation the D will resume 4. Class Action Continues Where Named P’s Claims are Moot a. Sosna v. Iowa – Unnamed class members acquire a legal status separate from the interest asserted by the named P 8 E.g. – D is released from prison, but still suffers collateral consequences of his conviction, sucha as loss of voting rights or the possibility that subsequent conviction will carry a more severe penalty. An injury that could be favorably redressed still exists. 9 Ex parte McCardle – Congress passed an act in 1967 repealing the appellate jurisdiction of the Supreme Court in cases of habeas corpus. The Court recognized that appellate jurisdiction is not conferred by statute, but prescribed under Article III, Section II of the Constitution which confers the jurisdiction with such exceptions as Congress shall make. Here, the Court held that the repeal of the S. Ct’s appellate jurisdiction is a positive exception made by Congress within their conferred powers under the Constitution. Thus, the Court has no jurisdiction.. b. Withdrawing jurisdiction is rarity because the consequence is a multitude of different dispositions on a topic. ii. Plaut – Congress cannot grant jurisdiction so that a disposition in a particular case will be changed10 ii. Original Jurisdiction (Marbury v. Madison – Congress can‘t add or subtract from); a. Controversies b/w Two or More States (exclusive); i. Usually boundary disputes; b. Actions naming Ambassadors, public ministers, consuls of foreign states as parties (non-exclusive jd shared); c. Controversies b/w US and State/s (non-exclusive); d. Action by a state against citizen of another state or an alien (non-exclusive) iv. The Essence of Judicial Review i. Federalist #78 – Hamilton indicates the judiciary has neither force nor will, but merely judgement a. Judiciary is the least dangerous branches – no influence over ‗sword‘ or ‗purse‘ (Montesquieu) b. Judiciary best suited to keep the Legislature within its limits i. Court‘s were designed to serve as intermediaryies between the legislature and people c. Supremacy of Constitution is recognized – ―no legislative act . . . contrary to the Constitution can be valid‖ ii. Marbury v. Madison a. Facts – Adams appoints Marbury to justice of peace but didn‘t deliver commission before leaving office; New Sec. of State, Madison, refuses to deliver commission. Marbury goes to Supreme Court and wants a mandamus as he is entitled under a statute. b. Disposition – Court finds Marbury‘s appointment was completed  thus, he had a right, and a remedy. However, the Court finds the statute is repugnant to the Consitution, and thus void, by giving original jurisdiction to the Court where the Constitution only gives appellate jurisdiction (fed Q). i. Marshall declared ―It is emphatically the province and duty of the judicial department to say what the law is.‖ ii. Minor Point – some argue that Court is supposed to interpret statutes narrowly to find them Constitutional (Dewey and Solid Waste)  thus, Court could have found the statute only to meant issue a mandamus where const allows (here, on appeal). This would mean the statute wouldn‘t be unconstitutional, Marbury would just be in the wrong court. iii. Martin v. Hunter’s Lessee a. Facts – Title dispute. Virginia confiscated Martin‘s land as a British subject and conveyed it to Hunter. Martin claims title under anti-forfeiture provisions of a treaty between the U.S. and England. The Viriginia court held for Hunter, concluding the state‘s title had vested in Hunter prior to treaty provisions. b. Disposition – Supreme Court reversed, finding the title had not vested and treaty provisions applied. The Virginia Court refused to comply and the Virginia judges argued they were equally capable of interpreting fed. Law. Justice Story instructed the state court to comply citing: i. Supremacy Clause – the Constitution and treaties made pursuant to it are the supreme law of the land and judges in every state shall be bound by it. ii. Article III Section II ―Final Arbiter‖ – judicial power places ultimate interpretation of Federal Law and Constitution in the U.S. Supreme Court, subject only to congressional exception 1. Thus, state courts may ground their opinions under state law and Constitutions to avoid appellate jurisdiction of Supreme Court iv. Cooper v. Aaron a. Facts – Governor ignored federal court order to desegregate Little Rock on the theory the court‘s interpretation of the 14th Amendment equal protection requirement in a case in which Arkansas was not a party did not bind the state. b. Disposition – Court reminded Arkansas that is was the Court‘s emphatic province to determine what the law was, and that Every state legislator and executive is solemly committed to support the Constitution under Article VI. i. Effect – Court is the sole interpreter. It is not the Supreme Court‘s interpretation that is supreme, it is the Constitution. That interpretation is a constitutional minimum from which states may 10 E.g. – SOL bars a case from being heard. Congress cannot pass a rule extending the SOL so the case can be heard. depart upward, but not down. The Court must accept this concept, because it is how they correct their own errors (ie. Dred Scott) C. LEGISLATIVE POWER (powers enumerated in Article I) i. The Interplay Between Legislative Enactment and Executive Implementation / Execution i. Process for Making Law (Article I, Section 7) a. Bicameral passage – approval by both Houses b. Presentment – presented to Pres who can sign or veto the leg ii. Legislative Veto – One House of Congress passes a resolution delegating decision making authority to the executive branch (agencies) while reserving the right to veto the decision of the agency by passing a resolution in disagreement. a. Chadha – unconstitutional violation of Art. I Sect. 7  no bicameral passage and no presentment i. When can one house act alone? 1. House alone can impeach; Senate alone conducts trial after impeachment; Senate alone approves or disapproves Pres. aptments; Senate alone ratifies treaties negotiated by Pres ii. When is presentment not required? 1. Constitutional Amendments – 2/3 vote of Congress or ¾ of states iii. What can Cgrs do instead of leg veto? 1. Write clearer statutes; 2. Control executive appointments 3. Control budget that funds agencies 4. Report and Wait – Congress allows agencies to report regulation ideas to them, then they ―wait and see‖ for a reasonable time whether they want to enact them via legislation iii. INS v. Chadha a. Facts – INA legislation set forth deportation standards and delegated authority to the INS (executive branch) to handle deportation matters. The statute allowed the AG (executive branch) to suspend deportation orders, but also allowed Congress to override (veto) the AG decision by one house resolution. INS ordered Chadha to be deported, but the AG suspended the order. House passed a resolution ordering deportation (never went to senate, nor to Pres to sign) b. Disposition – using the ‗formal test,‖ the Court found the resolution was legislative in character b/c it affected Chadha‘s legal rights. Legislative veto was unconstitutional as violation of Art. I Sect 7. Efficiency and convenience are not the hallmarks of the gov‘t. i. Effect – Congress can act in only one way when making law that alters the rights, duties and responsibilities of individuals (the point of the redundant paragraph in Article I, Section 7).  bicameral passage & presentment is absolutely required ii. Minor Point – President was not estopped from objecting the legislative veto because the court in Marbury made it clear that a statute repugnant to the Constitution cannot be shielded because it was ratified by the Congress and President. c. White’s Dissent: argues legislative veto is useful and convenient. White wants the court to use the ―functional test‖ which asks whether ―the leg prevents the ex from carrying out its Const assigned functions‖ iv. Functional Test v. Formal Test: a. Functional Test – (Nixon v. Admin) asks two questions to determine if legislation is unconstitutional: i. Does Constitution assign responsibility explicitly to the executive or blend powers between branches? ii. Does the action of Congress impermissible impair that power? 1. This test allows for more blending of branches powers outlined in the const; b. Formal Test – text of the Consititution i. Text of const req. leg to pass bicam and presentment; ii. Ct. in Chadha uses this test; really, Myers and Humphrey‘s use it too in the appointment and removal arena, but then Morrison shifts the focus to the functional test; v. Line-Item Veto a. President‘s attempt to fight Congress‘s ―bundling‖ practices b. Statutory Line Item Veto Act – authorizes president to refuse to spend appropriate money c. Clinton v. N.Y. – Court found Act unconstitutional because an act of Congress cannot authorize the Pres to create a law whose exact text was not voted on by either house vi. Severability – unconstitutional portions of legislation can be severed, unless it is apparent Congress wouldn‘t have enacted the legislation without the unconstitutional portion a. A bill may contain a severability clause – stating any portion can be severed vii. Delegation of Power to Executive Agencies by the Legislative Branch a. Two Types of Administrative Agencies in the Executive Branch i. Executive Agencies – head of agency is removeable at will by president ii. Independent Agencies – head of agency is not removeable at will by president b. These agencies undertake administrative rulemaking which resembles lawmaking. The court has deemed these activities ―quasi-legislative‖ – part of President’s power to ensure laws are faithfully executed c. 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  bicameral passage and presentment cannot be circumvented because of delegation of authority to admin agencies d. Non-Delegation Doctrine – courts will tolerate a substantial delegation of authority, so long as Congress has provided an intelligible principle to which the person or body is to conform (low bar) i. Restrictions on scope of power that can be delegated have diminished (only 2 cases where delegation was unconstitutional)11 ii. Improper Delegation – a statute that provides no guidance for exercise of discretion or plenary discretion iii. Congress cannot delegate executive functions to a legislative officer (one removeable by Congress) D. EXECUTIVE POWER i. Federalist #69, #70 – Hamilton expounded upon Article II‘s grants and limitations of power documenting the differences between the King and the President  in #69 -- 4 yr. term; removeable; in #70 – ―energetic President;‖ dispatch ii. Scope of Power? i. Two Conflicting Examples a. TR – lots of power – ―Activist President‖ – e.g. bought the Panama Canal by unilateral treaty b. Taft – thought very little – only powers specifically enumerated and those necessary to exercise enumerated ones ii. Emergency Examples: a. Lincoln – ordered the suspension of the writ of habeas corpus and jailing without trial of many citizens – though preserving the nation was greater than preserving the constitution itself b. FDR – during WWII he threatened to act alone in opposition to certain parts of the Price Control Act, using the war as justification. iii. Sources of Domestic Authority i. Youngstown Sheet & Tube a. Facts – Truman ordered gov‘t takeover of domestic steel mills after serious threat of a labor strike. The issue was the scope of the President‘s domestic power where there was a major war in Korea (108k deaths) requiring the production of steel as a crucial component in fighting the war. b. Disposition – the court found Truman‘s order unconstitutional. ―Founder of the Nation entrusted the law making power to Congress alone in both good and bad times.‖ Truman had argued his authority to order the takeover of the steel mills was threefold: i. Art. II Sect 1 (the ―Vesting Clause‖): Ex power is vested in the Pres of the United States; 1. Court – power is limited to the lawmaking process of signing or vetoing legislation ii. Art. II Sect 3 (the ―Take Care Clause‖): Pres is to see that the laws are faithfully executed; 11 Whiteman v. American Trucking Association – Congress enacted an environmental act and created the EPA; the standard the EPA was given was to “protect the public health w/ an adequate margin of safety”; it was argued that this was not an intelligible standard and thus violated the non-delegation doctrine; The S. Ct., while saying that the doctrine does still exist, unanimously held that the standard was intelligible and didn’t violate non-delegation 1. Court – power is limited to same things as above; refutes the idea that he is lawmaker iii. Art. II Sect 2 (Commander in Chief): Pres is the Commander in Chief of the Armed Forces; 1. Court – power is confined to military command in the ―theater of war,‖ Though a broad concept, taking possession of domestic private property is not considered w/in the theater of war. c. Jackson’s Concurrence – emerges as the citable authority. Jackson argues the President‘s power fluctuates depending on which of three categories his action falls into: i. When Pres acting w/ express/implied Cgrs‘l authorization = Max Authority 1. Here, no leg‘n authorizing seizure (Pres admitted as much) ii. Pres acting alone, but Cgrs is silent = Twilight Zone 1. President must rely on his conferred powers iii. Pres acting alone and Cgrs has denied the Pres authority (actions inconsistent w/ express or implied desire of Cgrs) = Minimum Authority (―lowest ebb‖); 1. Power here must be found in one of the 3 clauses (―vesting,‖ ―take care,‖ or ―CINC‖), and Jackson rejects them just as they do (at least in the domestic arena); 2. Maj of the court would say this is where Truman‘s actions fell; d. End result  Pres has very little power under the Constitution to act alone domestically w/out legislative authorization iv. The Practical Exercise of Executive Authority – The President and the Bureaucracy i. Power of Appointment a. Federalist #77 – power of nomination is unequivocally vested in the Executive b. Appointment Clause – Art. II Sect 2 Cl 2 i. Process of Appointments – Pres nominates  senate advises and consents  Pres appoints ii. Appointment authority given to senate to ensure equal representation of states; c. Types of officers: i. Principal officers – enumerate in Art. II 1. Ambassadors 2. Public Ministers and Consuls 3. Judges of the Supreme Court ii. Inferior officers – Congress may vest appointment of inferior officers in Pres alone, in courts or in head of departments 1. Perkins – Court held Congress can vest appointment of an officer in the head of a dep‘t and place limitations on their removal d. “He who Fires can also Direct” Theory – Court indirectly addresses the scope of the President‘s supervision of subordinate officers by addressing who the President can remove from office i. Myers v. U.S. 1. Facts – Myers was a postmaster and thus a principal executive officer. The President removed him from office. Postmaster sues b/c a statute said Pres could only remove the postmaster from office w/ approval from the senate. 2. Disposition (Taft) – Const. is silent on removing officers. Legislative branch has enumerated powers: those powers include creating offices and taking part in appointing officers (reject or appoint). The leg has no power to take part in the removal of officers. a. Gives 3 arguments for giving removal power to Pres; i. Practical – It is the Pres‘s job to see that laws are faithfully executed, these officers are carrying out ex functions, so Pres must be able to control them by being able to remove them; ii. Historical – founders discussed power of removal and decided it was inherent in office of Pres; iii. Structural – separation of powers is blended in some areas, but where it is not expressly blended the framers didn‘t intent to blend it, so we shouldn‘t blend it; 3. End result  Pres has exclusive power to remove purely executive principal officers (w/out cause). ii. Power of Removal a. Humphrey’s Executor v. U.S. i. Facts – Humphrey was the FTC commissioner (FTC – now identified as an independent agency) A legislative Act required cause for Humphrey‘s removal. The issue was whether members of quasi-legislative or quasi-judicial bodies may be removed by the President? ii. Disposiiton – birth of the Independent Agency. Hallmarks are: 1. Fettering of presidential removal authority a. Want to shield this people from political persuasion 2. Duties aren‘t purely executive – Independently submit budget to Congress, provide Congress information (cc president), bring litigation and enforcement proceedings without the AG (SEC, FCC, FTC, FR) 3. The idea is that the agencies operate through their expertise and impartially rather than as a presidential policy implementing department – more accountable to Congress than Pres iii. End result  Pres still has removal power over quasi leg/jud (ind agency) executive officers, and Cgrs can‘t require its approval in removal. Congress can qualify Pres‘l authority to remove 1. i.e. fetter Pres‘l authority to remove by requiring President ot show cause. b. Removal of President – sole power of impeachment is lodged in the senate, making the case nonjusticiable iii. Executive Privilege a. U.S. v. Nixon i. Facts – Low level Nixon administration people broke into DNC headquarters at the Watergate Hotel. They were caught and put on trial. Special prosecutor requested tapes from Nixon who refused under executive privilege. ii. Disposition – defendants have due process rights to the evidence of the crimes. An assertion of generalized deliberative process is insufficient here. (note – senate and house denied tapes for impeachment hearings because the President‘s interests were much greater) 1. Justiciability – an intra-branch dispute without more does not defeat justiciability 2. Executive Privilege – executive privilege implicitly exists, however, there is no absolute and unqualified executive privilege. (no man should be his own judge) a. Test – weigh the interest in protecting the subject matter of the communications with the interest of the party seeking communications: i. High – (near absolute) military, foreign diplomacy, national security; ii. Middle – law enforcement need, criminal prosecutions, open lit files; iii. Low – general deliberative process assertion regarding confidential communications on day-to-day domestic matters b. Cheney v. U.S. – executive privilege over day to day domestic confidential communications trumped interest in discovering whether the task force was in compliance with an act. There were not strong enough countervailing interests. (like due process in a criminal trial like in Nixon) c. Other Privilege Issues i. Hilary Clinton – gov‘t attorney‘s clients are the people  no attorney-client privilege ii. Bill Clinton – duty of white house counsel is not to defend Pres from prosecution, but to help see that laws are faithfully executed  no absolute privilege. Further, all federal officers have a duty to report illegal activity to superiors  secret service can be subpoenaed for grand jury proceedings d. Immunities i. Nixon v. Fitzgerald – President has absolute immunity from civil suits for decisions made in the scope in office. Arguments focus on what the permiter of Pres‘s duties are. Thus, it is unconstitutional for the Cgrs, even w/ bicameralism and presentment, to create a statute fettering the Press power to remove purely ex principal officers b. Note: left open is whether Cgrs can fetter the pres auth to remove purely ex inferior officers i. Kmiec‘s opinion is yes, they can; (but as of now, Cgrs doesn‘t do this); a. ii. Clinton v. Jones – President is not immune from civil suits for actions outside the scope of his office 1. at best, equitable discretion may allow the suit to be stayed (for a week / month) iii. Criminal Prosecutions – No immunity 1. Impeachment – Impeachment then conviction? or can they be convicted straight away? a. We don‘t know for sure. But likely the Pres needs to be impeached and removed from office before prosecution (Plaut did not reach a conclusion) iv. Presidential Aids – qualified immunity in civil suits for official actions as long as they aren‘t in violation of clearly established statutory or const rights that should have been reasonably known iv. The Independent Counsel (no man should be his own judge) a. Morrison v. Olson i. Facts –Olson, as Ass. AG, advised Reagan to assert ex privilege and not hand over EPA documents to Cgrs12 House had Olson testify before Cgrs and suspected he perjured himself and wanted to investigate him. Under Ethics in Government Act, house judiciary committee asked AG to appoint an independent counsel. AG doesn‘t have to appoint an IC, but is directed to by a ―court‖ if there are ―reasonable grounds to investigate further‖ (low burden or standard – lower than normal prosecutor). Further, the AG could only dismiss IC for cause. Olson argued the Act violated the Appointments Clause because an IC is a principal officer with significant duties, thus, he/she should be nominated by Pres and appointed by senate. ii. Disposition 1. Appointment Clause Violation – Congress was w/n it‘s power to deem the IC and ind officer a. Not a principal officer  Doesn‘t make policy decisions; Limited function and duties; Limited term; AG didn‘t have to appoint him; AG can remove for cause13 b. Congress can create inferior officers and let the judicial branch appoint 2. Separation of Powers – applying the Functional Test, the Court reasons the President‘s supervisory control is not impermissibly burdened because the AG can remove the IC. Additionally, the court cites the need of the IC to be independent from Pres influence14 iii. Effect – with respect to independent agencies – shift away from looking purely at removal as a means to control an ind agency, and also less at whether an officer is purely ex or quasi leg/judicial, and more at whether the actions of the officer are carrying out Pres’s instructions (his seeing that laws are faithfully executed) v. Executive Bound by Statutory Meaning a. When executive branch receives authority via leg from Cgrs, ex is ―bound by statutory meaning‖ i. Agency rules must be w/in the meaning of the statute (w/in the power delegated to them) – cannot contradict the clear intent of Cgrs b. Administrative review – validity of the agency‘s statutory interpretation of their conferred authority may be tested in a two step process to determine whether the agency is to be given deference in its interpretation. i. Chevron Deference: 12 Side note – did Pres have ex privilege here? Arguably had better grounds than Nixon to assert privilege b/c the EPA was authorized to conduct investigations and was currently investigating; thus was a Middle protection communication protection situation under Nixon; 13 Scalia disagrees: says should be principal officer b/c duties in reality are huge, AG didn’t really have authority to not appoint b/c of low standard of rx grounds to investigate, and AG couldn’t really remove b/c of for cause provision; 14 Scalia disagrees: says they should follow formal test, looking at the const text; prosecution of laws is the main job of the ex (purely ex), and Pres should have the power to remove at will w/o limitation, as in Myers; Scalia sees that the power of prosecution has been given over to someone outside the executive which is unconstitutional. With regards to the argument that the point of the IC is to avoid the conflict of interest, Scalia says that the ultimate check on the Presiden is the people and the legislature has the power to impeach the Pres c. Gonzales v. Oregon i. Facts – OR passed assisted suicide law which exempted drs from liability for prescribing lethal drugs if they comply w/ safeguards. Drugs are regulated under Fed statute, Controlled Substances Act (CSA). In 2001, AG Ashcroft issued Interpretive Rule (IR) saying that CSA trumps ODWDA b/c assisted suicide not a ―legitimate medical practice.‖ IR challenged. ii. Disposition 1. Interpretive Deference – Court found the gov‘ts interpretation a ―Parroting Rule‖ and that If the regulation doesn‘t say anything new, no entitlement to latitude. 2. Scope of Delegated Authority – Court found the AG has some authority: (Control of Scheduling, Registration of Physicians, but NOT to Usurp State Authority unless there‘s express or Implied preemption) a. AG would have been able to say any drug was an illegitimate medical practice b. Preemption – Statute indicates Congress‘s intent  ―We don‘t intend to occupy the entire field of the regulation of the practice of medicine. We intend only to occupy that part of the field in which there‘s a direct head-to-head conflict between our statute and the relevant state provision. vi. The President and the World (Herein Foreign Affairs) a. US v. Curtiss-Wright: i. Facts – House and Senate passed a joint resolution giving Pres power to proclaim it illegal to sell arms to countries involved in conflict upon certain factual findings. President was allowed to revoke the proclamation and did do so. Argument here is that the pres is legislating by making the factual determination to proc the action illegal. ii. Disposition – The Court notes that for domestic matters, an intelligible standard is required, however, this is a matter of foreign affairs; 1. Foreign Affairs Power -- The Pres has ―extra constitutional‖ authority derived from fact US is a sovereign nation. Vested in Executive after break from Britain. 1. Step 1 – Is the statute clear?  if Congress has directly spoken to the issue (court says what the law is – Marbury), then any rule/reg that contradicts clear intent of Cgrs is unconstitutional a. FDA v. Brown-Williamson Tobacco – Court stated that tobacco fits the definition of what FDA can regulate, but that legislative history indicates Congress had spoken to the issue and foreclosed the removal of tobacco from the markets. 2. Step 2 – Is the statute ambiguous or silent?  then the reviewing court is to defer to the agency so long as it is reasonable interpretation a. Ambiguity or silence invites new political administrations to make different policies ii. Mead (narrows Chevron) 1. Facts – The informal ruling said 3 ring binder that Mead imported were now not duty free and now subject to tariffs 2. Chevron deference reduced for informal letter ruling15 a. Informal Letter Ruling – an agency decides a narrow issue for a party to help inform other similarly situated parties of the likely ruling on the issue. i. These rulings don‘t follow the same procedures as regulations do under APA (Admin. Proc. Act) so court gives them less deference 3. Skidmore Deference16: The level of deference afforded to them is based on the rulings persuasiveness; the factors are: a. Thoroughness; b. Validity of reasoning; c. Consistency w/ earlier/later rulings 15 Agencies make regulations by Notice and Comment Rulemaking  the regulation is drafted and published in the federal register, giving notice that it is pending. There is a statutorily prescribed period for making comments, then the formal, final rule is made. 16 Scalia hates the opinion and dissents b/c shifts power to the ct. and away from the ex branch where the power came from the elected body and where people are help accountable (by voters); b. Treaty Power i. Treaty Ratification Process: 1. President has sole authority to negotiate treaties a. Consitutional authority delegated to Pres to receive foreign ambassadors  it is the job of the Pres to determine who to recognize as authority in foreign nations 2. Super Majority approval of the senate is required (2/3 vote) 3. Pres ratifies a. If the senate changes the deal then the Pres has no duty to ratify it ii. Scope of Treaties – No express Constitutional limit to scope, however: 1. Reid – Constitutional prohibitions must be observed (individual rights) 2. Missour v. Holland – Congress is permitted by treaty to exceed its Constitutional legislative power and intrude on state power (State‘s rights and Constitution) iii. Effect of Treaty as Law – same legal force as statutes iv. Self-Executing vs. Non-Self-Executing Treaties 1. Self-Executing – by its terms, the treaty is clear that nothing further must be done a. i.e. legislation need not be implemented once ratification happens 2. Non-Self-Executing – execution is conditioned on enactment of further statute or appropriations a. i.e. – ―Provided that each signatory enacts…‖ b. i.e. – ―Provided that Congrsses of both/all nations supply the funds.‖ v. Termination 1. Cgrs can pass subsequent leg that contradicts or is inconsistent w/ the treaty; 2. A subsequent treaty contradicts it; 3. Pres can unilaterally w/draw  Questionable; a. Goldwater v. Carter – App Ct. upheld Carter‘s withdrawal from the Mutual Defense Treaty with Taiwan, but the case was one of interpretation because in the court‘s eyes the terms of the treaty allowed unilateral withdrawal b. Recognition Authority – President has the power to receive ambassadors and thus actually recognize a legitimate gov‘t. One could argue termination of a treaty is the President‘s exercise of this recognition power. c. Justiciability Issue – political question  treaty power given to pres (ex) and senate (leg) and not the court. Further, there are no judicially manageable standard b/c w/drawal not mentioned, and could cause embarrassment to pres prior decision vi. Treaties in conflict w/ state laws 1. Sanchez-Llamas & Bustillo v. Oregon a. Facts – Foreign nationals cvxd of crimes, appealing on basis of Art. 36 of Vienna Convention which requires authorities to inform foreign nationals that they can contact their consular posts, subject to domestic law, provided that domestic law gives ―full effect‖ to the purposes of Art. 36. Δs not informed of Art. 36 rights Residual Authority – Pres has exclusive authority in all foreign affairs that the Constitution does not delegate to another branch i. i.e. Congress has the power to ratify treaties; declare war; regulate foreign commerce; power of the purse ii. President can best act with dispatch and attend matters of national security, caution and unity of design b. Executive Dep‘t like this case: i. ―Pres alone is the sole organ of the nation in its external relations, and sole rep w/ foreign nations‖ ii. ―Pres alone has the power to neg. treaties‖ c. Congressional Limits on Power i. Iran Contra – President sold arms in secret. Oliver North thought this was ok because he viewed the statute as impeding Press inherent authority as the sole organ w/ other nations who has residual power a. i. Sanchez-Llamas wants statements suppressed ii. Bustillo wants declaration that he didn‘t default on right to challenge under Art. 36 b. Disposition i. Individual Rights Under Treaty – Court punts on issue of whether Art. 36 create private C/A against detaining authorities in a criminal trial or a post cvxn proceeding ii. Suppression – Art. 36 is not concerned with evidentiary rules. Further, the exclusionary rule is unique to US, so Convention couldn‘t have included it as an implied term. iii. Application of Procedural Default Rule – In International law, absent a clear and express statement to the contrary, procedural rules of the forum state govern implementation of the treaty (―full effect‖ not clear enough language for the court) iv. Deference to ICJ – ICJ says the U.S. has to reopen and review convictions in light of failure of U.S. to give proper notice. Court says that ICJ determination is not binding, merely due ―respectful consideration,‖ plus U.S. has w/drawn from that part of the treaty. c. Executive Agreements – agreement between the President and a foreign power, not approved by Senate i. General Effect – enforceable as the law of the land, 1. Three categories of Executive Agreements determine their effect a. Pursuant to Authority in Prior Treaty  given same effect as treaty and trumpts prior inconsistent statutes or treaties b. Pursuant to Prior Congressional Authorization  trumps prior inconsistent statutes or treaties (ie. International trade) c. Pursuant to Inherent Constitutional Authority  depends on subject matter of the agreement  More likely to trump prior statutes and treaties the more the subject matter is a purely Pres power, and not a shared power w/ Cgrs; i. Belmont – Executive agreement b/w pres and countries formerly USSR  Pres has plenary power to decide who to recognize as a foreign pwr ii. War Power – Pres has power to defend against attack as Commander in Chief, but Cgrs has power to declare war  thus, an ex agreement for a short conflict may trump prior law, but the longer the conflict the more he must share his power with Congress, and the more likely the force of the agreement will not trump prior law. 2. Conflict with Pre-Existing Federal Statute – agreement has no domestic effect a. Executive may be bound internationally 3. Conflict with Pre-Existing State Law a. If based on prior treaty or statute (cong auth)  trumps due to supremacy clause b. If based on inherent const auth  less clear, but accepted view is that if it would trump prior fed law it trumps prior state law d. Power to Declare War i. “Declaring” v. “Making” War 1. Declaring – Congressional power – gives rise to the inference that Congress does not have the power to make war if they are only able to declare it – a declaration changes the status of a relationship between sovereign nations a. Certain legal consequence follow declaration of war. i.e. – blockade ports, kill enemy combatants b. Presidents always hold that they have the power to go to war w/out declaration 2. Making – the modern mind has turned ―declare‖ into the power to make. a. Ware Powers Act – Congressional power to deploy troops. Passed over Nixon‘s veto. Every President since Nixon has refuted the Constitutionality of the War Powers Act because the concurrent resolution should not be given legal effect w‘out presentment i. Provisions – Pres should notify Cgrs 48 hours before making war; Cgrs can pass a ―concurrent resolution‖ to stop hostilities if they disagree w/ the pres on the war; ii. Legality of War – Desert Storm 1. Justiciability – Case found not ripe b/c hostility not yet imminent at time of suit; a. No general Cgrs‘l standing to sue, and only narrow exceptions b. Also may be a political Q: this is how challenges to Vietnam war were rejected; iii. Rumsfeld v. Hamdan 1. Facts – P is a former driver for Osama, captured during the invasion of Afghanistan and sent to GITMO. Charged w/ conspiracy to commit terrorism. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission authorized under Miliitary Comission Act was illegal and lacked the protections required under the Geneva Conventions and UCMJ. Following Hamdi v. Rumsfeld, Hamdan was granted a review before the Combatant Status Review Tribunal, which determined that he was eligible for detention by the United States as an enemy combatant or person of interest. Congress had limited detainees to a combat status review with the right to appeal to the D.C. Circuit. 2. Disposition a. Justiciability – President argues that we don‘t know if he has a right. b. Jurisdiction and the Exception Power – the gov‘t argued that Congress exercised it‘s Exception Power and denied the Court jurisdiction by giving exclusive appellate jurisdiction to D.C. Circuit Court of Appeals. The Court however, interpreting the text of the act, draws a negative inference from the fact the DTA indicated 2 of 3 subparagraphs apply to pending reviews and Hamdam‘s case falls in the pargraph which does not expressly indicate it applies to pending reviews. i. Gov‘t argues there is ambiguity if you look to the Congressional record as to whether the paragraph applies to pending reviews and further, in the face of ambiguity, deference should be paid to the President‘s interpretation in a time of war. c. President’s Authority to Authorize Military Commissions – Text of DTA and AUMF which reference military commissions are not enough from which to infer Cgrs approved of these particular commissions (lowest ebb of Youngstown) i. Court admits in times of ―military necessity‖ the President may be able to authorize military commissions (ie. Lincoln, WWI, WW2)17 d. AUMF – Hamdi says that AUMF provides authority to convene military commissions as required by exigencies of war and in accordance w/ laws of war. Thus, UCMJ and Geneva Conventions, Art 3 apply. e. UCMJ – Pres didn‘t make sufficient showing that following UCMJ rules was impracticable f. Geneva Conventions, Art. III – ―International‖ language means ―not b/w nations,‖ and Military Commissions aren‘t a regularly constituted ct, as req'd by Art 3. i. Terrorists are guerilla combatants which are not typically considered within the Geneva Convention. 3. War on Terror Nuance – Because of the unique nature of the War on Terror, the Court is less likely to give its traditional deference in matters of war and foreign policy to the Pres, and accordingly the majority/plurality in Hamdan was looking for ways to exercise the kind of control over the Executive normally reserved for domestic affiars (a la Youngstown). 17 Dissent takes exception to “military necessity” saying when did the court get to determine what is a military necessity? 4. A LIMITED GOVERNMENT OF ENUMERATED POWER A. LIMITATIONS ON FEDERAL POWER i. Enumerated Power of the Federal Government i. Art I Sect 8 delegates the following powers: a. To lay and collect taxes . . . to pay debts and provide for the common defense and general welfare of the US (but must be uniform throughout country); b. To borrow money on the credit of the US; (Power of the purse); c. To regulate commerce w/ foreign nations, and among the several states, and w/ the Indian tribes; d. To establish naturalization laws and bankruptcy laws; e. To coin money; f. To provide for punishment for counterfeiting; g. To establish post offices and roads; h. To establish trademarks and copyrights and patents to promote science and arts; i. To establish courts inferior to the S. Ct.; j. To define piracy laws and rules at sea; k. To declare war; l. To raise and support an army and fund it for no longer than 2 yrs at a time; m. To provide/maintain a navy; n. To provide for the calling forth of militia to suppress insurrections and to provide for training and organizing them; o. To leg exclusively in the nation‘s capitol; p. To make all laws necessary and proper for carrying into execution any of the above powers ii. Necessary and Proper Clause a. Federalist #33 – clause is just declaratory – the Constitutional powers delegated to Congress would be the same w/out it b/c implicit in the delegation of the power is the means to carry out that power ii. Implied Power of the Federal Government i. Implied Powers of Congress Through the Necessary and Proper and Supremacy Clause a. Rationale of Federalism – power to govern is shared between federal and state gov‘t i. Local gov‘t more intimate, better understand the needs of the people there ii. Local gov‘t can respond to those needs more quickly and effectively iii. States are diverse and public opinion varies in different parts of the country, but the national gov‘t likes uniform policies that don‘t always fit each state; b. McCulloch v. Maryland i. Facts -- Second national bank issued notes to borrow money from people. Maryland said that the federal gov‘t needed authority from the state and a license to issue notes in Maryland. Maryland claimed the U.S. lacked the authority to even incorporate a national bank. The issue was whether Congress had the power to incorporate a bank? ii. Disposition 1. Custom –the 1st national bank was around for 20 yrs  weak argument 2. Federal Power is Conferred by States – Court holds it is the other way around, the Constitution gives the fed power, and the const. is the voice of the people. 3. Necessary and Proper Clause – Creating a National Bank is a necessary and proper means of executing enumerated powers like the power to tax, provide for common defense, coin $, regulate commerce 4. ―Necessary and Proper‖ – broadly defined – not just that which is absolutely necessary, but also convenient or useful (proper) a. All means adapted to that an enumerated end, that consist to the letter and spirit of the Constitution are Constitutional. i. Identify the enumerated power ii. Are the meas appropriate to advance that power c. Supremacy Clause and Preemption i. Supremacy Clause – (Art. 6) To preempt, fed gov‘t must have a valid grant of auth under the const 1. Statutes, treaties, and ex agreements can all preempt (Garamendi) ii. Forms of Preemption (cornerstone in preemption is Cgrs’ intent to preempt): 1. Express – Congress specifically states its intention to displace the laws of the states a. Court construes the preemption narrowly 2. Implied – Congress impliedly denies authority to the state a. 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. (i.e. immigration, foreign policy) i. Crosby – Court found a Massachussets procurement law to be preempted by federal sanctions against Myanmar imposing lesser sanction (foreign policy power) b. 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 d. Savings Clauses – Congress expressly denies preemption and saves state authority i. Only ensure tno express preemption, but the Court can still find implied preemption 1. Geier – Congress passed regulations calling for gradual implementation of airbags in most cars. Tthere was a savings clause allowing common law tort claims to exist. P was hurt in car w/ no air bag; sued at state level under CL tort theory. Court found no express preemption, but found implied preemption b/c the state ruling in P favor would create a situation where manufactures would have to install air bags in all cars when Congress intended a gradual process of putting them in most cars. This frustrated the purpose of the fed law and was implied preemption; ii. Is There a Federal Common Law as well? a. Criminal Common Law – No b. Civil Common Law – Not since Erie c. Internationally Common Law – unclear, door is open i. Sosa v. Alvarez-Machain 1. Facts – arrested, extradited (sort of) and then sues once acquitted. His claim was brought under the Alien Tort Statute. 2. Disposition – Statute only opened the door for him to sue. He could not assert individual rights because he was not a citizen. The Tort Act only specified three claims, none of which apply to AM. The court declined the opportunity to create a cause of action insisting there was no federal common law. But Souter‘s opinion left the door open to possible future common law based on the Law of Nations iii. Are the means prohibited (expressly or implicitly under 10th and 11th Am) iii. The Commerce Clause i. What is Commerce? a. Defining the Commerce Clause requires looking at why the commerce clause was given to the Fed. Gov’t i. VA convention informs this logic. The reasons elicited are as follows: 1. To address national interest 2. To promote harmony between the states 3. To address regulatory issues the states cannot address individually b. Gibbons v. Ogden i. Facts – Gibbons has a license from fed gov‘t to operate a steam boat on the water ways in NY. Ogden has a state issued license that gives him exclusive use of the river in NY. ii. Disposition (Marshall) – federal gov‘t has power to regulate navigation and state law is preempted 1. Interpretation of Constitution – interpret the text fairly, not with a bias towards narrowing or expanding federal gov‘t. Apply the natural meaning of words and look for the purpose underlying the text where there is ambiguity. c. Commerce Power Checklist i. Complete external subject matter is given to federal gov‘t – i.e. international trade? ii. Affects the states generally? iii. General power conferred on federal gov‘t that cannot be fully exercised w/out setting aside some local or state action? d. Types of commerce clause cases; i. Affirmative – Cgrs acts and Q is whether Congress has the power under the CC? ii. Negative (Dormant) – state has acted and the Q is whether: 1. Cgrs has acted already and preemted state action, or 2. Cgrs hasn‘t acted yet and state action is unduly burdens interstate commerce ii. Distinguishing the Commerce and Police Powers a. E.C. Knight Co i. Facts – American Sugar Refining Co. buys the shares of four refineries and thus has a complete monopoly against in the state. Here, the supply and price of a basic necessity. ii. Disposition (Fuller) – Case erroneously stands for the proposition that manufacturing can be divided from commercial activity. Manufacturing is going to be totally the province of state regulation. iii. Dissent (Harlan) – Congress may reach into a state where state action effect national interests. b. Champion v. Ames (the ―Lottery‖ case); i. Facts – Fed statute prohibited bringing lottery tickets into US from abroad, from one state to another, or putting them in the mail. Issue was whether that was in Cgrs‘ CC power. ii. Disposition (Harlan) – W/in Cgrs‘ power to stop trafficking of lottery tickets b/w states and in mail 1. Reasoning – b/c only effects tickets going b/w states, so interstate, and commerce b/c involves buying and selling, which is commercial; also mail and roads used so using instrumentalities of commerce; iii. Dissent – disagrees b/c the tickets aren‘t articles of interstate commerce 1. Is there a national interest here? a. Maybe, but it is a PP argument of morality; 2. Is there a need for harmony here? a. Not really, differing opinions state to state; b. State gov‘t better suited to peoples needs in areas like this; 3. Are the states unable to reg on their own? a. No, they can regulate this just fine; b. State gov‘t better suited to peoples needs in areas like this; iv. Effect – This looks like pure police power (combat gambling) and cuts in the favor of the dissent iii. What is Interstate? a. Swift v. U.S. – Court upholds Congress‘s power to reach inside a state where beef from a slaughterhouse is not going to just stay local, but is going to move in a Stream of Commerce. b. Shreveport Rate Cases (1914)– Congress may reach an activity, whatever it‘s nature be, if it has a ―close and substantial relation‖ to interstate commerce and its control is essential to protecting interstate commerce. First Question – What could this mean? i. Force yourself past the plain meaning that comes to mind b. Second Question – What does this mean? 2. Commerce Power – ―to regulate commerce with foreign Nations, and among the several states, and with the Indian tribes‖ – no foreign nations or Indian tribes so we look to the definition of ―among the several states‖ a. Navigation – part of buying and selling goods in transportation; a national economic unit is required to prevent trade barriers (ie. diff. rules in each state) b. Commerce power reaches into and beyond state lines 3. Limitations to Power – Commerce power does not extend to commerce that is ―completely internal‖ and that does not extend to or affect other states. 4. Recourse for Violation – poltical process a. c. Schechter Poultry – Backsliding by the court, finding the ‗effects‘ of intrastate sales of chickens was ―indirect‖ and not ―direct‖ d. National Labor Relations Board (1935) – ―Constitutional Revolution‖ – sustained federal labor legislation regulating the management and union acitivity at manufacturing plants. Court rejected ―indirect/direct‖ distinction and applied the ―Substantial Effects Test‖ e. U.S. v. Darby (1941)– sustaining federal power to regulate production of goods for commerce f. Wickard v. Filburn (1942) i. Facts – A congressional act imposed max acreage quotas on farmers for various crops. Filburn grew more wheat on more acreage than his particular quota. Filburn makes wheat for his family and for his cattle. He has not desire to sell, trade, bargain, or transport the wheat for other uses. The issue was could Cgrs regulate the production of wheat that was not put into interstate market and was consumed by the producer ii. Disposition 1. Substantial Effects Test – Congress may reach an activity, whatever its nature, if it exerts a substantial economic effect on commerce. 2. Principle of Aggregation -- Filburn‘s overage was truly insubstantial in terms of the overall wheat market, however, Congress has the right to look to similar activities of other Farmer Filburns to assess the economic effects of all that activity upon interstate commerce a. The idea is that if they grow their own wheat they won‘t have to buy it from somebody else. When demand goes down, so will prices which affect commerce iv. What are the Limits, if any, to the Commerce Power? a. Maryland v. Wirtz (1968)—reaffirmed ―the power to regulate commerce, though broad indeed, has limits‖ only where individual instances under a statute are of de minimis character. b. United States v. Lopez (1995) i. Facts – a student who brought a gun to school was charged under the federal Gun-Free School Zones Act (Single Subject Statute). The student argued the act exceeded Congress‘s commerce power. ii. Disposition – statute is unconstitutional. 1. Dual Soverignty – scope of CC is limited because there are enumerated federal powers and everything else is left to the states (Madison). Gibbons holding affirms as much. 2. Three Categories of Activity Congress May Regulate Under CC Power a. [use of] Channels of Interstate Commerce i. i.e. railways, roadways, airways b. Instrumentalities of Interstate Commerce i. Congress may protect from being impeded, those things that match channels of commerce. i.e. trucks, planes, ships, and the people c. Activities having a Substantial Effect on Interstate Commerce i. Regulation is economic or part of a greater scheme relating to economic regulation ii. Regulation cannot be too attenuated (there must be a logical stopping point outside of jurisdictional power) iii. Clear Statement Rule – There is a presumption against Federal preemption. Congress must convey intent clearly (optional) with legislative findings to change the federal-state balance. The Court will resolve the dispute in favor of lenity otherwise. iv. Jurisidictional Hook – ―nexus‖ must exist connecting activity to interstate commerce c. U.S. v. Morrison (2000) – Single Subject Statute – court may strike down a statute even with extensive congressional findings of activity‘s effect on commerce d. Dewey Jones v. U.S. (2000) – (statutory interpretation issue) unanimous court struck down arson statute that attempted to state Congress may reach an activity that was ―used in‖ a commerceaffecting activity. e. Solid Waste Agency v. U.S. Army Corps of Eng’s – regulation of a pond (resulting from an abandoned gravel pit) could not be regulated under the Clean Water Act because neither regulation f. of a land fill or migratory birds fit the definition of activities Congress could regulate under their CC power. Gonzales v. Raich i. Facts – CA passed Compassionate Use Act, allowing ―seriously ill‖ residents to use MJ medicinally, either cultivating it themselves, or getting it from ―caregivers‖ who grow medicinal MJ. Fed agents seized and destroyed Monson‘s cannabis plants, on theory that having them was a violation of Controlled Substances Act. Πs filed suit. Activity was intrastate, wholly local. ii. Disposition – Continuing standard is Wickard’s substantial effects test – reaffirms aggregation principle – rationally basis to believe when viewed in the aggregate, the activity has a substantial effect on interstate commerce. 1. The Court distinguishes Lopez and Morrison  single-subject statutes – challenge was ―facial‖ and not ―as applied‖ -- good law, but confined to non-economic context and single-subject structure as opposed to regulatory scheme. 2. Comprehensive Economic Regulatory Scheme. – Congress can reach non-economic activities too because it has no obligation to excise non-economic effects of the statutory scheme. a. Necessary and Proper Clause – Scalia argues regulation of local, non-economic activities may be N&P to effect the legitimate commerce purpose of the statute (swallows SE Test) iii. End Result  Substantial effects is the governing test; Necessary and Proper Clause may bolster commerce power iv. The Negative / Dormant Commerce Clause i. Dormant Commerce Clause – Commerce clause expressly grants Congress the power to enact legislation that affects interstate commerce and implicitly restricts a state from passing legislation that unduly burdens or discriminates against insterstate commerce ii. Cooley v. Board of Wardens a. Facts – Congress adopts a statute giving authority to states to regulate rivers, boats, etc. until Congress says otherwise. There are two parts to the statute. They adopt existing laws as their own and adopt as federal law anything the states thereafter enact. Issue is whether the states can act where the constitution has expressly granted the federal gov‘t the right to regulate commerce. b. Disposition i. States may regulate where the Federal Gov‘t has not, but state and local laws cannot unduly burden interstate commerce. ii. Further, Congress may preserve the state‘s role in the particular matter. notwithstanding the fact the particular regulation is discriminatory iii. Oregon Waste (establishes Modern DCC) a. Facts -- Oregon statute puts a surcharge on waste dumped in state landfills that was generated out of state. On its face, the statute discriminated against out of state waste. b. Disposition i. Discrimination – differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter. ii. DCC Violation Analysis 1. Does the state regulation facially discriminate against interstate commerce (effect)? a. YES  virtually per se unconstitutional (subject to standard of strict scrutiny) unless, the State has no other nondiscriminatory means to advance a legitimate local purpose i. Resource protection [for landfill space] is not enough (water is) ii. Local health and safety may be enough iii. Compensatory Tax – must show 1) surcharge and in state taxes are equal, and 2) same taxable event (ie. trash disposal) b. NO  Pike balancing test -- nondiscriminatory regulation that have only incidental effects on interstate commerce are valid unless the burden on interstate commerce outweighs the local benefits iv. Carbone v. Clarkstown (1994) – Court struck down under the Commerce Clause a flow control ordinance that forced haulers to deliver waste to a private processing facility. v. United Haulers Ass., Inc. v. Oneida-Herkimer Solid Waste Management Authority (2007) a. Facts – Oneida and Herkimer counties created solid waste corporation. The Counties enacted a ―flow control‖ ordinance requiring trash haulers to deliver solid waste to the public processing facility (which also cost more to operate and required higher operating costs). b. Disposition – salient difference from Carbone is that the law at issue discriminates in favor of a public entity not a state-created public benefit corporation. (see notes for November 1st) v. Marketplace Participant Exception i. So. Cent. Timber Development Inc. v. Wunnicke a. Facts -- Alaska statue requires timber sold by the state to be partially processed in state before being shipped out of state. The statute is discriminatory on its face (resource protection is not a valid reason to discriminate) because it discriminates against exporters and buyers that have no in state processing plant b. Disposition i. Marketplace Participant Exception -- state can discriminate if acting as a market place participant (just like any buyer or seller) and not as a regulator 1. State can buy on terms favorable to its own citizens (Hughes) 2. State can sell on terms favorable to its own citizens (Reeves) 3. State can‘t impose control over stuff that a normal seller/buyer can‘t do a. Can‘t regulate and be a marketplace participant18 c. Dissent – Rehnquist dissents saying Alaska is a market participant, so they can discriminate; and once again this is not economic protectionism and is not the type of thing the CC was meant to prevent; ii. Hughes v. Alexandria Scrap – state ran a junk yard and req. more documentation for out of state vehicles (at a higher cost to out of state clients); no downstream reg, acting as a market participant, so no DCC violation; iii. Reeves v. Stake – shortage of cement in SD. State only sold to in state corps. Notice the state was acting only as a market participant, no tying arrangement B. STATE LAW AND FEDERAL ELECTIONS – TERM LIMITS i. State Role in Federal Elections i. States determine a. Qualifications of Electors (Voters) b. ―Time, Place, and Manner‖ -- Congress can change all but place c. Electoral College d. Redistricting ii. Federal Role in Federal Elections i. Determined by Qualifications Clause for house, senate and pres iii. US Term Limits v. Thornton i. Facts – AR passed a law preventing anyone who had already served 3 terms as Rep. or 2 terms as Senator from having their name on the ballot. ii. Disposition – violation of Qualifications Clause and Democratic Principles a. Congress – Powell v. McCormack -- no power to alter qualifications enumerated in the Constitution (Qualifications Clause Art. I, §2, cl. 2) -- fixed and unalterable by Congress19 b. States – no inference of power to alter qualifications under Tenth Amendment  10th reserved only those powers that existed before and power to alter qualifications is not part of the states’ ―original powers‖ c. AND -- Democratic Principles of representative democracy require people to choose whom they please to govern them (Constitutional Bar to both States and Congress) 18 Alaska was a participant in the market b/c it owned and sold timber; but it was also regulating processing downstream which happens after the timber is sold; this is called a ―tying arrangement‖: using leverage in on market (timber sales) to control another market (processing); thus, acting as a mix of part and reg; Regulating processing, was an act as regulation and thus subject to the DCC; it was disc on its face and under strict scrutiny there was no justification for the disc = invalid st statute 19 Specifically the Court denied Congress’ power to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly proscribed in the Constitution after Congress denied a Representative his seat in Congress for misconduct iv. Cook v. Gralike i. Facts – State law allowed state to put on ballot the fact the official did not promise to push for term limits ii. Disposition – impermissible way to circumvent US Term Limits and violation of Time, place and manner Clause a. Time, place and manner allows state to make their own procedural regulations, not to favor or disfavor certain candidates b. 1st Amendment protects voter‘s rights to file requests and petitions, but not permit a binding direction from the people, that would defeat the purpose of a deliberative body 5. A GOVERNMENT MINDFUL OF DUAL SOVEREIGNTY20 A. THE RISE AND FALL OF TRADITIONAL STATE FUNCTIONS i. National League of Cities v. Usery i. Facts – Federal Fair Labor Act which sets minimum wage and overtime requirements for employees at private businesses was amended to apply to all state employees (public or private) ii. Disposition – Federal gov‘t via CC can regulate national minimum waves, but not exercise the power in a fashion that impair State‘s ability to regulate traditional governmental functions a. Test for Violation of 10th Amendment i. Statute regulates the state as a state ii. Statue addresses an indisputable attribute of state sovereignty iii. Compliance impairs state‘s ability to carry out traditional state functions 1. Problematic to define states function (unworkable standard) a. Traditional state functions: i. Police protection ii. Fire dept iii. Sanitation iv. Public health v. Parks and Recreation iv. Fed interest is not such that it justifies state submission; 1. A balancing test of sorts; ii. Garcia v. SAMTA i. Facts – issue of whether FLSA applies to municipally owned and operated mass-transit system. ii. Dispostiion – overrules Usery. Congress‘ action in affording SAMTA employees the protections of wage and hour provisions of the FLSA contravened no affirmative limit to Congress‘ power under the CC. Congress has the power to regulate states and individuals. a. Rationale – Traditional Function Test is unworkable – judicial branch is not good at deciding what a state function is21 b. New ―Test‖ – if the power is not enumerated, Congress cannot use it (10th prohibition) i. If the 10th does not prohibit Federal gov‘t, states‘ interests will be accommodated through the protection of the political process. c. Rehnquist Dissent – vows revenge B. NO COMMANDEERING ALLOWED – STATES ARE NOT SUB-AGENCIES OF THE FED GOV’T i. Printz v. United States i. Facts – Federal Brady Gun Control Act required state executive officers (Chief Law Enforcement Officers) to use reasonable means to perform the background check required under the statute. ii. Disposition – Fed Gov‘t cannot compel the states to administer a federal regulatory program a. Constitution explicitly states when states are to cooperate with the Federal Gov‘t. i. (ie. State Judges apply federal law all the time) 20 21 iii. Thomas Dissent – Constitution sets minimum requirements for qualifications and 10th then reserves the power this power to the states. Congress can‘t add to them, they need delegated power Question of Congress’s ability to regulate states as states The Court then also rejects the following suggested tests – “Uniquely” Or “Necessarily” Government Functions?; Historical Test; Government v. Proprietary Function Test ii. Reno v. Condon i. Facts – Fed Drivers Personal Protection Act prohibited DMV (state) prohibited states from selling drivers‘ personal info and prohibited individuals who came across the info from re-selling it ii. Disposition – no commandeering. a. Fed can regulate individuals b. Fed can regulate states as states (as here) c. Fed cannot regulate states by: i. forcing state to enact legislation ii. directing states to regulate private citizens (Printz) C. THE SPENDING POWER – DOES THE COMMERCE CLAUSE MATTER i. Art. 1 § 8 – Spending Power – Congress has the power to levy taxes and provide for the general welfare of the US. Spending power is the logical inference of the power to tax. ii. S.D. v. Dole22 i. Facts – Federal statute conditioned 5% of funding for state highway construction on maintaining a minimum drinking of 21. S.D.‘s drinking age was 19 so Cgrs cut funding by 5% for highways. ii. Disposition a. Fundamental difference between regulatory and spending powers. Court punts on issue of whether 21st Amendment would prohibit an attempt by Congress to legislate directly a national minimum drinking age. Congress doesn‘t need to regulate directly, they accomplish the same goal indirectly.23 i. Strong argument that Commerce Clause would allow direct regulation (regulatory scheme) ii. Doesn‘t implicate 21st because drinking age doesn‘t involve transportation or importation of alcohol, which is what sect 2 of the 21st allows states to regulate b. Congress can use spending power to accomplish objectives indirectly that it can‘t regulate directly w/ enumerated powers. However, there are five articulated restrictions to the Spending Power i. Spending must: 1. be in pursuit of the general welfare a. substantial deference given to congress 2. be clear, unequivocal condition of receipts a. Ramifications of accepting must be Contractually Anticipated i. Barnes v. Gorman – punitive damages not w/in contractual expectations of State 3. be related to Fed interest in particular nat‘l project/program (―nexus‖) a. O‘Connor in dissent says this nexus requirement the majority espouses is too broad. She opines that Congress can only condition funds on how the state spends the money. Here, drinking age is a regulation, not how the money should be spent 22 b. President‘s duty to take care that the federal laws are executed and his power would grow tremendously c. You cannot tell states how to regulate individuals iii. Stephen’s Dissent – says you can get the same result by structuring the program a different way: a. Regulate states and individuals alike (Garcia) – what does this mean exactly b. Conditional Pre-Emption – Congress says if you meet our criteria we will let you implement that criteria, otherwise we pre-empt you under the commerce and supremacy clause c. Condition on Federal Money – see SD v. Dole Lopez curbed Cgrses CC power (+ for state sovereignty); Printz revived 10th A by prohibiting commandeering (+ for state sovereignty); After Garcia butchered the 10th (- for state sovereignty); Seminole Tribe broadens scope of 11th A sovereign immunity (+ for state sovereignty); Maj in Dole cuts against these cases by allowing fed to do indirectly what it can‘t do directly under the above 3 cases (- for state sovereignty); Maj arguably should reconsider Dole to bring it in tandem w/ these cases; but not done in Sabri (and O‘Connor seems to have given her argument up in that case) 23 Rehnquist says the court is not seeking to enforce a regulation, but rather a K. b. Sabri v. United States – Sabri challenged the constitutionality of a statute [on the lack of federal interest theory] that made it a crime to offer a $5,000 or larger bribe to any agent of a political entity that receives over $10,000 in federal funds. Held: Congress has authority under Spending Clause to appropriate federal monies to promote GW and corresponding authority under N&PC to see to it that monies are not frittered away. 4. not require States to act unconstitutionally (ie. Independent Constitutional Bar) 5. not be too coercive a. Here we know that 5% withholding is not coercive enough. b. E.g. Fed cannot give lots of money w/o condition and the once project is underway, impose a condition D. DUAL SOVEREIGNTY IN COURT – 11TH AMENDMENT SOVEREIGN IMMUNITY i. 11th Amendment – The Judicial power of US shall not be construed to extend to any suit in law or equity prosecuted against a state by citizens of another state (or foreign state) – non-justiciable case i. 11th doesn‘t bar individual from suing a city (municipal entity) or county ii. Seminole Tribe v. Florida i. Facts -- Cgrs passed a statute (pursuant to CC) that impose a duty on states to negotiate gaming deals w/ Indian tribes in good faith and allowed tribes to sue states in fed ct for failure to compel negotiation ii. Disposition a. Rules – Who can sue a state? i. 11th Amendment provides immunity for suits: 1. Under both Diversity and Fed. Q Jurisdiction a. Rationale: Fed Q did not exist when 11th Amendment was passed 2. In both state or federal court ii. Federal Gov‘t  yes iii. Other States  yes iv. Individuals  yes, but only: 1. If the state Explicitly Waives Immunity under 11th Amendment a. Mere participation in Fed program isn‘t consent (constructive intent) b. Accepting money bribe to be sued may be enough 2. If Congress properly Abrogates Soverign Immunity – Two Part Inquiry a. Was Congress‘s intent to abrogate unequivocally expressed? i. Cannot be a general authorization ii. Type of relief requested is irrelevant b. Did Congress Act pursuant to a valid exercise of power? i. Under § 5 of 14th A24. ii. Under Art I Bankruptcy Power 25 3. Can sue a State Official under Ex parte Young a. Rule – Where a state officer is violating federal law, an individual may sue to compel performance under the regulation. b. Suit must be: i. against named individual26 ii. for official act iii. only for prospective injunctive relief. c. If Statute establishes a remedial scheme, the court will not apply E.P. Young iii. Nevada Dept. of Human Resources v. Hibbs i. Facts – Cgrs passed FMLA pursuant to §5 powers, entitling eligible employees to take up to 12 work weeks of unpaid leave annually for any of several reasons. Act gave a private right of action to sue in Fed. or St. court no state shall deny privileges, immunities, life, liberty, due process, equal protection of the law. Central Virgiinia Community College v. Katz – lawsuit was allowed to be brought against the state because bankruptcy is a suit filed against the property (in rem), not the state (in personam). States have more liability in this context. 26 Careful: ―Smith v. Arnold S.‖ fits, but ―Smith v. Gov. of Calif.‖ DOES NOT. 24 25 should an employer (state or private) interfere with FMLA rights. The equal protection claim is that similarly situation people (classes) are being treated different (different classifications) ii. Disposition – Broad issue – barred from suit? Here, Congress‘ intent to abrogate was unambiguously clear in the text of the legislation. Thus the first prong is not fairly debatable. The issue is whether the Congress acted pursuant to a valid exercise of its power under §5 of the 14th Am. (second prong of Seminole Test). a. Rule – Valid §5 Enforcement Power Legislation to enforce §127 must be congruent [nexus] and proportional [weight] between the extent of the injury and law‘s requirements to prevent or remedy the injury. b. Equal Protection i. Rule – Sliding Scale Analysis -- The more Suspect a class is, the easier it is for Cgrs to abrogate 11th am. imm. 1. Congress can create a statute that discriminates against a class, but where it subjects the state to liability, it will be very difficult to abrogate. 2. Constitutionally Suspect Classifications – Anytime public decision making employs these, it must have compelling reason meeting varying levels of enhanced scrutiny. a. Suspect: i. Race (strictest) – criteria is immutable b. Almost-Suspect: i. Gender -- ―particularly persuasive‖ basis c. NOT Suspect – ―rational basis‖ i. Age28 ii. Disability29 iii. Wealth Equal protection, due process, privileges and immunities are guaranteed as against the state Kimel v. Fl. Board of Regents (2000) – ―An extraordinary level of protection based on age is not congruent and proportional to violation – states just need rational basis, so there‘s no pattern of discrimination by States that could create a need for abrogation of State Sov Imm.‖ 29 Board of Trustees v. Garrett (2001) 27 28