FED/STATE
Exam: 3 Essay Questions, worth differing amounts 40 ―Warmup‖ 100 ―Meat‖ 60 ―Decompressing‖ has sub-parts What to Focus On When Studying: Commerce Power, incl DCC Spending Power (easy) Challenges to Executive Power Judicial Power (fulcrum upon wh. Leg and Exec power turn) Federalism, and judicial enforcement
1. THE SEARCH FOR UNIVERSAL TRUTH – REMOTE ANCESTORS OF THE AMERICAN POLITICAL SYSTEM A. Natural Law: Known by every man, regardless of which belief system. Point being, there is something higher than the const. in reality. The const. is a means to accomplish a goal, not the goal itself. The following great thinkers formed the context in which our const. was created, and their works were known and studied by the founding fathers. B. John Winthrop (Jerusalem) i. Meant to Live in Communities: Every man needs other men. God created us all different; some rich, others poor, some powerful, others submissive. The fact that everyone is created for different reasons indicates we are meant to live together and dependant upon one another. Thus, we were meant to live in ―communities‖. ii. The Need to be the ―City on the Hill‖: We become a city on a hill for all others to see, and receive God’s blessing as a nation, when the people of the nation ―do justly, love mercy, and walk humbly w/ God‖. But, this is a call to the people, not the Government. Thus, Winthrop would say that the decline of religion in America results in us no longer being a city on a hill, but wouldn’t necessarily support a government hand in religion. E.g.: He wouldn’t necessarily agree w/ the judge who put the ten commandments up in the courtroom. iii. Likely Influence on the Const.: Const. rooted in religion, but gives no power over the topic to the government. iv. John Adams (2nd Pres.) Adopts this Approach: Religion has great utility, where gov’t comes up short, God picks up where we leave off. Thus, no need for an ―all powerful gov’t‖. C. Plato (Athens) i. Man’s power of reason is a divine gift. God’s plan is to use that reason properly to make laws. D. Aristotle (Athens) i. The Golden Mean: The middle ground, not too rich, not too poor, not too powerful, not too weak, is the best. This means a bigger middle class results in a better, more natural, society. For gov’t, this means the best form is a mix of Monarchy, Aristocracy, and Democracy. E. Cicero (Rome) i. Distinction b/w Positive Law and Natural Law: Positive Law is that created by man; Natural Law is created by God, 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, and just b/c there is no law prohibiting and action doesn’t make it okay under natural law. The distinction b/w positive and natural, and the fact that natural trumps, leads in the end to our form of judicial review (X is the law, but it is not right, and should be changed). ii. Cicero’s 4 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 obligations after pledging your word (contract law); and (4) be kind and generous to others, according to their worth and means. F. St. Augustine (Bethlehem) i. True happiness is not found on earth, but afterwards. Thus, impliedly, gov’t can’t construct heaven on earth, so it should strive for peace, order, and natural justice. We should be wary of a gov’t that promises more. G. St. Thomas Aquinas (Bethlehem) i. Opposing view to that of St. Augustine: Gov’t can do more than create peace, order and justice, it can make them more moral through positive laws in harmony w/ natural law, and also supply them w/ necessities to provide a better life.
2. FROM THE ―GLORIOUS REVOLUTION‖ TO THE DECLARATION A. English Legal History
i. In general: an attempt to be a society ―ruled by law, not by men‖. ii. Magna Charta created: the origin of due process (5th & 14th am.). iii. Prohibitions Del Roi: King James I appointing judges to the ―Church Courts‖ w/out consulting anyone else; unlike the common law courts, the church courts would not follow precedent, they just ruled as they saw fit, or consistent w/ the kings ―prerogative‖; thus not only were they improperly administering law, but they also were taking away jd from the common law courts; Generally, this could be seen also as political interference w/ the rule of law that should be the job of the courts; Coke started issuing ―prohibitions‖ forbidding the church courts from hearing certain cases; 1. James felt judges were delegates of the king and that king could decide matters himself; 2. Also thought that law is based on reason, which he as king had; 3. Coke felt the king had no right to arrest people, that was the job of judges acting pursuant to law; 4. Coke basically thought king is above all men, but is still under God and the law; a. Striving for rule of law, not rule by man; b. Cuts against idea that ―the king can do no wrong‖ which had been used to forbid COA against the king himself; i. This trend continues when Coke and others attempt to overturn 5 Knights case; eventually this theory prevails when Charles, the next king, is put on trial himself; ii. But common law of sovereign immunity continued after king put on trial, and was not taken away by the founders in our const. likely; 5. Prohibitions Del Roi could be relevant in: a. Ex Immunity (Nixon and Clinton); b. Ex privilege (―‖); c. Pres Authority in foreign affairs (Hamdi); d. Leg power to take away s. ct. appellate jd (McCardle); e. Combo of the above i. Prior test – statute took away s ct app jd and low ct jd over a certain matter, and the Pres had ex privilege inherently; combined, raised issue of pres being above law like in PDR; f. State sovereign immunity; iv. Five Knights Case: After King Charles hears case and denies ―habeas‖ to accused, there were attempts over turn the case, to get the King to stop acting as a judge in cases: the origin of separation of powers and a 3-branch gov’t and further presses for due process. Also a rejection of idea of ―divine right of Kings‖, and a move toward consistency in how law is applied to each person. 1. Milton: approves of putting the king on trial. Idea that King serves the people, not the other way around, and can be removed by the people. 2. Hobbs: disapproves. Idea that man is no good by nature and an absolute monarch (God on earth) is needed to keep order. v. Declaration of Indulgences: declared freedom to exercise religion, property rights to everyone, protected the minority protestant church, and eliminated religious laws. vi. English Bill of Rights: Parallels our bill of rights; vii. All of the principles above make their way into the Declaration of Independence: all men created equal, unalienable rights include life liberty and the pursuit of happiness, and gov’t gets its power from the people who can remove it.
3. THE DIVISION OF GOVERNMENT POWER A. Montesquieu: The const. pulled the idea of division of power into leg., ex., and jud. branch from him. He thought separation of powers was necessary to avoid tyranny. To him, the judicial branch was ―next to nothing‖ and was the least dangerous in terms of abusing power. This was b/c legislature has the money (power of the purse), executive controls the police and military (power of the sword), and judicial has neither. i. But, judicial branch is something to worry about today when judges act outside their power, and start to act as the executive or legislature by executing laws or creating them instead of just interpreting them. (Especially b/c they 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. (The Big One) Under Art. III sect. 2 cl 2, Cgrs can take away the supreme court’s appellate jd and take away lower courts’ jd (or even eliminate the lower courts); B. The Separation of Powers Generally
i. Separation avoid tyranny; ii. Our system was built w/ 2 opposing views at the time in mind; 1. Country View (optimistic) = nature of man good; separate powers and seek best of the bunch to lead; 2. Court View (pessimistic) = nature of man self serving; ambition must be made to counteract ambition; iii. Result = separation of powers into judicial, leg, and ex. but w/ ways for ambition to counteract ambition such as bicameral houses in the leg, a veto for the ex, and judicial review given to the judicial branch;
4. JUDICIAL REVIEW A. The Judicial Branch Generally i. Founders worried about a few things that happened in England; 1. Wanted uniformity in laws and to minimize state bias; a. So one supreme court, and Cgrs can create inferior lower federal courts; i. Thus, Cgrs could abolish the inferior courts; 2. Too hard to get large group to select judges; a. So Pres nominates, majority of senate must approve; i. Still difficult due to filibuster; 3. Judges weren’t independent from the king; too easily removed by him; a. So lifetime tenure of judges (they sit in ―good behavior‖); i. Impeachment allowed only after a crime and conviction; B. Federal Court Jurisdiction i. Justiciability under Art. III Sect. 2 – Is there a case or controversy? 1. Standing – constitutional and prudential requirements ensure litigant has requisite personal interest in the case. a. Constitutional – ∏ must allege 3 Things: i. Nj in Fact (suffered or will imminently suffer Nj) 1. Nj Arising from Violation of: a. Statutory Right b. CL Right c. Const Right 2. Imminent: a. Must be a substantial likelihood party will be subjected to attacked policy in future. 3. Sometimes aesthetic is enough, but other times not. ii. Czn by ∆ (Nj is fairly traceable to ∆’s conduct) iii. Redressability (favorable ct decision is likely to redress the Nj) 1. Fines paid to US instead of ∏s don’t make this not redressable. b. Prudential – Claim must be: i. Personal (assert only own rights) 1. EXCEPTIONS a. When ∏ Can’t Assert: allowed IFF ∏ can’t assert, and party can effectively represent ∏. b. Close Relationship: (b/w advocate and ∏) c. ―Overbreadth‖: 1st A speech rights of others not before the court. ii. Particular(Tax) – (If suing as taxpayer, must have specific harm) (Daimler-Chrysler) iii. Protected – (assert claims w/in zone of interests protected by statute at issue) 1. NB: DISCRETIONARY—LOW BAR c. Cgrs’l Standing i. Powell v. McCormack – Cgrsman, excluded for ethical violations, protested, and Ct said Nj was particularized, so he had standing. ii. Coleman v. Miller – Legislators challenged Lieut. Gov.’s right to break tie, on ground that their votes would be COMPLETELY NULLIFIED. Ct held that Nj to be sufficiently grave/particularized to provide standing. iii. Raines v. Byrd (1997) – 6 Members alleged that Line Item Veto hurt their voting power. 1. Dist Ct: a. They have standing (presently diluted voting power) b. It’s ripe (presently impacting leg. decision-making)
c. Line Item Veto unConst. 2. SCOTUS: NO STANDING a. General Nj, not particularized. b. AND Cgrs has its own remedy: repeal the L-I Veto auth. d. Associational Standing i. An association has standing whenever: 1. Its members otherwise would; and 2. The interest asserted by the association is germane to the association’s purpose; and 3. The relief requested doesn’t require the actual party to be before the court. 2. Ripeness (Test of when Fed Ct can grant pre-enforcement review of policy) a. Two Prongs: i. Hardship to the Parties of W/holding Consideration 1. 3 Situations: a. ∏ faced w/ forgoing allegedly lawful action/risking likely pros. b. Enforcement certain and imminent c. Collateral Njs (not acting will lead to Njs to others) ii. Fitness of Issues and Record for Judicial Review 1. Qs of Law more likely than Qs of Fact 3. Mootness (∏’s personal interest must be current) a. Any change which ends a controv makes a case moot. b. EXCEPTIONS: (record already assembled, &c) i. Primary Nj Resolved, but Secondary/Collateral Nj Remains 1. Ex: prisoner released…but still can’t vote, &c. ii. Wrongs Capable of Repetition Yet Evading Review (Roe) 1. Req’d: Reasonable Expectation that same party would have same problem again. 2. Req’d: Nj is of inherently limited duration. iii. ∏ Voluntarily Ceases, but Could Resume Any Time iv. Class Actions Where Named ∏’s Claims Resolved 4. Political Question a. Definition from Baker v. Carr (1962) i. Nonjusticiable Political Question when there’s one of the following: 1. A textual commitment of the issue to another branch; 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 depts. ii. Subject Matter Jurisdiction of Supreme Ct. in Art. III Sect 2; 1. Appellate jd (Cgrs can’t add to but can sub from); a. Federal Question (const law or interpretation of a federal statute) – 28 U.S.C. 1331; i. Fed Q must be on the face of the complaint, not just in the answer or anticipated defenses; ii. Can be brought in lower fed ct. or state court (due to supremacy clause); D can remove if fed Q exists; b. Diversity (controversy b/w citizens of different states) – 28 U.S.C 1332; i. Each ∏ from dif state than each ∆ 1. Based on domicile; citizens have only one, corps have 2 (place of incorporation and principal place of business) ii. Amount in controversy over 75k c. Admiralty or maritime law; d. Controversies naming US as a party; 2. Original jd (―untouchable‖: Cgrs cannot add or subtract from S. ct. original jd as was attempted in Marbury v. Madison); a. Controversies b/w two or more states (exclusive jd);
i. Usually boundary disputes; b. Actions naming Ambassadors, public ministers, consuls of foreign states as parties (non-exclusive jd shared w/ lower federal courts); c. Controversies b/w US and state/s (non-exclusive jd shared w/ lower federal courts); d. Action by a state against citizen of another state or an alien (non-exclusive jd shared w/ lower federal courts and state courts); 3. Routes to the S. Ct. a. Usually cert granted; i. Need votes of 4 justices; ii. Likely if App. Cts. are in disagreement or if imp federal Q or if state ct. found a federal law unconst.; b. Cgrs can’t just say S. Ct. has original jd if not in Art. III Sect. 2; c. Cgrs can specify that certain cases can go from dist. ct straight to s. ct; 4. Exceptions to Appellate jd; a. Ex parte McCardle: i. Facts: ∏ being held by military tribunal, makes a habeas challenge, but is there jd? ii. Did the ―repealing act‖ take away the courts jd? Yes. New act took away jd of the ct., and that was consistent w/ Cgrs’ authority under Art III § 2 cl 2. iii. Main Point: S. ct. jd is constitutionally provided but Cgrs has the authority under Art. III Section 2 Clause 2 to take away (make exceptions to) the S. Ct. appellate jd; 1. Thus, b/c specific grants of jd by Cgrs have always been construed to mean anything not granted is denied, ct. always needs a ―hook‖ (a statute) to have jd, and you need one in a brief to S. Ct.; 2. Necessary inference: Cgrs has the authority to take away jd of the lower courts impliedly b/c of their authority to create (abolish) those courts; 3. What if Cgrs uses this power to do something blatantly unconstitutional? E.g. pass a law restricting free speech and also taking away lower courts jd and s. ct. appellate jd. Tough question. One argument is simply that Cgrs has this power in the text of the const., and that is the likely answer. But arguable that Cgrs cannot take away const role of court via supremacy clause to say what law is. Q is almost unanswerable = good time to discuss PDR, 5 Knights, and natural law; b. Plaut: But, Cgrs cannot grant appellate jd that ct. doesn’t have to get a case decision changed; i. E.g. if SOL has run by statute, Cgrs cannot change the SOL to get a case decision changed by letting the ct hear the case; C. The Essence of Judicial Review i. Federalist 78, Hamilton (used heavily by Marshall in Marbury v. Madison): 1. Judiciary least dangerous of branches (Montesquieu); 2. Judiciary best suited to keep Leg w/in its limits; a. Ct. is intermediary b/w leg and people; b. Leg can’t judge itself; 3. Const is supreme, trumps other laws that are inconsistent w/ it; 4. This doesn’t mean the judiciary is superior or a tyrant; means the peoples will is superior and is reflected in the const.; ct. is governed by const.; they are there to judge, not impose their will; ii. Marbury v. Madison: 1. Newspaper reporting the decision would read: Court Asserts Power of Judicial Review – S. Ct. is the Final Arbiter on Issues of Constitutionality, Over Leg and Ex Branches; 2. Facts: Adams appoints Marbury to justice of peace but didn’t deliver commission before leaving office; New sec of state refuses to deliver commission; Marbury goes to s. ct. and wants a mandamus, which a statute passed by the leg entitled him to; 3. Ct. finds Marbury is a justice of the peace, the appointment was completed; Thus he has a right, and a remedy to that violation of the right. But does he have a right to a mandamus under the statute? No, due to subject matter jd. The statute gave original jd to the ct. where the const. only gave ct. app. jd (fed Q). A mandamus orders a lower ct. what to do, and thus since no ct. had heard the case yet, it would be akin to s. ct. exercising original jd over a fed Q (interpreting a fed statute). They can’t do that. So no jd in case and ct. finds statute unconstitutional and thus void (s. ct. invalidates a leg enactments as unconstitutional).
a. The main point is that court had just exercised some major power; they were now the final arbiter for const Q, over Ex and Leg branch, after declaring an act of the leg unconstitutional; i. Minor points: some argue that ct. is supposed to interpret statutes narrowly to find them const, which they are (Dewey and Solid Waste); thus ct. could have found the statute only to mean issue a mandamus where const allows (here, on appeal); then the statute wouldn’t be unconstitutional, Marbury would just be in the wrong court. ii. Opinion is also technically dicta, but this is a moot point now; iii. Martin v. Hunter’s Lessee: 1. S. Ct. also final arbiter of const Q over state courts; 2. Facts: Title dispute, Martin claims title by foreign treaty, Hunter by state law; Virginia S. Ct. finds for Hunter; 3. S. Ct. says it is supreme over the state ct., and gives title to Martin under the foreign treaty; a. Best arguments for this supremacy over state cts: Art III Sect 2 – ―in all other cases the S. Ct. has appellate jd‖; thus, if there were no federal lower courts (which are optional), state courts would have to hear cases, and then the s. ct. would be the only appellate court and this indirectly implies they have the final say over state judiciary as well as the ex and leg; b. Other arguments: i. Uniformity of federal law application; ii. Prevents state bias; 4. Thus in the end, S. Ct. binds state courts, and is final arbiter; a. Lower fed courts not binding on state courts, just persuasive;
5. 11TH AM. SOVEREIGN IMMUNITY A. 11th A: Judicial power of tUS 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); i. Text seems to bar suits against states in diversity cases ONLY; ii. But ct construes more broad, to also bar fed Q COA against states in fed ct; iii. Bottom line: can’t sue state if it doesn’t consent; 1. Can Cgrs abrogate? a. Yes, only under 14th am, not CC power; iv. Note: fed gov’t isn’t barred from suing states, just ind; 1. E.g. a statute could allow the AG or Sec of Energy, or some other fed agency to sue; this qualifies as the US fed gov’t suing and 11th doesn’t bar that; v. Also note 11th doesn’t bar ind from suing a city (municipal entity) or county; (past Kmiec test); 1. No. Ins. Co. of NY v. Chatham Co., Ga. (2006) B. Seminole Tribe i. Cgrs passed st that imposed a duty on states to negotiate gaming deals w/ Indian tribes and allowed tribes to sue states in fed ct for failure to do so; 1. Thus it was a fed Q, not a diversity case; ii. Issue one; 1. Does 11th A provide state immunity here? a. Maj = 11th provides state immunity from both diversity and fed Q COA in fed ct; i. Hans case was correctly decided in their opinion; 1. Reason fed Q jd not mentioned in the am is b/c fed Q jd didn’t exist at the time, otherwise it would have been; b. Dissent = 11th only applies to diversity COA; i. Hans case was incorrectly decided in their opinion; iii. Issue two; 1. Assuming 11th applies to Fed Q COA, can Cgrs abrogate state’s 11th A immunity to allow COA against the states?; a. Maj = yes, but only using section 5 of the 14th A; but not under the CC i. Union Gas case incorrectly decided in their opinion; ii. B/c CC precedes the 11th A, can’t abrogate using it; 1. Doing so would allow Cgrs to add to fed ct appellate jd (not allowed); a. Remember, Marbury v. Madison already decided Cgrs can’t add to fed ct original jd;
b. Dissent = yes, under 14th and CC Cgrs can abrogate 11th am immunity; i. Union Gas case correctly decided in their opinion; iv. Issue three; 1. So how can you sue a state? a. If they consent i. Consent must be explicit, not implied. ii. Mere participation in Fed program isn’t consent. b. Π = Fed Govt (ALWAYS) c. Π = Another State (ALWAYS) d. Sue State Official under Ex parte Young i. Suit against named individual for official act 1. Careful: ―Smith v. Arnold S.‖ fits, but ―Smith v. Gov. of Calif.‖ DOES NOT. ii. Suit ONLY for prospective njctive relief. e. (MOST OFTEN) If Cgrs abrogates Sov Imm under § 5 of 14th A. i. Requires Unambiguous statement of abrogation. f. OVERRULED Via enactments of Cgrs via Art I Comm Power i. Union Gas (1989) & Seminole Tribe (1996)) g. If Cgrs abrogates Sov Imm under Art I BANKRUPTCY Power i. (Central VA Comm. College v. Katz (2006)) h. If Cgrs abrogates Sov Imm under Art I SPENDING Power i. Important Inquiry: Was there adequate unambiguous notice of the provision? ii. (Barnes v. Gorman (spending as contract) in notes after S.D. v. Dole) i. If Cgrs abrogates Sov Imm under Art I b/c State has participated in an INTERSTATE COMPACT. i. (Petty v. Tennessee-Missouri Bridge Comm’n (1959)) C. Fed Maritime Commission v. SC State Ports Auth: 11th am state immunity applies to admin proceedings (fed agency adjudication) too; i.e. can’t force a state into admin agency proceedings; i. Consistent w/ view that 11th is broader than its text, had admin procedures been around when 11th am ratified, would have incl it; 1. Admin proceedings walk and talk like a ct proceeding, so treated as such by 11th; ii. Dissent (Textualist view) say 11th applies to judicial jd, and admin procedures/fed agency proceedings are ex powers so 11th n/a; D. Alden v. ME: 5-4 ct decided that ind can’t sue a state in state ct if 11th am would bar the COA in fed ct. (can’t get around 11th by just going to state ct. due to state sovereign immunity); E. Good area for natural law discussion and English legal history; i. Prohibitions Del Roy probably comes up on test here: PDR Coke argued gov’t shouldn’t be above the law; same w/ 5 Knights; but common law immunity continued and may have been okay in founders’ minds; natural law suggest gov’t shouldn’t be its own judge, or be above the law, and that absolute power corrupts absolutely; 1. Souter’s dissent in both Seminole and Alden claims that the Maj is relying on natural law for its decision. But is he correct? I don’t think so. The Maj responds it is actually common law in the sovereign immunity realm that provides for st sovereignty in these contexts. Natural law would actually cut against it in my mind.
6. 11TH AM. SOVEREIGN IMMUNITY – THE FUNDAMENTAL RIGHTS/SUSPECT CLASS LIMIT A. Under Seminole Tribe: i. Private ind COA against non-consenting states barred unless exception; ii. Main Exception: Cgrs can abrogate using 14th A § 5 to remedy and deter const violations; 1. Ct, not Cgrs, defines sub of const guarantees; i.e. ct defines equal protection, due process, and privileges and immunities; 2. Cgrs can remedy and deter const violations; a. 14th A § 5 Legislation must be ―congruent and proportional‖ to the violation; i. Congruent = nexus to unconst behavior or pattern of states; ii. Proportional = remedy must be proportional to the behavior; 1. The problem:
B. Hibbs; i. Cgrs passed act that dealt w/ employee benefits, including sick leave, and gave ind right to sue state for violations (abrogating 11th am immunity); ii. Issue: was Cgrs validly using 14th A § 5 by abrogating immunity in order to remedy and deter const violation of gender disc?; 1. Const violations at issue that Cgrs sought to deter was gender disc in the workplace; a. Ct found that states did have policies that favored women, e.g. for sick leave, so Cgrs did have some room to remedy and deter by enacting prophylactic leg; i. Dissent says no disc here, the disc came from private employers, not the state; need a state actor in 14th am; ii. And Scalia points out even if some states did disc, don’t look at them collectively as a whole, look at them one by one; b. Applying rules we already know; i. Cgrs can abrogate under 14th; ii. Leg must be congruent and proportional; 1. Cgrses ability to leg (an thus to abrogate) is increased when leg deals w/ a suspect class; a. Which Kimel and Garrett did not (age and disability not suspect class); 2. Court says gender is a class more protected against disc than age and disability; a. Bottom line: Cgrs was given the auth here to leg to remedy and deter gender disc, and that incl the ability to abrogate state immunity under 11th here; b. Makes it a lot easier for Cgrs to abrogate; C. Tennessee v. Lane; i. Cgrs also has more authority to remedy and deter (and thus abrogate 11th) when protection involve a fundamental right; ii. ADA passed by Cgrs to prohibit disability disc; 1. A state ct had no wheelchair access to 2nd floor. P couldn’t get to 2nd floor and was jailed for not appearing; 2. P sued state under ADA for disability disc;
a. When remedying const violations, Cgrs’s definition of equal protection and due process, etc must be the same as the ct’s definition; b. But, when deterring const violations, Cgrs can go slightly further; c. E.g. Katzenbach i. Ct determined literacy test req for voters before qualifying to be able to vote was not a violation of equal protection to vote; But Cgrs found that in some states test were being used to disc against blacks and prevent them from voting; Cgrs passes leg prohibiting lit tests in certain sit; ct upheld this under Cgrs’s power to remedy and deter const violations and said it could go slightly past its definition to deter this const violation; here, Cgrs showed ct a factual record showing const violations had occurred, dist it from Boerne case; 3. The more SUSPECT a CLASS is, the easier it is for Cgrs to abrogate imm. a. Constitutionally Suspect Classifications – Anytime public decisionmaking employs these (to PASS LAWS, or TO ABROGATE SOV IMM), it must have compelling reason meeting varying levels of enhanced scrutiny. i. Suspect: 1. Race (strictest) ii. Almost-Suspect: 1. Gender (need ―particularly persuasive‖ basis) iii. NOT Suspect: (just need ―rational/reasoned basis‖) 1. Age Kimel v. Fl. Board of Regents (2000) a. ―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.‖ 2. Disability Board of Trustees v. Garrett (2001) a. Same as Kimel. 3. Wealth
3. Ct had already found that Cgrs couldn’t abrogate 11th using 14th in the ADA solely to protect against disability disc; 4. But here, a fundamental right was also at issue; a. Due process: Equal access to ct; 5. So ct allowed the statute to abrogate 11th and subject state to ind COA; D. City of Boerne; i. Cgrs can’t redefine const guarantees or definition of equal protection, due process, etc; ii. Ct had already decided that laws that are neutral and generally applicable do not violate due process; iii. Ct also had already decided that zoning laws are neutral and generally applicable, so don’t violate free ex of religion; iv. Cgrs passes an act, Religious Freedom and Rest Act that said some zoning laws actually did violate due process by violating the right to free ex of religion and that private ind could sue state if they did; 1. ΠChurch denied zoning to build a church and sued state for violation of free ex of religion under the RFRA; v. Cgrs supplied ct w/ no factual record showing any signs of zoning laws being used to disc or impede free ex of religion vi. Is this redefining ct’s def of due process, or simply remedying and deterring by going slightly past cts def? 1. Ct decides Cgrs cannot abrogate here; this would be allowing Cgrs to redefine the meaning of free ex of religion; Cgrs can’t argue simply remedying and deterring b/c supplied no factual record showing any const violation;
7. EXECUTIVE POWER – DOMESTIC LIMITATIONS A. The framers wanted to stay away from giving someone as much power as a king. Thus Pres is elected to 4-year terms (instead of by birth for life) and subject to impeachment and prosecution (instead of immune). However, there is grey area as to how much power the Pres has under Art. II. i. Theodore Roosevelt thought Pres had lots (e.g. buying panama canal by unilateral treaty) and Taft thought very little (e.g. only powers specifically enumerated and those necessary to exercise enumerated ones). Both views are well w/in Art. II. ii. In times of emergency power of Pres may be even greater than Teddy Roosevelt’s interpretation. For e.g., at the onset of the civil war, Lincoln ordered the suspension of the writ of habeas corpus and the jailing w/out trial of many citizens, against federal law and the const.. In his mind, preserving the nation who had the const. was greater than preserving the const. itself. FDR also followed this view in times of emergency, e.g. during WWII he threatened to act alone in opposition to certain parts of the Price Control Act, using the war as justification. B. Youngstown Sheet & Tube i. Pres Truman ordered gov’t takeover of domestic steel mills after serious threat of a labor strike in midst of a labor dispute; ii. Pres first ordered the parties to the negotiating table using a statute in the Taft Harley Act; negotiations didn’t work and the strike was inevitable; iii. Issue: scope of Pres’s domestic power considering the current situation of a major war in Korea (108k deaths), and the fact that steel was a crucial component in fighting the war; iv. Truman argued his authority to do this was threefold: 1. Art. II Sect 1 (the ―vesting clause‖): Ex power is vested in the Pres of the United States; a. Maj rejects and says this power is limited to the lawmaking process of signing or vetoing leg from Cgrs; 2. Art. II Sect 3 (the ―take care clause‖): Pres is to see that the laws are faithfully executed; a. Maj rejects for same reason as vesting clause; 3. Art. II Sect 2 (commander in chief): Pres is the Commander in Chief of the Armed Forces; a. Maj rejects and says this power is confined to military command in the ―theater of war‖, which taking possession of domestic private land is not; v. In the end, the maj found the Pres’s action unconstitutional; vi. Justice Jackson’s concurrence: Pres’s power fluctuates depending on which of 3 categories his action falls into: 1. Pres acting w/ express/implied Cgrs’l authorization = Max Authority; a. Not the case here, as there was no leg authorizing this seizure (Pres admitted as much); 2. Pres acting alone but Cgrs is silent = Twilight Zone; a. Level of power here will depend on the seriousness of the events leading to the action; b. Truman would say this is where his actions fell; c. Jackson says this is not the category here, b/c Cgrs did specify 3 times when the gov’t could seize property via statute; non of these statutes were used here, and the action taken was contrary to these statutes; 3. Pres acting alone and Cgrs has denied the Pres authority (actions inconsistent w/ express or implied desire of Cgrs) = Minimum Authority (―lowest ebb‖); a. 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);
b. Maj of the court would say this is where Truman’s actions fell; vii. Douglas’s concurrence: argues Pres lack the authority to do this b/c Cgrs has all power over the purse; thus here, Pres would have to take over private property and pay the citizens for it due to the due process clause, which would mean he was exercising the power of the purse, which is not his power; viii. Vinson’s Dissent; 1. Even though Cgrs didn’t officially declare war (which is rare), they did ratify the UN Charter and the North Atlantic Treaty, both of which obligate the US to protect and help nations in the treaty which are attacked; This was the current situation; 2. Allowing the Steel Mills to close would be detrimental to the economy via inflation and thus threaten the war effort; 3. Pres’s action here is w/in Art. II (the three clauses rejected by the majority) as shown by previous Press’ actions: a. The Louisiana Purchase by Jefferson demonstrates authority under the vesting clause; i. Regan did this too when he extended the territorial waters off shore from 3 to 12 miles; b. FDR’s seizure of an aviation plant domestically 6 mo before pearl harbor demonstrates authority of Pres as commander in chief (at the direction of Justice Jackson, when he was Attorney General!); ix. End result = Pres has very little power via the const. alone domestically w/out leg authorization;
8. EXECUTIVE POWER – OVERSEEING THE BUREAUCRACY A. Pres’s appointment authority; i. Important due to the fact that Pres has little authority w/out leg authorization; this means that practically, ex authority domestically is in the form of seeing that the laws are faithfully executed (take care clause), i.e. overseeing the federal bureaucracy; ii. Appointment Clause: Art. II Sect 2 Cl 2 1. Process of Appointments a. Pres nominates; b. Senate appoints or rejects; i. Appointment authority not given to house b/c too large a body and too fluid (always changing); ii. Appointment authority given to senate to ensure equal representation of states; iii. Can reject for any reason and don’t have to give a reason; iv. But, cannot select; 2. Types of officers: a. Principal officers; i. Officers named in Art. II: 1. Ambassadors 2. Public Ministers and Consuls 3. Judges of the Supreme Ct. ii. Officers created by Cgrs by law to be nominated by the pres w/ consent of senate (the primary difference b/w principal and inferior officers); b. Inferior officers; i. Middle Men who Cgrs vests appointment authority in the head of various ex agencies, or the jud branch (cannot vest app power in the leg branch though); 3. The federal bureaucracy: a. Pres’l assistants = a few of them (not principal officers and Pres picks them) b. Principal officers = about 500 of them (need pres nom and senate app); c. Heads of dept. = incl. in the 500 principal officers (Pres nom and senate app); d. Inferior officers/middle men = thousands of them (picked by the heads of dept.); e. Staff = part of the civil service; about 5 million (picked by the middlemen and heads of dept. in each agency) 4. Ct. has never address directly the amount of supervision the Pres can take part in over these officers; ct. attacks this problem indirectly by addressing who the Pres can remove from office (theory: he who fires can also direct); iii. Myers v. US 1. Myers was a postmaster; post master is an principal executive officer; Pres removed him from office; a. Similar sit 60 yrs earlier when pres Johnson removed the SecWar unilaterally and was impeached for doing so, but avoided conviction by one vote (turned out his protection of his removal power was constitutional, as found in this case [Myers]);
2. He sues b/c a statute said Pres could only remove the postmaster from office w/ approval from the senate; 3. Taft’s opinion; a. Const. is silent on removing officers; b. Federal gov’t has enumerated powers: those powers include creating offices and taking part in appointing officers (reject or appoint); c. Thus, the leg has no power to take part in the removal of officers; d. Gives 3 arguments for giving removal power to Pres; i. Practical arg. – Press 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 arg. – founders discussed power of removal and decided it was inherent in office of Pres; iii. Structural arg. – 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; e. End result = Pres has exclusive power to remove purely executive principal officers; 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 i. Note that the inclusion of the phrase ―purely executive‖ officer opens the door for the ct. to allow Cgrs to fetter the Press power to remove officers who are not purely ex (quasi jud or quasi leg); 1. There is an argument that this fettering is a blending of separation of powers that was not intended by the founders; this leads to the argument that the independent counsel position (when it existed) was unconstitutional b/c as prosecutor was an ex officer but could only be removed for cause; regardless, the seed that the independent counsel grew from was the words ―purely executive‖ in Myers. f. Q left open is whether Cgrs can fetter the pres auth to remove purely ex inferior officers; Kmiec’s opinion is yes, they can; (but as of now, Cgrs doesn’t do this); iv. Humphrey’s Executor v. US: 1. Humphrey was a member of the Federal Trade Commission (FTC); the FTC was what would now be described as an independent agency (there are about 12 of them, incl. the SEC and FCC); the only difference b/w a ex agency and independent agency is that Pres can remove ex agency officers w/out cause but independent agency officers only w/ cause; 2. Distinction b/w postmaster in Myers and the FTC member in Humphrey’s Executor: Myers as a postmaster was performing wholly ex functions; Humphrey as FTC member was ex officer but also performing leg duties (investigating and reporting to Cgrs) and judicial aid; thus Humphrey was a quasi leg and quasi judicial executive officer, not purely executive; 3. End result = Pres still has removal power over quasi leg/jud (ind agency) executive officers, and Cgrs can’t require its approval in removal; But, Cgrs can enact statutes that qualify Pres’l authority to remove, i.e. fetter Pres’l authority to remove, e.g. by ―for cause‖ limitations on Pres’l power to remove them;
9. THE EXECUTIVE AS PROSECUTOR – THE INDEPENDENT COUNSEL A. Morrison v. Olson: i. Case began when Olson, Ass. AG, advised Reagan to assert ex privilege and not hand over EPA documents to Cgrs; 1. 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; ii. Point is, House of rep was pissed at Olson for advising Reagan to assert the privilege; the privilege matter was worked out, but then the house turned on Olson, and wanted to investigate him; they started by making him testify before Cgrs; iii. They then suspect he perjured himself, and want to go after him; iv. Under Ethics in Government Act, house judiciary committee asked AG to appoint an independent counsel under direction of a special panel (makeshift court) to investigate Olson and his role in advising Pres and his testimony before house (for possible perjury); 1. To Kmiec, this has a direct effect on the sep of powers; 2. The statute allowed for appt of an ind counsel to investigate and prosecute high ranking ex officials like assistant AG, ass. AG, Pres or VP; 3. Under this IC law, AG doesn’t have to appoint an IC, but is directed to by a ―court‖ if there are ―reasonable grounds to investigate further.‖ (lower standard than a normal prosecutor);
4. AG could only dismiss IC for cause; v. Olson argues: 1. Act violates Appointments Clause of Art. II; a. Argues IC is a principal officer b/c of significant duties, so should be nominated by Pres and appointed by senate; b. Ct. says Cgrs was w/in its power to deem IC an inferior officer who doesn’t require nomination by pres and app by senate; i. Doesn’t make policy decisions ii. Limited function and limited duties iii. Limited term iv. AG didn’t have to appoint him v. AG can remove for cause c. 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; 2. Act is incongruous w/ judicial function by allowing a court to appoint a purely ex officer; a. Ct. disagrees b/c of need for IC to be ind from ex to perform its duty; also seems permitted by art 2 app clause, saying Cgrs can create inferior officers and let judicial branch or head of ex agencies to appoint; 3. Act violates sep of powers by impeding Press power to remove ex officer and not allowing him to control the actions of the prosecutor; a. Ct. says doesn’t violate this power b/c they use the ―Functional Test‖ instead of the Formal Test to determine whether removal restrictions impede the Press ability to perform his const assigned functions. i. They just don’t see how not being able to remove the IC interferes w/ performing any const assigned functions of the Pres; especially since the AG can remove; 1. And technically Myers and Humphrey Ex is followed b/c Cgrs doesn’t put removal power in itself, just qualify ex removal power; b. 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; vi. IC statute is ultimately repealed and no longer in existence; (But there are similar positions still in use, and the IC could return theoretically); 1. Effect of Morrison on Ind agencies in general: Ct may have signaled a 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); vii. Robert Jackson quote: ―if the prosecutor is obliged to chose his case, it follows that he can chose his defendants. This is the most dangerous power of the prosecutor.‖
10. THE EXECUTIVE BOUND BY STATUTORY MEANING A. Cgrs leg and writes statutes, and in doing so often gives authority to executive branch by delegating rulemaking authority to ex agencies; i. Relates to pres being able to oversee ex of laws, b/c although he is head of ex branch, he and branch are bound by leg auth delegated to them by Cgrs; this involves debate about whether ind agency should reflect will of Pres; after all, even if Pres can oversee, can’t tell them to do things they don’t have the power to due via statute; B. When executive branch receives authority via leg from Cgrs, ex is ―bound by statutory meaning‖; i. Thus, when agencies make rules or regulations after interpreting a statute, they must be w/in the meaning of the statute (w/in the power delegated to them); 1. i.e. the ex branch, via an ex agency, cannot contradict the clear intent of Cgrs (their leg); ii. Administrative review: someone can ―test‖ the validity of the agency’s interpretation of Cgrs’s grant of authority, i.e. validity of rule/reg they made based on those interpretations, in court; when this is done, governing case and standard is Chevron; 1. Chevron Deference: a. Step 1 – If the statutes (or act) are plain and understandable, i.e. if Cgrs has directly spoken to the issue, it is the job of the ct. under Marbury v. Madison to say what the law is; i. Any rule/reg that contradicts clear intent of Cgrs is unconstitutional as outside the power of the ex; ii. Maj of ct. in FDA saw FDCA as plain and understandable (step 1) and did not give Chevron deference to the FDA to regulate tobacco;
1. This was an interesting way to find Cgrs intent clear (sub statutes and leg history); b. Step 2 – If the statutes (or act) are ambiguous, statute is seen as a referral of discretion from Cgrs to ex branch (agency) and rule/reg is given ―Chevron Deference‖; iii. Mead 1. Further trimmed Chevron (so says the textbook); 2. Ct. gave reduced Chevron deference (called ―SKIDMORE‖ deference) to a Customs hdqrters informal letter ruling; a. The informal ruling said 3 ring binder that Mead imported were now not duty free and now subject to tariffs; b. Informal letter rulings – agencies decide a usually narrow issue for a party to help guide other similarly situated parties by giving them a likely ruling on the issue; i. Key is that these rulings don’t follow the same procedures as regulations do under APA (Admin. Proc. Act) so court gives them less deference than regulations; ii. Skidmore Deference: The level of deference afforded to them is based on the rulings persuasiveness; the factors are: 1. Thoroughness; 2. Validity of reasoning; 3. Consistency w/ earlier/later rulings 3. 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); iv. Gonzales v. Oregon (assisted suicide) 1. OR passed assisted suicide law (ODWDA), 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 issued Interpretive Rule (IR) saying that CSA trumps ODWDA b/c assisted suicide not a ―legitimate medical practice.‖ IR challenged. a. Govt’s Arg 1: It was an interpretive regulation, due deference. i. Ct ―Parroting Rule‖: If the regulation doesn’t say anything new, no entitlement to latitude. b. Govt’s Arg 2: W/in Scope of Delegated Auth, THFR, an issue of statutory interpretation. i. Ct AG has SOME authority: (Control of Scheduling, Registration of Physicians, but NOT to Usurp State Authority UNLESS there’s Express or Implied PREEMPTION. 1. PREEMPTION – hierarchy of authority est’d in Art. VI’s Supremacy Clause BUT Cgrs NEED NOT EXERCISE its higher authority. Statute: ―We (Cgrs) 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 b/w our statute and the relevant state provision.‖ c. Govt’s Arg 3: Even if no deference, it’s a reasonable interpretation. i. Ct 1. Doubts scope of authority; 2. Under structure of statute, AG doesn’t have the ability to: a. Go outside delegations to SecHealth b. Invoke preemption over the State statute here. 3. ‖If Cgrs really intended to give you that, they would’ve said so specifically.‖
11. EXECUTIVE PRIVILEGE, THE PRES, AND JUDICIAL REVIEW A. US v. Nixon: i. Low level people from the Nixon admin broke into DNC headquarters at the Watergate Hotel to try to tap the phones. They were caught put on trial for the break in. Then a special prosecutor was appointed to find out whether Nixon knew anything about the break in. The prosecutor wanted tapes that Nixon kept of conversations at the White House. Prosecutor wants tapes handed over but Nixon claims absolute executive privilege; 1. Note: the statute (fn 8 pg 229) giving the special prosecutor authority from Cgrs to conduct the investigation was worded to 1) comply w/ Myers, as a quasi judicial ex officer who could be fired only for cause (improprieties), and requiring only consulting Cgrs to fire him, not requiring Cgrs’ approval to remove, and 2) comply w/ INS, requiring bicameralism and presentment to appoint the special prosecutor, so it wouldn’t be deemed a legislative veto; 2. First minor issue is justiciability: Nixon claims this is an intra-branch dispute b/w two ex branch employees (Chief Ex and ex officer); ct. dismisses this claim w/o much reasoning; 3. Major issue: Executive privilege:
a. Nixon claims there is absolute ex privilege for confidential conversations due to the need to protect communications w/ advisors who need to give Pres advice; b. Ct. holds: i. Ex privilege does exist; 1. Implied in the const separation of powers; ii. Privilege is not absolute; iii. Hierarchy for ex privilege depends on subject matter of communication: 1. Highest protection = military subject matter/foreign diplomacy/national security; a. i.e. stuff well w/ in pres art II powers laid out in CW; 2. Medium protection = law enforcement matters/open lit files; 3. Lowest protection = confidential communications on day to day domestic matters; a. Weigh interest in protecting communications vs. interest of those seeking the communication; iv. This case involved day to day matters, and the court weighed the importance of protecting confidential communications in day to day matters against the importance of the right to due process (getting the evidence on the tapes) of the people who were on trial, and found that their due process rights trumped Nixon’s privilege; 4. Contrast Nixon w/ Cheney v. US; a. In Cheney, dist. ct. ordered production of confidential communications b/w Cheney and Energy Task Force (a gov’t body) for a civil litigation; although this was day to day domestic confidential communication, there was not the countervailing interest of due process in a criminal trial like in Nixon, and the S. Ct. said the ex privilege trumped, affirming that the ex privilege is important and pres/VP due respect; 5. Note that Nixon was impeached: a. Art. I Sect 2 Cl 5: House has sole power to impeach; b. Art. I Sect 3 Cl 7: Senate has sole power to indict and try (conduct trial) after impeachment; B. Other privilege issues; i. Hilary Clinton; 1. Claimed conversations b/w her and gov’t attorneys were privileged under a common law theory of attorney client privilege; a. She herself wasn’t Pres so no ex. privilege; 2. Ct. rejected argument b/c attorney for the gov’t don’t work for the individuals like Clinton, thus their clients are the people, not the gov’t employees; so no attorney client privilege; ii. Bill Clinton; 1. Argued absolute ex privilege in his communications w/ white house counsel; 2. Ct. rejected saying no absolute privilege b/c duty of white house counsel is not to defend Pres from prosecution, but to help see that laws are faithfully executed; a. Thus same hierarchy would apply as in Nixon; iii. Bill Clinton; 1. Also argued secret service couldn’t be subpoenaed for grand jury proceedings; 2. Ct. rejected b/c all federal officers have duty to report illegal activity to superiors; C. Immunities; i. Under Nixon v. Fitzgerald, Pres has absolute immunity from suits for actions taken w/in the outer limits of conducting official duties (construed broadly); ii. Bill Clinton; 1. Argued he was immune from civil lit for sex harassment if suit brought while still in office; 2. Ct. rejects absolute immunity argument here, b/c there is no immunity for unofficial conduct even if still sitting as Pres at time of the lawsuit; a. Ct also refused to stay the lawsuit until out of office (due to prejudicial effect on P like losing evidence and feigning memories of wits); iii. Pres’l aids have less immunity, their official actions are immune from civil liability as long as they don’t violate clearly established statutory or const rights that should have been reasonably known; iv. Officials, even pres and VP, not immune from criminal charges; 1. Also may be impeached. But, what is the correct order? 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; b. Once, this was not followed, in Plaut: VP charged w/ tax evasion while in office, but then he resigned; so we still don’t know the answer for sure;
12. THE EXECUTIVE AND CGRS – MATTERS OF FOREIGN AFFAIRS A. US v. Curtiss-Wright: i. There was war in S Am and US wanted peace there; ii. 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, namely that stopping arms shipments would promote peace; 1. Note: Joint resolution = bicameralism and presentment (legally binding/const); Concurrent resolution = bicameralism w/o presentment (not legally binding/unconstitutional - Chadha); iii. Pres made the findings and made the proclamation; Pres later revoked the proclamation; iv. CW, an arms co., sold guns to countries while proc was in effect, and was prosecuted; it then challenged const of the joint resolution; 1. Argument was that this was unconstitutional b/c it allowed ex to leg by allowing Pres to make factual determinations to proclaim the action illegal, and then revoke the proclamation; argument is that this is over-delegation to the ex; a. Was this similar to the line item veto struck down yrs later in Clinton v. NY? Remember, that case said allowing pres to pick and chose leg and veto some while accepting others is in effect the ex legislating, and is unconstitutional; i. Argument is that allowing pres to revoke the proclamation is allowing him to repeal leg which again is a leg act and not the job of the ex; ii. But this is distinguishable to Clinton line item vetoing a piece of spending leg; here, the leg isn’t repealed, it remains in effect, Pres only revoked the proc b/c factual findings were no longer present; leg still in effect, proclamation could be reinstated after making the findings again; thus, no leg had taken place on part of the ex.; b. Main argument here is that this is letting the pres (ex) leg by letting him make the factual determination to proc the action illegal, just over delegation pure and simple; i. For domestic matters, we require an intelligible standard; arguable there is one here, but point of the ct. is that this isn’t domestic, it’s a matter of foreign affairs; ii. Power of pres in Foreign affairs is different: 1. The Pres has ―extra constitutional‖ authority derived from fact US is a sovereign nation; (This is now well accepted theory); a. Theory is that Pres has authority in all foreign affairs that the const doesn’t delegate to another branch; This is called ―residual authority‖; i. In this case, Pres is acting w/ that extra const auth plus the joint resolution which likely gave an const intelligible standard anyway; b. Other extra const auth e.g.: i. Power to acquire territory by occupation or discovery; ii. Ex agreements not ratified by senate may be treated as law; v. This opinion is popular w/ Press: e.g. ―Pres alone is the sole organ of the nation in its external relations, and sole rep w/ foreign nations‖ & ―Pres alone has the power to neg. treaties, and the senate cannot intrude‖; vi. How much can Cgrs limit Pres’s residual/inherent auth in foreign affairs? 1. Iran Contra a. Statute required Pres to notify Cgrs when trading arms and that trade must be important to national security to take place; b. US was selling arms to Israel which was selling them to Iran (and the funds were being used to support the contras in Nicaragua) c. This violated the statute b/c it was being done in secret and pres didn’t tell Cgrs; d. Why did Oliver North think this was okay? B/c statute viewed as impeding Press inherent authority as the sole organ w/ other nations who has residual power not given to other branches, per language in CW; i. Thus, law prohibiting ex intelligence agencies from doing this can’t limit the pres inherent auth under the const; so they just did it; e. When Cgrs found out passed laws prohibiting indirect support (like above) of the insurgents in Nicaragua.
i. Same CW issues; f. But Oliver North kept the operation secret and kept it going; 2. Q remains: to what degree can Cgrs limit the inherent residual auth of the pres in foreign affairs?; a. E.g.: to what extent can things like the Torture Convention enacted by Cgrs impede this power? b. These issues start to be addressed in cases like Hamdi in the ―War on Terror‖; vii. Note: CW specifies that const and US laws passed pursuant to it have no force in a foreign territory except as to our citizens; but US cit ―carry the const w/ them‖ (e.g. Hamdi); 1. E.g. Alvarez Machain: US wanted Mexico to extradite a Mexican cit suspect to the US but they wouldn’t; so US hired a hit man to kidnap and bring here; after we did, he argued violation of const; he wasn’t a cit and based on the above rule stated in CW case, s ct said const didn’t apply to him; a. Alien tort act used to give ct jd, but didn’t state COA, so he had no COA (but ct left door open for int body of C/L that ct could create) 2. But there is a ―dent‖ in this rule now after Rasul; a. Rasul was a non-cit label by Bush as an enemy combatant and detained at Gitmo; b. He claims he has a write to a writ of habeas corpus; i. Under wording of rule in CW and Johnson (WWII case) applying that rule to deny aliens abroad habeas review, you would think that non cit outside the US, so no way; c. Ct doesn’t reach the const issue of whether b/c Gitmo is on land in Cuba that is leased and effectively US soil (quasi US territory), detainees have a const right to habeas; d. Decide the case on statutory grounds and say that the habeas statute is broad enough to apply to aliens in quasi sovereign US territory; i. Q now is what does this mean? Full trial, hearing, etc? US hoping a status report will suffice? We don’t know yet; ii. This is a fight b/w inherent auth of pres in war and leg auth of Cgrs; Q is can Cgrs (via statute regarding habeas review) impede pres inherent auth in foreign affairs to detain, etc? B. Remember, const does give some power over foreign affairs to other branches; i. Cgrs as a whole 1. power of the purse – Art. I Sect 8; 2. power to declare war – Art. I Sect 8; 3. power over foreign commerce – Art. I Sect 8; ii. Senate Alone 1. power to ratify treaties negotiated by the pres – Art. II Sect 2; C. Treaties i. Three components: 1. Pres negotiates: no consultation w/ senate unless Pres wants advice; a. This is affirmed by language of CW: Pres is the sole organ of the nation in foreign affairs & Pres alone negotiates treaties and senate can not intrude; b. Also affirmed by language of the const.: Auth delegated to Pres to receive foreign ambassadors shows that it is the job of the Pres to determine who to recognize as auth in foreign nations; 2. Senate must approve treaty by 2/3 vote; 3. Pres ratifies; a. Note: If the senate changes the deal (―tinkers‖ w/ the treaty) then the Pres has no duty to ratify it; ii. Result after passing these steps: Treaty becomes law and equivalent to Cgrs’l leg. iii. Self-Executing vs. Non-Self-Executing Treaties 1. By its terms, it’s clear nothing further must be done (implementing legislation, approps legislation, or both) once ratification happens. 2. Signs It’s Non-Self-Executing: a. ―Provided that each signatory enacts…‖ (Conditioning on enactment of further statute) b. ―Provided that Cgrses of both/all nations supply the funds.‖ iv. How to get rid of treaties: 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 from it = Questionable; a. Pres Carter unilaterally w/drew from the Mutual Defense Treaty w/ Taiwan;
i. Goldwater v. Carter: an App Ct. upheld but the case was one of interpretation b/c in the ct. eyes the treaty allowed unilateral w/drawal; ii. Thus, the question of whether a Pres can always w/draw is unanswered; 1. And justiciability due to political Q will be an issue (treaty power given to pres (ex) and senate (leg) and not the ct, no judicially manageable standard b/c w/drawal not mentioned, and could cause embarrassment to pres prior decision); v. Limits on the scope of treaties; 1. No express limit in the const. on what power treaties can give; a. Can a treaty create a power that wouldn’t exist under the const.? Yes. i. Missouri v. Holland: Migratory Bird Treaty did just that; The treaty b/w US and Canada was upheld and gave fed gov’t auth over the migratory birds in Missouri, which previously would have been left to the states as outside Cgrses CC power; Result, Cgrs was permitted by treaty to exceed it const leg power; ii. But cf. Reid: ct. held a treaty cannot authorize the gov’t to do something that the const prohibits; 1. Case involved ind rights; Clearly suggests that treaties can’t contradict ind rights provisions in the const, but maybe can give power contrary to Fed St. sep of powers; vi. Treaties in conflict w/ state laws 1. Sanchez-Llamas & Bustillo a. Foreign nationals cvxd of crimes, appealing on basis of Art. 36 of Vienna Convention: Authorities have 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: i. Sanchez-Llamas wants statements suppressed ii. Bustillo wants declaration that he didn’t default on right to challenge under Art. 36 b. State Rules trump for 2 Reasons: i. Procedural rules of forum State govern implementation of the treaty in that State. ii. Rules of procedural default apply to ―supreme federal law,‖ even Const. violations. c. ISSUES i. Does Art. 36 of the Vienna Convention create private C/A against detaining authorities in a criminal tr or a post cvxn proceeding? 1. US says no it’s to be worked out diplomatically 2. Maj: Assumed arguendo, but we don’t have to answer it. ii. Does a violation of Art 36 req suppression of a Δ’s statements to police? 1. Maj: NO a. International Context: Exclusionary Rule is unique to US, so Convention couldn’t have included it as an implied term. iii. May a State, in a postcvxn proceeding, treat a Δ’s Art 36 claim as defaulted b/c he failed to raise the claim at tr? 1. (ICJ: U.S. has to reopen and review convictions in light of failure of U.S. to give proper notice.) 2. Maj: Not binding, merely due ―respectful consideration,‖ plus U.S. has w/drawn from that part of the treaty vii. Executive Agreements: agreement b/w Pres and a foreign power, not approved by Senate; 1. Generally still enforceable as law; 2. Exact force as law depends on the source of power the Pres used in making the ex agreement; a. Three categories: i. Ex agreement made pursuant to auth in prior treaty (prior treaty allowed future negotiations or agreements); 1. Result = Ex agreement trumps prior inconsistent statutes or treaties; ii. Ex agreement made pursuant to prior Cgrs’l auth (statute); 1. Common e.g.: int’l trade; 2. Result = Ex agreement trumps prior inconsistent statutes or treaties; iii. Ex agreement made pursuant to inherent const authority; 1. Result = depends on what the subject matter of the agreement is; a. 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. E.g. of purely pres power: Belmont; ex agreement b/w pres and countries formerly USSR; Pres has all power to decide who to recognize as a foreign power; purely a Pres’l power; ii. E.g. of shared power; war power; Pres has power to defend against attack as Co in Ch; but Cgrs has power to declare war; thus an ex agreement for a short conflict, pres may have auth and agreement trump prior law, but the longer the conflict the more he must share his power w/ Cgrs, and the more likely the force of the agreement will not trump prior law; 2. If in conflict w/ prior Fed statute and no pre-authorization, agreement will have no domestic effect. a. Exec may be bound internationally, but no domestic enforcement b. What is ex agreement effect on prior inconsistent state law? i. If based on prior treaty or statute (cong auth) easy = trumps due to supremacy clause; ii. 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; so again, depend on the sub matter of the agreement; D. Power to declare war; i. Cgrs alone has the power to declare war; ii. But Press have always held that they have the power to go to war w/out this dec; and dec of war are rare while wars are frequent; 1. Some scholars say this is disregarding the const; 2. Others say the founders recognized that others would often make war on us or our allies and that Pres would need to make war on them w/out declaring war; a. And s. ct. has affirmed this view in cases like Youngstown (although that case drew a distinction when it related to domestic affairs); iii. Softening tension b/w Cgrs and pres in shared war power; 1. War Powers Resolution: a. Passed over Nixon’s veto (he felt it encroached upon his inherent auth to make war in serious sit) b. What it says: i. Pres should notify Cgrs 48 hours before making war; ii. Cgrs can pass a ―concurrent resolution‖ to stop hostilities if they disagree w/ the pres on the war; c. Legal effect; i. This is an attempt to give legal effect to a concurrent resolution, which is unconstitutional b/c it lacks presentment under Chadha; ii. Thus, since then, Press simply don’t ever comply w/ it, but they do try to inform Cgrs of what they are doing anyway; just not pursuant to the war power resolution; iv. Can Cgrs challenge the legality of a war? Maybe. 1. It has happened, in Desert Storm; a. But case found not ripe b/c hostility not yet imminent at time of suit; b. So had it been ripe perhaps the court would have opined; i. Standing is always going to be an issue: 1. Remember no general Cgrs’l standing to sue, and only narrow exceptions in the past like a member being denied their seat or members votes not counting due to the use of a certain tie breaking scheme (issues of injury and general grievances); ii. Also may be a political Q: this is how challenges to Vietnam war were rejected;
13. THE EXECUTIVE AND CGRS—THE WAR ON TERROR A. Rumsfeld v. Hamdan i. Background 1. Π, Yemeni and former driver for Osama, captured by bounty hunters during the invasion of Afghanistan and sent to GITMO. In July 2004, charged w/ conspiracy to commit terrorism, and the Bush administration made arrangements to try him before a military commission authorized under Military Commission Order No. 1 of March 21, 2002. 2. Hamdan filed a petition for a writ of habeas corpus, arguing that the military commission was illegal and lacked the protections required under the Geneva Conventions and UCMJ. Following the Supreme Court ruling on another
case, 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. 3. After reviewing Hamdan's habeas petition, the DC District Court ruled in Hamdan's favor, finding that the United States could not hold a military commission unless it was first shown that the detainee was a prisoner of war. 4. The DC Circuit Court of Appeals unanimously reversed. The court cited the following reasons for the legality of the military commission: a. Military commissions are legitimate forums to try enemy combatants because they have been approved by Cgrs. b. The Geneva Convention is a treaty b/w nations and as such it does not confer individual rights and remedies. c. Even if the Geneva Convention could be enforced in U.S. courts, it would not be of assistance to Hamdan because, for a conflict such as the war against al-Qaeda that is not b/w two countries, it guarantees only a certain standard of judicial procedure—a "competent tribunal"—w/out speaking to the jd in which the prisoner must be tried. d. Under the terms of the Geneva Convention, al Qaeda and its members are not covered. 5. In addition, they ruled that the U.S. Pres has the constitutional authority to try Hamdan because Cgrs authorized such activity by statute. They also stated that the judicial branch of the United States government cannot enforce the Convention, thus invalidating Hamdan's argument that he cannot be tried until after his prisoner of war status is determined. ii. Issues for SCOTUS 1. Did SCOTUS have the authority to review Hamdan's case? a. Pres: No, DTA of 2005 removed that authority, by means of Constitutional Cgrs’l limitation of federal appellate jd. b. SCOTUS: Yes, this case was pending at the time of the DTA, so it's not included. 2. Should SCOTUS have deferred on constitutional grounds to the Pres's determination as CINC? a. Pres: Ct shd. give deference due to CINC status and thus not review b. SCOTUS:Pres might have that authority in the event of a military necessity, but none shown here. 3. Did the DTA and AUMF give the Pres the authority to conduct the tribunals, n/w/s Art III of the Geneva Conventions? a. DTA i. Pres: DTA (―Incorporates references to commissions‖) ii. SCOTUS: That’s not enough from which to infer Cgrs approved of these particular commissions. b. AUMF i. Pres: AUMF (―SCOTUS held in Hamdi that AUMF's grant of authority to use "all necessary and appropriate force" authorized these commissions.‖) ii. SCOTUS: Hamdi only 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. c. UCMJ i. Pres: 3. Even if UCMJ applies, don’t have to follow UCMJ rules if impracticable, and they are. ii. SCOTUS: Pres didn’t make sufficient showing that following UCMJ rules was impracticable d. Geneva Conventions, Art. III i. Pres: 4. Art 3 applies only toNON-international conflict, occurring w/in territory of party to Geneva. ―GWOT’s happening everywhere, thfr, Intl.‖ ―Not a conflict solely w/in territory of any one party.‖ Thfr, Art 3 is about CIVIL WAR, and unlawful combatants aren’t included. ii. SCOTUS: ―International‖ Language means ―not b/w nations,‖ and Military Commissions aren’t a regularly constituted ct, as req'd by Art 3. iii. 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).
14. LEGISLATIVE POWER A. The interplay b/w Leg enactment and Ex implementation/execution (good testing area); i. Leg power is given to Cgrs via Art. I Sect. 1;
1. Process (for passing anything leg in character): Bicameralism (must pass maj of both the house and the senate) & Presentment (must be presented to Pres who can sign or veto the leg) via Art. I Sect. 7; 2. Legislative Veto: instead of bicameralism and presentment, one part of Cgrs (house or senate) passes a resolution and attempts to have it be binding as law; This has been tried b/c it is convenient and because it allows Cgrs to delegate decision making authority to the executive branch (agencies) but reserves a veto power by way of passing a resolution in disagreement; leg veto found unconstitutional in Chadha, as a violation of Art. I Sect. 7, and b/c they would in effect allow the Cgrs to leg (improperly) by bypassing the senate and execute (which is not their power) by bypassing presentment to the Pres; a. When can one house act alone? i. House alone can impeach; Art. I Sect. 2; ii. Senate alone conducts trial after impeachment; Art. I Sect 3; iii. Senate alone approves or disapproves Pres’l appointments; Art. II Sect 2; iv. Senate alone ratifies treaties negotiated by Pres; Art. II Sect 2; ii. INS v. Chadha: Cgrs created leg (INA) that set forth deportation standards and delegated authority to the INS (executive branch) to handle deportation matters; the statute allowed the attorney general (executive branch) to suspend deportation orders, but also allowed Cgrs to override (veto) the AG decision by one house res; INS ordered Chadha to be deported, but the attorney general suspended the order; But the House wanted Chadha out, so they passed a one house resolution in the house of reps to deport him (never went to senate, nor to Pres to sign); this in effect left the house w/ a veto power over ex branch decision. S. Ct. fount that the resolution was leg in character b/c it affected Chadha legal rights; this resolution passage was unconstitutional as violation of Art. I Sect 7, bicameralism and presentment are needed so the leg veto is invalid; 1. White’s Dissent: leg veto is useful and convenient; more importantly, should be allowed b/c if Cgrs can delegate power to an ex branch agency, why can’t it delegate power to one of its own houses? Also wants the ct. to use the ―functional test‖ laid out in Nixon v. Admin (pg. 160) instead of the ―formal test‖ to determine when something violates sep of powers. The functional test just asks whether ―the leg prevents the ex from carrying out its const assigned functions‖. Here he said the resolution did not; a. Functional Test v. Formal Test: i. Functional Test, laid out in Nixon v. Admin, used in White’s Chadha dissent, and used by maj in Morrison, asks two Q to determine if act of Cgrs is unconstitutional: 1. Does const assign responsibility to the executive explicitly in a specific area? a. White’s dissent in Chadha said that const gives no resp to the ex in the area of immigration, its all given to Cgrs; 2. Does the action of Cgrs usurp that responsibility? a. This test allows for more blending of branches powers outlined in the const; ii. Formal Test just goes by the text of the const; 1. Text of const req. leg to pass bicam and presentment; 2. 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; iii. Delegation of power to ex agencies by the leg branch; 1. Non-delegation doctrine: Cgrs can’t technically delegate leg authority to the ex branch; so they need to give ex agencies an ―intelligible standard‖ when delegating any rule making authority; 2. How specific does the delegation need to be to be an intelligible standard? Not very specific at all. a. Whiteman: Cgrs 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; 3. Cgrs can never delegate auth to itself (i.e. part of it, like just house, just senate, or even a leg official like the comp general); 4. Cgrs can’t delegate executive functions to officers accountable to legislative oversight. (Bowsher) iv. What can Cgrs do instead of leg veto? 1. Write clearer statutes; 2. They get to control ex branch appointments by getting to accept or reject appointments; 3. They control the budget that funds ex agencies; 4. Report and Wait: Cgrs now 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 (upheld in Sibbach);
v. Why did Press keep signing bills that included leg. veto’s? Bundling: the leg veto’s were bundled in w/ other important leg that Pres needed to sign; vi. ―Line-Item Veto‖: started to try to fight bundling; line item veto’s are attempts to veto only portions of a bill; Found to be unconstitutional in Clinton v. NY, Pres can’t just veto part of leg, that would be in effect leg created by the Pres; that would make the Pres a law maker, and violate sep of powers; but, the ct didn’t need to even decide that, as in INS v. Chadha, this violates bicameralism and presentment (formal approach); 1. This is true no matter how you spin or word it: Pres has no inherent OR statutory power to line item veto. For e.g. Clinton tried to get authorization to line item veto via statute from Cgrs that allowed him to choose not to spend money on certain things inside a bill, and argued this was delegation of authority to the executive; Ct. still found unconstitutional; (Scalia bought the delegation of authority not to spend money argument, but majority of ct. disagreed b/c statute didn’t req. Pres to make certain spelled out findings (intelligible standard) before choosing not to spend on certain parts); a. So I suppose a case could be dist from Clinton v. NY if the statute allowed line item ―vetoing‖ only upon specific fact finding (intelligible standard) by the pres (as in CW, though proper delegation not needed there b/c foreign affairs situation); i. But as in CW, the leg would have to remain in effect and if factual findings disappeared the leg would take effect; 2. In the end, Cgrs can not pass a law authorizing the Pres to pass law whose exact text didn’t pass votes in both houses, and Pres can’t do it inherently either; a. Relevant today b/c W Bush wants a new st line item veto that ―passes const muster‖; vii. Severability 1. Unconst portions of leg can be severed unless apparent that Cgrs wouldn’t have enacted the leg w/out the portion that is unconst; a. INS v. Chadha ct severed the portion of the bill allowing house to pass resolution vetoing AG decision w/out presentment and bicam, allowing the rest to remain; i. The bill had a severability clause: says that any part can be severed; if incl, no need to search for whether or not Cgrs would have enacted w/out a certain provision; ii. Rehnquist dissent though Cgrs wouldn’t have delegated the auth to AG (ex) w/out the leg veto so thought it wasn’t severable; weird since the bill had a severability clause;
15. ENUMERATED & IMPLIED POWERS OF THE FEDERAL GOVERNMENT A. Cgrs’s Enumerated Power: Cgrs has the following Art I Sect 8 delegated powers: i. To lay and collect taxes, duties, imposts and excises, to pay debts and provide for the common defense and general welfare of the US (but must be uniform throughout country); ii. To borrow money on the credit of the US; (Power of the purse); iii. To regulate commerce w/ foreign nations, and among the several states, and w/ the Indian tribes; iv. To establish naturalization laws and bankruptcy laws; v. To coin money; vi. To provide for punishment for counterfeiting; vii. To establish post offices and roads; viii. To establish trademarks and copyrights and patents to promote science and arts; ix. To establish courts inferior to the S. Ct.; x. To define piracy laws and rules at sea; xi. To declare war; xii. To raise and support an army and fund it for no longer than 2 yrs at a time; xiii. To provide/maintain a navy; xiv. To provide for the calling forth of militia to suppress insurrections and to provide for training and organizing them; xv. To leg exclusively in the nation’s capitol; xvi. To make all laws necessary and proper for carrying into execution any of the above powers; (Necessary and Proper Cl); 1. This was worrisome to some of the founders, seen as a sweeping and broad clause when combines w/ Art. 6 supremacy clause; a. Hamilton tried to settle those fears by pointing out the cl is just declaratory and the const powers delegated to Cgrs would be the same w/out it b/c ―what is a power w/out the means necessary and proper to carry out that power‖.
b. Hamilton says the fed will at times try to exert more power than they really have. When they do, who is the judge? He says first the gov’t, then the people. Unclear how he thinks the people can object to the overreaching though. c. Therein lies the Q of federalism: how much implied power to the fed is too much? 2. TO ANALYZE a. What is the legitimate (enumerated) END? b. Are the means to advance it proportionate? c. Are the means not expressly prohibited? B. Cgrs’s Implied Leg Powers; 1. Why do we care about federalism and what powers are fed or state? a. Local gov’t more intimate, better understand the needs of the people there; b. Local gov’t can respond to those needs more quickly and effectively; c. 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; 2. McCulloch v. Maryland; a. At ratifying convention, consideration was given to giving Cgrs enumerated power to create a national bank; It was not necessarily rejected, but in the end was not included as a power specifically; i. Jefferson opposed a national bank; Hamilton supported one; b. Pres Washington sided w/ Jefferson, and one was created; then the national bank ceased, but eventually another one was created; c. Issue to Marshall: Can Cgrs create a national bank as necessary and proper to execute their enumerated powers? i. Marshall considers the argument that there is a ―custom‖ b/c there was a 1st national bank for 20 yrs (this is weak thought and not the final authority he depends on); ii. Marshall rejects the argument that the states give the fed gov’t power, not the people; it is the other way around, const give the fed power, and the const. is the voice of the people, not the states; 1. Difference of opinion: if you buy the argument that power comes from states, you tend to find states have more power and fed less; a. Lincoln later uses Marshall’s view that the fed gets its power from the people (via const) to say that states can’t just leave the union in the civil war; iii. Marshall’s final opinion; 1. Gives his opinion of construction of the const.: Const is broad, not all powers are listed, the ones listed are guideposts and the details are to be filled in as we go; 2. Creating a National Bank is a necessary and proper means of executing enumerated powers like power to tax, provide for common defense, coin $, regulate commerce, etc; 3. Defines necessary and proper generously: not just absolutely necessary, but also convenient or useful; a. Argument for this: the inclusion of the word proper after necessary; b. E.g. of N and P law: Cgrs sets up admin agencies in the ex branch to enforce laws (then the ex (pres) has duty of seeing the laws carried out); 4. End result: the creation of a national bank is necessary and proper to Cgrs executing its other enumerated powers; 3. When will the ct. step in when there is a fed-st issue? a. When the fed gov’t is w/in an area the const gives it authority, the ct. will not Q the means it chooses to implement authority; b. When the fed gov’t is in an area the const does not give it authority (reserved to the states), the court will scrutinize the action taken; i. See this later in Gonzales v. Raich (Med Marijuana case); C. Preemption i. Due to the Supremacy Cl in Art. 6, the result of finding fed gov’t has either express or implied power means Preemption: The states are displaced of power; ii. To preempt, fed gov’t must be w/in an area of assigned responsibility; that is they must have a valid grant of auth under the const; iii. Statutes, treaties, and ex agreements can all preempt (Garamendi); iv. Types (cornerstone in preemption is finding Cgrs’ intent to preempt):
1. Express: Cgrs specifically states it intends to displace the laws of the states in a certain area; a. If express, ct. construes the preemption narrowly; we don’t just assume that fed law is better than state law by interpreting preemption broadly; 2. Implied: Cgrs didn’t specifically state it intends to displace state law; a. Field Preemption: Cgrs has leg in a field so comprehensively they must have intended to preempt state law b/c they didn’t leave any room to leg more; b. Conflict Preemption; i. Frustration of purpose: state law would frustrate the purpose of the federal law; ii. Impossibility: not physically possible to comply w/ both the state and federal law at the same time; 1. e.g. state law authorizes, fed law prohibits (on Kmiec’s past test) c. Note: ct. more likely to find implied preemption the more readily apparent the fed is in an area of assigned responsibility like immigration, foreign affairs, etc.; i. E.g. ct. quickly stuck down CA Prop 187 barring any more illegal immigrants as preempted by fed immigration laws, b/c immigration clearly the responsibility of the national gov’t; ii. Crosby (fed statute) and Garamendi (fed ex agreement); d. Thus less likely to find implied preemption if fed law is in area traditionally left to states; i. e.g. from past test: real property laws; e. ―Savings Clauses‖: express words in statute that ―save‖ state authority; i. You would think that a ct. can’t find preemption where there is a savings cl; ii. But, that is not the case; Only really ensures there is no express preemption; Ct can still find implied preemption (field or conflict); 1. E.g. Geier: Cgrs passed regulation calling for gradual implementation of airbags in most cars; there was a savings cl allowing common law tort claims to exist; P was hurt in car w/ no air bag; sued at state level under CL tort theory; Ct. found no express preemption, but found implied preemption b/c the state ruling in P favor would create sit where manufactures would have to install air bags in all cars when Cgrs intended a gradual process of putting them in most cars; This frustrated the purpose of the fed law and was implied preemption; f. Garamendi i. Nazis stole insurance policies by getting in league w/ the various companies. ii. CA Leg passed statute requiring Ins Cos doing business in CA to disclose Holocaust-related records. iii. Fed Executive Agreement (unilaterally negotiated by Exec, not ratified by Cgrs) iv. Can Fed Govt occupy a field w/out passing a statute? 1. SCOTUS didn’t reach; based it on conflict preemption—impossibility v. Market place exception applies to preemption; 1. Domestic affairs – yes; a. If state reg only applies to state entities as a market participant, shielded from fed reg and preemption when the sit is domestic; 2. Foreign affairs – unclear (left open in Crosby); a. Same rule argued for state reg involving foreign affairs, but left unresolved by Crosby; i. MA Leg passed ―no business w/ Burma act,‖ including prohibition on doing business w/ anyone who did business w/ Burma. ii. Fed Statute had similar but not identical objectives to MA statute: Lesser, Condition, Pres had auth to adjust. b. Q: Field Preemption? (Fed Govt likes to argue, b/c foreign affairs) A: Ct: NO ―State law = obstacle to accomplishment of Cgrs’s full objectives under the Fed Act.‖ Is there Implied Federal Judicial Power? vi. I.e. Is there a federal common law? 1. B/c we know that there is implied federal leg power due to the necessary and proper clause, but is there implied judicial power making way for jud branch to come up w/ fed common law? a. This would in effect mean a judicial implied power to legislate; b. Worrell case: old case, decided there was a federal common law against bribery even though there was no fed or state statute saying it was a crime; convicted him anyway;
i. This didn’t last long; ii. Hudson & Goodwin case: fed jud has limited power to put people in contempt and enforce court orders, but no general fed common law; iii. This solves the criminal area, no fed common law; c. What about federal civil cases? i. Tyson case: there is a federal common law for civil cases; ii. Erie overturns: St law applies in civil cases, fed courts are to apply state law; iii. This solves the civil area, no fed common law; 2. But, has the door been left open? a. Can the ct. build internationally based common law based on the customary international law of the laws of nations? i. Alvarez Machain: AM was kidnapped by people under the direction of the US gov’t, to bring him here to stand trial for torture and murder; he was brought here and acquitted; So then he sued the gov’t; The Alien Tort Act gave the ct. jd to hear the case, and allowed AM to sue. 1. But, the Alien Tort Act only opened the door for him to sue; 2. What would his cause of action be? a. Const and due process N/A b/c he was not a cit and the kidnapping happened in Mexico; b. No legislation created a law against what the gov’t did; c. The Alien Tort Act created jd, but only specified there would be claims for 3 situations (ambassadors, passports and piracy situations); None of them applied to AM; 3. Ct. declined the opportunity to create a cause of action, consistent w/ Hudson & Goodwin and Erie, that there is no federal common law; 4. But Souter’s opinion left the door open to possible future federal common law based on customary international law; a. Implied that if there is to be a cause of action implied due to int’l law, must be based on customary law as definite as the 3 offenses mentioned in the Alien Tort Act; i. So door is open for people to argue ct can created fed common law based on international customary law for things like genocide, war crimes, torture, etc. And they will argue this; ii. Arguments for: natural law; the common law based on international norms would only be for universally rec. principles; These natural law principles are a check on positive law (Cicero); iii. Arguments against: if our leg hasn’t acted, not only is it not universal, but it throws our democracy and sep of powers out the window allowing judges to make law (leg);
16. THE COMMERCE POWER –WHAT IS ―COMMERCE‖? A. Cgrs has the power to regulate commerce w/ foreign nations, b/w states, and w/ Indian tribes; B. How big is the fed gov’t commerce power? Big, but maybe getting a little bit smaller; C. Gibbons v. Ogden; i. Gibbons has a license issue from fed gov’t to operate a steam boat on the water ways in NY; Ogden has a license that gives him exclusive use of the river in NY; ii. So, it is a federalism issue, st vs. fed power to regulate; iii. Marshall’s opinion; 1. Sees no reason to interpret the const strictly, just fairly; obviously don’t defy words’ natural meanings, but don’t deny them their natural meaning either; 2. Says the discussion of what is w/in the fed commerce powers begins w/ Q of why was the power given to the fed gov’t; a. Doesn’t really tie this up, but Kmiec does w/ his 3 reasons from the convention, discussed later (Kmiec’s thesis is consistent w/ Marshall’s opinion that there is a limit on Comm Power, and that we need to look at original purpose of the clause to see what is national and what is truly local);
3. Says navigation is necessarily a part of commerce; a. B/c commerce is trade, and trade is buying and selling goods, which navigation is a part of; b. This fact req. a national economic unit so there aren’t trade barriers (different rules in each state) to impede trade, like navigation barriers; c. Thus makes no difference whether the boats in a particular case are carrying passengers or goods, the effect is the same; focus is on navigation; 4. Says the commerce power applies to commerce b/w states, which means among them, and thus means the power reaches into and beyond state lines, into each state; 5. Says the power does not apply to commerce w/in one state when if has no effect on other states and there is no reason for the fed to interfere; 6. Introduces the idea that the recourse for people when the fed oversteps its power is the political process; later used in 10th A cases in determining what powers fed and st each have and course of action when there is overreaching; a. But then also gives e.g. of things clearly w/in states authority like police powers, health and safety, inspection, quarantine laws, and totally intrastate commerce; 7. Introduces the idea of there being a possibility for negative/dormant commerce clause cases where state can’t regulate b/c it would interfere w/ interstate commerce; 8. End result = fed had power to regulate the navigation under the commerce clause, thus the state law was preempted b/c it conflicted w/ the fed law (implied conflict preemption due to impossibility); a. So after commerce power found, case becomes a straight forward preemption case; D. Kmiec’s thesis on how to define the commerce clause power; i. Whether the gov’t has the power to do a specific thing under the commerce clause req. looking at why the commerce clause power was given to the fed gov’t (supported by Marshall’s opinion); ii. The reasons at the VA convention were: 1. To address national interests; 2. To promote harmony b/w states where it is needed; 3. To address regulatory Q the states can’t address individually; E. Types of commerce clause cases; i. Affirmative CC: Cgrs acts and Q is: 1. Does Cgrs have the power to do this under the CC?; and, 2. Is the fed law in conflict w/ the state law?; a. If so, preemption in some form; ii. Negative (Dormant) CC: state has acted and the Q is: 1. What can’t the states do? a. Cgrs has acted already, Cgrs decides and state can’t act; b. Cgrs hasn’t acted yet, ct decides if state action unduly burdens interstate commerce; i. Decide it doesn’t and state can act: state can act but Cgrs can override by legislating; ii. Decide it does and state can’t act: state can’t act but Cgrs may decide to adopt the state laws (so states would play an indirect role, but still not the power to regulate directly);
17. IS THE COMMERCE POWER A FEDERAL POLICE POWER? A. E.C. Knight Co.; i. Case is basically about two different ways to interpret the CC power; 1. A literal approach of defining Commerce (Maj); 2. Looking back to the original 3 purposes of the CC by looking at convention (dissent); ii. Cgrs passed a law prohibiting monopolies (Modern day Sherman Anti Trust Act); iii. E.C. Knight was a sugar manufacturer, and bought up all the sugar plants, creating a monopoly; this violated the fed statute. iv. Maj: finds prohibiting monopolies in a state involves a power over manufacturing, not over commerce (manufacturing proceeds commerce, but is not commerce, and affects commerce indirectly and incidentally); thus they view the control over co preventing a monopoly as a police power; police powers are left to the state; 1. This is using strict definitions to define commerce and CC powers, and a refusal to recognize the substantial effects intrastate commerce can have on interstate commerce; v. Harlan’s Dissent (better argument): maj was too literal in defining commerce; commerce involves all aspect of commercial intercourse; commerce clause power extends to internal state matters that affect interstate commerce;
1. Here the monopolies affect prices and comp at the national level, affecting interstate commerce; 2. This approach takes over in Wickard, and continues today under sub effects prong in Lopez/Morrison; B. Champion v. Ames (the ―Lottery‖ case); i. Case shows the evolution of CC power thinking; ii. Fed statute prohibited bringing lottery tickets into US from abroad, from one state to another, or putting them in the mail; iii. Issue was whether that was in Cgrs’ CC power; iv. Harlan’s Opinion (dissenter in E.C. Knight); 1. W/in Cgrs’ power to stop trafficking of lottery tickets into US, b/w states and in mail; a. They argue this 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; b. Stands for the proposition that if fed can regulate, they can prohibit too; c. This doesn’t stop one state from having a lottery totally w/in its borders; v. Dissent disagrees b/c the tickets aren’t articles of interstate commerce as shown by Alexander v. St. (upholding VA state law prohibiting lottery tickets from being sold; b/c this state law would be struck down as violating DCC if it interfered w/ interstate commerce) vi. Who was right? Probably the dissent; 1. Go back to the purpose of giving fed CC power over interstate commerce in the VA convention; a. Is there a national interest here? i. Maybe, but it is a PP argument of morality; b. Is there a need for harmony here? i. Not really, differing opinions state to state; ii. State gov’t better suited to peoples needs in areas like this; c. Are the states unable to reg on their own? i. No, they can regulate this just fine; ii. State gov’t better suited to peoples needs in areas like this; 2. Looks like this action by Cgrs was for PP reasons against gambling. This looks like pure police power and cuts in the favor of the dissent, that this is a police power for the states, and not one of the reasons the fed gov’t was given commerce power; C. E.g. from class: apply these cases and Kmiec’s thesis to Child Labor issue; i. Some states are allowing businesses to use child labor in factories; ii. What if Cgrs passed a law prohibiting business from using child labor to make goods shipped to other states? 1. It’s interstate, commercial in nature, and uses roads and rivers to transport = so using definitions its easy to decide; 2. But is it an issue of morality or police power? Yes. 3. Then use the VA convention purposes of CC power: a. National interest? Yes, child labor; b. Need for harmony b/w states? Yes, if not, ones using child labor have huge advantage from cheap labor; c. States unable to regulate? Yes, they will always have their own interest in mind, so few will reg against their own interests; 4. End result = clearly w/in Cgrs’ commerce power; iii. But now what if Cgrs just bans child labor, even if not used to make good shipped interstate? 1. Tougher to use just definitions now; not interstate if strictly construed; a. But using sub effects prong and VA resolution helps us decide w/in CC power; 2. This brings us to Wickard, below, which is this exact scenario but w/ wheat;
18. THE COMMERCE POWER AND THE INTERSTATE NEXUS – WHAT IS ―INTERSTATE‖ A. Wickard; i. Farmer Filburn was a wheat farmer producing wheat for sale and for home/farm use; ii. Cgrs enacted a statute that limited the amounts of wheat that could be produced by individual farmers, and taxed heavily any amounts produced over that limit; 1. The tax and statute applied to wheat over the limit whether the wheat was sold interstate, intrastate, or even for home use; iii. Issue was could Cgrs regulate the production of wheat that was not put into interstate market and was consumed by the producer; i.e. was that interstate commerce?
1. Just 7 yrs early ct. had said Cgrs couldn’t regulate chicken slaughter houses selling to intrastate buyers only in the ―Poultry case‖; ct relied on definitions of direct and indirect and said the selling of chickens intrastate had only an indirect effect on interstate commerce; 2. 2yrs later, 5 yrs before Wickard, court said Cgrs could regulate manufacturing plants selling to intrastate buyers only; ct rejected definitions like direct and indirect/marketing and commerce and created the ―sub effects‖ prong in National Labor Relations case; iv. But the issue here went further b/c the statue applied to wheat not ever sold anywhere, just consumed at home/farm; v. Ct. reaffirms the ―substantial effects‖ prong of interstate commerce power: Cgrs can regulate anything that has a substantial effect on interstate commerce; 1. Thus interstate means b/w more than one state OR in one state but having a sub effect on others; 2. Of course, this is a slippery slope and the ct. will need to clarify and control this prong in later cases; a. Lopez/Morrison; 3. Theory of sub effect in this case: growing too much wheat drives down demand and drives down prices; even if not sold, growing too much wheat and using it at home replaces wheat that would be bought in the market, driving down demand and driving prices down; this sub effects wheat market and sub effects commerce; a. Earlier e.g. of child labor used to make goods, even ones not going into interstate market: Definitely sub effects interstate commerce: That state can cheaply make goods at home and use them, saving money, and then it drives down market and prices elsewhere; i. Prohibiting hiring children period: still sub effect if states can hire children; b. E.g. creating a national min wage: wages sub effect interstate commerce in the same way; c. E.g. national prohibition on Lotteries: starts to become a close call; better to use the VA resolution; this looks morality driven, not commercially driven; vi. Does the definition of commerce include the illegal market? 1. Yes. Gonzales v. Raich. Case basically says that you can regulate where there is no commercial activity, no interstate activity, AND where there is no substantial effect; AS long as the regulation is necessary and proper to regulate commerce somewhere else, it is ok. a. Conceivable rational basis. This is applied where there is a challenge to the application, not the face of the statute. i. Covers consumption and possession of pot. ii. Major deference to Cgrs. vii. Aggregation Theory: when determining whether something sub effects interstate commerce, don’t just look at the individual in the case, but consider what happens when the situation includes others similarly situated; 1. So in Wickard, irrelevant that Filburn’s home consumed wheat doesn’t sub effect interstate commerce, the homeconsumed wheat of all wheat farmers does sub effect it; B. At this point, w/ the sub effect prong now as precedent the Q becomes: i. What, if any, are the limits on the fed gov’t CC power? 1. Definitional approach? a. Is it Commerce/commercial in nature?; b. Is it interstate?; c. If not interstate and commerce, to be w/in scope of Comm Power, must have a substantial economic effect on Interstate commerce; i. (Consider in aggregate) 2. The 10th am help? a. Police powers reserved to states (health, safety, morality); i. Relevant today to determine whether the reg is economic in nature under Lopez sub effects prong (if police power, likely not economic, e.g. Lopez gun reg and Morrison gender disc reg); 3. The VA resolution show original purpose supports this? a. Nat interest; b. Need state harmony; c. States unable to properly reg on their own; ii. W/out later cases, obvious at this point that the CC power lacks the limits Marshall swore were there in Gibbons (recognized by Lopez); iii. Cgrs was even using CC power (perhaps not intentionally), and ct was upholding, to fight for civil rights (especially racial discrimination); 1. B/c 14th and 5th am for ind rights you need a state actor to control them, not private cit or corps;
2. Examples: a. Atlanta Motel case: ct. upheld a fed statute prohibiting racial discrimination at hotels b/c it impedes interstate travel (commerce); i. This one was easy, hotel business clearly commercial, and travelers obviously some from out of state; Under Lopez, the hotels are probably channels of interstate commerce too; and sub effects on commerce are obvious; b. Katzenbach case: extends Atlanta hotel, upholding fed statute prohibiting racial discrimination at restaurants; i. Not as easy: restaurants are commercial in nature, but interstate? Not really an diners from out of state, but ct. stretched it and said the restaurant bought its products from out of state; today probably the same due to sub effects; 3. Would the VA resolution help in these sits? a. At least there is definitely a national interest;
19. IS THERE A LIMIT? MAKING SENSE OF THE ―SUBSTANTIAL EFFECTS‖ PRONG OF THE COMMERCE TEST A. Lopez; i. Cgrs enacted the Gun Free Schools Act; one provision made it a crime to have a gun in a school zone; ii. D caught w/ a gun at school and charged by state prosecutor; but the feds came in (b/c stricter penalties) and charged him under the GFSA; iii. Argument of the gov’t and dissent was that guns at schools make bad ed and bad education leads to poor job market and poor jobs leads to poor economy in many ways; thus, guns at schools sub effect interstate commerce!!!; iv. Maj opinion: 1. First, powers given to the fed are few, powers left to the states are many (Madison in Fed Papers); 2. Second, Gibbons implies that the CC power does have limits; 3. Third, the definitional approach just fluctuates from broad to narrow, not working; 4. Forth, dual sovereignty limits scope of fed CC power; a. 3 categories are w/in fed gov’t control: i. Channels of interstate commerce: Roads, waterways, skies, mail; maybe hotels and restaurants on interstate highways, etc too; ii. Instrumentalities of interstate commerce: Vehicles of all types and the people in movement; iii. Matters that sub effect interstate commerce; 1. Lopez qualifies this prong: Even if it sub effects interstate commerce, the regulation must be economic or must be part of a greater reg scheme relating to economic regulation; a. Ct. points to Wickard as an e.g. of sub effect where the statue was part of a greater economic regulatory scheme; i. Ct. also mentions Wickard is the out limits of the sub effect prong; b. This may help in the previous situations where an area effects interstate commerce but the reg is part of either no scheme or one that looks like an attempt to regulate morality issues; c. This element in the sub effects prong also suggests a more state sovereignty friendly view of considering 10th am type traditional state functions in determining whether the CC power is able to be used (although post Garcia if CC power found, 10th won’t prohibit fed from exercising); 2. Lopez also mentions that if the regulation has a ―jurisdictional hook‖ requiring a case by case approach ensuring that the reg as applied effects interstate commerce, the ct will be more convinced in finding a sub effect; 3. Ct also mentions that although leg history is not enough, if leg history exists and shows that Cgrs thought the reg sub effected interstate commerce or was being enacted using CC power, it would at least help the gov’t case; 4. Ct implies the sub effect can’t be too attenuated (inference upon inference); b. Rest is left to the states; 5. The court applies the categories w/ the new qualifications: a. First, this reg didn’t involve channels of interstate commerce; b. Second it didn’t involve instrumentalities of interstate commerce;
c. Left w/ only the sub effects prong: i. First, the argument of sub effects of guns at schools effecting commerce was inference upon inference (too attenuated); if they bought this argument almost anything could be found to sub effect commerce; ii. Second, applying the new qualification, even if there were a sub effect, the gun act was not economic or part of a greater regulatory scheme related to the economy; iii. Third, leg history showed no sign that Cgrs enacted this w/ the economy or commerce in mind, nor that they thought this was allowed via CC power; iv. Fourth, there was no jurisdictional hook; d. Finally, ct opines that political process isn’t the only recourse when Cgrs oversteps its CC power, the ct. has a role, even if it means legal uncertainty (as it does in many other areas of law); i. But if CC power exists, 10th wont save under Garcia; 6. COMMERCE CLAUSE ANALYSIS 3 Broad Categories that Cgrs MAY Regulate: a. The Channels of Commerce – Airways, Waterways, Highways, etc. b. The Instrumentalities of Commerce, or Persons or Things in Interstate Commerce, even if the threat comes from intrastate activities – Planes, trucks, buses, etc. c. Action that has Substantial Economic Effect on Interstate Commerce i. Further Analysis under Rational Basis Standard (HIGHLY deferential): ii. Factors Influential in Analyzing Activities for Category 3: 1. Is the act being regulated an ECONOMIC ACTIVITY? a. Single-Issue Statutes dealing w/ non-economic activities VERY SUSPECT (Lopez & Morrison) b. If there’s a Comprehensive Scheme regulating commerce, Cgrs may regulate non-economic activity that falls under that scheme. (Raich) c. According to Scalia, not needed if w/in N&P Cl. i. (If necessary to advance legitimate ends of govt, related to interstate commerce) 2. Did Crgs include a jurisdictional element in the statute? a. Is there an element of factual proof built into the C/A that prosecutor must show this particular activity is connected to interstate commerce in a substantial way? 3. Helpful: Legislative Findings laying out substantial effect on Commerce 4. Is there a logical stopping point, so that it’s not inference piled on inference? 7. Thomas’s concurrence: agrees no CC power to enact Gun Free School Act, but hates the sub effects test; a. Says sub effects test makes all the other enumerated power given to Cgrs superfluous; b. Wants to go back to definitional approach of commerce and interstate (which we know doesn’t really solve the issues); B. Court is sticking w/ Lopez (and its qualification of the sub effects prong); i. Morrison (2000); 1. Cgrs enacted VAWA (violence against woman act), which included statute that made violent acts against women a crime under the act if committed out of animosity toward women; 2. Girl student allegedly raped in a dorm room and sued under the act in fed ct b/c the alleged rapist said to a friend ―I like to get girls drunk and have sex w/them‖ (which allegedly showed his violence came from animosity toward women); 3. D challenged the statute as unconstitutional as outside Cgrs CC power; 4. This looked almost identical to Lopez, and came out the same way basically; a. Gov’t argued that gender based violence has sub effect on interstate commerce; b. Ct applied Lopez: i. Morrison reaffirms Lopez and sums up the sub prong test into 4 factors: 1. Sub effect on commerce can’t be too attenuated; 2. Leg history can help show if Cgrs thought there was a sub effect on commerce 3. If sub effect, statute must still be part of economic reg scheme (or itself an economic reg) 4. Jurisdictional hook helps ensure sub effect; ii. Only possible category was sub effects;
1. Unlike Lopez, leg history showed extensive findings that gender based violence sub effects interstate commerce; 2. But, like Lopez, the statue was not part of a reg scheme that was economic in nature; 3. And, there was again no jurisdictional hook; c. End result = statute stuck down as unconst as outside Cgrs CC power; ii. Again, ct is sticking w/ Lopez, but lower ct having trouble applying; C. Issues of statutory interpretation; i. The ct. has an obligation to construe statutes in a way that avoid unconstitutionality; ii. Thus, if a statue could be interpreted in a way that would make it violate (by overstepping) the CC power, the ct is not likely to interpret it that way; 1. E.g. Dewey (post Lopez); a. Cgrs passes statute making it illegal to arson a building used in commercial activity; b. D burned his home down; c. Gov’t charged him under the statute; i. Argued that the home was used for commercial activity b/c the D had a mortgage on the home, had insurance on the home, and received utilities at the home; this to them was commercial activity; d. Ct. felt that construing the statute to mean that a personal residence is used in commerce for those reasons would make the statute unconst as violating the CC power; i. This was b/c the effects were too attenuated, and interpreting in that way would mean every building in the country was used for commercial activity; this would fail Lopez and be unconst; 1. Basically, a person doesn’t use a personal residence for commercial activity by taking out a loan on it or ins it, or getting utilities! ii. Construing the statute to mean only buildings actually used for commercial purposes ensures that the statute is more likely valid under the CC and Lopez; 1. Though Thomas and Scalia say that this statute may not be const even as construed, but the case was not a const case, but a st interpretation case; 2. Another E.g. Solid Waste: a. Cgrs passed Clean Water Act; b. Issue was whether the definition of wetland in the act included not only rivers, lakes and wetlands, but also a former gravel pit that had collected water; c. The ct. saw a const CC problem saying that the pond was included; i. What would be the gov’t grounds for arguing that it had CC power over the pond? ii. Ct. couldn’t tell b/c gov’t said it wanted to reg the pond b/c it was a landfill, which was commercial activity sub effecting interstate commerce, and also to protect migratory birds, which is also an interstate commerce activity (hunting, bird watching); d. First, ct. said they wouldn’t interpret in a way to jeopardize constitutionality w/out gov’t first laying out a case of why they wanted to reg and what their power to do so was; i. Went on to say ct didn’t see how the intrastate landfill sub effects interstate commerce; 1. It clearly wasn’t a channel or instrumentality of interstate commerce; 2. Sub effects would be a stretch (and health safety is a police power); ii. Also said that even if the migratory bird effect sub effected interstate commerce, it wasn’t part of an economic reg scheme; e. End result = ct. wont interpret the statute to allow reg b/c might be unconst f. Kmiec feels that: i. If the court is to buy either the migratory bird argument or the landfill argument, then Cgrs needs to be explicit and lay out the case. And w/ the landfill argument there is a 10th am issue due to safety and traditional state function; Both argument would req. a look at the VA resolution too; the landfill argument would be a stretch under Lopez; best result, interpret the statute not to extend this far, make it constitutional; D. So you’re part of a fed agency/gov’t who wants auth to regulate: What do you do? i. Does the CC give fed auth to do this? ii. Does the Necessary and proper clause give fed auth? 1. Wont create auth that isn’t there, but gives auth to use certain means to use power that is given; iii. Is there ex power that gives the power to the fed? 1. Treaty or ex agreement;
iv. Spending Power (buy the states consent/bribe basically) (discussed later);
20. NON-COMMERCIAL USE AND POSSESSION OF MEDICINAL MARIJUANA – HAS THE COMMERCE POWER GONE TO POT? A. Gonzales v. Raich; i. Background 1. 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. Πs Raich and Monson were both using MJ under supervision of licensed doc, in accordance w/ reqmts of CUA. 2. However, Fed agents seized and destroyed Monson’s cannabis plants, on theory that having them was a violation of Controlled Substances Act. 3. Πs filed suit, conceding that CSA’s structure was valid, but seeking injunctive and decl relief prohibiting enforcement of CSA as against them. 4. Dist Ct denied Πs’ Mx for preliminary njcn. 5. 9th Circ rev’d, finding that Πs had demonstrated a strong likelihood of success on claim that CSA as applied is an unconst exercise of Cgrs’s Commerce Cl auth. ii. Majority 1. Continuing standard is Wickard’s substantial effects test a. (based on principle of aggregation) b. Dist. Lopez and Morrison: i. Those were single-subject statutes. They’re still good law, but confined to non-economic context and single-subject structure. ii. This is a comprehensive economic regulatory scheme. iii. Cgrs has no obligation to excise non-economic effects of the statutory scheme. iii. Scalia, Conc: 1. Cgrs can reach non-economic, too. a. Method: Subst Effects – Category 3… b. …but Cgrs’s power to regulate stuff in this category comes from N&P Cl, not Commerce. i. ―Stop trying to pretend that Med MJ is economic at all. B/c of N&P Cl, you don’t need to. Reaching this local, non-economic activity is N&P to effect the interstate commerce purpose of the statute.‖ ii. Test: Means reasonably adapted to the attainment of a legitimate end under the commerce power. (McCulloch) iv. O’Connor, Diss: 1. Doesn’t see how allowing Med MJ has substantial effect on regulating illegal drug market. 2. What about 4 Lopez considerations? a. Economic Activity b. Jurisdicitional Reqmt c. Legislative Findings (not req’d) d. Not Too Attenuated v. As-Applied Challenge: Distinction from Facial Challenge is ―pivotal.‖ 1. Why? Wouldn’t it be better to invalidate isolated instances than whole statutes? a. Stevens: i. In Commerce Cl, it’s easier to strike down something on its face than as-applied. ii. But only b/c of confinement of Lopez and Morrison. iii. Single-subject statutes dealing w/ wholly non-economic activities. b. Scalia: i. You can reach non-economic stuff too. vi. END RESULT 1. Substantial Effects is governing test 2. N&P Cl now bolsters 3. Local activities will only (maybe) survive where Cgrs makes the mistake of drafting a single-issue statute, and w/ Scalia, maybe not even then.
21. THE NEGATIVE/DORMANT (JUDICIAL) COMMERCE POWER A. Different from Affirmative: State has acted and Q is does the state have the power to act; state can act, may regulate commerce, but not if it unduly burdens interstate commerce; B. Cooley (seminal case); i. Fed statute gave a role to the states in regulating pilots (boat navigators); the statute said local laws (current and future ones) would continue to govern until Cgrs later acted; ii. State law enacted requiring pilots to be local and have certain training (safety driven, due to dangerous navigation areas); iii. Issue was could the states regulate in this area; 1. Ct. said states aren’t totally precluded from regulating areas of commerce; some matters are national and some are local; some req. uniformity and others require diversity; 2. Situations: a. If Cgrs has spoken, and w/in their power, then Cgrs decides what is national or local; b. If Cgrs has not spoken, ct. decides what is national or local; i. If ct decides state can act (b/c doesn’t unduly burden int commerce) Cgrs can still later regulate if w/in their power and Cgrs once again decides; ii. If ct decides state cannot act (b/c does burden int commerce) Cgrs can disagree and adopt local/st reg as fed law (but not the same as states being able to reg); 3. Here, even though there was a statute, it basically said that Cgrs had not spoken, so ct needed to determine whether the matter was national or local; 4. Decided that this was a local safety concern, and an area that did not need uniformity; a. This approach is consistent w/ VA resolution and Kmiec’s thesis, looking to purpose of CC and whether we need harmony and whether the states are capable of reg on their own; iv. Bookend concurrence and dissent; 1. McClain concurrence: a. Thinks the commerce power is entirely federal; b. But fed can approve of state laws and adopt as their own; c. He feels that is what the fed statute here did, and that that is the only reason that the state can regulate in this case; 2. Daniel dissent: a. Thinks commerce power is shared; b. Feels irrelevant that the fed statue left a role for the states, and that they could reg here anyway; C. Oregon Waste (Modern Dormant Commerce Clause); i. Case suggests the ―flexibility‖ states seemed to have to regulate commerce under Cooley might be a little illusory; ii. Facts: 1. Oregon statute puts a surcharge on waste dumped in state landfills that was generated out of state (about 3 times the price of waste generated in state); a. So on its face, the statute discriminated against out of state waste; 2. Cgrs can decide these matters; Issue only arises when Cgrs hasn’t spoken a. Cgrs can pass statute allowing States to burden Commerce in ways that Court has already invalidated b. Court’s speech based on DCC is in essence ―pinch-hitting‖ for Cgrs, which can then COME BACK IN and ―reverse.‖ c. Here, states could have gone to Cgrs to get them to approve of greater out of state rates, but they didn’t and Cgrs was thus far silent on the matter; 3. Can states discriminate against out of state products or companies, that would unduly burden interstate commerce?; a. Two possible situations: i. Does the law FACIALLY discriminate against interstate commerce, w/ more than ―incidental effects‖ on interstate commerce? (this case); 1. If YES, virtually per se unConst: apply strict scrutiny; a. UNLESS the state can show that it advances a legitimate local purpose that can’t be adequately served by reasonable nondiscriminatory alternatives.; i. Forgone rev insufficient, need an actual higher cost for out of state situation to disc; ii. Resource protection insufficient (except to Rehnquist); 2. If NO:
ii. Does the law impose a burden on commerce that is clearly excessive in relation to the putative local benefits? (not this case); 1. Pike balancing test: a. If effects on interstate commerce are incidental or minor = state law presumed valid; b. If effects on interstate commerce are substantial effects = state law invalid if local benefit is outweighed by the burden put on other states; i. Notice how odd this part of the test is: a judge is asked to determine which is greater, the benefit to local citizens or the burden on out of state citizens; b/c the judge likely won’t understand the local concerns fully, it just becomes a policy consideration; 4. Ct says statute discr on its face against out of state waste and applies strict scrutiny to see if there is a valid compensatory reason for the discrimination; a. There is no added cost in disposing of the out of state waste (no compensatory reason for the disc); i. Found protecting natural resources (landfill space) insufficient here; b. There are no local health or safety concerns; i. Didn’t explain why though (Rehnquist’s dissent argues there were local health and safety concerns; c. Main argument by state was that the surcharge was needed to have out of state clients pay burden that the in state tax payers bear by paying taxes to build waste disposal sites; i. Ct rejects this argument b/c no showing that the surcharge and the in state taxes are equal, and taxes paid by in state citizens are income taxes, whereas the surcharge is not an income tax, thus it is not the same taxable event; ii. Ct says what would be acceptable is a sales tax equivalent; 1. e.g. CA cit goes to Nevada to pay no sales tax on a car. CA creates a use tax on cars bought out of state. The amount of Use tax is the difference b/w CA sales tax and the sales tax actually paid by the buyer; thus the use tax is the same taxable even and the same amount as the sales tax; 5. Rehnquist dissents; a. Kind of follows the test of disc on face or uneven in effect, but focuses on economic realities; b. Says generally, yes the statute is disc on its face, but passes strict scrutiny b/c there is a valid compensatory reason for the discrimination: protecting natural resources like landfills, which is a health and safety concern, by imposing compensatory charges on out of state users; i. Basically saying this is a police power, leave it to the states unless Cgrs acts; c. Goes on to say that economic reality here is that this is not economic protectionism, Trash isn’t a product and isn’t bought or sold. Ct. should only strike down economic protectionism like higher taxes on out of state products or favoritism of local goods; d. Also hints that Oregon is a market participant here, not a regulator, so can discriminate; iii. Ct says states generally can’t even disc as a form of natural resource protection; 1. One limited exception in Sporhaus: a. States can hold water for citizens (but not landfill space), b/c water, unlike other natural resources, is necessary for human life. 2. Thus generally, state can’t hoard its natural resources by preferring instate consumers; 3. Though market participant exception may apply sometimes; iv. Penalties vs. Tax Exemptions/Subsidies 1. Camps Newfound/Owatonna a. Church camps in ME – tax breaks for camps serving primarily in-state residents challenged. b. Does property-tax benefit for in-state-serving charities violate CC? i. Ct: YES - Per se test. 1. Args against: a. Prop taxation ≠ Interstate Comm? i. People who wd. come are going to be discouraged from doing so – that’s Interstate Comm ii. Scalia’s Dissent 1. This isn’t concerned w/ interstate commerce. iii. Thomas’ Dissent
1. This is a tax on real estate. NOT COMMERCE 2. Moreover, ENTIRE DORMANT COMMERCE POWER UNNECESS: a. Import-Export Cl bars states from imposing taxes, and was intended to apply to both domestic and international settings c. Does fact that it’s a subsidy rather than a penalty matter? i. While there’s no direct holding… ii. DICTA: Revenue from a tax imposed on the general population of the state can be used as a subsidy to assist a particular industry w/in the state. 1. Lots of Limits: a. Hillside Dairy: Can’t be a tax on all (in-state and out-of-state) that benefits only instate. b. Tax EXEMPTIONS are not LEGALLY equivalent to SUBSIDIES i. Exemption: Lifting of Burden ii. Subsidy: Granting of Benefit
22. MARKETPLACE EXCEPTION AND THE SHELTER OF OTHER STATE POWERS A. Marketplace Participant Exception to the DCC; i. So. Cent. Timber; 1. Alaska statue req. timber sold by the state to be partially processes in state before being shipped out of state; a. Obviously disc on its face = strict scrutiny (disc against exporters and buyers that have no in state processing plant); b. Resource protection generally not valid reason to discriminate; c. So looks invalid as violating DCC; 2. Marketplace Participant exception: state can discriminate if acting as a market place participant and not as a regulator; a. Gist: i. State can buy on terms favorable to its own citizens (Hughes) ii. State can sell on terms favorable to its own citizens (Reeves) iii. BUT State can’t impose control over stuff that a normal seller/buyer can’t do (S-Cent Timber) b. Why? B/c as a regulator the state has power, but in the market, they are on a level playing field w/ other private corps. so they should be given more leeway so they can compete; c. Three situations: i. Pure market place participant ii. Pure regulator iii. Mix of both (this case) d. Here, the state 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; e. End result = the second part, 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; i. Presumably the market place exception would have saved Alaska if the reg just put a surcharge or tax on the timber it sold out of state, b/c it was a participant in the timber market; 3. Rehnquist dissents and says like in Oregon Waste, 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. Narrow body of law allowing market participants to disc; 1. 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; 2. Reeves: shortage of cement in So Dakota so state only sold to in state corps; notice the state was acting only as a market participant, no tying arrangement; a. Rehnquist would likely want to extend this rationale to all natural resources even outside a shortage; 3. Unclear whether marketplace exception to DCC exists if states acting in foreign affairs (argued in Garamendi, but not decided); a. Remember, easier for fed to preempt in foreign affairs;
iii. Rehnquist’s argument involving only using DCC to combat economic protectionism is gaining strength w/ conservative judges; 1. Camps Newfound case: Scalia says DCC has drifted away from original purpose; said this isn’t protectionism, it is a way to promote instate recreational services and space and shouldn’t implicate the DCC; B. Other State Powers i. 21st A – Granholm v. Heald 1. Background a. (2 cases, one in MI, one in NY) State laws forbade out-of-state wineries from making direct sales to instate consumers. Residents and out-of-state wineries sued state officials, alleging violation of the Comm Cl. States argued that § 2 of 21st Amdmt transferred to States auth to discriminate against out-of-state goods, in contradiction of earlier statutes (Wilson Act, Webb-Kenyon Act). b. 1st: i. Dist Ct held for MI, citing valid exercise of powers under 21st Amdmt. ii. 6th Circ rev’d. c. 2d: i. Dist Ct held for Πs ii. 2d Circ rev’d, citing valid exercise of powers under 21st Amdmt. 2. Arg: 21st A (later in time) prevailed over DCC. a. Ct: NO – Implied DCC prevailed over text of 21st A and Webb-Kenyon Act. i. W-K Act was just extension of Wilson Act: 1. Police Power: Can ban liquor w/in state. 2. W and W-K Acts: Can ban out-of-state liquor as well. ii. Implied Term of 21st A: 1. States must maintain position of non-discrimination w/r/t out-of-state commerce: 2. Could have ALL (in-state and out-of-state) or NONE. iii. Const amendments do not supersede the dormant commerce clause. 1. In all but the narrowest circs, state laws violate Comm Cl if they mandate differential treatmt of in-state and out-of-state economic interests that benefits the former and burdens the latter. Here, the laws discriminate, and aren’t saved by either the 21st Amdmt (which doesn’t abrogate the Comm Cl) or arguments that there’s no good nondiscriminatory alternative (b/c there is). b. Stevens, Dissenting + O’Connor i. 21st Amdmt DOES trump: Cgrs can authorize states to violate Dormant Comm Cl, so people in Const Amdmt shd. be able to as well. c. Thomas, Dissenting + Rehnquist, Stevens, O’Connor i. DCC is vague and lame. Language of 21st Amdmt is clear. It’s the better guide.
23. STATE LAW AND FEDERAL ELECTIONS – TERM LIMITS A. State role in fed elections: Founders designed the const to give states a role in national elections; i. Qualifications of Electors (Voters) (Art 1 § 2): 1. States decide qualifications for the fed electors (voters) to vote in federal elections (for house, senate, pres); but the qualifications for voting in federal elections must be same as the state req for state elections; ii. Set ―Time, Place, and Manner‖ (Art I, § 4); 1. But PROCEDURAL, not SUBSTANTIVE a. Cgrs has an overriding power to set the time and manner (but not the place); b. Actually, the states have a duty to set the time manner and place, to ensure the elections get done; that is why Cgrs can act too in case the state doesn’t (Thomas); iii. Electoral College 1. Selection of electors is by state legislatures. (OT: Bush v. Gore) iv. Redistricting 1. Done by state legislatures pursuant to Fed census and one person, one vote principle. 2. HUGE INFLUENCE on OUTCOME a. LULAC v. Perry i. Is there a Const limit on partisan line-drawing?
ii. There’s a limit, but we’re not there yet. B. Fed role: const. also includes a ―qualifications clause‖ for house, senate and pres; i. House of rep = 25 yrs old, cit for 7 yrs, resident of the state running in; ii. Senate = 30 yrs old, cit for 9 yrs, resident of the state running in; iii. Pres = 35 yrs old, born in US, US cit; C. US Term Limits v. Thornton; i. AR passed law that prevented people running for office to get their name on the ballot if they had already served 3 terms on House of rep or 2 terms as Senator; 1. Why? To open the door to new people b/c incumbents have unfair advantage; 2. Note: people running could still be elected, but only if enough people wrote their name in by hand at the polls; ii. S. Ct. found this effective limitation on the number of terms a person can serve to violate the qualifications clause; 1. Stevens basically said that the qualifications clause isn’t just a minimum standard, but exclusive qualifications; 2. Stevens says st role in elections is setting voter qualifications and time manner and place of elections; a. Not allowing a name on the ballot exceeds the power to set and manner to Stevens; 3. Stevens relied on Powell partly: a. Powell was elected to the House, then charged w/ fraud criminally; b. House sought to exclude him from his seat, and passed a resolution to exclude him; c. Ct. said that the Cgrs doesn’t have power to exclude someone from office who met the qualifications clause; this would give them power over the electorate, and violate the voters’ right to elect a qualified candidate by allowing Cgrs to add qualifications; i. Cgrs only has the power, after someone is elected, to expel them for an ethical violation; not to add qualifications for office; d. Ct. says just like letting Cgrs add qualifications violates the choice of the voters, so does giving the state leg power to add qualifications; iii. Kennedy concurrence: just basically says that besides time manner and place, the const give states no role, definitely no role to add qualifications in a national election; iv. Thomas dissent; 1. Says the const sets out minimum req for qualifications; 2. Nothing in const expressly prohibits the states from adding to the qualifications; 3. 10th A then reserves the power this power to the states; a. That’s why Cgrs can’t add to them, they need delegated power, the states don’t; everything not delegated is theirs; 4. Debate b/w Stevens and Thomas; a. Stevens: const can’t reserve power to the states that the states didn’t have at the time const was created; at that time, states had no power to set qualifications for fed elections; b. Thomas: that’s not true; at the time the const was created, the people had this power and the const didn’t expressly take it away; the 10th also reserves power to the people, not just the states; c. Stevens: if this power was reserved to the people, why does the const give the states the power to set time place and manner of fed elections?; d. Thomas: It doesn’t just allow them to, it is req them to, in order to ensure that we can have the elections, that is why Cgrs still has power to override; 5. Thomas also argue that until the 17th A, Senators were chosen by state leg; this proves that originally the states had unfettered ability to add qualifications for fed office; a. Thomas points out that historically states have added qualifications like property ownership, req. people running for house or rep to be from the district that elects them, and required that elected senator or rep continue to live in the state for whole term; All of these are additional qualifications; b. His main arguments are: i. Qualification clause is a minimum, not exclusive; ii. States power to set time and manner is a duty to do so, not a right signaling that that is their only role in federal elections; iii. Power to add qualifications is reserved to the states (states didn’t have to have the power preratification b/c the PEOPLE had the power, and the 10th reserves power to the states and the people of the states); iv. History, mentioned above, shows that we have allowed states to add qualifications in the past; v. Thinks Powell is unpersuasive in this case b/c applied to Cgrs adding qualifications, not states;
1. Makes sense, natural law would cut against giving Cgrs to add to its own qualifications; wouldn’t cut against states doing it though (sep of power avoids tyranny; Cgrs shouldn’t be their own judge); Madison feared aristocracy which is the result of entrenched officials, which could be prevented by letting states do this; D. Missouri tries to get around US Term Limits in Cook case; i. State passed a law that required elected representatives to take action to push for term limits; the law allowed the state to put on the ballot the fact that the official did not promise to do so (when running for election), or that he/she failed to do so in term (if running for re-election); 1. Ct. struck this down as an impermissible way to circumvent US Term Limits; and an e.g. of state exceeding its right to set time place and manner of fed elections; a. Time, place and manner allows state to make their own procedural regulations, not to in effect favor or disfavor certain candidates; i. Time and manner means things like giving notices and voter registration, counting votes, publishing election results, etc.; 2. Also brought up issue of what voters can tell their candidates to do; a. Can they require pledges, promises, etc? b. Kennedy states that 1st A protect the voters right to make requests, suggestions, or file petitions; i. Does not allow binding directions or demands (which the Missouri ballot law did in effect); ii. This would take away from the deliberative process that was created for Cgrs to partake in where they deliberate and make decisions on their own;
24. DEFINING TRADITIONAL STATE FUNCTIONS – THE 10th Amendment A. National League of Cities; i. Fed act (Fair Labor Act) set minimum wage and overtime requirements for employees at private businesses; 1. No problem there, under Lopez, Cgrs has power to do this under the CC; ii. Act then amended to include extension of min wage and overtime req to 1. state employees working at hospitals and schools and other state institutions (fire/police dept for e.g.); 2. All state employees iii. Issue is whether there is anything in the const prohibiting fed from exerting power that it has under another part of the const. 1. Thus 2 Q: a. Does the fed have the authority to do this generally? b. Is there anything else in the const prohibiting fed from doing it? 2. E.g. fed has power to tax, but can it tax the states? a. No. Art. 1 § 8 gives power to tax, but 10th A prevents the fed from taxing the states, they can only tax individuals; 3. Issue here is even if fed can do this under CC, does the 10th prevent it from doing it?; iv. Ct.: fed cannot mandate state employee min wages or overtime; the CC gives them the power to set national min wages, but 10th A prevents them from imposing it on state gov’t employees; 1. Ct lays out a list of traditional state functions: a. Police protection; b. Fire dept; c. Sanitation; d. Public health; e. Parks and Recreation; 2. If a minimum wage and overtime req is put on the state gov’t, it can’t properly carry out these functions; a. Increased wages result in being able to employ less fireman, police, etc., not being able to have a volunteer forces, not being able to hire less-qualified people part time or teens, and being less able to train the departments; 3. Ct: there is a fundamental difference b/w regulating private industry and regulating state gov’t; a. Basically says that state gov’t is more important as a sovereign entity than are private industries; 4. But the problem w/ defining state functions is that they always change and each city, county, and state are different (e.g. Malibu does almost non of those functions); B. A 4-Part Test evolves from National League of Cities;
i. if each is met, the fed statute is unconst as violating 10th A: 1. The statute regulates the state as a state; 2. Statue addresses an indisputable attribute of state sovereignty; 3. Compliance impairs state’s ability to carry out traditional state functions; a. The problematic part, tough to define state functions; 4. Fed interest is not such that it justifies state submission; a. A balancing test of sorts; ii. But, to Kmiec, these Nat League of Cities req are empty and don’t mean much when applied; C. Garcia v. SAMTA (9 yrs after Nat League of Cities); i. Same kind of statute as in National League, Cgrs imposes a min wage and overtime req for transit auth employees employed by the state; 1. Under National League, D. Ct. held transit is a traditional state function and the statue impeded the states ability to perform that function = unconst use of CC power by the fed; a. Again, no Q that fed can regulate min wage, but for state employees ct said no in Nat League; ii. But by now the lower cts were confused as to what traditional state functions were; iii. Ct. reconsiders whether the traditional state function test can work; finds that it doesn’t and gets rid of it; 1. 3 Possible Standards: a. Are They ―Uniquely‖ Or ―Necessarily‖ Government Functions? i. No: govt can contract out by hiring private firms ii. (NB: total privatization would lead to uncertain results…nat’l defense and infrastructure) b. Are They Historically Matters For State/Local Govt? i. This doesn’t work either to them: Gov’t constantly changing over time, stopping old functions and wanting to get into new ones, like transit; c. Should The Treatment Differ As To Public Goods? i. Maybe – Jointly consumed, difficult to produce and sell (like AIR). Market doesn’t provide. ii. But that only applies to a few things. 2. Ct then points out that the const did in fact take a lot of state sovereignty away; a. E.g. 14th A req equal protection by state actors; bill of rights; supremacy clause; Art. III fed ct. supervises state decisions in these area; 3. Ct. then switches gears, and says that judicial branch isn’t good at making this kind of call (state functions); 4. End result = New test; a. Does the CC give fed the auth to reg?; b. If the 10th A prohibits fed from doing it, protection comes from the political process; i. How are states (people) protected? 1. Their leg determine voting qualifications; 2. They have equal rep in the Senate; 3. They chose time place and manner of fed elections and the people part in picking the Pres 4. Essence: States are like any other lobbying group. ii. How do we know this works?; 1. States seem to be doing okay getting fed funding, and getting exempt form area of fed leg; This seems weak, especially to the dissent; iii. There are good political reality and natural law arguments against this reasoning mentioned in the dissent; 1. Goes to the heart of what state gov’t is better at than fed gov’t; intimate w/ local population, can respond to their needs more quickly, etc; Federalist 17 and 46; 5. Dissent; a. Pissed; say that state only ratified the const upon assurances that state sovereignty would be protected; b. Basic point: it is possible for the ct to maintain state sovereignty and the Nat League functionality test is a balancing test that works just like the tons of other balancing tests that the court applies; c. Rehnquist’s separate dissent: We’ll be back to protect the states. D. So, Nat League and SAMTA are book end cases: i. Was Cgrs w/in CC power under Lopez/Morrison and others? ii. Does the 10th am prohibit the fed from doing this?
1. Nat League = fed can’t impede state from performing traditional state functions unless outweighed by national interest; 2. Garcia = issue left to the political process; a. But note Rehnquist’s dissent (w/O’Conner joining) that this will not last; Thomas may agree today (not on court at that time) and perhaps Scalia. Thus, 5-4 at best, so if one more changed sides (Kennedy possible), Nat. League could be the law once again; i. Evidence of this possibility – curb of CC power in Lopez (5-4) under sub effects prong, strengthening of 10th and st sovereignty in Printz (5-4); that same 5-4 line up would bring back Nat League;
25. NO COMMANDEERING OF THE STATES A. Printz; i. Fed statue (Brady Gun Control Act) req. gun sellers to perform background checks on buyers; 1. But, the system isn’t up and running yet; ii. In the interim period, the statue req. state ex officers (Chief Law Enforcement Officers) to use reasonable means to perform the background check; iii. Issue: can Cgrs command/force a state executive branch to assist in the implementation of a federal regulation? iv. Exact holding (5-4): Fed Gov’t cannot compel the states to enact or administer fed reg program; 1. But they can reg the states as states (Reno); v. Nothing in the text of the const helps us w/ this expressly: 1. Historical argument: a. Bottom line: history shows rare that the fed gov’t has ever commanded the state ex branch to do anything; i. State judicial branch can be commanded via the supremacy clause, both b/c they are specifically mentioned and b/c the framers knew that state ct. would be hearing const issues b/c the s. ct. can’t hear them all (remember, lower fed cts were made optional, so guaranteed that state ct. would be involved and need to ensure they follow fed law); ii. 1882 Act: Fed gov’t used state ex officers to implement immigration, but this was done by contract via the state governor, not by command; iii. Fed papers: all they say is preemption, properly made fed law trumps state law; but this just brings us back to the question of whether the fed law is proper under the const; 2. Const argument: a. Unlike the Arts of Conf, which regulated the states, the const reg the people directly, not the states; i. So fed reg apply to people, can apply to the states as states, but cannot force states to reg people in a certain way; b. To avoid tyranny, need to divide power; i. Not only at the federal level into 3 branches; ii. Also into fed vs. st; c. Giving the fed leg branch (Cgrs) the power to command state ex branch throws of the balance of these sep; i. How? It is the job of the ex to see laws faithfully executed; giving the leg branch the power to command state ex gives them the power to see the laws executed; this usurps the power of the Pres; d. Necessary and Proper Clause: doesn’t help the gov’t here b/c like the issue of preemption, it doesn’t give Cgrs power to violate state sovereignty; can’t use the necessary and proper clause until you have a proper grant of authority, then it gives you the means to carry it out; once again, just brings us back to the Q of whether the law was proper under the const.; 3. Precedent argument; a. EPA v. Brown case; i. Environmental Act req. states to enact emission standards for vehicles; ii. States objected as commandeering; iii. Never decided b/c became moot after the gov’t conceded it didn’t have the power to command the state in this way; 1. Suggests fed knew it couldn’t commandeer the states by forcing them to enact reg; 4. Policy argument: a. Cgrs has options if it wants to have ex branch of a state help out;
i. Condition fed grant of funds on assistance w/ a fed program 1. Like a contract w/ the state in a way; ii. Threaten preemption; 1. Hodel: If the fed has proper authority in a field and can preempt, they can force state to regulate in a certain way in an otherwise completely preempted field; b. Says time you state officers are implementing federal programs is time they aren’t addressing the needs of state cit; c. And when things go bad, if state officers are implementing they get blamed, but if things go well, the fed leg branch gets the credit; vi. Dissent: basically argued Garcia and that this 10th A fed state issue should be left to the political process; 1. As a policy argument they added that this decision would result in a bigger fed bureaucracy b/c st ex can’t be used by fed leg; B. Reno v. Condon: i. Points out that although fed can’t commandeer the states as regulators or administrators, they can command them as states (just like they can command individuals); 1. Fed Drivers Personal Protection Act prohibited DMV (state) from selling drivers’ personal info and prohibited individuals who came across the info from re-selling it; a. Act challenged as not w/in CC power: rejected b/c vehicles are instrumentalities of interstate commerce and the information was sold and thus was an article of commerce; 2. The act didn’t require the states to regulate in a certain way, or command them to administer a fed program; it just prohibited the states from selling the info; a. Irrelevant that the state officials (ex) needed to act in order to comply, or to learn the new rules, or spend time doing so; found not to be commandeering; b. This wasn’t telling the state how to reg, or using them to implement a fed program; the state just needed to comply w/ the program; 3. Result = no commandeering found; C. End result: i. Fed can regulate individuals; ii. Fed can regulate states as states; iii. Fed cannot regulate states as regulators/administrators by forcing st leg to enact fed reg or making st ex implement fed reg; 1. 10th A stands for prop that Fed govt can’t treat States (leg or exec) as sub-agencies bound to enforce Fed policies. a. NB: ―Not much of a limit‖: i. Ways to Circumvent: 1. Condition on Fed Spending 2. Conditional Pre-Emption/Threat of Unilateral Fed Action in the Area 3. Part of Statute Regulating Both States & Indivs Together (Reno v. Condon) a. After Garcia, Cgrs can regulate states and indivs alike.
26. THE SPENDING POWER A. Art. 1 § 8: Cgrs has power to levy taxes and provide for the general welfare of the US; i. Thus, Cgrs has ―spending power‖; ii. Is there a limit on what Cgrs can spend on? 1. Obviously they can spend in areas they also have power to regulate in under art 1 § 8 (e.g., commerce) 2. But Cgrs can spend in areas it has no authority to regulate in too (Dole); a. Why? No good reason really, to Kmiec; b. Only req = spending must be for the general welfare of the US; i. Some argue this was a limitation, meaning only can spend if there is a truly national interest, not a local one; not accepted theory today though; B. South Dakota v. Dole; i. Cgrs passed st that said it would reduce funding for state highways in states that have a min drinking age less than 21; ii. South Dakota’s drinking age was 19; so Cgrs cut funding by 5% for highways; SD sued; 1. W/out 21st A issue, could Cgrs set a national minimum drinking directly (w/out using spending power) under CC power?
a. Yes, drinking and driving prominent for drinkers under 21, which makes roads (instrumentalities of interstate commerce) unsafe; basically a sub effect on interstate commerce; 2. But w/ 21st A, less clear that Cgrs could do this directly under the CC; a. Probably could b/c the fed drinking age doesn’t involve transportation or importation of alcohol, which is what sect 2 of the 21st allows states to regulate; b. Also, Kmiec doesn’t think the 21st prohibits Cgrs from using its affirmative CC power, exempts states from DCC attack when they regulate and interfere w/ interstate commerce; c. Ct doesn’t decide the issue b/c the rule is Cgrs doesn’t need to be able to reg directly to use its spending power to accomplish the same goal indirectly, so we don’t know if Cgrs can create a nation min drinking age under CC due to 21st A; d. So b/c ct doesn’t decide if they can regulate directly, issue becomes can they do it indirectly under the spending power, even if they can’t do it directly?; i. Ct decided Cgrs can use spending power to accomplish things indirectly that it can’t reg directly w/ enumerated powers; 1. Brennan dissented and said if Cgrs can’t do it directly, can’t do it indirectly, but Brennan isn’t around anymore so not that imp; 2. O’Conner feels same way, this is more imp b/c at least she is still around; 3. Limits on the Spending Power; a. STATED: i. Must be in pursuit of ―the general welfare‖; ii. Must be unambiguous; iii. Must be related to Fed interest in particular nat’l projects/programs; iv. Must not require States to act unconstitutionally. v. Must not be too coercive. b. DETAILS i. Spending must be for the general welfare of the nation; 1. as rationally conceived by Cgrs (Result: subst. deference to Cgrs) ii. Conditions put on funding/grants must be made unambiguous; 1. i.e. states must know clearly what the ramifications of accepting the money are; 2. ―Contractually Anticipated‖: Possible new axiom for limiting spending power: a. Barnes v. Gorman i. SCALIA: Restrictions/Conditions that couldn’t be contractually anticipated by recipient state are unConst. ii. Punitive dmgs not w/in contractual expectations of State, so punitive dmgs can’t be sought against State. b. Arlington Central School Dist (2006) i. ALITO: Cgrs allowed for parents in context of suit under IDEA to recover attys fees, but recovery of consultant’s fees, expert witness fees, etc. couldn’t have been w/in contractual anticipation of state amins. ii. Influenced by Barnes: Fees not included in statutory language Ginsburg, Concurring: iii. Maj making too much of ―unambiguous‖ reqmt. iv. Only applies to ―major elements‖ of bargain b/w Fed, States Souter, Breyer, & Stevens, Dissenting: v. Importing K principles into spending power is NO GOOD. vi. Rely on conference report on IDEA (Alito no likey) iii. Conditions put on funding must relate to a federal interest or a national program; 1. Maj sees rule broad (shown later in Sabri); 2. O’Conner sees it as requiring the condition to relate to how the money will actually be spent, not a regulation; 3. Sabri v. US (2004) a. Bribery in MN - Charged w/ violating Fed statute making it a crime to offer $5K or more to any agent of political entity receiving $10K+/yr in Fed funds.
b. Δ argued insufficient relationship: nothing in statute says that $ given to State govt was the $ misused by my bribing. c. Ct said Const: i. Souter: General welfare + N&P Cl ii. Thomas: ―What?!?‖ - N&P requires showing that means selected are plainly adapted to appropriate and enumerated end. (NB: Madison side) d. Point: This limit was significantly discussed in the late years of the Rehnquist Ct. We’ll see whether Roberts Ct takes any Spending Power cases. iv. Conditions must not require states to act unconstitutionally; 1. Means Cgrs can’t condition funds on state itself doing something that is unconstitutional; a. E.g. funding conditioned on state exercising cruel and unusual punishment or violating due process; 2. DOES NOT mean condition can’t allow Cgrs to do something it couldn’t do under the const w/o the spending power; a. e.g. due to 21st or 10th am; irrelevant; 3. Means Cgrs can’t induce States to commit a Const violation. a. $$$ to discriminate based on race. b. $$$ to commit cruel and unusual punishment. v. Conditions must not surpass inducement and cross into coercion; 1. Especially where: a. Fed Govt gives lots of money on project w/o condition for a period of time, inducing State project… b. …and then, when project is well underway, Fed Govt imposes a condition. 4. Limits on spending power applied to Dole; a. Spending on general welfare – yes, providing road and highways; b. Condition clear – yes, st specifically said that funds conditioned on making drinking age 21 or 5% reduction results; i. This limit given more teeth in Barnes v. Gorman; c. Condition relates to a federal interest – yes, national interest is creating safe roads, and higher drinking age makes those roads safer; i. O’Conner dissents and has problems w/ this limitation; 1. She feels ―condition must be related to a national interest‖ means that the condition must be a condition, not a regulation; 2. That’s how she would draw the line: a. Conditions – specify how money granted should be spent; i. Here, for e.g., here are funds, 5% conditioned on the fact that you use the funds to include lights/call boxes on highways, must be made out of concrete, have rest stops; etc; b. Regulations – go further than how to spend, and just regulate; i. Here, for e.g., drinking age is a regulation, not how to spend funds; 3. Notice this rational is similar to the market participant doctrine: states can disc if market participant but can’t regulate past that participation (downstream); Here, fed can tell state how to spend, but not reg downstream past how to spend; 4. But, in Sabri, O’Conner doesn’t renew this opinion; d. Condition can’t violate and ind cont bar: yes, 21st am issue insufficient as a const bar, the condition doesn’t require states themselves to do anything unconst; e. Inducement but not coercion: yes, only 5% of the funding was conditioned on the drinking age; 5. No one joined O’Conner in her dissent but it made the most sense in light of the ct decisions in other fed/st cases; a. Lopez curbed Cgrses CC power (+ for state sovereignty); b. Printz revived 10th A by prohibiting commandeering (+ for state sovereignty); i. After Garcia butchered the 10th (- for state sovereignty); c. Seminole Tribe broadens scope of 11th A sovereign immunity (+ for state sovereignty);
d. 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); i. 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);
27. JUDICIAL INCORPORATION OF CONSTITUTIONAL PROVISIONS A. Barron: originally, nothing in const. applied to the states unless express; i. Bill of rights didn’t expressly apply to the states, so doesn’t apply to them; ii. This approach changes after civil war; 1. 14th A passed: no state shall deny cit equal protection, due process, or privileges and immunities; a. Art II § 4 Privileges and Immunities clause doesn’t work to bind the states to the bill of rights b/c it has been construed narrowly; it only req that any rights the state does afford its cit it cannot deny to cit of another state; b. But, next two cases show the due process clause does incorporate many of the bill of rights (i.e. they apply to the states); B. Palko: Bill of rights don’t apply to the states in their totality; but some do under the due process clause of the 14th A; i. Which ones? 1. Judicial Incorporation Doctrine: the provisions of the bill of rights that apply to the states (that are incorporated into the 14th) are the ones that are so essential to justice and liberty that J and L wouldn’t exist w/out them (vague); i.e. they are fundamental to ordered liberty and justice; C. Adamson: Palko Jud Incorporation Doctrine reaffirmed; i. Ok for CA to allow prosecutors by law to use D right to be free for self-incrimination (not take stand) under 5th am against him in argument; 1. Not fundamental to justice and liberty; ii. Other theories; 1. Blackmun: all bill of rights inc (argues history and convention show drafters thought they were incorporating the 1st ten into the 14th); 2. Frankfurter: none of bill of rights inc; 14th req equal pro and due process and those things can be defined by looking at history; a. Argued if they drafters intended 14th to inc 1st 10am, words used are a strange way to accomplish that; D. Judicial Incorporation Doctrine is still good law; i. But most of bill of rights incorporated by now; 1. Imp ones not inc: a. 7th A Right to a jury when civil controversy exceeds $20 b. Right to a grand jury before indictment; c. Req’mt that Jury be Unanimous