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									                                                           CON LAW CANONS

  CANON                              AUTHORITY               INTERPRETATION/APPLICATION
                                       1. CONSTITUTIONAL INTERPRETATION
Framers Intent    Powell v. McCormack, Hood v. Du Mond                           Major Tool of Originalism
                                                                                 1) Strict Interpretation
Textual           Marbury v. Madison, McCulloch v. Maryland, Hamdi v.            What does the text say.
Interpretation    Rumsfield (Scalia dissent)
Public Policy     Martin v. Hunter’s Lessee, Powell v. McCormack                 Can be vague.
History           Clinton v. Jones                                               How has the issue evolved historically.
Structural        Printz v. US                                                   Federalism vs. Republic
Morality          Champion v. Ames                                               What are the moral implications at stake.
Precedent         Dames & Moore v. Regan                                         How has the Supreme Court ruled in the passed.
Tradition                                                                        Very restrictive and conservative.
National                                                                         What general opinions and attitudes does the country have in regards
Consensus                                                                        to the issue.
Foreign Law                                                                      Rarely used.
                                               1A. Two Different Interpretive Approaches
Formalism         Youngstown Sheet v. Sawyer (1952) (Black J. Majority)          Clear rules and categories. Textual and constructivist. Clarity and
                  (holding that the President does not have implied              predictability.
                  authority to seize U.S. steel mills during Korean War)
Functionalism     NLRB v. Jones & Laughlin Steel Corp (1937) (holding            Focus on practical implications and functional consequences. Broad
                  that the effect between fed. union regulation and interstate   and flexible.
                  commerce is substantial. Fed can regulate unions to
                  avoid national strikes and strife).
                                                          1B. Competing Doctrines
Originalism       Interprets the constitution using text and history.
                  1) Original Intent (old version): What did the framers intend
                  2) Original Meaning (modern version): Did the text have a common original meaning at the time of ratification?
Non-Originalism   Goes beyond text and history to interpret a living constitution.
                                                           2. JUDICIAL POWER
                                                              2A. Judicial Review
Judicial Review   Marbury v. Madison (1803)
                  Facts: Marbury sought mandamus to SCT under orig. jurisdiction est. by statute
                  1) Const. (Art. III) = absolute limit of fed. ct. jurisdiction
                  2) Judicial Review of Legislative Acts, binding on other branches b/c:
                      SCT must say what the law is (i.e. decide which of two contrary laws operates)
                      Checks and Balances requires Judicial Review (otherwise ct. would be bound by unconst. laws)
                      SCT must enforce Const. over laws merely “made pursuant to Const” (otherwise Const. would be meaningless)
                      SCT takes oath to uphold Const.
                      SCT judicial power extends to all cases arising under Const.
                      W/O judicial review SCT could not strike down ex post facto, ect.
                  3) Judicial Review of Exec. Actions where indv. rights & therefore gov. duties exist
                      No judicial review where Exec. has discretion (pol. process = only check)
                  1) Const. interpretation is flawed (SCT could have held that Art. III is a floor on orig. jur. not a ceiling)
                  Article VI Supremacy Clause: states that the const. is supreme not the SCT interpretation of the constitution.
                  2) Statutory interpretation is flawed (could have interpreted stat. as granting app. jur.)
                  3) Weak assertions as to why SCT holdings are binding on other branches.
                  4) Counter-majoritarian Dilemma: Appointed judges invalidate laws enacted by elected branches.
                  Counterarg: Constitution must protect minorities. SCT has no sword or purse.
Judicial Review   Martin v. Hunter’s Lessee (1816) (holding that states must follow judicial review in the interest of uniformity (public policy))
(applicable to    Facts: VA ct. held that SCT had no power to review state ct. decision its law seizing Brit property. Contrary to US/Brit treaty.
states)           Majority
                  1) Structure of Const. presumes SCT can review state ct. decisions
                      Art. III does not preclude it: If not, and Congr. had not created lower cts. SCT could only hear a few cases in it orig. J
                  2) Supremacy Clause
                  3) Const. limits state actions (e.g. ex post facto)
                  4) SCT review of state ct. decisions promotes uniformity (public policy)
                  5) As such SCT can review state supreme ct. decision if there is a national interest
                  Criticism: Federalism: state interests may not be fully taken into account

Law of the Land   Cooper v. Aaron (1958) (AR says they do not have to              1) Controversial: Court’s interpretation of the Const. is the
                  adhere to Brown v. Board of Ed. SCT says yes you do)             supreme law of the land. Constitution = Supreme Court
                                                                                   2) Alternative: Court’s rulings are an exercise of judicial power
                                                                                   under the Constitution and the Supremacy Clause.
                                                                                   Constitution > Supreme Court.
                                                         2B. Limits on Judicial Power
Interpretive      U.S. v. E.C. Knight Co. (narrow interpretation of                1) Narrow interpretation
Limits            commerce)                                                           constrain undemocratic judicial power
                  McCulloch v. Maryland (interpreting necessary as proper             discretion to interpret Const. must be narrow
                  broadly)                                                         2) Broad interpretation
                                                                                      const evolves by interpretation
Congressional     Ex Parte McCardle (1868)                                         Ability of Congress to restrain fed. ct. jurisdiction
Limits/           Facts: Congress repealed part of SCT app. review of              Const: SCT has app. J “both as to Law and Fact, with such
Jurisdiction      writs of habeas corpus                                           Exceptions, and under such Regulations as the Congress shall make”
Stripping         Majority                                                         1) Broad approach: Congress can’t strip federal jurisdiction
                  1) App. J. conferred by Const. subject to                           over constitutional claims
                  exceptions/regulations from Congress.                            2) Middle ground: depends on the issue
                  Exception Clause (Article III Sec. 2)                            3) Third approach: Congress has plenary authority to do so b/c
                  “Such exceptions under such regulations as the Congress             state courts are always of general jurisdiction
                  shall make”                                                         *problem: no uniformity of laws
                  2) Repeal of a law affirming App J is a constitutional
                  exception by Congress. SCT cannot examine                        *Unsettled: not many cases here
                  congressional motives.                                           Effect: Tension btwn (1) SCT final interpretations of Const. and (2)
                  Criticism                                                        Congress’s check on SCT (i.e. controlling App. J)
                  Structural => structure of Const. suggests SCT role is
                  interpreting Const. and providing uniformity
                                              2(B)(I). Justiciability Limits on Judicial Power
                                 Series of judicially-created doctrines that limit the types of matters fed cts. can decide.
Political         Baker v. Carr (1962) (holding that a voting district                Fed. Cts. will not adjudicate allegations of violations of Const. that
Question          malapportionment claim is not a political question)                 SCT deems inappropriate for judicial review.
Doctrine          * Political question doctrine dismissed on Equal Protection         I. Application of Political Question Doctrine
                                                                                          1) Textually Demonstrable Commitment of power to Pol.
                  * Institutional check on incumbents
                  Nixon v. U.S. (1963) (holding that the Senate has the sole power           Branch
                  to determine impeachment procedures)                                    2) No Meaningful Legal Criteria for resolution
                  * Checks and Balances: other checks on impeachment power                3) Potential for Embarrassment (e.g. foreign policy)
                  (articles from House, supermaj. req.)                                        a) foreign credibility problems if, e.g., President acted and
                  * “Try, all”= no criteria in the constitution to determine what a                 Court later held it unconstitutional
                  trial in the Senate entails                                             4) Scope: narrow: generally applies when judiciary is asked
                  * Sup Ct. should not review matters involving federal judges               to tell another branch what to do procedurally, or to risk
                  * Counterarg: is no one else can interpret due process but the
                                                                                             embarrassment, or when there is no legal criteria
                  Sup Ct. and there is no appellate jurisdiction
                  Powell v. McCormack (1969) (holding House of Rep. cannot            II. Justifications:
                  change Const. qualifications in refusing to seat Clayton Powell)    1) Separation of Powers (not federalism)
                  * No political question SCT must interpret Art I                    2) Pragmatism
                  *Framers did not intend to allow Congress to restrict elected       3) Marbury indicates discretionary decisions by other branches are
                  members in this way                                                 not reviewable
                  * structural/public policy argument: Powell has been elected        *Problematic: Tension with Marbury judicial review. Easy to
                  and to deny a seat goes against democratic principles               manipulate to avoid cases SCT does not want to hear
Prudential        Baker v. Carr (1962) (dissent)                                      States that the court should not squander their reputational capital by
Doctrine                                                                              butting in to nitty gritty political issues.
Standing          Allen v. Wright (1984)                                              Constitutional Component
                  To have standing plaintiff must allege:                             1) Art. III: courts can only hear “cases or controversies”
                  1) Injury                                                           2) Separation of powers: court cannot interfere w/ other branches
                  2) Causation: fairly traceable to Δ’s conduct                            a. “advisory opinions” are barred by the Constitution
                  3) Redressability: problem can be remedied by court                 Prudential Component
                                                                                      1) Courts have discretion as to whether they think there’s standing
                                                                                           a. Facts, context allow court to see reality, impact of the law,
                                                                                      2) Two views of case/controversy that affect court’s discretion:
                                                                                           a. Traditional Model
                                                                                                i. Two parties fighting it out
                                                                                                ii. Decision significant for those parties only
                                                                                           b. Public Rights Model
                                                                                                i. mega-cases and controversies
                                                                                                ii. certain decisions seem to take on much greater effect,
                                                                                                    importance (ie. Brown v. Board of Ed)

Mootness         Exceptions:
                 1) Voluntary Cessation: w/o ct. order, no guarantee injury will not continue
                 *Moot only if no reasonable chance ∆ could resume offending behavior
                 2) Class Actions: even if basis for the lawsuits of some of the named members goes away, not moot
                                                   3. CONGRESSIONAL POWER
Standardized     McCulloch v. Maryland                                         1) Is there an Express/Enumerated Power?
Analysis of                                                                    2) Is the means used to carry it out a necessary and proper
Congressional                                                                  means to do so?
Power                                                                          3) Does Congr. Act violate another Const. provision or doctrine?
Principles of    City of Boerne v. Flores (limited interpretation of           1) Limited: Congress cannot act except for enumerated powers (NO
Congressional    necessary and proper clause)                                  police power)
Power            Champion v. Ames (broad interpretation of interstate            *Nec & Proper Clause broadly interpreted (if linked to enumerated
                 commerce authority power as plenary)                            power)
                                                                               2) Supreme: Fed gov. supreme where it has power (federalism
                                                                               remains, but Const. ratified by people)
Federalism       Arguments for Federalism
                 1) Democracy: local democracy better represents the people
                 2) Experimentation: states as laboratories (risk on small scale)
                 * States may go beyond the baseline established by the bill of rights.
                 3) Check on Tyranny: states check national power and protect rights
                 4) Structural: provided for in the structure created by Const. *used by courts to promote federalism
                 Arguments Against Federalism
                 1) Lack of Uniformity
                 2) National interests may not be adequately protected
                 3) States may overstep their bounds. (ie civil rights)
                 4) States may not have the ability/resources to address certain issues.
                 5) Lowest common denominator: states can get away with the minimum standard of conduct allowed under fed law
                 Types of Federalism
                 1) Compact Federalism: Const as a agreement btw the states
                 2) Limited Federalism: The people as the source of Const.
                 Protecting Federalism: Issue: should it be role of Judiciary or Pol. Process
10th Amendment   US v. Butler, Printz v. US                                     1) The powers not delegated to the US by the Constitution nor
as a Limit on                                                                   prohibited by it to the States are reserved to the States
Congressional                                                                   respectively, or to the people
Power                                                                                a. Construction 1: 10th Amendment NOT a judicially-
                                                                                     enforceable limit on Congressional power
                                                                                         *Merely reminder that Congress can only legislate w/in
                                                                                         delegated powers => laws are NEVER unconst. as violating
                                                                                         10th Amendment
                                                                                     b. Construction 2: 10th Amendment protects state sovereignty
                                                                                     from fed intrusion
                                                                                         *Fed law otherwise w/in scope of delegated power can be
                                                                                         unconst under 10th Amendment
                                                                                         *Contrary interpretation makes 10th Amendment
Necessary and    McCulloch v. Maryland (1819)                                   Two-Pronged test for constitutional use of the Necessary and
Proper Clause    Facts: Congress created Second Bank of the U.S. and MD taxed   Proper Clause
                 money issued by the bank                                       1) What enumerated power is Congress promoting?
                                                                                     a) If none then no authority
                 1) creating a bank is not an enumerated power, but is ok to
                 promote other enumerated powers: taxing, raising money for     2) Has Congress chosen means suitable for carrying it out?
                 armies, commerce regulation                                         a) Reasonable connection between means chosen and the
                 2) Necessary and Proper Clause gives Congress power to use          enumerated power
                 means to expediently carry out enumerated powers (textual)
                 3) Rejects the Compact Federalism Theory, which says states
                 joined to create nation so can’t infringe on states
                                                          3A. Commerce Power
Commerce         Gibbon v. Ogden (1824) (broadly interpreting commerce  Art. I § 8: The Congress shall have the power…to regulate
Clause           clause to include aquatic navigation)                  commerce w/ foreign Nations, and among the several states, and
                                                                        w/ the Indian Tribes
                                                                        SCT interpretation of commerce power has been a swinging
                                                                        Application: Three Kinds of Commerce Clause Cases
                                                                             1) Regulation of Channels of Interstate Commerce
                                                                             2) Regulation of Instrumentalities of Interstate Commerce
                                                                             3) Regulation of Intrastate Activity w/ Substantial Effect on
                                                                                Interstate Commerce *Most controversial*

Rational Basis      Hodel v. Indiana (1981)                                     “The court may invalidate legislation enacted under the Commerce
Test                Gonzales v. Raich (2005)                                    Clause only if it is clear that there is no rational basis for a
                                                                                congressional finding that the regulated activity affects interstate
                                                                                commerce or there is no reasonable connection between the
                                                                                regulatory means selected and the asserted ends.”
                                                         3(A)(I). Functionalist Approach
Gibbon v. Ogden (1824)
Facts: Congressional law provided for licensing of coastal trade vessels (btwn states)
1) Enumerated powers to be narrowly construed
2) Commerce = intercourse (incl. navigation) = broad [framers intent]
3) Among = all commerce except completely internal commerce that does not affect other states
4) Commerce Power can potentially be exercised w/in a state (depends on nature of commerce)
5) Commerce power (like all) = complete power, only limits = those in Const.
Champion v. Ames (1903) The Lottery Case
Facts: Congress prohibits interstate shipment of lottery tickets
1) congressional power over commerce is plenary unless it is a purely internal matter
2) functionalist approach: federal gov’t protecting states who don’t like lotteries by supplementing state laws and filling a gap in state laws
3) formalist approach/public policy: lottery ticket are harmful item crossing state lines
NLRB v. Jones & Laughlin Steel Corp (1937)
Facts: Act prohibited unfair labor practices affecting interstate commerce
1) Acts which directly burden/obstruct commerce can be regulated: Congress has plenary power to regulate commerce (SCT should defer)
2) Commerce Power = legislation can be passed for its protection or advancement of interstate commerce
3) Congress can regulate acts that substantially affect commerce
Dissent: Regulation of production leads to regulation of internal state industrial activity
US v. Darby (1941) (overruling Hammer v. Dagenhart))
Facts: Act barred interstate shipment of goods produced by employees making less than fed min. wage or working more than fed max of hours.
Interstate shipment is necessarily under the commerce clause. Congress has plenary power when there is a substantial effect on interstate commerce.
1) Commerce Power is only limited by Const.
2) Congress can regulate interstate commerce to protect health
3) 10th Amendment is truism. Any powers that are not granted to congress by the broad commerce clause are reserved for the states.
Wickard v. Filburn (1942)
Facts: Federal Agricultural Adjustment Act of 1938 is applied to regulate production of wheat for home use (not sale)
Aggregation Principle: Cumulative Effect rationale. If effect of activity on commerce, taken together w/ that of others similarly situated is
substantial, it can be regulated. *Outer limits of Commerce Clause regulation
                                                              3(A)(II). Formalistic Approach
US v. E.C. Knight Co. (1895)
Facts: Act of Congress to suppress monopoly in sugar manufacture
1) Manufacture is not commerce (formalist)
2) Laws against monopolies only incidentally affects commerce
1) End of national government = achieved by broad construction
2) Commerce Power granted by the people, not states
3) Only Congress can practically and constitutionally remove restraints to interstate commerce
Carter v. Carter Coal Co. (1936)
Facts: Congressional law provides price controls of coal, bars unfair competition, provides right of employees to organize.
1) Production = (1) purely local (2) NOT commerce (interstate effect = indirect)
2) Congress limited to regulation of commerce
3) Federalism
Hammer v. Dagenhart (1918)
Facts: Congressional act barred interstate shipment of goods manufactured in factories w/ child labor.
Commerce Power limited:
1) Def. of Commerce = does not include production (formalist)
2) 10th Amendment = reserves powers to state. Including the power to reg. production (federalism)
3) Here intent of act = regulate production (i.e. age of workers): Congress cannot require states to exercise police power.
1) If act is w/in enumerated powers, its indirect effect and congressional motive don’t not matter
2) Commerce Power = unqualified (regardless of indirect effects)
3) Ct. must defer to Congress on propriety exercises of its powers

                                                   3(A)(III) Modern Construction of Commerce Power
US v. Lopez (1995) (part of Rhenquist Federalism Trilogy)
Facts: Act barred possession of guns in school zone
*New Test*
    1) economic activity must be involved (formalist)
    2) Congress must make findings on economic effects
    1) Act lacks interstate commerce jurisdictional language
    2) Act lacks congressional findings to be assessed as to Substantial Effect
    3) *Rejection of Rational Basis Test*
         * Slippery Slope: contrary holding gives congress POLICE POWER (federalism)
Kennedy Concurrence
    1) Federalism: act upsets balance btwn states and fed gov
           *States as labs/edu. = state concern
    2) Conduct is regulated thus the purpose of the Act is NOT commercial
Thomas Concurrence
    1) Rejects Substantial Effects Test
    2) Narrow def. of Commerce (not production), no aggregation (textual interpretation)
    3) Contrary holding = unlimited police power
Stevens Dissent
    1) Guns are articles of commerce and obstacles to commerce
    2) Education = affects interstate commerce
Souter Dissent: Rational Basis Test applies here (Judicial Restraint)
Breyer Dissent: (1) Rational Basis Test applies here (2) Ct. should not upset precedent
US v. Morrison (2000) (part of Rhenquist Federalism Trilogy)
Facts: Act barred violence against women based on substantial findings
1) Invalid b/c not an Economic Regulation (Formalist Category)
2) Such regulation is part of state police power
3) Congressional findings are indirect and irrelevant since the law is not supported by the commerce clause.
1) Majority disregards precedence and does away with the substantial effect test.
2) Commerce clause test is reduced to; is it economic and is there an interstate element.
Commerce               Gonzales v. Raich (2005)
Clause (broader        Facts: The Federal Controlled Substance Act barred production/possession of weed for personal medicinal use *Challenged as
interpretation)        applied
                       1) Wickard held that congress can regulate noncommercial intrastate activity if failure to regulate would undercut reg. of interstate
                       market in that commodity. Cumulative Effect rationale.
                       2) Act is part of a valid Comprehensive Leg. Scheme (Rational Basis Test) In order to regulate transfer (economic) possession
                       must also be regulated (noneconomic)
                       3) Activity here is ECONOMIC (production, distribution, consumption)
                       Scalia Concurrence
                       1) Substantial Effects Test based on Nec. & Proper Clause
                       2) Congress can reg. any activity (regardless of its effect) when nec and proper for comprehensive regulatory scheme of interstate
                       O’Connor Dissent
                       1) Not an Economic Activity under Lopez/Morrison
                       2) No Congressional findings of aggregate econ effect
                                  *Rejects Rational Basis Test => SCT must assess congressional findings
                       3) Federalism: (a) State Police Power (2) States as labs of Exp.
                                  *Courts must enforce federalism/enumerated powers
                       4) Even using Nec. and Proper, no underlying Enumerated Power shown
                       5) SCT cannot defer to every broad regulatory scheme: creates incentive for congress to always claim they are acting under a
                       broad regulatory scheme
                       Thomas Dissent
                       1) Commerce = buying/selling/transporting (Originalism)
                       **Reconcile w/ Lopez/Morrison:
                       1) If there is a comprehensive regulatory scheme, Rational Basis Test
                       2) If no such scheme, ct. does its own substantial effect analysis
Modern                 1) Is it economic?
Commerce               2) Has Congress made findings?
Clause Test            3) Are there substantial effects on interstate commerce?

                                                           3B. Taxing and Spending Power
Art. I § 8 cl. 1: The Congress shall have the power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common
defense and general welfare of the United States…
US v. Butler (1936)
Facts: Agricultural Adjustment Act allowed Farmers to sign contracts limiting production and get subsidies from congress. They are bound by the
1) Taxing & Spend Power is a independent power to provide for general welfare (Hamilton)
       NOT limited by enumerated powers (i.e. distinct from Nec. & Proper)
2) 10th Amendment bars use of Tax & Spend power to regulate in state areas
       **10th Amendment holding probably no longer good law**
3) AAA goes too far by using Taxing & Spending power coercively
1) Regardless of intent/effect, act is valid use of Tax & Spend Power
2) Court should defer to Congress
Competing views
Madison’s view: language about laying and collecting taxes means that the taxing and spending power can be used to promote one of the other
enumerated powers ie raising an army.
Hamilton’s view: Congress can do any kind of taxes and spending in order to promote general welfare. Taxing and spending does not have to be
linked to an enumerated power. Court adopts Hamilton’s view. Why would you need a taxing and spending clause if it can only promote an
enumerated power. The necessary and proper clause can do this.
Third view: general welfare language means that congress can do anything that is the general welfare of the country. This is problematic b/c
Congress does not have general police power.
Chas C. Steward Mach. Co. v. Davis (1937) Big Deal Case
Facts: Congress imposes unemployment tax scheme on employers. The states can get out if this if the state sets up its own state unemployment fund.
Holding: Given the severe conditions and the fact that states are not doing this on their own the court says this is not coercive under Butler and
constitutional. Implements Hamilton’s view on spending and taxing.
Congress feels the need to create incentive or states will not do this on their own.
       Political will: Local business will have the political influence to lobby against this tax at the state level
       If states are too generous everyone will want to move there.
South Dakota v. Dole (1987) (big deal case. Test is still used.)
1) Congress withheld 5% of highway funds from states that allowed drinking under 21
2) Classic conditional spending case: state loses money unless it complies w/ a condition
1) Law upheld
2) Elements of a constitutional conditional spending program.
      a) No coercion (Nature of incentive)
      b) Clear condition
      c) Nexus btw the condition and the funds (must be unambiguous)
      d)General Welfare requirement
O’Connor Dissent: Relationship prong too broad (can always be found). Drinking age imposed on the states w/ no connection btw regulation and
money. Insufficient nexus. Nothing conditional about this.
Brennan Dissent: 21st Amendment reserves drinking age to state
Sabri v. United States (2004)
Facts: Congress made it a federal crime to bribe state/local officials whose agency receives over $10k in federal funds
1) Upheld under the Necessary and Proper clause. Power to ensure fed $ is spent on general welfare.
2) Rational basis test applies to ensure that federal dollars are spent for the general welfare.
3) Application of Dole rule. No matter where money is lost in an agency receiving $, it is a misuse of federal dollars.
Thomas Concurring
1) Nec. & Proper Clause, under McCullough, NOT Rational Basis Test
2) Must be obvious, simple, direct relation btwn. act and enumerated power
                                                                      3C. Treaty Power
Art. VI: All treaties made … under the authority of the US shall be the supreme law of the land
*Treaties are not self-executing w/o very explicit language (req. implementation leg)
Missouri v. Holland (1920)
Facts: Congress passed law protecting migratory birds pursuant to treaty with Canada
1) If treaty is valid, statute under it is valid under Nec. & Proper Clause
2) Under Treaty Congress can do MORE than otherwise
      i) Policy: treaty = national interest; states must be bound
      ii) Text: Laws of Congress must be made pursuant to Const. but Treaties are supreme law when made under the authority of the US
3) 10th Amendment is not a limit on fed power to protect national interests
Reid v. Covert (holding that treaty power cannot be used to take away express constitutional rights such as right to a jury trial)

                                           3D. Congressional Power Under the Civil War Amendments
14th Amendment Equal Protection
15th Amendment Voting Rights
Both have sections that say Congress can enact legislation to enforce the Amendments.

Katzenbach v. Morgan & Morgan (1966) *still good law
Facts: Voting Rights Act bars denial of right to vote to person who completed 6th grade in Puerto Rico b/c of inability to read/write English. SCT had
previously upheld literacy tests under Lassiter v. Northhampton County Bd.
1) 14th Amendment § 5 is broad like the Nec. & Proper Clause. It gives Congress wide discretion to enact the Voting Rights Act.
2) Ct. applies Rational Basis Test to Congress’ Acts under 14th Amendment§ 5 (deference to congress)
3) Preserving right to vote operates to protect other rights and combat discrimination so it is essential to Equal Protection.
4) As such Congress can intrude into state spheres
5) One-Way Ratchet: Congress can expand rights beyond judicial minimum, but not decrease them, under § 5
       Problematic b/c expanding one groups rights may limit another’s.
       Inconsistent to jiggle upwards but not downwards
1) Separation of Powers: SCT should define scope of 14th Amendment not congress (inconsistent with Marbury Judicial Review)
2) Federalism: Congress cannot overrule Constitutional state action. Voting rights and services are usually state problems
3) Too much deference. Why not enact a law requiring NY to provide more services to Puerto Ricans.
*Amounts to amending Const. thru legislation*
City of Boerne v. Flores (1997)
1) Free Exercise Clause of 1st Amend. protects right of people to exercise their religious choices
2) Oregon v. Smith (1990): A law that burdens religion will get lenient rational basis review so long as it is neutral and does not single out a particular
3) This opinion angers political groups and leads to alliance btw left wing ACLU and right wing Moral Majority. This strong political alliance results
in Congress passing Religious Freedom and Restoration Act (RFRA). Designed to prevent discrimination on basis of religion.
4) RFRA says a law may substantially burden religion only if the law
     i) Furthers compelling gov’t interest
     ii) Uses least restrictive means to further it
     iii) Basically requires strict scrutiny instead of rationality review of any law that burdens religion
1) RFRA goes too far, is invalid as applied to state laws (valid for federal laws though)
     i) No findings of widespread discrimination
     ii) Insufficient evidence of inadequate remedies offered by the states
     iii) Yet RFRA scope reaches beyond VRA in Morgan
New Test: In order to enforce 14th Amendment §5:
i) Proportional
     a) evidence of a problem (findings)
     b) proportional response to the findings
ii) Congruent
     a) type of problem that exists must correspond to the law’s remedy
2) Proportionality/Congruence ensure Congress is acting appropriately under 14th Amendment §5 and limits the one way ratchet to remedial acts.
3) Avoids slippery slope of Congress determining constitutional rights.
Counteranalysis: RFRA was just Congress operating the one-way ratchet
                                                                 4. STATE POWER
                                                 4A. 11th Amendment: State Sovereign Immunity
State Sovereign      Alden v. Maine (1999) (11 Amendment extends to state    Under the 11th Amendment states cannot be sued by citizens of
Immunity             courts)                                                 another state.
                                                                             Sup Ct Made Exceptions
                                                                             A) Sue the individually in their official capacity (generally only an
                                                                             injunction can be awarded, only for federal claims)
                                                                             B) Waiver
                                                                             C) Abrogation Exception: maybe Congress, by law, can nullify
                                                                                 state sovereign immunity.
                                                                                     1) if § 5 of 14th Amend. (enforcement clause) supports a
                                                                                        statute, then the 11th Amendment doesn’t apply
                                                                                     2) have to show that person or harm involved is of the
                                                                                        class or type designed to be protected by the 14th
                                                                                         i) mainly to enforce equal protection and due process
                                                                                     3) Note: as w/ all 14th Amend. equality issues, need to
                                                                                        consider proportionality/congruence

Garcia v. San Antonio MTA (1985)
Facts: Act imposed min. wage on state governments. Overrules National League of Cities v. Usery the only case to ever hold that a fed law violated
the 10th A.
1) Process-Based Federalism: Structure of Fed Gov designed to protect states from Congress (i.e. state participation in fed gov)
       States are the fundamental limit on Commerce Clause Power
2) Adequacy evident in results (e.g. grants to states, fed laws that exempt states)
3) Moreover, fed min wage already covers private employers, this is merely an expansion to state employees
1) Maj. disregards 10th Amendment (esp. against Commerce Clause)
       Court responsibility to enforce 10th Amendment v. Congress
2) Naïve: fed gov doesn’t look out for states and has expanded since New Deal
       and fewer process protections (e.g. 17th Amendment)
3) Pol. process not proper means for enforcing Const. (courts are)
1) Theoretically great expansion of fed power
2) Reality: 11th Amendment protects states from private enforcement in fed ct.
Seminole Tribe of Florida v. Florida (1996)
Act (passed under Commerce Clause) authorized tribe suits v. state
1) Congress cannot nullify 11th Amendment (even using enumerated power)
2) Congress can abrogate ONLY under 14th Amendment § 5
3) Test: Congress must:
       i) Unequivocally express intent to abrogate, and
       ii) Act under appropriate power (§ 5)
4) Basis for holding = federalism (clear in intent of 11th and early precedent)
Stevens Dissent: 11th Amendment does not apply to congressional authorization of suits against state by its own citizen
Souter Dissent: 11th Amendment grants immunity only against citizen-state diversity
jurisdiction suits (NOT federal question suits)
Tennessee v. Lane (2004)
1) ADA bars public entities (incl. state) from discriminating in public services
2) πs sued TN over lack of access to courthouse (for crim. hearing and to work)
1) Prong 1: Act unequivocally expresses intent to abrogate
2) Prong 2: Abrogation under § 5 = Boerne Analysis (Congruent & Proportional)
     i) Problem = fundamental right (access to Court by crim ∆)
          Hints that something other than fundamental right not sufficient
     ii) Problem demonstrated by evidence of violations of Equal Protection
     iii) Leg: requires only reasonable measures
Rehnquist Dissent
1) Fails Boerne test b/c no evidence of Const. violations by state gov
Scalia Dissent
1) Boerne test has proven to be arbitrary
2) New Test:
     i) Remedial/Enforcement = rational basis test
     ii) Preventative = only on states w/ identified history of relevant constitutional violations
                                          4B. 10th Amendment: Commandeering and Process Based Federalism
Printz v. US (1997) (part of the Rhenquist federalism trilogy)
Congress made interim provisions before full Brady Act req. state/local cops to do background checks on gun buyers
Chief local enforcement officer was to make reasonable effort to determine whether a gun sale was legal
1) Unconstitutional commandeering of state officer
2) Separation of Powers/Executive power argument (structural)
    i) Executive branch is to “take care” that federal laws are enforced
    ii) Undermines the executive’s function where Congress can commandeer state actors to do such
3) No historical justification for feds to commandeer state officials.
    i) NY v. US: recent case holds that fed gov. cannot force states to pass legislation to dispose of nuclear waste. This is even worse b/c at least in NY
       v. US states have legislative discretion. Furthermore, this is not a clerical request b/c the cpu systems are not in place and local police make a
       fraction of what the FBI agents make.
    Dissent: argues that this amounts to a clerical request unlike NY v. US
4) Accountability issue:
    i) If state officials must enforce the federal law, they will take the blame when people don’t like it and Fed gov will take the credit if they do
5) Dual Sovereignty: Can’t blindly trust process-based federalism, Court has to decide there is a line where state sovereign authority begins
Thomas Conc: Commerce Power does not cover intrastate sales (e.g. of guns here)

Stevens Dissent
1) Pol. branches should decide whether commandeering is valid
2) During emergency fed gov. can commandeer
3) Nec. & Proper Clause supports commandeering (textual)
4) 10th Amdt does not limit delegated powers (Process-Based Federalism)
5) History = fed commandeering (e.g. tax collectors, judges)
Breyer Dissent
1) Unintended consequence: bigger federal govt. not vindication of state rights b/c feds will have to create more positions, bureaucracy, and interfere in
more local gun sales
2) Switzerland argument: In Switzerland it is uncontroversial for Nat. Govt. to tell the states to help enforce fed laws.
       Counter argument:
       i) Switzerland is much smaller and homogenous than US
       ii) Foreign law is not binding
       iii) Breyer is not expert on Switzerland. Cherry picking of foreign law.
Effect: Combined w/ Alden, Garcia effectively overturned
Bottom Line             1) Printz undermines Garcia theory of federalism, Alden seems to undermine Garcia’s holding
                             i) Only remedy left is to convince federal Labor Dept. to sue the state on your behalf
                        2) Garcia has not been formally overturned
                             i) Could argue facts are distinguishable
                                   a) Garcia: not singling out gov’t officials, just extending a law already applied to others
                                   b) Printz: singles out state gov’t officials alone for federal control
                                                                    4C. Limits on State Power
                                                            4(C)(I) The Dormant Commerce Clause
Cooley v. Board of Wardens of Port of Philadelphia (1851) (Early Dormant Commerce Clause)
State law req. ships entering its port to use local pilots or pay fine to retired pilots
The law is valid
1) Economic protectionism Dormant Commerce Clause prevents one state from acting solely to promote its econ interests to the detriment of another
state (EARLY construction of clause)
2) Reg. of inherently local activity for any purpose does not interfere w/ interstate commerce
H.P. v. Du Mond, Commsr of Ag and Markets of NY (1939)
NY denied distribution facilities to MA mild producer
Dormant Commerce Clause
1) Framer’s Intent: to prevent state interference w/ interstate commerce
2) Econ: econ better if state/local obstacles to interstate commerce are invalidities
3) Public Policy: State laws harm those out of state w/o representation
Counter-Argument (Thomas)
1) No textual basis
2) Silence of Congress NOT controlling
3) Application: invalidating discriminatory laws invites arbitrary/policy decisions
       Should not be a decision for unelected judges
          =>Federalism: minimize invalidation of state/local laws
          =>Sep. of Powers: task suited to legislative determination
Counter-Argument (Scalia)
1) Balancing Test cannot balance two incomparable things
2) National Interest, State Interest = subjective (legislative)
So. Pacific C. v. Arizona (1945)
Facts: State law limits train lengths in state; lengths not restricted outside state
1) ACTIVIST: ct. assesses legislative findings/motivation
2) Facially-neutral law = Balancing Test
    i) State interest (as assessed by ct.) against
         a) The court does not enjoy the states safety argument. More trains means more accidents.
    ii) National interest in free flowing interstate commerce
         a) major interference with interstate commerce due to massive economic impact
3) Lowest Common Denominator Effect
                                                         4(C)(I)(a) Facially Discriminatory State Laws
Facially                Once a law has been shown to be discriminatory on its face state carries the burden. If not the plaintiff carries the burden.
Discriminatory          1) Is the Law Discriminatory on its face:
State Laws              2) If so strict scrutiny applies
                             i) compelling interest
                        ii) narrowly tailored (law must also be drafted almost perfectly.

Dean Milk Co. v. Madison (1951)
1) Madison ordinance bars selling milk pasteurized more than 5 miles away
2) applied to all milk sold in Madison, regardless of what state it came from.
3) Supposedly designed to ensure high health standards
1) Law is facially discriminatory
2) Discrimination against out-of-staters substantial; in-staters discriminated against have apolitical remedy
3) There are less restrictive alternatives
Philadelphia v. New Jersey (1978)
Facts: NJ law prohibits importation of trash unless NJ decides it won’t hurt health/safety
1) Dormant commerce clause allows incidental, unavoidable burdens on state health/safety leg.
2) garbage is commerce. This law is almost a per se violation of commerce clause
3) States can prevent importation of inherently toxic substances (Quarantine Laws)
Rehnquist Dissent: Trash = toxic substance, health hazard
Maine v. Taylor & United States (1986)
Facts: Maine bars importation of certain baitfish b/c of threat or parasites to fishing industry
Rare case where Court upholds facially discriminatory law
1) Strict scrutiny applies to facially discriminatory laws
2) Empirical aspect of strict scrutiny performed by trial ct. (clear error)
3) Here Maine interest and lack of less restrictive means meets test
      a) undeniable state interest in protecting natural wildlife
      b) No scientific alternative
Stevens Dissent: Facially discriminatory laws are presumptively invalid
                                                           4(C)(I)(b) Facially Neutral State Laws
Facially Neutral      Hunt v. Washington State Apple Ad. Comm (1977)                   If a state law is only discriminatory as applied.
State Laws            (economic protectionism is not a legitimate state interest)      1) Is there legitimate state interest?
                      Pike v. Bruce Church Inc (1970) (law req cantaloupe              2) If so do the balancing act: state interest must be weighed
                      packing to be done in AZ found to be unconst.)                   against the burden on interstate commerce ie incidental vs
                                                                                       3) Are there less restrictive alternatives?
                                                                                       Scalia Alternative Test
                                                                                       Facially neutral laws are valid
West Lynn Creamery Inc. v. Healy (1994)
Facts: MA tax on all milk; $ distributed as subsidy to MA dairy farmers (purpose = help MA milk)
1) Tax + subsidy to taxed in-staters removes political protection by in-staters
       a) Neutral tax generally upheld (in-staters pol. influence checks abuse)
       b) Internal Subsidy also Valid
       c) putting them together in this way is unconstitutional=> Breaking Thru Formalism (since each alone is ok)
2) Where purpose of facially neutral law is discriminatory, balancing test
       a) Political aspect- state’s political processes aren’t reliable b/c group that would lobby against the tax benefits from the subsidy
                                                     4(C)(I)(c) Dormant Commerce Clause Exceptions
Market                Reeves Inc v. Williams Stake (1980)                              Justifications for Market Participant Exception
Participant           Facts                                                            a) Federalism/State Sov: state can enter the market and look out for
Exception             1) SD built and operated a cement plant                          its citizens
                      2) When there was cement shortage, it favored selling its        b) State as Market Participant: When state is market participator and
                      cement to SD citizens                                            not a market regulator they are like any competitor and therefore not
                      Holding                                                          subject to dormant commerce clause.
                      DCC does not apply                                               c) taxes finance the state activity, state citizens should get benefit of
                      Dissent                                                          their taxes
                      Since favoritism is to SD private entities and not SD govt. Natural Resources: market participant exception only applies if the
                      projects this is economic protectionism                          resource is processed into some product. Does not apply to raw
                      White v. Mass. Council of Construction Employees                 materials.
                      (1983) (allowing Boston to require Boston residents make
                      up ½ of all workers on city funded construction projects)
Congressional         State laws burdening commerce are permissible if approved by Congress (under Commerce Clause Power)
Approval                     =>Issue: was Congressional Approval valid use of Commerce Power

                                                         4D. Privileges and Immunities Clause
                                                          14th Amendment, Section 1, Clause 2
Privileges and       United Building & Construction Trades Council v.             1) Test
Immunities           Camden (1984)                                                i) Does the state law discriminate against non-citizens in terms of
Clause               Facts                                                           one of the privileges and immunities?
                     City ordinance req. 40% workers on city construction                a) Only fundamental rights included: jobs, access to courts,
                     projects be city residents                                             property
                     Majority                                                     ii) Is there a substantial state interest to justify the
                     Law not immune from Const. review if some in-staters         discrimination
                     are discriminated against b/c in-staters have a political    2) State cannot discriminate against out-of-staters in regard to
                     remedy                                                       constitutional rights and important economic rights.
                                                                                       i) Only triggered when the law is discriminatory on its face.
                                                                                       ii) States cannot treat out-of-staters worse than its own citizens
                                                                                       iii) Unlike dormant commerce clause
                                                                                             a) Textual provision exists.
                                                                                             b) Has no mkt. participant exception.
                                                                                             c) only protects US citizens and not aliens, not corps.
                                                                     4E. Preemption
Preemption Doctrine: federal law preempting state law. When there is some conflict btw state and fed law Supremacy clause makes Federal law
supreme so it “preempts state law”
Three Kinds of Preemption Cases
  1) Express preemption cases: Fed law expressly says if there is conflict fed law wins. Express language. (easy case)
  2) Occupying the Field Preemption Cases: Law is so broad that it occupies the field and by implication congressional intent is obvious that fed law
     should trump ie someone works and is in union and gets fired and wants to sue under state law wrongful discharge. However, if they are in a
     union they may be prohibited or restricted (exhaust admin remedies) from bringing lawsuit under state law. Federal act is so broad that it occupies
     the whole field and must be consulted.
  3) Conflict Preemption cases: direct conflict btw what fed law and state law says (pretty easy case) ie CA law says no more nuclear plants. Fed
     law says build more nuclear plants. Fed law wins
                                                           5. EXECUTIVE POWER
Art. II § 1:The executive power shall be vested in a president of the United States of America
1) Presidential Power
  i) Pres. has explicit Const. authority
     a) *Issue Is Pres. acting w/in that grated authority
     b) Is Pres. violating some other Const. provision
2) Statute authorizes Pres. conduct
     a) *Issue: Is statute constitutional
3) Implied Powers?
  i) Art I: “All legislative power herein granted…” v. Art II: “The executive power shall be vested…”
  ii) Suggests Exec. Power of Pres. is broader
  Counterarg: Language merely indicates single exec, and Art. II enumerates powers
                                                          5A. Implied Presidential Authority
Youngstown Sheet & Tube Co. v. Sawyer (1952)
Pres. Truman Executive Order seizing steel mills to prevent wartime strike
Majority (Black: Strict Construction/Formalist)
1) Pres. power must be based on Const. or act of Congress
     a) Pres. is not Commander and Chief of private industry
2) Const: Take care clause, “Execute Laws” means NOT a lawmaker
3) Textual Powers strictly construed: vesting clause does not mean implied authority
4) Clarity and legal predictability
Jackson Concurrence (Functional Approach): Three categories of Presidential actions re: Implied Powers
1) Pres acts w/ express/implied Congressional authorization (implied power at its highest)
           *Great Deference (Pres. power = Pres + Congress) => invalid only if Presidential act is unconstitutional
2) Pres. acts w/o Congressional approval or disapproval/Congress is silent
           * Act is typically ok if it is not challenged
           * Twilight Zone => case-by-case (look at situation)
           * “Imperative of Events” must be considered => Act more likely to be valid if it is an emergency situation.
3) Pres. acts contrary to Congress’s (express or implied) intent (implied power at its weakest)
           *Rigorous scrutiny => Pres probably has no power to act
Douglas Concurrence
1) Sep. of Power: inefficiency is acceptable alternative to arbitrary power
2) Formalist: Efficiency of executive branch is NOT controlling
1) Historical approach to determine implied powers. In this case Pres. has gone too far.
1) Context of Action: in urgent times court should defer to Pres. (2) Pres has power indp. of Congress (not mere messenger boy)

                                                           5B. Foreign Affairs and War Powers
Delegation           US v. Curtiss-Wright Export Corp. (1936)
Doctrine             Facts
                     Curtiss-Wright (D) is indicted for violating arms embargo and challenges a joint resolution from Congress authorizing the Pres. to
                     prohibit the arms sales to Bolivia and Paraguay during Chaco border dispute as an unconstitutional delegation of leg. power.
                     1) Historical
                         i) As the rep. of the sovereign the president has much broader powers in regards to foreign affairs
                         ii) States have no international powers and Presidential powers are only limited in domestic matters.
                     2) Public Policy
                         i) embarrassment concern
                         ii) Pres. sole rep for the nation
                     3) Special knowledge
                         i) Pres. in better position to handle external affairs. Has intelligence not open to everyone in Congress
                     Seems inconsistent w/ Youngstown as the decision seems to grant unlimited ability to act. Presidential intelligence is also subject
                     to leaks and misinformation. Furthermore, the Constitution is not silent on foreign affairs and framers did not intend expansive,
                     inherent presidential authority.
Executive            Executive Agreements are treaties that say executive agreement at the top instead of treaty thereby bypassing treaty authority.
Agreement &          Executive Order: basically laws that President issues without congressional authority
Executive Order
Dames & Moore v. Regan, Secretary of the Treasury (1981)
During Iran hostage crises Pres. Carter acting pursuant to IEEPA puts a freeze on all Iranian assets in US. Pres. makes Executive Agreement under
which all claims against Iranian govt. must be suspended and even attachments on judgments are nullified. Subsequently Pres. issues an Executive
Order to make a tribunal for claims against Iran to which Iran pledges assets.
There is historical practice and statutes on the books for the President to enter such Executive Agreements. (International Claims Settlement Act of
1949 to settle claims with Yugoslavia).
Under Youngstown Sheet this may fit into congressional approval.
However, this is not Yugoslavia and no statute on the books to deal with this crisis. This may be a congressional silence in which case this is a major
crisis in which Pres. action is justified.
War Powers Act After Vietnam Congress passes legislation to make sure they are not left out of the war process. Constitutionality of war powers
of 1973               act is questionable.
                          Within 48 hours of committing troops Pres must notify Congress
                          Within 60 days if congress does not approve troops must be withdrawn (potential 30 day extension)
                          Congress says the act is necessary and proper to carry out the enumerated leg. power of declaring war. This is the way
                            to solve the problem of troops being committed without leg. approval.
                          Pres. argues that this leg. negates pres. power as Commander in Chief.
                      General agreement that Pres. has unilateral power to respond to an attack on the US but...
                          We have troops all over the world
                          Complication over what country to attack (Al-Qaida)
                          What about threats? What about pre-emptive attack?
Options for           1) Treat prisoners not as POWs or any other categories
Dealing with              a) Govt. chooses this option.
Enemy                 2) Treat them as POW and acknowledge Geneva Conventions
Combatants                a) Will not restrict ability to defend the nation by GC
                          b) No court martial
                          c) Govt. should have done this in order to maintain leverage in protected our captured troops
                      3) Criminal trial
                          a) Other terrorists have been tried in US ie McVeigh
                          b) Logistically how do you get the witnesses if you can’t admit hearsay
                          c) Public trial is impracticable b/c of classified info being released endangering national security
                          d) However, there are mechanisms to address these concerns.
Rausul: controversial holding of suspected Al Qaeda combatants in Guantanamo. SCT holds that Guantanamo bay is not outside US jurisdiction.
Padilla: US citizen must file habeas corpus in proper jurisdiction.
Hamdi v. Rumsfeld (2004) “EC Hamdi DP Handy”
Hamdi, a US citizen captured by Northern Alliance in Afghanistan was turned over to US, held in a VA naval brig and declared an enemy combatant.
Holding (O’Conner for the plurality):
1) President can in certain instances declare individuals to be enemy combatants
      a) Meaning they are not POWs whose treatment is governed by Geneva but not criminal suspects w/ protections of regular criminal process.
      b) Holding that under Authorization for Use of Military Force (AUMF) congress has authorized Pres. to do so. Holds that Statute 4001 does not
         govern b/c AUMF is the congressional mandated exception
      c) Youngstown Category 1: President acting with Congress’s approval does not indicate how this would come out if it were a twilight zone case

2) Enemy combatants are entitled to due process
      a) Balance must be struck
              i) risk of error vs. probable value of procedural safeguards
              ii) individual vs. government’s interests
      b) Due process
              i) Entitled to notice of charge (must be charged)
              ii) Opportunity to be heard
              iii) hearsay evidence could be admitted and presumptions for the govt. can be made.
Under Statute 4001 Congress has prevented Pres. from declaring someone to be an enemy commandment. Under Statute 4001 govt. generally cannot
hold American citizens w/out due process unless Congress authorizes such. Since AUMF does not cover enemy combatants it is not a congressional
exception on to Statute 4001. AUMF only governs Pres. war acts abroad.
Scalia (strict, literal, textual interpretation)
The only way an American citizen can be held on American soil without due process is if Congress suspends the writ of habeas. Or he can be charged
with treason. Rules against govt. despite reputation for being conservative and ruling for the govt. on law enforcement and military matters.
This is war time so whatever test you use the government wins. This is a national security danger. Well known that during war time due process rights
can be limited to enhance national security. “The constitution is not a suicide pact.”
Counterarg: hypocrisy of invoking war powers without following int’l restrictions (Geneva and rules for POWs)
Hamdan v. Rumsfield (2006)
Hamdan brought to Gitmo to be tried under military commission rules created unilaterally by president. Hamdan does not dispute that he was Bin
Laden’s driver. Detainee Treatment Act was passed by Congress in response to torture allegations. Also makes it difficult for enemy combatant to
access courts.
Is it within president’s to authority classify someone as an enemy combatant then try them under military commissions created by president.
Majority Analysis
Ex Parte Quirrin case that the gov’t uses did not extend presidential power to establish military commission.
1) Charge of conspiracy is not a violation of law of war, under UCMJ or Geneva Convention.
     a) This argument does not have majority support of the court
2) Commission procedures violate the UCMJ
     a) Ex Parte Quirrin does not give pres power to establish military commissions.
     b) UCMJ is the common law of war.
     c) Under Ex Parte Quirrin military commissions do not comply with common law of war codified in UCMJ.
         i) *Hamdan and counsel can be excluded
         ii) Evidence may be obtained by coercion
         iii) Hearsay is admissible
     d) UCMJ standards do not have to be met if it would be impractical to do so
         i) Govt. has shown insufficient evidence to show minimum protections are impractical
3) Commissions Violate Geneva Convention
         a) Problematic for court to invoke Geneva when gov’t claims Geneva doesn’t apply in this situation and Gitmo is not on US soil.
         b) Geneva conventions call for Article 3 Regularly Constituted Courts
         c) This is said to be an unnecessary slap in the face but supported by majority
Breyer: NO blank check (separation of powers)
Kennedy: Pres cannot act unilaterally. Pres authority must be limited. Pres. is exceeding congressional authority.
Scalia: DTA should prevent Hamdan from even getting into Court.
1) Defer to the Pres in military and Nat Security matters. He has the expertise and intelligence
2) Protections given are more than sufficient.
3) Also argues that AUMF gives the Pres. authority in the same way O’Conner said he could declare someone an enemy combatant in Hamdi.
                 Defeated by the fact charges are not during wartime
                 Goes too far to set up new judicial system. AUMF does not authorize this.
4) Not a traditional war. Cannot be limited to traditional war restrictions
Boumediene v. Bush (2008)
Background: Pres goes to Congress and they create new Military Commissions Act. Non-citizen enemy combatants cannot access habeas. They must
go through military commission and can only appeal to DC court of appeals.
Issue: Is the MCA’s habeas stripping constitutional?
Holding: No
Govt argues they can deny habeas since they have given them alternatives to habeas.
Court rejects these argument (rarely will court reject pres. and congress collaboration in a war time situation)
1) Under Rausul gitmo is US soil.
2) Johnson case used by govt. is distinguished

     a) Unlike here the allies were involved.
     b) In Germany there was lack of control and sovereignty.
     c) No access to witnesses and many hazards.
     d) Johnson case had better processes than CSRT which…
          i) Only requires one judge
          ii) Allows no lawyer only an officer who is not the prisoners advocate
          iii) Is a rubber stamp in which there are no formalities
          iv) Govt. gets a redo
3) Framers intended for non-citizens to have habeas. This is an unacceptable alternative to habeas.
          i) CSRT cannot question govt evidence
          ii) Prisoner cannot admit exculpatory evidence.
          iii) Court of Appeals is bound by findings of CSRT and appeal is limited to legal questions
          iv) Insufficient procedural mechanisms to prevent error
Dissent (Roberts)
1) These procedures grant more procedural protections than any military tribunal in any context ever.
     a) CSRT to prove you are not enemy combatant
     b) Even after failing to show you are not enemy combatant you can have a military trial
     c) Even after losing you can appeal to American Federal Court
     d) Legal representation
2) Bait and switch argument. CSRT is what O’Conner called for in Hamdi.
     a) Court, in war time, must not step in and reject Congress and President response to SCT decision in Hamdan. The pres went to congress and got
        the authority and it is held unconstitutional.
Dissent (Scalia)
Death and destruction argument. Majority ignores Quirrin and Johnson undermining govt. authority during a war
Policy issues in       1) Pres Obama releases formerly secret memos about wartime techniques. Kept secret under invocation of war time national
War in Terror          security.
                             a) There is no more plausible deniability.
                             b) Technique list includes water boarding (one person 180 times), walling (fake wall softer than real wall so you can slam
                                  there head into the wall), stripping clothes, stress positions.
                             c) Pres Obama also said the CIA will not be held responsible or prosecuted.
                             d) Pres Obama says no rendition which is sending prisoners to other places to be tortured.
                       2) Bush administration says releasing this was bad for national security
                             a) Exposes dirty laundry. Administration was successful in preventing another attack
                             b) Did not release other memos that show these techniques save lives
                             c) Will stop our interrogators from using acceptable techniques b/c they will be chilled and afraid to have their name
                                  released. At war you must have people willing to do it.
                       3) Guantanamo Now What: Pres Obama says he is going to appoint to govt. commissions to decide what to do.
                       Two types of Guantanamo Prisoners
                             i) Relatively harmless: not many countries will take them and those that will may hurt them
                             ii) Some are very dangerous but really hard to try. No crimes close connections to al Qaeda. Hard to try b/c of lack of
                                  evidence or evidence obtained by coercion.
                       Three Alternatives to Gitmo
                             i) People argue that during the campaign Pres Obama said you have to release them or prosecute them
                             ii) Prosecute them. Fed justice model, POW model? Just be creative.
                             iii) Another military commission or Nat. Security Ct.
                                  a) Preventive Detention: hold them under more reasonable standards. Britain does this but has rules. Maybe hold them
                                     for the duration of hostilities. What level of proof is necessary to justify. Something btw the govt thinks so and
                                     reasonable doubt
                                                                   5C. Appointment and Removal
Appointment            Article II Sec 2: Presidential powers include making treaties, nominating ambassadors, choosing SCT judges and all other
and Removal            officers of US.
Power                  I) Appointments
                          A) Officers are officials of the national gov’t
                               1) Principal officers
                                    a) cabinet heads, etc
                                    b) only President can appoint principal officers
                               2) Inferior officers
                                    a) agency officers on down
                                    b) Congress can vest power to appoint in…
                                       i) President
                                       ii) Courts of Law
                                       iii) Department Heads
                                   c) But Congress can’t retain appointment power itself
                       II) Removal
                             A) not explicitly in the Constitution
                             B) implicit idea that President has control over executive branch and so must be able to fire people

Alexia Morrison, Independent Counsel v. Theodore B. Olson (1988)
Post water-gate statute allows for Independent Counsel to be appointed to investigate Pres/justice department. President can only remove IC for good
Are appointment and removal mechanisms for the independent counsel constitutional.
Majority Holding (Very Functional)
1) An independent counsel is an inferior officer
      a) Engages in investigation of one or more individuals
      b) Does not make policy like an AG or Sec of State.
      c) Given a limited mandate/focus about who to investigate.
      d) Limited power: just decide whether to charge. No power to impeach cannot actually charge. Can be fired in certain instances by executive
          so no unlimited power.
2) Requiring removal for good cause is permissible unless it unduly impairs executive branch functions.
      a) Not an undue impairment.
3) Test for when restriction on Presidential removal power is unconstitutional:
      a) Do the restrictions impede President’s ability to perform his constitutional duty
      b) Burden on Presidential power to control/supervise Officer vs importance of functions of the official in question
Dissent (Scalia) (Formalistic)
1) Independent Counsel is not an inferior officer
      a) IC is not an ordinary prosecutor but a prosecutor on steroids.
      b) Has unlimited time and resources and does not have to prioritize cases. This is a license to find something wrong. (Ie Starr investigation cost
          $50 million)
      c) IC is outside checks and balances or separation of powers.
2) Difficulty in justifying removal is a burden on the executive.
      a) Almost impossible to find good cause. Cannot be removed b/c it will look like interference with investigation
      b) Good cause is an unclear standard.
      c) If they do remove an official investigating them they will probably be impeached.
Bottom line:
1) Independent Counsel statute has expired. Now justice dept would have to name Pres as unindicted co-conspirator like in Nixon.
2) Can appoint special prosecutors but they are more limited by exec branch and do not have insulation from firing like IC.
3) Two Approaches to removal power.
      a) formal approach: purely executive official or not?
      b) functional: restriction impedes President’s duties?
                                                            5D. Executive Privilege and Immunity
Qualified              US v. Nixon (1974)                                              1) There is an executive privilege but it is not absolute
Privilege              Facts                                                               a) important military/diplomatic/national security objectives
                       Watergate conspirators indicted and Pres Nixon is named             b) Concern about getting candid advice from officers
                       as an unindicted co-conspirator. Prosecutors want                   c) Concern about frivolous attempts by other branches to cause
                       documents, tapes from Nixon and who claims privilege.                  embarrassment
                       Majority                                                        2) Balancing Test
                           a) This is not a political question an is more than an          a) Weigh importance of general privilege of confidentiality of
                           internal executive branch dispute.                                 Pres communications in performance of presidents
                           b) President has a qualified privilege not to turn over            responsibilities against the inroads of such a privilege on
                           documents but it can be overcome if reasons for                    the fair administration of criminal justice.
                           seeking the documents outweigh it                           3) Burden is on those requesting production to overcome privilege
                           c) Here, 5th/6th Amend. rights at stake for people on       by showing of need
                           criminal trial outweigh executive privilege                     a) criminal context greater need than civil
                                                                                           b) specific request more likely to succeed than broad
                                                                                       4) In Camera procedure: court can verify whether there are
                                                                                       legitimate concerns and review documents/tapes to see if they should
                                                                                       be classified.
Absolute               1) Pres cannot be sued for official acts while in office. Court has broad definition of official capacity.
Immunity               2) no immunity from civil actions for acts done before in office
Doctrine               3) Can president be sued for unofficial acts while in office? No case law.
Clinton v. Jones (1997)
Clinton sued for sexual harassment that occurred before he was President
1) Immunity doesn’t apply to acts done before taking office.
2) Civil suit will not cause a substantial distraction from responsibility to serve the nation or hurt the national interest.
3) Jones has a right to seek justice. If stay is granted witnesses may have fuzzy memory or die and it would be unfair to not allow her to exercise civil
4) Historically presidents are not sued frequently and will not be subject to an influx of harassing lawsuits
Impeachment            What are high crimes and misdemeanors: most scholars agree this does not have to be a crime. Can be serious misconduct.

                                                         DELEGATION DOCTRINE
Administrative        Agencies: Unconstitutional 4 Branch of Govt?
Agencies              1) Pros
                           a) Necessary b/c of volume regulated by Congress
                           b) Quicker and more efficient than Congress. Less bureaucracy.
                           c) More expertise than Congress
                           d) Apolitical. Not elected so theoretically no political motivation.
                      2) Cons
                           a) Red tape bureaucracy.
                           b) Unelected but not apolitical.
                           c) Undemocratic: lack of accountability to the people. .
                           d) Limited checks and balances
                              i) regulations not subject to veto
                              ii) Court action, legislative repeal take time.
                              iii) Oversight concerns.
                           e) Copout- Congress can blame them for screw-ups
                           f) Capture: industry captures the agency b/c of over familiarity and friendliness become tools of industry
Yakus v. United States (1944)
Involved delegation issue. Housing price administrator was given the power to cap rental prices. Concern about inflationary prices during depression.
Court developed a test
1) goals: control rental prices 2) standards: basic criteria based on earlier rentals 3) tools: must be prescribed. Here the tool is caps on prices
This test has evolved into much more lenient and flexible intelligible principal test. However still useful to determine what an intelligible principal
Whitman v. American Trucking Assn (2001)
Facts: Act req. EPA to promulgate standards for air requisite to protect public health
1) Art. I permits NO DELEGATION of legislative power
2) Congress must give decision-making agencies INTELLIGIBLE PRINCIPLE
           *Broad deference to Congress (Intelligible Principle = easy standard)
3) Agency cannot cure unlawful delegation by narrowly interpreting it
4) EPA does not engage in cost benefit analysis. This removes some discretion from the agency. C/B analysis is policy making for lawmakers to do.
5) From a constitutional perspective this ok as long as it is not a complete blank check.
6) Effect: Yakus Test is boiled down to much fuzzier Intelligible Principle standard
Big criticism: political disaster in the country b/c all these agencies actually make all the laws and none of them are elected. This is like a fourth
branch of government. Intelligible principal is not enough.
Delegation            Argument that tarp violates delegation doctrine. US              Modern Approach
Doctrine              Sec of Treasury given too much power to distribute $700          1) Is there an Intelligible Principle?
                      billion                                                          2) Yakus
                      EESA: authorizes sec of treasury to purchase, manage,            3) Whitman: Goals, standards, and tools
                      and sell troubled assets (loans repurchases)                     Chevron doctrine: courts are deferential to administrative agencies
                      Definitions are vague ie financial institution                   when acting within their area of expertise
                      Lack of criteria and huge sum of money
                      However, has 7 factors sec of treasury must consider
                      Would probably survive intelligible principal doctrine
                      but maybe this shows doctrine is too vague.
Bicameralism          1) Bicameralism
and Presentment             a) Constitution lays out specific procedure for passing laws
                            b) Both houses pass bill
                      2) Presentment
                            a) President signs or vetoes it
                            b) Congress can override Presidential veto
                      3) Violation of this is unconstitutional.
                      4)Court is very formalistic in this area
Legislative Veto      INS v. Chadha (1983)
                      Congress has plenary power over immigration. Congress has a law that allows Attorney General to suspend deportation.
                      Congress “keeps a string” b/c after decision comes back from AG, House of Rep unilaterally reviews suspension and can overturn
                      suspension. This is the legislative veto. Chadha overstays his Visa and is granted suspension of deportation by Attorney
                      General which is vetoed by House of Reps.
                      1) Lawmaking (affecting indv. rights) req. Bicameralism and Presentment.
                            a) Congress has no implied powers
                      2) Constitutionality is not based on efficiency; specified procedures must be used (*formalist)
                      3) Cont. specifies the only exceptions to Bicameralism/Presentment req. (*textual)
                            a) Congressional acts not textually specified are not allowed
                      4) Therefore legislative veto is unconstitutional
                      Concurring (Concurring) (Sep of Powers)
In this particular delegation the problem was that legislative branch acts like judges. Should be a narrower decision.
Dissent (functional)
1) Consistent w/ Bicameralism and Presentment b/c original Act was passed
2) Now Congress must retain all the power or delegate all the power.
3) Greater includes the lesser: If Congress can delegate all, it can delegate in part and retain in part.
4) Veto useful middle ground necessary for delegation
5) Allow Congress to keep a check on executive power
6) Extreme Functional Approach: sup ct doesn’t understand there will always be legislative veto all they have done is drive it
1) Leg. Veto continues by unofficial understandings btwn Congress & agency
2) Unclear if Leg. Veto of spending reallocations are valid (used Post-Chadha)
3) Line-Item Veto struck down under Bicameralism/Presentment req.


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