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Law School Legal Outline Notes for Constitutional Law

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									PART I: INTRODUCTION:

THOUGHTS ON THE CONSTITUTION A. Important Concepts: 1. Extent of judicial authority. 2. Power of judicial review. 3. Federalism. 4. Separation of powers. 5. Substantive due process. B. Controversial Provisions: 1. 2A: right to keep and bear arms. 2. Art. I, § 8: necessary and proper. 3. Other? C. Uncontroversial Provisions: 1. Preamble. 2. Rules (about who can be president, etc.). 3. Taxes. 4. Treaties. D. Checking Provisions: 1. Impeachment 2. Appointment 3. Veto E. Disproportionate Power Grants in Articles I, II and III: 1. ??? F. Provisions that have Important Implications for Relationship Between Federal Government and States: 1. 10A: is it strong or weak? 2. Commerce Clause. 3. Privileges & Immunities Clause. 4. ???

G. Kind and Extent of Power Constitution Gives to Gov’t Over People: 1. ???

CONSTITUTIONAL INTERPRETATION – 08/30/00 A. Constitutional Interpretation Generally: 1. Judges flip-flop from one methodology to another to achieve the desired result. B. Chemerinsky’s Framework – Originalists v. Non-Originalists

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Summary of Areas of Disagreement b/w Originalists and Non-Originalists: a. Whether means of constitutional change should be by amendment or evolutionary process. b. Whether rights are only those enumerated or include those unenumerated as well. c. What sources can be used to interpret the Constitution, role of history. Originalist: a. Definition: attempt to discern the original meaning of the Constitution in 1789, or if talking about an amendment, then look to the meaning at time of passage. 1) Within 4 corners. Beliefs: 1) Rights: enumerated - only those rights explicitly laid out in Constitution (via the Bill of Rights) are protected. 2) Historical Context: authoritative weight to historical context (constitutional convention and ratification debates). 3) Constitutional Change: Constitution can only change through amendment. 4) Federal Tyranny: concerned about increasing amount of government power. 5) Judicial Power: concerned that non-elected judges should not be able to make pronouncements that would limit or expand the Constitution. Continuum – differing layers of abstraction: 1) Strict: hardcore originalist; will only look at Framers‘ intent as a historical source. 2) Moderate: look at specific and general purposes of Framers (rather than strict/narrow interpretation); apply general meaning/purpose to modern problems. a) Thus, originalism is NOT inconsistent with interpreting the Constitution based on contemporary societal norms. b) Some critics say a moderate originalists is NOT an originalist at all. 3) Structurist: structure = source of gleaning intent a) View relationship b/w and among different constitutional provisions to ascertain what Framers meant. b) Look for position, use and reappearance of certain words.

2.

b.

c.

3.

Non-Originalist: a. b. Definition: interpret according to current meaning - based on things that have happened since. 1) Major Criticisms: there are no roots, no mooring for their interpretations. Beliefs: 1) Rights: willing to infer unenumerated rights (e.g., federal power should be viewed as elastic concept). a) ??? Substantive due process rights are unenumerated. 2) Historical Context: text, constitutional conventions, ratification debates may be persuasive authority, but also concerned with inferences from other sources. 3) Constitutional Change: amendment is only way to actually change words of Constitution, but meaning of words may change over time. 4) Federal Tyranny: afraid that the U.S. will be left behind if we don‘t change with society. 5) Judicial Power: can be reigned in, not as concerned about it Continuum – Outside Concepts: 1) Traditionalist: give weight to whether something has been accepted for a long time (like power of judicial review). 2) ??? Political Process: sort of like correcting market failure. a) Counter-Majoritarian Difficulty: courts are inherently undemocratic institution; thus, courts can ONLY strike down legislation when it poses a threat to the basic processes that ensure a democratic system

c.

2

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(1) ??? Also called representation reinforcing judicial review in the equal protection field. Natural Law/Moral Consensus: some rights/laws presupposes the Constitution; thus, the Constitution must be consistent with these natural rights/laws that come from a higher source. a) Focus on extrinsic sources – do not need much historical support, only look for strong moral consensus in society. b) Inalienable rights: shared values must be guaranteed - some terms must be read more broadly to avoid discrimination. c) ??? Justice Thomas adopts this view.

C. Tribe’s Framework: 1. 2. Generally: no rules, be humble. Types: a. Precise: Scalia - constitution terms have fixed meanings. b. Broad: Dworkin - less fixed meanings, must think about modern meanings and changes over time; drafters set out broad concepts and allowed people in the future to work things out when they face problems. Practical Problems – accord to Magarian: a. Dangerous because may lead to deceptive interpretations which are no interpretation at all, ability to bend Constitution to any purpose. b. Tribe is a pragmatic non-originalists. c. Tribe gives no road map.

3.

D. Correspondence b/w Tribe’s and Chemerinsky’s Theories: 1. Could say Chemerinsky’s theory is within textualism. a. Originalist ----- precise textualist. b. Non-originalist ----- broad textualist. ??? Difference b/w Tribe and Chemerinsky on what sort of interpretative approach constitutes ―originalism‖.

2.

E. Reliance on “Principles”: 1. No one agrees on what the word ―principle‖ means, but everyone agrees that a ―principled‖ debate is good and an ―unprincipled‖ debate is bad. 2. Our definition = justified by reliance to some objective, neutral criteria (thus, ―unprincipled‖ means no objective neutral criteria.

PART II. THE JUDICIAL FUNCTION IN CONSTITUTIONAL CASES

I.

JUDICIAL REVIEW – 09/01/00 A. Generally:

3

1. 1. 2. 3. 4.

Art. III - no explicit textual support in Constitution for judicial review. a. In fact, there is some historical support that the concept of judicial review was implicitly rejected in the Council of Revision proposal (p15) (Chemerinsky p35). Deceptive Power Grab Theme of C.J. Marshall‘s Opinions: S.Ct. acts as if it is restricting its power while actually grabbing more - assertion of power in the guise of limiting power. Understand the political environment informing this decision (p11-12). Ask whether the judicial review authority asserted in Marbury was an usurpation of power. It is possible to have a constitution without judicial review.

B. Key Principle #1 – Right Implies Remedy (Marbury v. Madison): C. Key Principle #2 – S.Ct. May Not Review of Political Questions (Marbury v. Madison): 1. See later sections on political question doctrine.

D. Key Principle #3 – S.Ct. May Review Non-Discretionary Executive Actions (Marbury v. Madison): 1. Rule: S.Ct. may review constitutionality of executive actions. a. Exception: some matters are entirely within the president‘s discretion and cannot be judicially reviewed. Rationale: see rationale under E.2 below.

2.

E. Key Principle #4 – S.Ct. May Review Acts of Congress & Determine Constitutionality (Marbury v. Madison): 1. Rule: S.Ct. has power to review acts of congress b/c it must decide cases that come before it, and it will not follow a law that is unconstitutional. a. ―It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.‖ b. S.Ct. seems to set Article III as the ceiling of original jurisdiction rather than the floor (Chemerinsky p41). Rationale: a. Relying on Federalist #48, C.J. Marshall finds that Constitution‘s limits on government powers would be meaningless if not subject to judicial review. b. Inherent in judicial role to decide constitutional of the laws it applies. c. S.Ct.‘s authority to decide ―cases‖ arising under the Constitution implied the power to declare unconstitutional laws conflicting with the basic legal charter. d. Violation judges‘ oath not to determine constitutionality. e. Supremacy Clause (Art. VI).

2.

F.

Key Principle #5 – S.Ct.’s Original Jurisdiction Is Fixed, Congress May Not Expand S.Ct.’s Original Jurisdiction (Marbury v. Madison): 1. Rule: Constitution creates S.Ct. original jurisdiction over certain cases (Art. III, § 2.2). a. ―In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party, the supreme court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate Jurisdiction…‖ (Marbury).

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Rationale: if Congress could add to S.Ct.‘s original jurisdiction, Art. III‘s enumeration of areas of original jurisdiction would meaningless.

G. Key Principle # 6– S.Ct. Interprets the Constitution (Marbury v. Madison): 1. 2. Rule: S.Ct. is ultimate interpreter. Rationale: b/c S.Ct. must decide cases consistent with Constitution.

H. Overriding Reasoning for Judicial Review = Popular Authorship: 1. People are authors of Constitution, court is protecting will of people by declaring act of Congress unconstitutional. I. Limits on S.Ct.’s Power to Interpret Constitution According to C.J. Marshall in Marbury: 1. Political Question Doctrine. 2. Limit on Review of Executive Power: S.Ct. may not review discretionary functions of executive. 3. Other Principles of Interpretation: a. Avoid constitutional issues if you can. b. If possible, interpret a statute in a way consistent with constitution. Criticism: 1. There is no textual support in Constitution for what Marshall does. 2. This is all dicta, S.Ct. should have decided jurisdictional question first and then stopped. 3. Judicial review gives too much power to non-elected judges; judicial branch control over other two branches by allowing it to interpret constitutional norms. 4. C.J. Marshall should have recuse himself since he was the Secretary of State who issued the commissions. 5. See p42-43 in Chemerinsky for counters to each of Marshall‘s argmts.

J.

K. Authorativeness of S.Ct. Decisions on Other Public Officials: (p20-27). L. Cases: 1. Marbury v. Madison (1803) (CJ Marbury) -p3: a. Facts: Marbury was judge who did not receive his commission before next president took office (Jefferson). Went to Supreme Court claiming original jurisdiction and seeking writ of mandamus forcing Jefferson to deliver his commission. b. 3 Issues: 1) Does Marbury have a right to commission? Yes. 2) Is he entitled to a remedy? Yes. a) If there is a right, that implies existence of a remedy. b) But, some acts are purely political and there is no role for court to review (involve executive discretion). 3) Is a writ of mandamus proper remedy? And can Supreme Court issue? a) Writ of mandamus is proper. b) S.Ct. can not issue b/c it does not have original jurisdiction b/c statute is unconstitutional. c. Reasoning: popular authorship. d. Held: Marbury does not get commission but S.Ct. gets a lot of power. e. See Chemerinsky p37-43.

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Aaron v. Cooper (1958) (p25): S.Ct. is ultimate interpreter of Constitution. a. See Chemerinsky p46.

M. Magarian’s Questions: 1. 2. Who won Marbury – the Republicans (Jefferson) or the Federalists (Adams and Marshall)? a. Republicans won the battle but lost the war due to crafty C.J. Marshall. Is the power of judicial review outlined in Marbury, and the way the S.Ct. derived that power from the Constitution, consistent with democracy? How might different modes of constitutional interpretation affect your response? a. Judiciary is least democratic of the three branches, counter-majoritarian, thus judicial review is undemocratic (p18-19). b. Originalist: would limit judicial power to what is textually explicit. 1) Marshall is already departing from originalist thinking. c. ??? Non-originalist.

II. CONSTITUTIONAL AND PRUDENTIAL LIMITS ON CONSTITUTIONAL ADJUDICATION - 09/06/00 A. Justiciability Doctrines Generally – 09/06/00: 1. 2. 3. Role of Justiciability Doctrines: to determine which matters federal courts can hear and decide and which must be dismissed. Judicially Created: there is no express mention of these doctrines in Constitution or Framers‘ debates; all are created and articulated by the S.Ct. Two sources of limits: a. Constitutional limits based on S.Ct.‘s interpretation of Article III. b. Prudential limits based on need for prudent judicial administration. c. Distinction is important b/c Congress cannot change constitutional limitations but can pass legislation to change prudential limitations. Premises: a. Separation of powers (also, the examination of constitutional and statutory and prudential limits on federal judicial power entails consideration of separation of powers and federalism concerns (Chemerinsky p35-36)). b. Conserve judicial resources (focus courts‘ attention on matters most deserving of review b/c courts have limited political capital). c. Improve judicial decision-making by providing courts with concrete controversies and adverse litigants best suited for judicial resolution. d. Promote fairness (especially for those parties who are not litigants before the court). e. *Balance - courts must balance limits on the judicial role with the need for judicial review. 1) Justiciability doctrines should not prevent courts from performing their essential functions in upholding the Constitution and preventing and redressing violations of federal laws (see Chemerinsky at 49). Types: a. Advisory opinions. b. Standing. c. Mootness. d. Ripeness.

4.

5.

6

e. 6.

Political question doctrine.

Two Views on Methodology of Justiciability Doctrines – begs question of what is proper role for court (see Chemerinsky at 49): a. Flexible/Malleable: argue that justiciability doctrines should be applied in flexible way, give discretion to judges. b. Firm/predictable: argue it is undesirable for courts to be able to manipulate the justiciability doctrines to avoid cases or to make decisions about the merits of disputes under the guise of rulings about justiciability. 1) This is Magarian‘s criticism of Lujan. Echoes power grab theme from Marbury: assertion of power in the guise of limiting power. As compared to Marbury‘s effort to limit judicial review, the court in the 1960s and 1970s uses procedural notions to limit its power.

7. 8.

B. Advisory Opinions – 09/06/00: 1. Rule: courts may not issue advisory opinions. a. ―The three departments of the government being in certain respects checks upon each other, and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to…‖ b. Note: some state supreme courts are authorized to issue advisory opinions. Rationale: a. Case & Controversy requirement in Art. III, § 2 1) ―The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the U.S. and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, … all cases of admiralty…to controversies to which the U.S. shall be a party, to controversies between two or more states, between a state and citizens of another state, between citizens of different states…‖ b. If courts could give advisory opinion, it would be more like a legislative power. Cases: none Mag’s Questions: Information Sources: a. See Casebook at 28-29. b. See Chemerinsky at 50-55.

2.

3. 4. 5.

C. Standing to Sue – 09/06/00: 1. Generally a. More of a political issue than it seems. b. Issue of standing often comes up in suits seeking injunctive or declaratory relief against the enforcement of a statute. c. Most other justiciability doctrines focus on case, standing focuses on parties. Rule: P must have standing to sue a. Requirements: 1) Constitutional limits: from Art. III - can‘t be surpassed by congress. a) Injury in fact: plaintiff himself was injured. b) Traceability: like cause in fact in torts - trace cause of injury back to act of defendant.

2.

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2)

c) Redressability: injury can be resolved. Prudential limits: matters of judicial self-restraint (courts may give different amounts of deference). a) 3rd party rights: plaintiff must assert own rights. b) Generalized grievances: plaintiff can‘t be one of a mass of people affected b/c there is another avenue to seek redress (legislature) – BUT what if cannot receive redress through political process.

3. 4. 5.

Rationale: constitutional and prudential reasons. Problem: rules of standing may not always be principled. Cases: a. Warth v. Seldin (U.S. 1975) (Powell) – p30. 1) Facts: a) Four different plaintiffs challenge exclusive zoning ordinance in Rochester ―although standing in no way depends on the merits of the plaintiff‘s contention that particular conduct is illegal, it often turns on the nature and source of the claim asserted.‖ 2) Holding: injury - plaintiff must allege and show a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants. 3) Application: a) Residents: low income plaintiffs who claim they could not get a house, have standing if they allege specific, concrete facts demonstrating that the challenged practices harm him and that he personally would benefit in a tangible way from the court‘s intervention. (1) Claimed barred by constitutional limits (?) these plaintiffs did not meet the burden. b) Taxpayers: claim barred by prudential limits. (1) Asserting rights of 3rd party – prudential limitation. (2) No traceability - can‘t directly trace higher taxes to ordinance. (3) No injury to taxpayer constitutional rights. c) Associations: (1) In attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members associational ties. (2) May also have standing as representative of members: ―must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit‖ – so long as individual participation of each injured party is not indispensable to proper resolution of the cause. (3) This association not qualified. 4) Reasoning: applying justiciability doctrines. 5) Dissent (Brennan): majority is deciding on the merits (disguised as justiciability). b. c. Allan v. Wright (U.S. 1984) – p36. Forthingham v. Mellon (U.S. 1923) – p37. 1) Holding: relying on prudential and constitutional grounds, S.Ct. upheld general rule that taxpayers do not have standing to sue over constitutionality of government action. 2) Narrow exception (from Flast v. Cohen (U.S. 1968) - p37): ―Frothingham barrier should be lowered when a taxpayer attacks a federal statute on the ground that it violates the Establishment and Free Exercise Clauses of the First amendment.‖ Lujan v. Defenders of Wildlife (U.S. 1992) (Scalia) - p38.

d.

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1) 2) 3) 4)

5) 6) e. f. g. h. i. 6.

Facts: wildlife organizations file suit seeking to have Secretary of Interior make new regulation protecting wildlife Issue: whether the public interest in proper administration of the laws can be converted into an individual right by a statute that denominates it as such, and that permits all citizens to sue. Holding: Congress can‘t skirt constitutional requirement by creating a procedural injury. Application: a) No injury: it is pure fantasy ―to say that anyone who observes or works with an endangered species, anywhere in the world, is appreciably harmed by a single project affecting some portion of that species with which he has no more specific connection.‖ b) No redressability, Reasoning: apply justiciability doctrines. Dissent (Blackmun):

Bennet v. Spear (U.S. 1997) – p1supp. FEC v. Adkins (U.S. 1998) – p2supp. Raines v. Byrd (U.S. 1997) - p5supp: members of congress do not have standing to challenge the line-item veto. Clinton v. NY (U.S. 1998) – p8supp. Dep‘t of Commerce v. House of Rep. (U.S. 1998) – p8supp.

Mag’s Questions: a. b. ??? Can Warth be reconciled with Marbury? If S.Ct. in Lujan was concerned about courts‘ usurping congressional authority, then why didn‘t it simply let Congress decide when and how to tighten or relax constraints on judicial power? B/c some of the constraints are constitutional and thus Congress can do nothing to change them. What‘s the difference b/w standing and mootness? Standing looks at parties involved, mootness looks at issue (although not always a clear line).

c. 7.

Information sources: a. See Casebook at 27-45. b. See Chemerinsky at 55-92.

D. Mootness – 09/06/00: 1. Generally: cases involve litigants who clearly had standing to sue at the outset of the litigation; the problems arise from events occurring after the lawsuit has gotten under way - changes in the facts or in the law - that allegedly deprive the litigants of the necessary stake in the outcome. Rule: an ―actual controversy‖ must exist at all times of the review, not merely at the time the complaint is filed. a. “Capable of Repetition but Evading Review” Exception: courts willing to find exceptions (e.g.pregnancy- could be repeated but evade review). Rationale: Cases: a. Roe v. Wade (U.S. 1973) – p44. b. DeFunis v. Odegaard (U.S. 1974) – p44. Information Sources:

2.

3. 4.

5.

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a. b.

See Casebook at 44. See Chemerinsky at 102-117.

E. Ripeness – 09/06/00: 1. Generally: seeks to prevent premature adjudication; it involves situations where the dispute is insufficiently developed and is instead too remote or speculative to warrant judicial action, occurs frequently in request for injunctive relief. Rule: Rationale: Cases: a. United Public Workers v. Mitchell (U.S. 1947) – p45. b. Adler v. Board of Educ. (U.S. 1952) – p45. Information Sources: a. See Casebook at 44-45. b. See Chemerinsky at 93-102.

2. 3. 4.

5.

F.

The Political Question Doctrine – 09/08/00: 1. Generally: a. b. Origins: political question doctrine was initially introduced Marbury in executive power context but S.Ct. gave no examples. Confusion: political question doctrine is confusing to apply b/c . . . 1) Misnomer b/c courts hear political questions all the time. 2) S.Ct. failed to articulate clear, useful criteria for deciding what subject matter presents a political question. 3) S.Ct. has changed meaning of political question doctrine through history (started narrow, now fairly broad). Prudential or Constitutional: difficult to characterize the political question as prudential or constitutional or both. 1) Usually hard to find a constitutional hook for this doctrine. As Compared to Standing: what‘s the difference b/w standing and political question doctrine? 1) Political question doctrine examines the case/issue, not the party. 2) If there is a political decision-maker involved, then probably a political question doctrine. 3) Non-justiciability doctrines are starting to meld together – S.Ct. is really worried about institutional competence.

c.

d.

2.

Rule: federal courts cannot decide cases involving a political question. a. Federal courts should not hear a case, even if all of jurisdiction and other justiciability requirements are met, if any of the following characteristics are present (disjunctive): 1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department. a) Type: this test is mostly constitutional. b) Problem: at odds with judicial role as perceived in Marbury.

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there is a lack of judicially discoverable and manageable standards for resolving an issue. a) Type: this test can be seen as constitutional (separation of powers and avoidance of judicial legislation) and/or prudential (based on efficiency, institutional competence and precedent) b) Problem: do not want court to abdicate its responsibility when it is uniquely positioned to be the only one able to decide the issue (flip side of judicial legislation). there is the potential for embarrassment or disrespect to other branches (or, put another way, resolution of political issues ought to be avoided where they are too controversial or could produce enforcement problems or other institutional difficulties). (embarrassing other branches). a) Type: this test is mostly prudential (although there are still some constitutional considerations). b) Problems: (1) No textual support in Constitution – nothing about not embarrassing other branches. (2) Potential loophole for court to dismiss case when it does not want to address the issue (like standing).

3)

b.

Examples of typical non-justiciable political questions: 1) Foreign relations (Goldwater v. Carter (U.S. 1979) – p53). 2) Validity of enactments - how long a proposed amendment remains valid (Coleman v. Miller (U.S. 1939) – p48). 3) Republican form of government (Luther v. Borden (U.S. 1849) – p49).

3.

Rationale: a. Allows judiciary to avoid controversial constitutional questions and limit its role in democratic society - such matters are better left to resolution by the politically accountable branches.. b. Allocates decisions to the branches of government that have superior experience in particular areas. c. Federal courts‘ self interest disqualifies then from ruling on certain matters. d. Separation of powers – minimizes judicial intrusion into the operation of the other branches of government. Criticism: a. Judicial role is to enforce the Constitution. b. A judiciary that ducks controversial issues to preserve its credibility is likely to avoid judicial review where it is needed most. c. Political question doctrine confuses deference with abdication. Cases: a. Baker v. Carr (U.S. 1962) (Brennan) - p47: 1) Facts: black voters in Tenn. claim under-representation because district lines not adjusted since 1901 (equal protection). 2) Issue: is this a political question? 3) Holding: no political question, S.Ct. can hear case. a) Legislative appointment schemes do NOT present a political question, therefore S.Ct. can review – just because suit seeks protection of a political right does not mean it presents a political question. 4) Reasoning: establishing 3 ways to analyze political question and finding not meet any of the characteristics. a) Distinguishes present case from Luther v. Borden (U.S. 1849) – p49:

4.

5.

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5) b.

(1) Holdings: (a) Judiciary not empowered by Guaranty Clause to resolve dispute over which form of government is in power. (b) ―[u]nder this article of the constitution it rests with congress to decide what government is the established one in a state. For as the united states guaranteed to each state a republican government, congress must necessarily decide what government is established in the state before it can determine whether it is republican or not.‖ (c) Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a state‘s lawful government. Dissent (Frankfurter):

Powell v. McCormack (U.S. 1969) – p53: 1) Facts: House of Representatives refused to seat elected person, House argued that Constitution committed the power to determine the qualifications of members to the House solely, thus making this a non-justiciable political question. 2) Holding: no political question here, S.Ct. can hear case. a) S.Ct. disagrees with House, holds that Constitution gives House right to determine if candidate meets the requirements set out in constitution, not to set new requirements. b) S.Ct. rejects the embarrassment to other branches argument: ―Our system of government requires that federal courts on occasion interpret the constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts avoiding their constitutional responsibility.‖ Goldwater v. Carter (U.S. 1979) - p53: 1) Holding: political question, S.Ct. cannot hear case. a) S.Ct. found non-justiciable the issue of whether president could terminate treaty with Taiwan without congressional approval. 2) Reasoning: political question because of need for single voice in foreign affairs. Nixon v. United States (U.S. 1993) (CJ Rehnquist) – p54: 1) Facts: Judge Nixon impeached by Senate for taking bribe, argues that senate rule allowing a committee to hear evidence against him and then to report to full senate violates the meaning of the word ―try.‖ 2) Holding: political question, S.Ct. cannot hear case. a) the word try in the impeachment clause does not provide an identifiable textual limit on the authority which is committed to the senate. 3) Concur (Stevens): 4) ??? Concur (White): does not like first characteristic b/c finds it at odds with Marbury and court‘s role of review. 5) Concur (Souter):

c.

d.

6.

Mag’s Questions: a. ??? Are you persuaded by the S.Ct.‘s reasoning in Baker v. Carr that the political question doctrine protects the political discretion of the federal legislative and executive branches but not the political discretion of the states? What‘s the difference b/w standing and political question doctrine? ??? Does Justice Souter‘s concurrence in Nixon v. United States apply the political question doctrine, or does it express a view on the merits of the case?

b. c. 7.

Information Sources:

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a. b.

See Casebook at 45-60 See Chemerinsky at 117-37

PART III. THE STRUCTURE OF GOVERNMENT – FEDERALISM:

I.

SUPREME COURT AUTHORITY TO REVIEW STATE COURT JUDGEMENTS - 09/11/00 A. S.Ct. Review Generally: 1. 2. Historically, S.Ct. had two different types of review = appeal by right of losing party and discretionary review through granting of certiorari. 1988 Amendments: ended mandatory jurisdiction by right of party. a. § 1257 of Title 28: provides for discretionary S.Ct. review of all state court decisions turning on questions of federal law (p. 67). b. Now, all S.Ct. is discretionary. Current Reasons for Grant Cert: a. Circuit split. b. Conflict between state courts of last resort (or circuit court of appeals) on important federal question. c. State court or US appeals court has decided an important question of federal law which has not been, but should be settled by S.Ct. Justice Holmes’ wisdom: ―I do not think the US would come to an end if we lost our power to declare an act of congress void. I do think the union would b imperiled if we could not make that declaration as to the laws of the several states‖

3.

4.

B. Rule: S.Ct. has authority to review state court decisions (both civil and criminal) when there is a federal question of constitutional law raising a challenge to a state statute or when a state court is interpreting federal law. 1. This power is not explicitly stated in Constitution; instead based on 1789 Judiciary Act which provided for review of state court judgments. a. § 25 of 1789 Act allowed S.Ct. to review state court decisions by a writ of error to the state‘s highest court in many situations. Adequate and Independent State Grounds Exception: S.Ct. lacks the power to review state court decisions that rest on adequate and independent and state grounds (p69). a. Rationales for exception: 1) There is no judgment to correct. 2) Judgments in cases where there is adequate state grounds would lead to advisory opinions. b. Exception to exception: must be a clear statement. 1) Scope: clear statement rule applies to procedural and substantive matters. a) ―If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.‖

2.

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2) 3) 4)

―Our requirement of a ‗plain statement‘ that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions.‖ Presumption: when not clear from state opinion, presume not independent grounds. Rationale for exception to exception: do not want state courts to be able to insulate their decisions from review. For argument against clear statement rule, see Justice Stevens‘s dissent below.

b)

C. Rationale: there is a significant debate/tension for allow S.Ct. review of final state court decisions. 1. ??? Arguments FOR allow S.Ct. review of state court decisions: a. Uniformity: purpose of 1789 Judiciary Act (and establishment of pyramid structure of federal courts) was to encourage in the interpretation of federal law. b. S.Ct. is ultimate interpreter of Constitution. c. Art. VI Supremacy Clause. d. Only One Sovereign Nation: Constitution stripped states of essential attributes of sovereignty, only one sovereign nation, thus states are subordinate to federal government. e. Art. III gave Congress power to grant S.Ct. appellate jurisdiction over ALL cases arising under federal law. f. Doubts about independence (more subject to political manipulation) and capacity of state court judges. Arguments AGAINST allow S.Ct. review of state court decisions: a. Invitation for abuse. b. Unnecessary review: potential for federal courts to ride herd over state courts (but nationalists can respond by pointing to adequate and independent grounds doctrine). c. Pre-existence: state courts pre-existed federal courts.

2.

D. Cases: 1. Martin v. Hunter‘s Lessee (U.S. 1816) - p60: a. Facts: 1) Land originally owned by British lord; Martin claimed title to the land from lord and that land was protected from seizure by federal treaty. Hunter claimed land based on Virginia statute (forfeit British land after revolution); land reverted to VA and then Hunter claims title through the state. 2) Martin loses in state court, appeals to S.Ct. says treaty trumps state law. 3) S.Ct. orders VA to transfer land to Martin. 4) VA refuses and argues that § 25 of Federal Judiciary Act of 1789 is unconstitutional, Constitution does not directly authorize Supreme Court to review state court decisions, other methods available – removal to federal courts before state decision passed down. b. Issue: is § 25 of Federal Judiciary Act of 1789 is constitutional? c. Holding: yes, § 25 of Federal Judiciary Act of 1789 is constitutional, thus, S.Ct. can review this case. d. Reasoning: 1) Constitution presumes that S.Ct. could review state court decisions (federal law in position of supremacy over states in many ways, at least procedurally). 2) Art. III gives jurisdiction over federal cases without regard over there they arise. 3) S.Ct. review is essential to ensure uniformity in the interpretation of federal law and the federal constitution (purpose of Judiciary Act of 1789). Cohens v. Virginia (U.S. 1821) – p63: a. Facts: Cohens sell DC lottery tickets in Virginia, claim supremacy clause makes them immune from prosecution. State court convicted them. b. Issue: did S.Ct. have authority to review state criminal judgments?

2.

14

c. d.

Holding: yes, S.Ct. had authority to review the validity of state laws in criminal setting. 1) Marshall: ―the judicial power extends to all cases arising under the constitution or a law of the US, whoever may be the parties.‖ Reasoning: 1) State court judges subject to political pressure because elected to limited term. 2) Federal constitution sets minimal protection for citizens that must be protected. 3) Arguments against: a) nothing about way state court judges are elected/appointed to make them have less integrity. b) states should have sovereignty to make decisions.

3. 4.

Herb v. Pitcairn (U.S. 1945) – p69: about adequate and independent basis. Michigan v. Long (U.S. 1983) – p71: a. Holding: clear statement rule applies to procedural and substantive matters. 1) ―If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.‖ 2) ―Our requirement of a ‗plain statement‘ that a decision rests upon adequate and independent state grounds does not in any way authorize the rendering of advisory opinions.‖ 3) When not clear from state opinion, presume not independent grounds. b. Dissent (Stevens): argument against plain statement rule: 1) Exercise judicial restraint, allow other courts to resolve issues until Supreme Court has to intervene. 2) Mich. was merely providing more protection to citizens than required to by Constitution. 3) States are little labs for experimentation- to explore different solutions to new problems.

E. Mag’s Questions: 1. 2. 3. 4. F. What are dangers of allowing U.S. S.Ct. to review state court decisions that raise federal law issues? What are dangers of NOT allowing U.S. S.Ct. to review state court decisions that raise federal law issues? Why doesn‘t S.Ct. review state court decisions that raise federal law issues when the state court decision rests on an independent and adequate state ground? ??? ACG question: what is tension between nature of issue and decision maker?

Information Sources: 1. See Casebook at 60-74. 2. See Chemerinsky at 44-45.

II. POLITICAL RESTRAINTS ON THE SUPREME COURT – 09/13/00 A. Generally: 1. This is separation of powers - from the other direction- how congress controls courts.

15

2.

Two ways Congress can limit: a. Congressional control of the S.Ct.‘s jurisdiction. b. Congressional control of lower federal court jurisdiction. Potential for unlimited power in S.Ct. b/c federal courts have jurisdiction to decide the constitutionality of statutes denying federal courts jurisdiction (thus, S.Ct. has power to determine its own reach). Normal checks on judiciary are blunt instruments: a. Nomination of judges (Prez) b. Constitutional Amendment (Congress) c. Impeachment - serious and rarely used (Congress) d. Confirmation - approval of judicial appointments (Congress) e. Exceptions Clause - Jurisdiction Stripping Power (Congress) (topic of following cases) 1) Exceptions Clause: Art. III § 2.2: ―…Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make.‖

3.

4.

B. Constitutional Amendment (Art. V): rarely used but is available. C. Confirmation and Impeachment Powers: Congress can control who is on the S.Ct. 1. Confirmation: Senate has the ―advise and consent‖ power – can bottle things up in committee (reactive check). 2. Impeachment: rare. D. Exceptions Clause: 1. 2. Rule: Exceptions Clause gives Congress broad (unlimited?) power to restrict the S.Ct.‘s appellate jurisdiction – see Ex Parte McCardle (U.S. 1869). Limits on Congress’ power to limit S.Ct.’s appellate jurisdiction: a. Art. III Restraints: there are limits on congressional power arguably inherent in Art. III 1) Congress cannot use its power to interfere with the S.Ct.‘s core/essential functions under the Constitution. b. Other Constitutional Restraints: there are limits on congressional power drawn from constitutional sources other than Art. III. 1) Bill of Rights: Congress cannot limit S.Ct. review in a manner that violates specific constitutional rights. a) If Congress restricted all S.Ct. review, probably too far. b) If Congress strips jurisdiction to such an extent that no federal court is available to hear the claim, then will be due process concerns b/c claimant may have a right to a federal cause of action. c) If Congress strips jurisdiction to such an extent that no court (state or federal) is available to hear the claim, then will be due process concerns. d) Some right to appellate review. 2) Congress cannot single out certain classes of issues for primary of exclusive adjudication in state rather than federal courts (equal protection). 3) Congress can‘t use its jurisdiction stripping power in an effort to direct particular substantive outcomes; said another way, Congress can‘t use its jurisdiction stripping power as a means to an end (see Klein). a) A more narrow reading of Klein argues that case only stands for proposition that Congress can‘t use its jurisdiction stripping power in a way that violates other constitutional provisions. 4) Congress cannot alter final judgments (see Plaut).

16

c. 3.

a) But Congress can change law while a case is in mid-stream. Congress cannot interfere with prez‘s powers by limiting the scope of the S.Ct.‘s jurisdiction (see Klein). Practical Restraints – p83 5)

Congress rarely uses Exceptions Clause b/c: a. Congress does not need to check the judiciary b/c it is a weak branch. b. More useful as a threat. c. Useful for S.Ct. to show legitimacy b/c they can say if Congress does not like it, Congress can change it. Arguments against Congress’ ability to strip S.Ct. of its jurisdiction: a. Need for uniformity throughout district courts. b. Even if uniformity not guaranteed in constitution, due process and equal protection call for it. c. Limited power stripping ok as long as congress balances by creating lower courts.

4.

E. Congress has the power to create and destroy lower federal courts 1. See Casebook at p82-83. 2. See Chemerinsky at 152-163. F. Cases: 1. Ex Parte McCardle (U.S. 1869) (CJ Chase) - p76: a. Facts: Congress passes 1867 act authorizing S.Ct. to grant habeas corpus appeals in particular class of cases, S.Ct. hears the appeal, then Congress passes 1868 act, removing jurisdiction. b. Holding: Congress has power to remove S.Ct. appellate jurisdiction, thus, the present case is dismissed for lack of jurisdiction. c. Reasoning: 1) Holding based on 3 principles: a) Courts should resolve jurisdiction first (justiciability principles) b/c S.Ct. should not exercise review where unnecessary. b) If Congress acted within its powers, courts should not inquire into congressional motives (if Congress wants to screw McCardle, that is fine (although this changes later)). (1) Distinguish b/w S.Ct.‘s review of statutes and constitutional provisions. (2) Distinguish b/w motive and intent. (3) Big debate – S.Ct. goes back and forth on whether it should figure out why Congress did what it did or merely see if the statute did what was intended. (4) Isn‘t a determination of motive inherent in a determination of whether Congress acted within its powers. c) Exceptions Clause gives Congress broad (unlimited?) power to restrict the S.Ct.’s appellate jurisdiction. US v. Klein (U.S. 1872) - p79. a. Facts: case involves interpretation of presidential pardon. Supreme Court interprets it to mean person did not participate in rebellion (presumption of loyalty). Congress- passes statute saying opposite. 1) Difference between McCardle and Klein: McCardle (party seeking judicial review) had alternative form of relief, but in Klein- he did not. b. Holding: Congress‘ action in this case was way for Congress to deny to pardons granted by the president the effect which this court had adjudged them to have. 1) Holding is interpreted differently by those who support and those who oppose congress‘ jurisdiction stripping powers:

2.

17

c.

Oppose jurisdiction stripping powers: Congress can‘t use its jurisdiction stripping power in an effort to direct particular substantive outcomes (Said another way, Congress can‘t use its jurisdiction stripping power as a means to an end). b) Support jurisdiction stripping powers: Congress can‘t use its jurisdiction stripping power in a way that violates other constitutional provisions. Reasoning: 2 problems with statute - 2 violations of separation of powers. 1) Prescribed how a court should decide an issue and hence interfered with judicial autonomy. 2) Denied effect to a presidential pardon, interfering with executive autonomy.

a)

3.

Plant v. Spendthrift Farm (U.S. 1995) - p80. a. Facts: there is confusion over statute of limitations on securities cases, so congress passes statute defining the statutory period. Result of this statute is to make some cases that were dismissed because untimely actually timely. b. Holding: ―By retroactively commanding the federal courts to reopen final judgments, congress has violated‖ judicial power to render final judgments

G. Mag’s Questions: 1. 2. 3. Has the S.Ct. articulated any boundaries on Congress‘ power to limit the S.Ct.‘s jurisdiction? Would any such limits be appropriate under the Constitution? ??? Are the S.Ct.‘s decisions in US v. Klein and Plaut v. Spendthrift reconcilable with its decision in Ex Parte McCardle? ??? If the power of judicial review gives the Court a measure of superiority over Congress, does Congress have any constitutional power that gives is comparable measure of superiority over the S.Ct.?

H. Information Sources: 1. See Casebook at p74-85. 2. See Chemerinsky at 137-163.

III. NATIONAL POWERS AND LOCAL ACTIVITIES A. Federalism Generally: 1. Remember the Holmes quote about need for review of state action: ―I do not think the US would come to an end if we lost our power to declare an act of congress void. I do think the union would b imperiled if we could not make that declaration as to the laws of the several states‖ – p88. Rationale for strong federal government: a. Hold union together. b. Give effect to the machinery set up by federal government. c. Compare current Constitution to Articles of Confederation (demonstrated need for stronger federal government). 10A: ―powers not delegated to the United States by the constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people.‖

2.

3.

18

4.

Madison’s view of judicial review: ―The prime function envisaged for judicial review, in relation to federalism- was the maintenance of national supremacy against nullification or usurpation by the individual states, the national government having no part in their composition or their councils‖

B. The Impact of McCulloch v. Maryland (U.S. 1819) - p89 – 09/15/00: 1. 2. Pre-cursor – Martin v. Hunter‘s Lessee: established that Constitution equals the supreme law of the land. Case Summary – McCulloch v. MD (U.S. 1819) (CJ Marshall): a. Facts: Congress charters second bank of the US. Maryland passes state law that all money must be printed on paper that is purchased from the state or with a permit from the state. Cashier at the bank, McCulloch, prints money in violation of this law. b. Holding: Congress can charter banks; states cannot control any federal instrumentality. 1) Can congress charter the national bank? YES. 2) If yes, can state tax that branch of bank? NO. c. Reasoning: 1) Can Congress charter the national bank? YES. a) Framers intended for courts to expound the meaning of the Constitution. b) Constitution emanates from the people. c) Federal government is one of enumerated powers. d) Proper acts by federal government are supreme. e) Necessary and proper clause gives federal government implied powers. 2) Can state tax that branch of bank? NO – ―we conclude that the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.‖ a) State actions inconsistent with authorized federal actions are per se invalid. b) Slippery slope argument: states would tax all federal services—mail, etc. Key Principle #1 - Constitution emanates from the people (not the states): a. Popular authorship: CJ Marshall gets a lot of mileage out of this idea – ―when we assert our power, we are asserting the will of the people.‖ b. Constitutional conventions are the authority for the constitution; this authority comes from the people, states used their sovereign powers to call conventions, but people were free to accept or reject the constitution. Key Principle #2 - Federal government is one of enumerated powers: a. This is an unusual framework but the Framers intended, as part of the constitutional design, to leave resolution of many state/federal disputes for a later time. b. Congress does not have general police powers. Key Principle #3 – Proper actions of the federal government are supreme law; states may not interfere: a. Regardless of whether acting under express or implied powers. b. Where does CJ Marshall find support for this? Key Principle #4 – The Framers intended for courts to expound the meaning of the Constitution: a. Strong view of judicial power continued from Marbury. b. Framers gave broad outlines, courts must expound the particulars. c. ―Should congress, under pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would be the‖ painful duty of the Supreme Court to declare it unconstitutional – compare this to rule that S.Ct. should not inquire into intent.

3.

4.

5.

6.

19

7.

Key Principle #5 – The Necessary & Proper Clause federal government implied powers – p107-08: a. Art. I § 8 (18): Constitution also grants federal government power to make ―all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution‖ b. Structural interpretation technique: CJ Marshall adopts a broad interpretation by looking at other constitutional provisions and structure of Constitution (this clause is in a section describing what Congress can do; there is a separate section describing what Congress cannot do). c. ??? Do implied powers swallow up enumerated powers? (p95) d. Means/Ends Analysis: 1) ―Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution are constitutional.‖ 2) ―We think the sound construction of the constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people.‖ e. Other comments from opinion: 1) Constitution specifically grant powers to lay and collect taxes, borrow money - from this Marshall reasons that ―a government entrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be entrusted with ample means for their execution.‖ Key Principle #6 - State actions inconsistent with authorized federal actions are per se invalid: a. Popular authorship: ―by all, for all‖ – cannot trust people of one state to do what is right for the whole nation – need political checks. b. Representation reinforcing review: when certain acts or provisions are inconsistent with the constitutional design, court should step in to protect constitutional scheme. 1) If political checks are going to be appropriate and effective, then the people who do the political checking have to be people whose interests are effected. The “Pretext” Limitation – p108-09

8.

9.

10. Political Safeguards of Federalism – p110-13. 11. Mag’s Questions: a. b. c. How did CJ Marshall in McCulloch define the limits on the scope of congressional power? Were/are those limits meaningful? Enforceable? In what ways might a narrower construction of congressional authority harm the functioning of the federal government? How does CJ Marshall use the idea that the People are the true authors of the Constitution to support both parts of the Court‘s holding in McCulloch?

12. Information Sources: a. See Casebook at 87-113. b. See Chemerinsky at 165-175. C. U.S. Term Limits v. Thornton (U.S. 1995) – p115 – 09/18/00: 1. Generally: a. Represents the modern anti-federalist revival.

20

b. c.

The term limits case strikes down state-adopted term limits on federal officeholder for reasons somewhat similar to those given for invalidating Maryland‘s tax in McCulloch. Rule: where text and history do not provide a clear answer, Steven‘s default rule was to read federal powers and immunities broadly, rather than to favor state powers and immunities (p. 114).

2.

Case Summary – US Term Limits v. Thorton (U.S. 1995) (Stevens) – p115: a. Facts: Arkansas amendment to the constitution prevents congressional candidate‘s name from appearing on the ballot if he has already served two consecutive terms. Can still run, but must run as write in candidate. 1) Like McCulloch, this case involves a state decision-maker and national subject matter. b. Holding: 1) In the absence of any constitutional delegation to the states of power to add qualifications to those enumerated in the Constitution, such a power does not exist. 2) Even if the states had this power before the Constitution, the text and structure of the Constitution, the relevant historical materials, and most importantly, the basic principles of our democratic system all demonstrate that the Qualifications Clauses were intended to preclude the states form exercising any such power and to fix as exclusive the qualifications in the Constitution. Compare Stevens’ majority opinion and Thomas’ dissenting opinion: a. Stevens and Thomas seem to be talking about different Constitutions – they have radically different constitutional interpretations, which create different presumptions and different results. b. What are different interpretation techniques? c. How do each use history and other sources? U.S. Term Limits v. Thornton Justice Stevens Justice Thomas 1. Powell stands for proposition that Quals 1. Distinguishes Powell b/c this is a case Clause is exclusive (Congress cannot add where the state government and not other qualifications). Congress tried to impose standards. a. If Congress adds quals, threat of 2. Federalist #52 – representative national tyranny. democracy. b. If state adds quals, merely an exercise of sovereign prerogative. Broad-based principles. 1. Everyone has the opportunity to be elected (from candidate‘s perspective). 2. Everyone has the right to chose who will represent them (from voter‘s perspective). Based in state v. federal rights principles. 1. Popular authorship of Constitution people of the states, thus creating a different presumption of power. 2. Implication: people (as source of power) could reserve powers that did not preexist Constitution – Stevens would counter with deeper meaning. 3. State power is the rule and federal power is the exception. a. Under McCulloch, federal power is the rule and state power is the exception. b. 1. Reverses presumption that states cannot have power unless expressly delegated.

3.

Precedent

First Principles

3. Popular authorship of Constitution – people of the nation – Constitution reflects will of people as a whole, therefore, wary of allow states to exercise power over all people of the nation (like Marbury and McCulloch).

Constitutional Analysis

1. Parts cannot control the whole (McCulloch).

21

2. Non-originalist interpretation technique – look at structure – Constitution divested states of power to control elections as shown by (purpose of these provisions to protect against abuses by the states): a. Time, Place & Manner clause. b. Salary provisions. c. Judging quals provision. 3. States cannot reserve what they never had prior to the Constitution: a. More than a chronology argument – states cannot reserve a power that is integral to the construction and design of a national government. b. Even if it were possible to reserve these powers, the Constitution divested the states of these powers (based on historical analysis and contemporaneous state practices).

2. Quals Clause‘s function is to provide minimum standards, not exclusive standards. 3. Time, Place & Manner Clause does not delegate any authority to states; it only imposes a duty. 4. ??? Looks at contemporaneous state practices.

??? Historical Analysis

Practice should die with the substance.

Looks at contemporaneous state practices at time of framing. Methodology survives.

Applications

Quals Clause is exclusive; the ballot access rule is a qualification b/c it effectively creates an additional qualification, thus, it is invalid. If states want term limits then they have to lobby for a constitutional amendment.

This is only a ballot access rule (not a qual). Even if it is a qual, it is allowed b/c the Quals Clause only establishes minimum standards (not the only standards).

Notes 4.

Differences b/w CJ Marshall and Thomas: a. Disagree about who wrote the Constitution: 1) CJ Marshall: people of nation. 2) Thomas: people of the states. b. Disagree about whether implied federal powers exist: 1) CJ Marshall: yes. 2) Thomas: says there are implied powers but his opinion seems to say no. c. Disagree about limits on state powers: 1) CJ Marshall: yes, look at Constitution first and then 10A. 2) Thomas: yes (but very few), look at 10A and then Constitution. Implications of Term Limits Decision - p139-40: Mag’s Questions: a. b. If Justice Thomas‘ dissenting opinion in Term Limits had carried a majority, would the Court have implicitly overruled all or part of McCulloch? Which interpretative approaches do the majority and dissenting opinions take to construing the constitutional provisions at issue in Term Limits? How are the approaches of the two opinions similar or different?

5. 6.

22

c. 7.

Is the Term Limits decision likely to alter the balance of power between the states and the federal government outside the area of regulating federal elections?

Information Sources: a. See Casebook at 113-140. b. See Chemerinsky at 165-175.

IV. THE COMMERCE POWER A. Generally: 1. 2. Constitution, Art I, § 8 (3): Congress has power ―to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.‖ Two situations possible: a. Active: Congress has authority to act - and does. b. Dormant: Congress has authority to act - but does not. Purpose of Commerce Clause: a. End hostile state restrictions. b. End retaliatory trade regulations. c. End protective tariffs on imports from other states.

3.

B. Development, 1824-1936 – 09/22/00: 1. Generally, Court actions in Commerce Clause area during this time can be characterized as judicial schizophrenia. a. Gibbons v. Ogden (U.S. 1824) – p159: 1) Facts: NY granted exclusive license to Fulton and Ogden to operate steamboats on waterways in NY. 2) Holding: 3) Reasoning: a) Four keys: (1) Congress may not regulate internal concerns (things with no implications outside the state) (2) Congress has unlimited power for external concerns (excluding other constitution limits—bill of rights, due process…) (3) Political process, not judicial review is the remedy where congress regulates for an improper purpose (court does not look to purpose behind legislation) (4) Where congress regulates within its authority, states may not regulate b) Marshall starts opinion with examination of commerce: (1) Broad definition suggested: commerce is traffic, but it is something more, it is intercourse. (2) It describes the commercial intercourse between nations, and parts of nations, in al its branches, and is regulated by prescribing rules for carrying on that intercourse. (3) Commerce clause applies to ―all the external concerns of the nation and to those internal concerns which affect the states generally, but NOT to those which are completely within a particular state, do not affect other states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.‖

23

4) 2. 3.

(a) the completely internal commerce of a state, then may be considered as reserved for the state itself. Other: open questions as to the meaning of ―commerce‖ and ―interstate‖.

Key Principle #1 – Congress may not regulate entirely intrastate matters: a. Congress may not regulate internal concerns (things with no implications outside the state). Key Principle #2 – Congress has unlimited authority to regulate matters involving more than one state: a. Congress has unlimited power for external concerns (excluding other constitution limits— bill of rights, due process…). Key Principle #3 – If Congress acts within its authority but for an improper purpose, remedy is the political process, NOT judicial review: a. Thus, Court should not look to congressional purpose behind the legislation. b. Issue: should Court inquire into congressional purpose ? What is proper scope of judicial review? c. Back to McCardle debate. d. Two views: 1) Restrictive [see Hammer]: Court should inquire into why they are doing what they are doing. 2) Permissive [see Holmes‘ dissent in Hammer]: limit of Court‘s role is to determine whether they are regulating interstate commerce - any other inquiry is beyond judicial role. e. ACG Questions: 1) But to determine whether Congress is in its authority, doesn‘t Court have to look at purpose? 2) Is this still true, I feel like the Court‘s always looks to purpose. Key Principle #4 – where Congress regulates within its authority, states may not regulate: a. Sets up preemption. b. Sets up DCC. What is interstate? a. Restrictive Approach - formal, logical nexus requirement: 1) Direct effect: Congress can only regulate local activity that has a direct effect on interstate commerce [see Knight (U.S. 1895) – p164 for example of formal, logical nexus requirement]: a) This is basis of court decisions up until 1936. b) Can‘t use stream of commerce to reach intrastate activity. 2) Prohibition technique is impermissible. 3) Problems with this test as an analytical tool. 4) Hammer seems to reaffirm this approach. Permissive Approach - realistic, practical impact requirement: 1) ―Substantial effect‖ rationale [see The Shreveport Rate Case (U.S. 1914) – p166 for an example of a realistic, practical impact approach – upheld Congress‘ authority to set rail rates]. a) Effecting commerce rationale: Congress can regulate if activity is nominally interstate, but has effects outside of state [see Shreveport]. b) Also see Holmes‘ dissent in Hammer for a realistic, practical impact requirement] 2) ―Stream of commerce‖ rationale [see Swift (U.S. 1905) – p168]: a) This theory represented an alternative way to allow Congress to reach intrastate activities.

4.

5.

6.

b.

24

b) c) 7.

Some local activities were controllable not because of their effects on commerce but because they could themselves be viewed as in commerce or as an integral part of the current of commerce. Commerce among the states is not a technical conception, but a practical one, drawn from the course of business.

What is “commerce”? a. Restrictive Approach: 1) No authority to regulate manufacturing [see Knight (U.S. 1895) – p164]. a) Manufacture is separate from commerce – manufacturing is making stuff, and commerce is shipping stuff. 2) No authority to regulate employer/employee relationships. a) ―commercial purpose‖ distinction. 3) Problems: a) Can argue that regulation of employer/employee relationship does effect commerce via competition, labor costs, lower prices. b) Argue that when moral purpose is involved, ―commercial purpose‖ distinction should be relaxed due to social norms. 4) Constitutional Interpretation: a) Originalists would argue for a limited definition of commerce. b) Non-originalists, especially moral consensus people would argue for commerce definition that would allow regulation here. 5) Always look at the societal and political debates underlying the constitutional debate. Permissive Approach: 1) Regulation does NOT need to have a commercial purpose – it can have a moral purpose [see Lottery case]. 2) ―Anything related to commercial activity‖ is properly within the commerce clause power [see Holmes‘ dissent in Hammer] 3) Congress can regulate local rail rates because of their practical economic impact on interstate transportation [see Shreveport (U.S. 1905) - p166]. 4) See Lottery Case.

b.

8.

Police Regulations – morality, crime and the commerce power: a. Distinguished: these cases differ in 2 ways from traditional commerce clause cases: 1) Moral Objective: objective of legislation is primarily moral. 2) Interstate regulation to remedy local harm: congressional sanction was imposed at the state line though the harm sought to be alleviated was primarily local. Cases: 1) Champion v. Ames (U.S. 1903) – p169: a) Facts: Champion shipped a box of Paraguayan lottery tickets from Texas to California (in violation of Lottery act of 1895). b) Holding: lottery tickets are subjects of traffic and therefore subjects of commerce and that the prohibition of commerce lay within the regulatory power of congress. c) Reasoning: (1) Court observed that the suppression of nuisances injurious to public health or morality is among the most important duties of government d) Dissent (CJ Fuller): to hold that congress has general police power would be to hold that it may accomplish objects not entrusted to the general government and to defeat the operation of the 10A. Hipolite Eggs v. U.S. (U.S. 1911) – p172 – Impure foods - Congress had authority to act to protect against impure foods.

b.

2)

25

3) 4) 5)

Hoke v. U.S. (U.S. 1913) – p173: Congress had authority to act, under Mann Act, to prohibit transportation of women for immoral purposes. Caminetta v. U.S. (U.S. 1917) – p173: further application of Mann Act. Hammer v. Dagenhart (p. 173) a) Facts: federal anti-child labor law. b) Holding: struck down federal law that excluded the products of child labor from interstate commerce. (1) Does not allow affecting commerce to be used as justification for child labor law. c) Reasoning: (1) Looks strongly at congressional motive. (2) Refused to uphold prohibition technique of the Lottery Case (a) Distinguish Lottery case: in lottery case, it was necessary to use interstate transportation to accomplish harmful result, whereas in this case, goods shipped are of themselves harmless. (3) Found that production of articles intended for interstate commerce is a matter of local regulation. (4) Purpose of act is to regulate the hours of labor of children in factories and mines within the states are a purely state authority: (a) Unconstitutional for two reasons: i. Transcends congressional authority over commerce, and ii. Exerts a police power over a local matter. d) Dissent (Justice Holmes): when a state tries to ship its goods across the state lines, they are no longer within their rights. (1) Dissent is later adopted as majority position. e) Overruled: by Darby v. U.S. (U.S. 1941) – p191. Schechter Poultry (U.S. 1935) – p178 - major revival of the direct/indirect test: a) Facts: Congress set codes of conduct for important industries threatened by economic crises. b) Holding: Court strikes it down as unconstitutional. c) Reasoning: (1) Government argument: (a) stream of commerce - rejected because virtually all components are intrastate (Schechter sold only to local poultry dealers), and (b) affecting commerce – Court rejects b/c slippery slope. (2) Court’s policy argument: this activity is local, if we limit it, then states will eventually have no power left. d) Concur (Cardozo and Stone): notable b/c both these justices usually support commerce clause power. e) Other: angers Roosevelt. Carter Coal (U.S. 1936) – p180: a) Facts: federal act trying to improve workers conditions - not regulating commerce. b) Holding: Court struck down bituminous coal act (two parts of act - wages and price). c) Reasoning: (1) Court rejects substantial effects test and focuses on direct/indirect test. (2) Focused on wage and hour slight of hand - shot down whole thing because wage & hour unconstitutional. d) Dissent (Cardozo): thought wage & hour not before court – finds it is ok to regulate prices. e) Other: remember, this is before the worst of the depression.

6)

7)

9.

Impact of Depression and Prez’s Court Packing Plan.

26

10. Mag’s Questions: a. b. c. Are judicially mandated restrictions on Congress‘ exercise of power under the Commerce Clause necessary? Have judicial doctrines been effective in restraining congressional power? Does the Commerce Clause more easily justify economic regulations or regulations based on moral values, or are these two sorts of regulations equally well (or badly) justified? ??? What is the difference b/w the ―stream of commerce‖ rationale for broad congressional power under the Commerce Clause and the ―affecting commerce‖ rationale? Which of the two rationales do you find more persuasive?

11. Information Sources: a. See Casebook at 141-42; 159-185. b. See Chemerinsky at 174-84. C. The Decline of Limits on the Commerce Power From 1937 – 09/25/00: 1. Generally: a. Two competing strands of interpretation of the Commerce Clause - feast (broad) or famine (restrictive) as to what is left for Congress to regulate. 1) Broad: a) Require any (or substantial) effect. b) Court should NOT inquire into congressional purpose. 2) Restrictive: a) Require direct effect. b) Court should inquire into congressional purpose. b. Effect of New Deal: Court starts with restrictive view and then shifts radically to broad view. c. Effect of Lopez: will Lopez wipe out the principles established in the New Deal cases? NLRB v. Jones & Laughlin Steel Corp (U.S. 1937) (CJ Hughes) - p185: a. b. c. Facts: challenge to NLRA. Holding: NLRA is constitutional. Reasoning: 1) ―affecting commerce‖ rationale trumps ―stream of commerce‖ rationale. a) Rationale: (1) B/c Court takes more wholistic view of commerce. (2) Strikes (offend industrial peace) affect commerce. b) This case gave new life to the ―affecting commerce‖ rationale – the rationale justifying national regulation of intrastate activities b/c of their practical effect on interstate commerce. c) ―Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise control.‖ 2) Manufacturing is commerce. a) Reversal of previous holdings . b) Rejects bright-line, distinction-drawing approach and embraces more practical approach. c) Recognizes a need for congressional regulation. d) Court takes a more realistic look at the way the world works.

2.

27

e)

3)

Possibility that Court is looking at national crisis - if court allowed Jones to continue it would have very negative impact. (1) strong blow to congressional authority (overrule NLRA). (2) no federal right to unionize. (3) would have affected ALL industries across the board (not just one little chicken manufacturer – as in Schechter). Scope of power to regulate commerce includes the power to: a) enact all appropriate legislation for its protection and advancement b) to adopt measures to promote its growth and insure its safety c) to foster, protect, control and restrain d) power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it

d. e. f. g.

Dissent (McReynolds): uses direct/indirect test and says this is too indirect. Other: this was a 5-4 decision. Other: represents a retreat from the strict geographic definition of interstate commerce. Other: government put together a stronger case than it did in Schechter. 1) Had a stronger factual case. 2) Put more facts in the record about the national situation. 3) Points to the amount of deference given to federal government by courts. a) If government can give some good reason why they should be able to regulate, court might be willing to uphold the regulation.

3.

Wickard v. Filburn (U.S. 1942) (Jackson) - p189: a. Facts: 1) Agricultural Adjustment Act 1938 sets wheat quota. 2) Farmer grows a trivial amount over the quota and consumes it only on his farm. Holding: Court upholds act. Reasoning: 1) Aggregation theory: a) Definition: (1) Take effect of the actor challenging the act (the small farmer) and combine it with all other actors. (2) If all the little farmers grew enough wheat for themselves, the national market would be adversely affected. b) Limits of Aggregation Technique: (1) Something that is disaggregated (certain retail activities – like what?). (2) Impose substantial requirement: the effect on interstate commerce cannot be so minimal or tiny that it becomes merely formal. (3) Aggregation theory can only be used to remedy a national crisis. c) Application to this case: farmer is small player, but court aggregates his affect; even though the farmer is not selling more than his quota, if he were not producing his own, he would have to buy some from the market. 2) Court examines the wheat market: a) Important market - because it is food. b) Market is vulnerable to home consumption (unlike say - video game market). National crisis/emergency status: Court is careful not to let Congress claim an emergency and then pass whatever legislation it wants but these extreme conditions were probably a factor.

b. c.

3)

28

4) d.

Court rejects direct/indirect distinction – adopts ―substantial economic effect‖ test.

Other: Court is moving from using bright-line tests (manufacturing or not) to using standards (practical).

4.

US v. Darby (U.S. 1941) (Stone) - p191: a. Facts 1) Fair Labor Standard Act bars interstate shipment of goods that are products of unfair labor. Holding: Court says act is constitutional. Reasoning: 1) 2) 3) Holds the prohibition technique is ok: Congress can use Commerce Clause to achieve social purpose. Overrules Hammer (child labor). Legally mandated minimum wages are okay. a) Brings us back to Schechter and Carter Coal. b) Congress may set wage and hour limits. c) 2 reasons why congress can set wage limits: (1) Affecting commerce. (2) ??? Means to an end (under the N&P clause ?): (a) Casebook calls this super bootstrapping. (b) Magarian thinks it is circular argument - goes back to affecting commerce. Test = ―the power of Congress over interstate commerce extends to activities intrastate which have a substantial effect on the commerce or the exercise of the congressional power over it‖ a) Congress has adopted a policy (excluding from interstate commerce all goods produced by labor that does not meet congressional standards). b) Congress may choose the means reasonably adapted to the attainment of the permitted end, even though they involve control of intrastate activities. Court will no longer inquire into congressional motive. a) Harkens back to judicial review debates –proper role of Court and proper level of deference. b) Problem with not looking at congressional purpose = allows Commerce Clause to regulate everything. Court rejects strong 10A argument: a) Court says you read the commerce clause first and then whatever is leftover is left to the states under 10A.

b. c.

4)

5)

6)

d.

Other: extends idea that Congress has power to exclude harmful goods from interstate commerce to idea that Congress has power to exclude goods that were produced in a harmful way.

5.

Possible remaining limits on power to regulate: a. Reserved state power:

29

1)

2) b.

Strong 10A: look to pre-existing notion of state power (minority view) [See Rehnquist‘s concurring opinion in Hodel v. VA Surface Min. & Reclamation Ass‘n (U.S. 1981) – p200 arguing for stronger view of 10A – this opinion shadowed Rehnquist‘s majority opinion in Lopez]. Weak 10A: not a pre-existing independent check on federal power [see Maryland v. Wirtz (U.S. 1968) – p199].

Substantial effect requirement: 1) Insubstantial effects on commerce: if the activity is remotely related, court might not uphold. 2) Problem: a) Wickard‘s aggregation theory. b) Also see Maryland v. Wirtz‘s “enterprise liability” theory – if enterprise connected to discrete action, might be able to regulate. Economic regulation/commercial regulation requirement: 1) Congress cannot regulate non-economic activities. 2) Blurred lines: but the lines between economic/non-economic are blurred. a) Crime [see Harrah‘s v. US regarding extortion and loan sharking]: class of activities falls under ―credit crime‖ - it is criminal activity, but court was willing to regulate. b) Environmental [see Hodel v. Virginia Surface Mining (U.S. 1981) - p200]: ―commerce power broad enough to permit congressional regulation of activities causing air or water pollution, or other environmental hazards that may have effects in more than one state.‖ (1) ―when congress has determined that an activity affects interstate commerce, the courts need inquire only whether the finding is rational‖ c) Civil Rights [see Heart of Atlanta (U.S. 1964) - p203 and Katzenbach v. McClung (U.S. 1964) – p203]: (1) Heart of Atlanta (U.S. 1964) - p203: upheld federal public accommodations act (which prohibited discrimination) b/c discrimination has a dramatic effect on interstate commerce. (2) Katzenbach v. McClung (U.S. 1964) – p203: upheld use of Article II against local BBQ with take-out service for African Americans. (3) Both opinions show Court‘s increasing reliance on congressional purpose.

c.

6. 7.

Theme: weigh the excesses of the judicial power and proper adaptation of the Constitution. Mag’s Comments: a. b. c. After Wickard v. Filburn and US v. Darby, what limits, if any, constrained congressional exercise of the commerce power? Trivial impact, 10A, ―historically local‖ field. What factors might explain the Court‘s shift in direction on the Commerce Clause beginning in 1937? The Depression and WWI. What might have been the doctrinal and practical consequences had the Court struck down the governmental actions at issue in the Jones & Laughlin Steel, Wickard, and/or Darby?

8.

Information Sources: a. See Casebook at 185-206. b. See Chemerinsky at 185-195.

D. The New Federalism – 09/27/00: 1. This is MOST IMPORTANT DAY OF CON LAW I.

30

2.

Summary Chart:

Possible Limit on Federal Power Under the Commerce Clause Insubstantial Effect on Interstate Commerce

Pre-1995


Today


Affecting commerce rationale [see Jones & Laughlin]. Aggregation theory [see Wickard]. Rejection of strong 10A theory [see Darby]. Rejection of categorical distinctions [see Jones & Laughlin]. No inquiry into congressional purpose [see Darby].

Non-commercial, intrastate activity has insubstantial effect [see Lopez]. No aggregation to defeat state police power [see Morrison]. Revival of strong 10A [see Lopez and Morrison]. Intrastate regulation must be commercial [see Lopez and Morrison]. Rejects review of congressional findings (thus, still no inquiry into congressional purpose ???) [see Morrison].





10A NonCommercial/NonEconomic Regulation













3.

Historical Review: a. Broad sense of federal power [see Gibbons]. b. Period of judicial schizophrenia and doctrinal confusion [late 1800s to 1930s]. c. Early New Deal: Court adopted restrictive view of commerce power. d. Post 1937: Court adopts permissive view of commerce power. e. Post 1995: Court swinging back to a restrictive view of commerce power [see Lopez and Morrison]. US v. Lopez (U.S. 1995) (CJ Rehnquist) – p142: a. Facts: 1) Federal criminal statute, Gun Free School Zone, is challenged as being beyond commerce clause power. 2) Keep in mind that the federal government has expanded tremendously over the past six decades. Holding: Court strikes down the act as unconstitutional. 1) No jurisdictional hook (nexus). 2) If congress has put in something that would assure the gun had moved in interstate commerce, the statute might be upheld. 3) This could be a quick fix for the statute, but might put in an insurmountable hurdle for prosecutor. Majority (CJ Rehnquist). Reasoning: 1) There are three broad categories for congressional regulation: a) Congress may regulate the use of channels of interstate commerce (similar to ―stream of commerce‖ theory from before the new deal cases) [see Darby and Heart of Atlanta]. b) Congress may regulate and protect the instrumentalities of interstate commerce even though the threat may come from only intrastate activities [see Shreveport].

4.

b.

c. d.

31

2) 3)

4)

5)

6)

Congress may regulate those activities that substantially effect interstate commerce (―affecting commerce‖ rationale) [see Jones & Laughlin]. Asserts stronger role for Court in reviewing these cases – seems to allow review of congressional purpose. a) ??? But Morrison says no review of congressional purpose. Revives strong 10A theory: look at 10A and what is reserved to the states first and then look at Commerce Clause. a) Rehnquist is very worried about slippery slope that will lead to total evisceration of 10A. b) Mag says this represents a radical doctrinal departure from the previous cases. Reasserts substantiality requirement: a) Rehnquist puts new gloss on substantial part of substantial effects doctrine and says that the Court that decided Jones and Wickard would find that this act was NOT a proper exercise of congressional power under the commerce power. Rehnquist reasserts, implicitly, the categorization approach: a) Distinguish from Wickard: by say that Wickard was economic activity and that criminal regulations are NOT economic. b) Thus, allowing for categorization that Darby rejected. ??? Lopez affirms following theories: a) Affecting commerce rationale. b) Aggregation principle. c) Prohibition technique.

c)

e.

Concur (Kennedy): 1) Takes on Marshall - says judiciary must be guarantor of Federalism because political process will not do it. 2) This act interferes with the federal balance the Framers designed and that this Court is obliged to enforce. Concur (Thomas): wants strict originalist interpretation. Dissent (Breyer): 1) Seems to want to say that there are limits to commerce clause BUT this statute should be upheld. a) Weakness: a) and b) seem to run into each other 2) ??? Remember: Marshall wanted political process to be limit of federalism. 3) Would replace ―substantial‖ with the word ―significant.‖ 4) Finds that this does satisfy the substantial effects test as previously defined. Dissent (Souter): 1) Court should defer to Congress – not look at purpose. 2) Questions whether Court has returned to direct/indirect distinction. 3) Seems to say this decision consistent with earlier cases, just setting outer boundaries but the way Court analyzes limits might clash with cases since new deal. Dissent (Stevens): Other: although Court says this is a reaffirmation of earlier doctrine and precedent, it seems to be more of a departure from earlier doctrine – EXAM question.

f. g.

h.

i. j. 5.

Morrison v. US (U.S. 2000) (CJ Rehnquist) – p10supp: a. b. c. Facts: VAWA allows women to collect civil damages in federal court for rape. Majority (Rehnquist). Holding: act is unconstitutional use of commerce power.

32

d.

Reasoning: this is non-economic activity. 1) Categorization: gender crimes are NOT economic activity. a) If accepted, Congress could regulate ANY crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment. 2) Congressional findings: congressional findings, alone, are not sufficient to sustain constitutionality. 3) Aggregate theory: Court implicitly rejects aggregate theory. 4) 14A: Court found 14A did not support act either. Concur (Thomas): rejects substantial effects test as inconsistent with commerce power. Dissent (Souter): 1) Affirming aggregate theory. 2) ??? Court should not look at congressional intent but can look to congressional findings. 3) Analogy to racial discrimination cases [see Heart of Atlanta and Katzenbach]. 4) Analogy to Wickard: says this act would have passed from 1942 to 1995. 5) Rejects categorization technique of majority. Dissent (Breyer):

e. f.

g. 6.

Problem: what is the proper check – the Court or the political process – there are problems with both. a. Political process can be unwieldy and unresponsive. b. Court is prone to power grabs. Mag’s Comments: a. Does Lopez merely attempt to chart the ―outer limits‖ on congressional power implicit in the Court‘s permissive, post-1937 Commerce Clause decisions, or does Lopez depart from those decisions? Under the majority‘s approach in Lopez, what intrastate activities does the Commerce Clause permit Congress to regulate? Under the dissent‘s approach, what intrastate activities could Congress NOT regulate? How does Morrison tighten the Court‘s inquiry into the validity of congressional regulation under the Commerce Clause? Has the Court in Lopez and Morrison revived the practice of judicial inquiry into the purposes behind federal regulation? Has the Court restricted Congress‘ power to implement ―social policy‖ under the Commerce Clause?

7.

b.

c.

8.

Information Sources: a. See Casebook at 142-159. b. See Supp at 10-15. c. See Chemerinsky at ???

E. State Sovereignty as a Limit on the Commerce Power: The Tenth & Eleventh Amendments – 09/29/00: 1. Generally: a. Issue: whether a state‘s activities, even though they otherwise relate to commerce, are nevertheless immune from federal regulation, because of external limits stemming from the 10A, 11A or other structural considerations drawn from the federal scheme.

33

2. 3.

10A: the powers not delegated to the US by the constitution nor prohibited by it to the states, are reserved to the states respectively, or to the people. 11A: the judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the US by citizens of another state, or by citizens or subjects of any foreign state. a. Purpose: places limits on Congress‘ ability to regulate state behavior by passing laws that authorize private individuals to sue the states. Case Law Background: a. National League of Cities v. Usery (U.S. 1976) – p207: 1) Holding: Court held that it was unconstitutional for Congress to regulate ―traditional (essential) state government functions‖ – tough standard to work. 2) Concur (Blackmun): concerned that the majority‘s opinion was a balancing test. Garcia v. San Antonio Metro. Transit Auth. (U.S. 1985) - p209: 1) Facts: 2) Holding: expressly overrules National League of Cities. 3) Reasoning: a) Rejects ―traditional state government function‖ test: (1) The effort to articulate the boundaries of state regulatory immunity in terms of traditional governmental functions was unworkable. (2) By appealing to ―traditional‖ or ―integral‖ notions of governmental functions, the state ―inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which one it dislikes.‖ b) Political Safeguards of Federalism Theory - political process should protect the federal/state balance: (1) The principal and basic limit on the federal commerce power is that inherent in all congressional action, the built in restraints that our system provides through state participation in federal governmental action. (2) The political process insures that laws that unduly burden the states will not be promulgated. (3) Question: is it enough to have political process to protect the states or do we need judicial intervention? c) The only remaining state autonomy limit on the commerce power is ―one of process rather than one of result‖: (1) Any substantive restraint on the commerce power ―must find its justification in the procedural nature of this basic limitation, and it must be tailored to compensate for possible failings in the national political process.‖

4.

b.

5.

Summary chart: Yes Darby Garcia (Testa v. Katt) Fitzpatrick 14A § 5 No Lopez Morrison (X) National League of Cities Alden ??? NY v. US Printz Seminole Tribe Alden (Art I § 8)

May Congress . . . . . . regulate intrastate activities of private parties? . . . regulate states themselves through general laws? . . . make state governments implement federal regulations? . . . authorize lawsuits for damages against states?

34

6. 7.

May Congress regulate intrastate activities of private parties? a. See previous sections. May Congress regulate states themselves through general laws? a. Rule: generally, yes, Congress may do this [see Garcia]. b. Reality: much confusion about how and to what extent [see Alden]. May Congress make state governments implement federal regulations - federal Commandeering - New York v. United States (U.S. 1992) (O‘Connor) - p212: a. Facts: 1) Statute regulates the disposal of nuclear waste in 3 ways: a) Monetary incentives. b) Access incentives. c) ―take title‖ provision (only one at issue in this case) - if state can not dispose of waste, statute mandates that state take responsibility for waste and injuries caused by it. Majority (O‘Connor). Holding: take title provision is unconstitutional. Reasoning: 1) Congress can not simply commandeer the legislative processes of the states by directly compelling them to enact and enforce a federal regulatory program. a) Commandeering destroys state‘s responsibility. b) Congress is trying to make states do its dirty work. Alternative means: Congress could have achieved same result (as take title provision) in other ways and thus still given state a choice: a) Direct regulation. b) Preemption (states regulate, or else we will). c) Use other powers (spending, …). Political pressure does not work b/c: a) Deal-making in Congress is a tangled web. b) Accountability: state and local government are more responsive to constituents. c) Lowered incentive: the more the federal government gets involved, the less incentive for the states to work it out. d) But there are problems with this argument: states can tell the people that it was the federal government and not the states that did this, therefore political accountability will work. (1) Problem with theory is that it assumes that people are smart enough to know the state is screwing them over but not smart enough to know the federal government is screwing them over. Act is severable: Court can invalidate the take title provision and leave the rest in tact (because it does not violate constitution). Federalism-focused Framers: Framers concerned with distribution of power between state and federal government: a) ―in providing for a stronger central government, therefore, the framers explicitly chose a constitution that confers upon congress the power to regulate individuals, not states.‖

8.

b. c. d.

2)

3)

4) 5)

35

b) c) d) e.

Even where congress has the authority under the constitution to pass laws requiring or prohibiting certain acts, it lacks the power to compel the states to require or prohibit those acts (see Hodel). No matter how powerful the federal interest involved, the constitution simply does not give congress the authority to require the states to regulate. Constitution instead gives congress the authority to regulate matters directly and to pre-empt contrary state regulations.

Dissent (White): 1) Federalism as referee: this is what Congress is supposed to do – there is a national problem requiring a national solution. 2) Ultimately, the people are injured if Court prevents them from setting up a flexible regulatory scheme. Concur/dissent (Stevens). Other: NY agreed to this scheme voluntarily, then did not adhere to it and then sued. Other: current court‘s 5 person majority is very concerned with federalism.

f. g. h. 9.

May Congress make state governments implement federal regulations - federal Commandeering - Printz v. United States (U.S. 1997) (Scalia) – p16supp: a. b. c. Facts: Brady Bill commands state and local law enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks. Majority (Scalia). Holding: parts of act are unconstitutional. 1) Congress cannot circumvent the prohibition against compelling states to enact or enforce a federal regulatory program by conscripting the state‘s officers directly. 2) Translation: Congress can not commandeer state‘s executive branch. Reasoning: 1) Court rejects Congress‘ reliance on Testa v. Katt (p. 17) a) Testa stands for the proposition that state courts cannot refuse to apply federal law - a conclusion mandated by the terms of the supremacy clause. b) That is not on point with this attempt to commandeer state executive officers. Concur (O‘Connor). Concur (Thomas). Dissent (Stevens). Dissent (Souter). Dissent (Breyer). Other: see Reno v. Condon (U.S. 2000) – p27supp.

d.

e. f. g. h. i. j.

10. ??? May Congress authorize lawsuits for damages against states? a. Hans v. Louisiana (U.S. 1890) - p225: states are not subject to any suit in federal court by anybody (even its own citizens).

36

b.

Ex Parte Young (U.S. 1908) - p225: exception – individuals and others can sue states in federal court for injunctive relief . 1) Federal court can issue an injunction against state officials enforcing an unconstitutional state law on the ground that the state was not really the defendant. 2) Modified rule: states are not subject to suit in federal court for damages. Fitzpatrick v. Bitzer (U.S. 1976) – p225: Congress may abrogate state immunity and allow states to be sued directly for retrospective damages, pursuant to its enforcement power under 14A § 5. 1) Congress may abrogate state immunity in bill of rights issues. Seminole Tribe of FL v. FL (U.S. 1996) – p225: Congress may not abrogate state immunity for legislation drafted pursuant to the Commerce Clause [Art I § 8]. 1) Overrules Union Gas. 2) ―The 11th amendment restricts the judicial power under article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.‖ Alden v. Maine (U.S. 1999) – p29supp: extends Seminole Tribe to prohibit Congress from authorizing individuals to sue states in state courts. 1) ―Congress, in exercising its Art I powers, may not abrogate state sovereign immunity by authorizing private actions for money damages against non-consenting states in their own courts.‖

c.

d.

e.

11. Mag’s Questions: a. b. How is the Court‘s invocation of the 10A to limit Congress‘ power in NY v. US and Printz v. US distinguishable from its rejection of the 10A as a limit on Congress‘ power in Darby? How convincing do you find the Court‘s holding in NY v. US that concerns of individual liberty constitutionally preclude a state legislature from agreeing to implement a federal regulatory regime? How do the 10A and 11A interact in Florida v. Seminole Tribe and Alden v. Maine?

c.

12. Information Sources: a. See Casebook at 206-27. b. See Supp. At 16-34. c. See Chemerinsky at p222-234 (10A).

V. FEDERALISM-BASED RESTRAINTS ON OTHER FEDERAL POWERS A. The Taxing and Spending Powers – 10/02/00: Generally: Art I, § 8: Congress shall have 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; but all duties, imposts and excises shall be uniform through out the united states. Taxing and spending are closely related (functionally and doctrinally) to the commerce power – here Congress tries to use taxing and spending powers to indirectly regulate.

37

Show Court‘s changing view of federalism as a value – explains some of the screwy outcomes – change in outcomes of tax & spend cases is Court‘s new vision of its proper role. Note from Justice Holmes: ―congress may have what ulterior motives they please if the act passed in the immediate aspect is within their powers.‖ But I should think it dishonest… The Taxing Power: Rule: Congress has broad power to tax and spend for the general welfare so long as it does not violate other constitutional provisions Distinction b/w Direct and Indirect Taxes (from Constitution) – no longer valid. Distinction b/w Regulatory and Revenue Raising Taxes (judicially created) – no longer valid: Pre Bailey: Court had rejected distinction b/w regulatory and revenue raising taxes. Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (U.S. 1922) (CJ Taft) - p229: Facts: federal statute requires employers who employ kids to pay 10% of their net profits as tax (later in opinion - says net income). Challenged b/c regulates an area of exclusive state authority as reserved by the 10A. Majority (CJ Taft). Holding: Court strikes down the federal statute. Reasoning: Statute is a penalty: Flat tax - regardless of severity or frequency of departure, the fine is the same (10%). Scienter requirement - only when employer knowingly departs from the prescribed course does he have to pay tax - scienter associated with penalties. Congress only has the power to tax, state has the power to regulate the child labor issue. Other: this holding is consistent with Hammer where Court also struck down a federal statute directly regulating child labor – Congress cannot indirectly regulate an area under the taxing power which the Court said it could not directly regulate under the commerce power. Other: incidental effects of tax legislation Taxes occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. BUT if it goes too far, it loses its character as a tax and becomes a penalty. US v. Kahriger (U.S. 1953) – p232: Facts: federal tax on gamblers – challenged on grounds that Congress using taxing power as pretense to penalize illegal intrastate gambling. Majority (Reed): Holding: Court upholds statute as constitutional. Reasoning: Not determinative that the legislative history suggested a congressional motive to suppress wagering. ―a federal excise tax does not cease to be valid merely because it discourages or deters the activities taxed. Nor is it invalid because the revenue obtained is negligible…it is hard to understand why the power to tax should raise more doubts because of indirect effects than other federal powers.‖ Unless there are penalty provisions extraneous to any tax need, courts are without authority to limit the exercise of the taxing power.

38

Other: rule accord to Mag: as long as social policy is rationally related to revenue purpose, it is ok. as long as taxing statute contains a real revenue generating purpose, it is ok. Issue: to what extent can congress use the taxing power as a regulatory tool? The Spending Power: Congress has broad power to spend funds to advance the general welfare so long as it does not violate other constitutional provisions. There has been much debate about scope of spending power. U.S. v. Butler (U.S. 1936) (Roberts) - p236: Facts: federal AAA of 1933 pays farmers not to grow food, includes processing tax on cotton processors. Holding: Court held act was not a valid exercise of power to spend for general welfare. Congress may not, under pretext of exercising the tax power, accomplish prohibited ends, such as regulation of matters of purely state concern and clearly beyond its national powers. Reasoning: Meaning of general welfare: Court gives ―general welfare‖ plain language meaning. Probably broader than general welfare as used in enumerated powers. Can spend for general welfare, subject to limits. Rejects government argument that they are not regulating, but are giving states choice: Court: this is coercion by economic pressure. ―At best, it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states.‖ Congress can not accomplish indirectly what it can not accomplish directly. Court rejects the “national concern” argument: can not allow the congress to ignore constitutional limitations upon its own powers and usurp those reserved to the states. Dissent (Stone): courts should only look at whether Congress has power to do this, not the wisdom. If congress has the power to spend for general welfare, then congress should be able to use this additional method (conditional appropriation) to make sure the money is going to the general welfare. 1937 Social Security Cases: ??? Rule: Charles C. Steward Machine Co. v. Davis (U.S. 1937) (Cardozo) – p241. Helvering v. Davis (U.S. 1937) (Cardozo) – p243: Holding: Court upheld the old age benefits of Title VIII and II of the SSA. Reasoning: State programs inefficient. Justice Cardozo uses federal programs as ―market correction‖: Operates from a function of saying what public wants, then seeing if it is provided. Uses constitution interpretation to make up for political shortcomings. ―The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in

39

advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts . . .. The discretion belongs to congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment.‖ Conditions on Grants to State Governments: Rule: Congress may place conditions on such grants, so long as the conditions are expressly stated and have some relationship to the purpose of the spending program. SD v. Dole (U.S. 1987) (CJ Rehnquist) – p244: Facts: federal statute withholds 5% of state allocated transportation funds if the state keeps the drinking age lower than 21. Majority Holding: statute is valid use of spending power - spending may have regulatory objective. Reasoning: ―Even if congress may not regulate drinking ages directly, incident to the spending power, congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal directives.‖ Result: objectives not thought to be attained through Article I‘s enumerated powers, can be attained through the use of spending power and conditional grant of federal funds. Limits: Spending power must be in pursuit of “general welfare”: Courts should defer to judgment of congress. Uses broad view of power. Congress must unambiguously condition the states‘ receipt of funds - enabling the state to exercise their choice knowingly, cognizant of the consequences of their participation. Condition must be related to the federal interest in particular national projects or programs Makes sense because general welfare is broad, must make sure there is come constraint. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds: program can‘t be outside of other constitutional conditions no federalism problem with using this as regulation can‘t use this power to violate rights guaranteed in constitution (freedom of religion, speech, …) power may not be used to induce the states to engage in activities that would themselves be unconstitutional Dissent (O‘Connor): Impact of Strong 10A Revival on Taxing and Spending Powers: Mag’s Questions: Is judicial evaluation of congressional motive any more or less legitimate when a regulation is based on the taxing or spending power rather than the commerce power? After Kahriger and Dole, what effective constraints remain on the taxing and spending powers? Would greater restraints be appropriate?

40

What sort of approach to constitutional interpretation does Justice Cardozo use in Helvering v. Davis, the case that upheld the old age benefits in the Social Security Act? Information Sources: See Casebook at 228-249. See Chemerinsky at 198-204. B. Foreign Affairs – 10/04/00: 1. Treaties: a. Rule: prez can make treaties (and executive agreements) - senate must ratify them by 2/3 vote. 1) Conflicts: If there is conflict b/w treaty and federal statute, one adopted last in time controls. a) Interpretation: courts will try to read them to give effect to both if it can be done without violating the language of either. Treaties cannot violate the Constitution [see Reid v. Covert (U.S. 1957) (plurality) (Black) – 255]. Reid v. Covert (U.S. 1957) (plurality) (Black) – 255] (1) Facts: deals with congressional power to provide for military jurisdiction over civilian dependents of American servicemen overseas – treaty b/w US and GB. (2) Majority Holding (Black) (plurality): (who ?) cannot legislate pursuant to treaty in contradiction of the constitution. (3) Reasoning: (a) ―no agreement with a foreign nation can confer power on the Congress, or on any other branch of government, which is free from the restraints of the constitution.‖ (b) Treaties not limited to those made in pursuance of constitution was so that treaties made under articles of confederation would remain valid. (c) To allow U.S. to make a treaty without observing constitutional limits would be alien to constitutional history and tradition. 10A is not valid challenge to treaty [see MI v. Holland]. a) Missouri v. Holland (U.S. 1920) (Justice Holmes) - p252: (1) Facts: Migratory Bird Treaty Act (treaty between G.B. and U.S. to protect migratory birds) – challenged on ground that Congress violated 10A b/c states are proper authority to regulate hunting. (2) Majority Holding (Holmes): (a) Acts of Congress are the supreme law of the land only when made in pursuance of the constitution. (b) Treaties are declared to be supreme law of the land when made under the authority of the U.S. (c) NO 10A argument. (3) Reasoning: (a) National Interest: the treaty deals with a national interest of very nearly the first magnitude (migratory birds!). i. Birds are only transitorily within the state- no permanent habitat. ii. Nothing in the constitution to make the government sit by and watch while a food supply is cut off and the protectors of our forests and our crops are destroyed. (b) Scope of treaty power: valid treaty overrides a state law on matters otherwise within state control.

2)

3)

41

b.

Rescission of treaty: 1) Court refused to hear argument by a senator that rescission of a treaty required 2/3 rd majority just like enactment b/c non-justiciable [see Goldwater v. Carter (U.S. 1979)]. 2) Effect: prez can rescind without senate approval. Executive Agreements: 1) Senate approval not required.

c. 2.

War Powers: a. Woods v. Cloyd W. Miller Co. (U.S. 1948) (Douglas) - p250: Facts: federal statute affecting housing and rent; government argues that this is justified under the war power - But the war has ended with the presidential proclamation. Holding: - war power sustains the act. - legislative history makes clear that the deficit in housing caused by war continues, even though there is a cease fire. - ―since there was effort contributed heavily to that deficit, congress has the power, even after the cessation of hostilities to act to control the forces that a short supply of the needed article created‖ Concur (Jackson): - concerned with the seemingly unlimited scope of the war power - however, does not propose an alternative Note: problem with war power: - war inflames national passion - government may have invoked war power and done all kinds of bad things - not sure when war ends - war power has been subsumed into a broad meaning of commerce power Power to Regulate Immigration and Citizenship The Foreign Affairs Power of Congress: a. Perez v. Brownell (U.S. 1958) – p256: ―Although there is in the constitution no specific grant to congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the law-making organ of the nation.‖ b. Curtis-Wright (U.S. 1936) – p256: states joined together to form single nation, ―must have granted that government the powers indispensable to its functioning effectively in the company of sovereign nations‖ 1) note: external powers of U.S. (in international arena) did not come from the affirmative grants from the constitution, must have come from somewhere else—some powers are necessary to function on the international level. a) This is questionable – historically. Mag’s Questions: a. b. c. What factors should determine whether and when courts should find limits on the subject matter and/or the duration of the war power? Is the treaty power constrained by 10A or not? Does the Lopez case (which announced a constraint on congressional authority under the Commerce Clause) affect your answer? How might a court go about determining the nature and extent of the power the Constitution gives Congress to regulate foreign affairs?

3. 4.

5.

6.

Information Sources: See Casebook at 249-257.

42

See Chemerinsky at 204-209. 7. Federalism – based restraints on other federal powers: foreign affairs

VI. FEDERAL LIMITS ON STATE POWER TO REGULATE THE NATIONAL ECONOMY A. Introduction to the Dormant Commerce Clause – 10/09/00: 1. General Rule: state and local laws are unconstitutional if they place an undue burden on interstate commerce. a. No express textual support in Constitution; instead, Court has inferred this power from the grant of power in Art. I, § 8 from history and federal structure – DCC is a non-textual argument based on negative inferences. b. Basic Functional Principle – state interference will cramp Congress‘ ability to regulate commerce. c. As compared to the Active Commerce Clause: 1) Active: Congress has exercised the commerce power - challenge to inconsistent state action rests on both the exercise of the commerce power (under Art. I, sect. 8) and the pre-emptive effect of the federal legislation under the supremacy clause of Art. VI. 2) Dormant: Congress is silent; it has taken no action, express or implied, indicating its own policy on a given subject matter - challenge rests entirely on the negative implications of the commerce clause of Art. I, sect. 8, on the unexercised commerce power itself, and on the free trade value it symbolizes. d. Relationship to other constitutional provisions - other ways to challenge state laws that burden interstate commerce: 1) Privileges and Immunities Clause (Art. IV, § 2). 2) Equal Protection Clause (14A). e. There are exceptions (consent and market participant principles). Arguments for DCC: a. b. Historical: key impetus for federal Constitution was absence of any federal commerce power under Articles of Confederation – Framers meant to prevent protectionist state laws. Economic: economy is better off if state and local laws impeding interstate commerce are invalidated – protectionism stifles production and harms overall economy. 1) Serves the value of free trade. Political: states and their citizens should not be harmed by laws in other states where they lack political representation (like McCulloch). 1) Serves the value of national unity. Functional: to have any meaningful regulation of interstate commerce, there must be some zone of commerce that is exclusive.

2.

c.

d. 3.

Arguments Against: a. Structural interpretation highlights problems – other provisions in the Constitution show that . . . : 1) Framers knew how to prohibit state power. 2) Framers knew how to make Congress‘ power exclusive. 3) Thus, if Framers had intended DCC, they would have made the Commerce Clause exclusive. 4) RESPONSE: Commerce Power can be distinguished from the powers exclusively granted b/c it was self-evident that Commerce Power is exclusive.

43

a) b) b. c. d. 4.

National commerce was core rationale for Constitution (b/c Articles had led to .chaotic state trade wars) Framers did not need to say that Commerce Power was exclusive b/c it was obvious.

Textual: there is no textual support for DCC. Separation of powers: violates this doctrine b/c too much power for an unelected federal judiciary. Federalism:

Possible ways to limit state regulatory power from the strongest federal scenario to the strongest state scenario: a. b. c. d. e. Federal exclusivity - DCC prohibits state regulation even if federal govt has not acted. Federal preemption of state regulation (Gibbons) - both federal and state can regulate, but Congress makes it express that its regulation takes precedence. Federal consent to state regulation (Cooley?) – Congress waives exclusivity or preemptive effect of negative Commerce Clause – ―cooperative federalism‖. Non-exclusivity - both state and federal governments may regulate – unsuccessful DCC claim. State exclusivity (Lopez) – Commerce Power does not extend to area in question – strong 10A – only state can regulate in this area.

5.

Analytical Process for determine if Congress’ regulation in this area is exclusive: a. b. Does Constitution expressly forbid state to act in that area (see Art. I, § 10)? Is there an exclusive grant of power to Congress? 1) Art. I, § 8: lists 18 powers, but did not make commerce power ―exclusive‖ 2) Textual uniformity - commerce power ―self-evidently‖ exclusive, otherwise it would be meaningless Does congress have exclusive power to regulate in this area? 3 approaches: 1) Purpose (see Gibbons and Wilson): a) Commercial - police distinction: 1) When purpose is commercial, then there can be no state regulation. 2) When purpose of regulation is related to police power, then it is okay, there is concurrent regulation. 2) Subject Matter (see Cooley): Does this area of regulation require uniform or national regulation to function effectively? a) National - local distinction. Direct/indirect (see p269):

c.

3) 6.

Cases: a. Gibbons v. Ogden (U.S. 1824) (CJ Marshall) - p261: 1) Facts: NY statute grants steamship monopoly to Ogden – this case is really about federal preemption but offers some insights into exclusivity. 2) Holding: NY steamboat monopoly grant in conflict with the federal laws licensing those engaged in the coastal trade, thus state law is preempted. 3) Reasoning: uses purpose as test of whether state law is invalid.

44

a) b) c) d)

e) b.

Pre-emption theory. Rejects analysis between power of taxation and power of regulating commerce. Inspection laws - example of valid state police regulation. Exclusivity - court admits that appellant made compelling argument that grant ―to regulate‖ implies a full power over the subject in order to produce a uniform whole - ―there is great force in this argument and the court is not satisfied that it has been refuted‖ S.Ct. looks to purpose of legislation - is it police regulation or commerce regulation?

Willson v. Black Bird Creek (U.S. 1829) (CJ Marshall) - p263: 1) Facts: Delaware statute allowed the building of a dam that blocks another guys access to the Delaware River. 2) Holding: statute is ok. 3) Reasoning: uses purpose as test of whether state law is invalid. a) Health concerns do not amount to congressional exclusivity. b) No federal pre-emptive statute. Cooley v. Board of Wardens (U.S. 1851) (Curtis) - p265: 1) Facts: a) Federal- 1789 statute – until further legislation by congress, pilots in harbors are to be regulated by states laws (grant of power to states). b) PA statute- 1803- required ships in the harbor to be piloted by local pilots. 2) Holding: no federal exclusivity. 3) Reasoning: uses subject-matter as test of whether state law is invalid. a) Test = ―whatever subjects of this power [to regulate] are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.‖

c.

7.

Mag’s Questions: a. b. How does the inquiry whether Congress has power to regulate a given activity differ from the inquiry whether Congress has exclusive power to regulate the activity? What problems of constitutional interpretation undermine the view that the Commerce Clause imposes certain restrictions on state regulation of commercial activity even when Congress has not regulated the activity? What interpretative problems undermine the view that the Commerce Clause imposes no such restrictions? For purposes of determining the proper scope of the DCC power, how does the inquiry into the purposes of a state regulation differ from the inquiry of whether the regulation involves national or local subject matter?

c.

8.

Information Sources: a. See Casebook at p258-269. b. See Chemerinsky at 306-316.

B. Facial State Discrimination Against Interstate Commerce – 10/11/00: 1. 2. Generally: does state regulation discriminate against interstate commerce? Discriminatory Regulations (whether facial or effects) – Per Se Invalid: a. Test: does law treat out of state economic interests differently than their local competitors? 1) While these cases should be easy, there are not.

45

2) 3)

Confusion: If Court strikes down a state regulation under DCC, then say it is within zone of congressional commerce power – implies that Congress has power to regulate BUT then Court may not let Congress do this (b/c violate active Commerce Clause). Distinguish b/w facial discrimination and discriminatory effects: harder to discern effects than facial discrimination – Court has to do some more work, look beyond the face of the statute to its application).

b.

Examples: 1) Facially discriminatory state statutes: a) Ban on imports (of out-of-state goods or services) or exports (on in-state goods or services). (1) Philadelphia v. New Jersey (U.S. 1978) (Stewart) - p271. (a) Facts: example of facial discrimination by state against out-of-state commerce – statute prohibited import of solid waste produced outside territory. (b) Holding: statute is protectionist and unconstitutional - This statute imposes the full burden of conserving the state‘s resources on out of state commercial interests. (c) Reasoning: show weakness of this test. i. Whose interests are harmed? (A) Private landfill owners in NJ. (B) Other states - waste producers outside NJ - who will probably have to pay greater cost to dispose of waste. ii. Who benefits? (A) Landfill operators outside of NJ (B) In-state waste generators- NJ landfills may be forced to cut prices due to decreased demand iii. Possible effects on public health & safety? Other states may be forced to take on extra waste because NJ shuts its borders iv. General statements about discrimination: (A) ―whatever NJ‘s ultimate purpose, it may not be accomplished by discriminating against articles of commerce coming from outside the state unless there is some reason, apart from their origin, to treat them differently‖ (B) ―state is without the power to prevent privately owned articles of trade from being shipped and sold in interstate commerce on the ground that they are required to satisfy local demands or because they are needed by the people of the state‖ (C) ―what is crucial is the attempt by one state to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade‖ 2) Discriminatory effects from state statute: a) Discriminatory taxes or fees. (1) Differential fees (higher tax on out-of-state business). (a) Chemical Waste Management Inc. v. Hunt (U.S. 1992) – p277. i. Holding: Court invalidated a fee on disposal of hazardous waste produced out of state and disposed of in state, but not on similar waste produced in state - applied strictest scrutiny. ii. Reasoning: state had available less discriminatory alternatives for reducing the volume of hazardous waste disposal, such as higher fees or quantity limits applicable to all waste disposed of in state, regardless of where it came from. (b) Oregon Waste Systems Inc. v. Dept of Environmental Quality (U.S. 1994) – p277. i. Facts: state imposed a different fee for in state producers and higher fee for out of state producers.

46

ii. Holding: this tax is not an allowable compensatory tax. iii. Reasoning: interstate commerce may be made to pay its way - ―a facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and substantially similar tax on intrastate commerce does not offend the negative commerce clause.‖ iv. ―in state producers payment of general taxes does not justify the higher fee to out of state waste because the two forms of taxation did not pertain to substantially equivalent economic events.‖ v. Other: this case answers question left open by Chemical. (c) West Lynn Creamery Inc. v. Healey (U.S. 1994) – p278. i. Facts: rebate tax scheme, Massachusetts law imposed tax on sale of all milk to MA retailers, but then rebated it to MA dairy farmers, tax handicaps out of state producers and artificially encourages in-state production even when goods could be produced out of state for less. ii. Holding: statute clearly unconstitutional - its avowed purpose and its undisputed effect are to enable higher cost MA dairy farmers to compete with lower cost out of state producers. iii. Note: a pure subsidy to MA farmers paid out of general revenue would be ok. (d) General Motors Corp v. Tracy (U.S. ) - p28. i. Facts: Ohio statute imposed general sales and use taxes on natural gas purchases from all sellers that did not meet its statutory definition of a natural gas company. ii. Challenge: although it did not distinguish expressly between in-state and out of state gas sellers, it was in fact discriminatory because the favored entities by definition were all located within the state. iii. Holding: the differential tax treatment of natural gas sales by public utilities and independent marketers was constitutional because the two types of entities effectively competed in separate markets. (e) Camps Newfound/Owatonna v. Town of Harrison (U.S. ) - p29. i. Facts: Maine law gives tax break to charities in the state, but denied the break to charities that conducted or operated principally for the benefit of persons who are not residents of Maine ii. Holding: court invalidates (A) Does not matter (much) that it is the camp and not the individuals being taxed- because the impact falls at least a little on the campers (B) The Maine statute functionally serves as an export tariff that targets out of state consumers by taxing the businesses that principally serve them (C) For purposes of commerce clause analysis, do not distinguish between for-profit and not-for-profit activities (D) Perhaps supports aggregation theory- this camp is one small force, but court says non-profits as a class are significant actors (2) Rebates to in-state producers (state collects fee, then give to in-state). c. Overcoming the presumption against facial discrimination. 1) Maine v. Taylor (U.S. 1986) – p276 - exceptions to facially discriminatory statutes. a) Holding: upheld a law banning import of out of state baitfish - Court gave significant deference to district court finding that statute had legitimate environmental purpose stemming from uncertainty about possible ecological effects because of parasites – ―discriminatory laws may be upheld only if they serve a legitimate local purpose that could not be served as well by available nondiscriminatory means.‖ Other facially discriminatory state laws – p280.

d.

47

e.

Facial Discrimination by Localities: 1) Dean Milk Co. v. Madison (U.S. 1951) (Clark) – p281. a) Facts: city passes home processing requirement for milk - must be processed within 5 miles of city limits - contends that their standard for milk is more rigorous than Chicago‘s. b) Holding: erecting an economic barrier protecting a major local industry against competition from without the state, Madison plainly discriminates against interstate commerce. c) Reasoning: (1) This it cannot do, even if exercising its power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives adequate to conserve legitimate local interests are available. (2) Dean could pay for the inspection on site. (3) This is an attempt at economic isolationism. d) Dissent: if there is a valid health statute, the burden should be on the producers of the milk, Dean, to prove the statute is not constitutional.. 2) 3) Interstate and Intrastate Discrimination - p283. Judicial Inquiry in ―Reasonable Nondiscriminatory Alternatives‖ - p283. a) When a rationality standard of scrutiny prevails, courts do not speculate about alternatives, instead, they defer to the legislative choice if it is a reasonable method of promoting the state interest. b) BUT the court has developed a more intensive scrutiny, including consideration of ―alternatives‖ in order to protect commerce clause values. Other Examples of Invalid Local Discrimination Against Non-Local Competitors p284. a) Fort Gratiot Sanitary Landfill (p. 284) (1) Court invalidated statute that prevented private landfill operators from accepting out of county waste. (2) ―The law could not be saved by the fact that it drew the line at the country rather than the state border.‖ b) C&A Carbone, Inc. - p. 284 (1) Statute required town‘s waste to go to specific waste treatment plant, that charged higher than market rate. (2) Holding: rejected the argument that the ordinance was saved by having intrastate as well as interstate effects (statute prevented out of state businesses from accessing the local market). (3) ―Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.‖ (a) Noted many nondiscriminatory alternatives. (b) Revenue generation is not a local interest that can justify discrimination against interstate commerce

4)

3.

Neutral But Burdensome – Balancing Test: a. Test: weigh state‘s purpose against burden on interstate commerce. 1) Court probably finds a legitimate purpose, but statute has effect of producing unfair burden. b. Examples: 1) Discriminatory home processing requirements (state requires that certain steps in the production chain have to take place in-state) - p279-80. a) Rule: local or home processing requirements are invalid - ―essential vice in laws of this sort is that they bar the import of the processing service.‖

48

4.

Representation Reinforcement: p275 a. Out of state interests are not represented in in-state politics, therefore, it is likely that discrimination against out of staters will result. b. Judicial review is necessary to protect those out of state interests. Mag’s Questions: a. b. c. How can we distinguish a facially discriminatory regulation from a facially neutral regulation with discriminatory effects or one that merely burdens interstate commerce? Is judicial enforcement of the DCC a necessary or legitimate way to ensure accurate representation of political interests? Could a state or regulation that burdened only economic interests within the state be held to violate the DCC?

5.

6.

Information Sources: a. See Chemerinsky at 315-33. b. See Casebook at p270-86.

C. State Protectionism Against Interstate Commerce – 10/13/00: 1. Principles of facially neutral statute analysis: a. Court will not allow state to benefit in state actors at cost to out of state competitors (Baldwin). b. Court may be willing to allow out of state people to be burdened if the majority of burden is borne by in state people (Eisenberg). c. Natural resource cases and public health cases (referred to by Magarian as public interest) does the court treat them differently? Should it? 1) if state is trying to protect health of its people—court gives deference 2) if state is trying to protect economics—no deference Purpose v. Effects Analysis – p286. a. Consider which is more desirable - deciding whether a law is discriminatory by reference to its protectionist purposes and/or effects or engaging in Pike balancing test? Milk Protectionist’s Cases – Mag’s Picks: a. Baldwin v. GAF Seeling (U.S. 1935) - p287- state barrier to out of state seller: 1) Facts: a) Price protectionism, set price floor, can not sell milk in NY if it was bought out of state and at a price lower than the price that would have been charged in NY. b) State justifies it as a health and safety act. 2) Holding: unconstitutional – state may not make in-state retailers pay minimum price outside the state. a) Said another way, states may not protect local economic interests by limiting access to local markets by out-of-state sellers even in the absence of facial discrimination. 3) Reasoning: a) ―states may not protect local economic interests by limiting access to local markets by out of state sellers—even in the absence of facial discrimination.‖ b) rejects NY‘s health and safety justification. c) protecting in state producers from competition is not valid purpose. d) Constitution framed on the premise that the states sink or swim together. e) State can not use its police power ―with the aim and effect of establishing an economic barrier against competition with the products of another state‖- that would be an unreasonable clog on the mobility of commerce. f) Judicial review - does court analyze purpose or effects or both?

2.

3.

49

4)

(1) Affects- sets up something similar to customs duty. (2) Purpose- rejects the state‘s asserted purpose of health and safety. (3) Court is not well-equipped to assess the effect- it is not trained to make economic decisions (not really well equipped for either). Limits of Baldwin – compensating use taxes: a) Henneford v. Silas (U.S. 1937) - p288 – state barrier to out-of-state seller. (1) Holding: Court upholds Washington tax on goods bought in other states and used in Washington. (2) Reasoning: (a) Distinguish: this is different from NY‘s milk statute in Baldwin – WA‘s use tax cancelled only the out-of-state seller‘s tax advantage, while NY‘s scheme cancelled the advantages of the Vermont producer had arguably earned b/c of lower costs of production. (b) Still permits some price competition. (c) Motive alone will seldom, if ever, invalidate a tax that apart form its motives would be recognized as lawful. Least of all will they be permitted to accomplish that result when equality and NOT preference is the end to be achieved.

b.

Milk Control Board v. Eisenberg (U.S. 1939) – p 291 - state barrier to out-of-state buyer: 1) Facts: statute- minimum price set on milk being sold (in state) to out of state buyer. 2) Held: upheld statute - state may make out-of-state retailers pay minimum price within the state. 3) Reasoning: a) Court found that purpose of law was obviously to reach a domestic situation in the interests of the welfare of the producers and consumers of milk in Pennsylvania…essentially local in Pennsylvania. H.P. Hood & Sons v. Du Mond (U.S. 1949) (Jackson) - p292 - state barrier to out-of-state buyer: 1) Facts: state barrier to out-of-state buyers - NY denied a permit for a facility that would ship milk in interstate commerce - justified the denial by saying that the limitation on interstate business will protect and advance local economic interests. 2) Holding: statute is unconstitutional - state may not make out-of-state retailers bear minimum cost within the state. 3) Implications: a) Cities Service Gas v. Peerless Oil (U.S. 1950) – p295 - state barrier to out-of-state buyer: (1) Facts: OK statute imposed minimum well-head price on all gas taken from the field – state says it is designed to preserve a natural resource. (2) Holding: statute upheld - Court approves legislation - price regulation applies to all gas regardless of destination.

c.

4.

State Barriers to Out-of-State Sellers - De Facto Discrimination: a. Bacchus (U.S. 1984) - p289 - state barrier to out-of-state sellers: 1) Facts: liquor tax that exempted a liquor produced from an indigenous Hawaiian rootbecause it was obviously a local product. 2) Holding: unconstitutional. 3) Reasoning: a) Court invalidated facially neutral statute that actually appeared to exist solely in order to protect a particular in-state interest or target a particular out of state interest. b) Statute did not need to be facially discriminatory in order to discern the discriminatory design. c) The Court also invalidated a tax exemption for fruit wine- even though the exemption was general in nature; there was evidence that it was enacted to promote the local pineapple wine industry.

50

b.

Because the exemption was motivated by an intent to confer a benefit upon local industry not granted to out of state industry, the exemption was held invalid. Hunt v. WA State Apple Advertising Company (U.S. 1977) – p289 - state barrier to out-ofstate sellers: 1) Facts: NC statute prohibited boxes of apples from other states from bearing the produce grade of that state. a) State claims protecting its citizens from deception and confusion in the marketplace. 2) Holding: unconstitutional. 3) Reasoning - Court relies on effect to invalidate the statute: a) Law could not stand even if enacted for the purpose of protecting consumers. b) When state legislation comes into conflict with the commerce clause‘s overriding requirement of a national common market, we are confronted with the task of effecting an accommodation of the competing national and local interests. c) Burden - when there is discrimination against commerce, as here, the burden falls on the state to justify it both in terms of the local benefits flowing from the statute and the unavailability of nondiscriminatory alternatives adequate to preserve the local interests at stake.

d)

5.

State Barriers to Out-of-State Sellers - Limits of Inferring Protectionism from Discriminatory Effect: a. Breard v. Alexandria (U.S. 1951) - p290 - state barrier to out-of-state sellers: 1) Holding: Court upheld statute prohibiting door to door sales except by consent of the occupants. 2) Reasoning: ―interstate commerce itself knocks on the local door. It is only by regulating that knock that the interests of the home may be protected by public as distinct from private action.‖ State Barriers to Out-of-State Buyers - State Restraints on Exports of Natural Resources: a. Hughes v. Oklahoma (U.S. 1979) - p295 - state barrier to out-of-state buyers: 1) Holding: statute held unconstitutional - Court invalidates OK. Law forbidding any person to transport or ship minnows for sale outside the state which were seined or procured within the waters of OK. 2) Reasoning: a) Statute facially discriminates - ―the evil of protectionism can reside in legislative means as well as legislative ends. At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives.‖ b) Overrules Geer v. Conn. (said it was ok to shoot birds for in state, but not for out of state). b. New England Power v. New Hampshire (U.S. 1982) - p296 - state barrier to out-of-state buyers: 1) Holding: statute held unconstitutional - Court condemned state restrictions on the export of natural resources. 2) Reasoning: ―our cases consistently have held that the commerce clause precludes a state from mandating that its residents be given a preferred right of access, over out of state consumers, to natural resources located within its borders or to the products derived therefrom.‖ 3) In Hughes, N.E. Power, and Sporhase, Court does not give weight to public interest rationale. Mag’s Question: a. How can a regulation that discriminates against interstate commerce be described as facially neutral in any meaningful sense?

6.

7.

51

b. c. 8.

Can a court better discern a regulation‘s discriminatory character by reference to the regulation‘s purpose or its effects? ??? Are there any reasons a state can assert that will or should save a protectionist regulation from the rule of per se invalidity?

Information Sources: a. See Casebook at p286-97

D. The Modern Balancing Test of the Dormant Commerce Clause – 10/16/00: 1. Generally: a. Pike balancing test: does burden on interstate commerce outweigh benefit to the regulating state? 1) Pike v. Bruce Church (U.S. 1970) - p297: a) Facts: home state processing requirement, would have resulted in cost of $200,000 on $700,000 cantaloupe crop. b) Holding: statute held unconstitutional - Court invalidated processing requirement. c) Reasoning: where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld UNLESS the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. (1) If a legitimate local purpose is found, then the question becomes one of degree. (2) The extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. d) Other: courts generally suspicious of home processing requirements. e) Other: some question whether Pike even applied the balancing test it created b/c home processing requirements are usually viewed as facially discriminatory. b. Note: most P allege discrimination and in the alternative unduly burdensome on interstate commerce. General Principles in Application of the Pike Balancing Test: a. Category deference: courts will give greater deference to state regulations in certain categorical areas (see Barnwell): 1) Highways (although this later changed so that is changed later): a) S.C. State Hwy Dept v. Barnwell Bros. (U.S. 1938) - p299: (1) Facts: statute limits truck size on South Carolina highways—affects 90% of trucks in interstate commerce. (2) Holding: upheld statute as constitutional (3) Reasoning: (a) There is adequate support for legislative judgment (b) State highways are local matter (c) Doesn‘t really appear that court is balancing, instead, it seems like making conclusions about characterizations of highways (d) ―it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce but which, because of their local character and their number and diversity, may never be fully dealt with by congress‖ b) Southern Pacific v. Arizona (U.S. 945) (Stone) - p300: (1) Facts: AZ passed statute limiting length of railroad trains. (2) Holding: statute held unconstitutional - examination of all the relevant factors makes it plain that the state interest is outweighed by the interest of the nation

2.

52

c) d)

e) f) 2) b.

in an adequate economical and efficient railway transportation service, which must prevail. (3) Reasoning: (a) Burden on commerce = serious. (b) Effect of regulation = slight possible safety benefit. (4) Dissent (Black): says Court is acting like a super legislature. (5) Dissent (Douglas): wants presumption of validity for state law. Contrast b/w Barnwell and Southern Pacific may be a function of National Highway System and growth in trucking industry and timing of New Deal legislation – p304. Bibb v. Navajo Freight (U.S. 1959) - p305: (1) Facts: Illinois law required contoured mud guards while Arkansas and 45 other states law required straight mud guards. (2) Holding: statute is unconstitutional. – Court says Barnwell must be read in conjunction with Southern Pacific. (3) Reasoning: (a) Safety measures carry a strong presumption of validity. (b) Uphold the statute UNLESS court ―can conclude on the whole record that the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it.‖ (c) Court has to balance the burden (made truckers stop and shift mudguards or shift vehicles) and effect (not sure – don‘t think the excerpt discusses it – not much of a safety benefit). (4) Note: this is first indication that even in trucking cases, Court may be willing to exert greater scrutiny than Barnwell. Kassel (U.S. 1981) (Powell) – p306 - statute held unconstitutional. Raise questions as to what is appropriate role of court here.

Public health:

Fact-intensive nature of the balancing test: the balancing test is very fact-intensive, and thus, subject to the super legislature argument (see Kassel): 1) Kassel (U.S. 1981) - p306: a) Facts: Iowa statute limits the trucks that can travel on its highways—many exceptions, claimed longer trucks more dangerous. b) Holding: statute found unconstitutional. c) Reasoning: balance burden (significant- would make people go around the state, or change trucks) and effect (no safety benefit, no state interest). (1) ―less deference to the legislative judgment is due, however, where the local regulation bears disproportionately on out of state residents and businesses.‖ d) Concur (Brennan): (1) Refocuses what is being balanced: the burdens imposed on commerce must be balanced against the local benefits ACTUALLY SOUGHT to be achieved by the state, and NOT against those benefits suggested after the fact. (2) Thus, if the state asserts public safety interest, then must weigh public safety effect on one state and public safety burden on the other states. (3) It is NOT the role of the Court to decide whether in fact the regulation promotes its intended purpose. e) Dissent (Rehnquist): says majority oversteps Court‘s authority to review state legislation under the Commerce Clause. State-created regulatory entity: courts will give greater deference to state‘s power to regulate where state has created the regulatory entity (see CTS): 1) CTS v. Dynamics Corp. (U.S. 1987) - p318: a) Facts: Indiana law about stockholders voting after takeover.

c.

53

b) c)

Holding: statute upheld as constitution. Reasoning: (1) Has same effect on in state and out of state people. (2) Does not subject the corp to different voting rules because each corp. is subject only to the laws of the state of incorporation (on the internal issues of stockholders…) (3) Purpose of act is to protect shareholders of Indiana corporations, regardless of where they reside. (4) Indiana need not define these commodities as other states do; it need only provide that residents and non-residents have equal access to them.

d.

Uncertainty: it is unclear how balancing test will come out: 1) Unclear how strong a state interest is required- probably strong presumption in favor of regulation. Influence of pretext: courts will make pretextual determinations when applying the balancing test (the majority in Kassel looked at the ―true purpose‖ of the regulation) (ACG comment): Focus on public-interest: Court is starting to take public interest factor seriously (see Brennan‘s concurring opinion in Kassel) (ACG comment): 1) Kassel (U.S. 1981) - p306: Brennan refocuses what is being balanced - the burdens imposed on commerce must be balanced against the local benefits ACTUALLY SOUGHT to be achieved by the state, and NOT against those benefits suggested after the fact. a) Thus, if the state asserts public safety interest, then must weigh public safety effect on one state and public safety burden on the other states.

e. f.

3.

Topic Areas: a. State Burdens on Transportation Cases: 1) Barnwell (U.S. 1938) – p299. 2) Southern Pacific (U.S. 1945) – p300. 3) Bibb (U.S. 1959) – p305. 4) Kassel (U.S. 1981) – p306. b. State Burdens on Trade Cases: 1) Exxon v. Governor of MD (1978) – p314: a) Facts: MD law prohibiting producers or refiners of petroleum products from operating retail service stations in Maryland. b) Holding: law upheld as constitutional. c) Reasoning: (1) law does not discriminate against interstate goods, nor does it favor local producers and refiners (2) no barriers (3) does not place extra costs on goods moving in market (4) does not distinguish between in and out of state goods (5) it may be true that the consuming public will be injured by the loss of the high volume, low-priced stations operated by the independent refiners, but again that argument relates to the wisdom of the statute, not to its burden on commerce MN v. Clover Leaf (U.S. 1981) – p315: a) Facts: state law that banned retail sale of milk products in plastic non-returnable containers (mostly made of pulpwood). b) Holding: law upheld as constitutional. c) Reasoning:

2)

54

(1) the law here does not effect simple protectionism but regulates evenhandedly by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers - regardless of where they come from. (2) no discrimination. (3) is the incidental burden imposed on interstate commerce by the act clearly excessive in relation to the putative local benefits? No - because milk continues to move freely across the borders. (4) in state pulpwood producers will benefit, but so will the out of state producers of the other component of paper containers as well as makers of other containers. (5) Note: existence of major in-state interests adversely affected by the act is a powerful safeguard against legislative abuse. (6) a nondiscriminatory regulation serving substantial state purposes is not invalid simply because it causes some business to shift from a predominantly out of state industry to a predominantly in state industry. c. State Burdens on Business Entry Cases: 1) Lewis v. BT Investments (U.S. 1980) – p317: a) Facts: FL law prohibiting ownership of local investment advisory businesses by out of state banks…(law barred only some investment companies owned by out of state interests). b) Holding: law is unconstitutional. c) Reasoning: general principle that the commerce clause prohibits a state from using its regulatory power to protect its own citizens from outside competition (Hood). Edgar v. Mite Corp. (U.S. 1982) - p317: a) Facts: business takeover regulation requires register 20 days in advance, then could not communicate with stockholders, even though the target company could give them information. b) Holding: statute is unconstitutional. c) Reasoning: Pike balancing - the act imposed a substantial burden on interstate commerce which outweighs its putative benefits. CTS v. Dynamics (U.S. 1987) – p318 – see above.

2)

3) 4.

Arguments Against the Pike Balancing Test (see dissents in Southern Pacific): a. Scalia: 1) Scalia wants to reject the balancing test – says it amounts to judging ―whether a particular line is longer than a particular rock is heavy.‖ b. Institutional competence (see Black‘s dissent in Southern Pacific): 1) Court is not most qualified entity to make this determination. 2) Potential for super-legislature. 3) Problems with this argument: a) If institutional competence is required, Congress will pass laws that require institutional competence for review and thus eliminate judicial review. b) Argue that Court is institutionally compelled to review this area. c. No constitutional power or authorization (see Douglas‘ dissent in Southern Pacific): 1) Constitution does not authorize court to do balancing and strike down state statute. 2) 10A – federalism concerns? 3) Separation of power concerns? 4) Problems with this argument: back to McCulloch debate and idea of political responsiveness and accountability. Mag’s Hypo a. Facts: PA raises its minimum wage law, neighboring states then increase their minimum wage, results in economic downturn in those states.

5.

55

b.

c. 6.

Reasoning: 1) discriminatory purpose? No 2) discriminatory effect? Probably no 3) balance the burden (must show excessive out of state harm) and the benefit (state interest in higher wages for PA, economic downturn in other states). Outcome: probably a close call

Mag’s Questions: a. When state regulations lose the Court‘s DCC balancing test, is it more often because the regulation is a good faith measure whose value simply doesn‘t outweigh the harm it does to interstate commerce, OR because the Court suspects the regulation is a pretext for discrimination? Does the distinction matter? Were Justices Black and Douglas right when they argued that the Pike balancing test lies outside the Court‘s institutional competence and exceeds its constitutional authority?

b. 7.

Information Sources: a. See Casebook at p297-328. b. See Chemerinsky at ???

E. The “Market Participant” Exception to the Dormant Commerce Clause – 10/16/00: 1. Rule: court will defer to state regulations where state is a market participant rather than a regulator. a. The Court‘s concern about detecting parochialism was found inappropriate when the state functioned not as a ―regulator‖ of the market but rather as a market participant. b. The exception applies where state itself produced goods for commerce or where it engaged in a program of subsidies or other economic incentives to aid in state businesses. c. Distinguish between regulating and participating - if state affects the whole market, then it is regulating. Limits of the Market Participant Exception: a. Market must be narrowly defined: exception allows a state to impose burdens on commerce within the market in which it is a participant, but allows it to go no further - state may NOT impose conditions that have a substantial regulatory effect outside of that particular market. Problems: a. How to define ―market‖? b. How to define ―participant‖? Cases: a. South-Central Timber (U.S. 1984) (White) - p323: 1) Facts: Alaska wanted to sell large amount of timber owned by the state—conditioned the sale on in state processing 2) Holding: the state may not avail itself of the market-participant doctrine to immunize its downstream regulation of the timber-processing packet in which it is not a participant. 3) Reasoning: a) ―our cases make clear that if a state is acting as a market participant, rather than as a market regulator, the dormant commerce clause places no limitation on its activities‖ b) ―the market participant doctrine permits a state to influence a discrete identifiable class of economic activity in which it is a major participant‖ 4) Limit: allows a state to impose burdens on commerce within the market in which it is a participant, but allows it to go no further.

2.

3.

4.

56

b.

―simply as a matter of intuition a state market participant has a greater interest as a private trader in the immediate transaction than it has in what its purchaser does with the goods after the state no longer has an interest in them‖ b) State may NOT impose conditions that have a substantial regulatory effect outside of that particular market. 5) Dissent (Rehnquist): Camps Newfoundland (U.S. 1997) - p38 supp. 1) Facts: state attempted to justify its discriminatory property tax under the market participant exception. 2) Holding: court rejects . 3) Reasoning: ―a tax exemption is not the sort of direct state involvement in the market that falls within the market-participant doctrine.‖

a)

5.

Mag’s Questions: a. What is difference b/w a state regulation and participation by the state in the free market? Does the difference depend on what the state intends to do? On what type of power the state exercises? Information Sources: a. See Casebook at p322-28. b. See Supp at 38-39. c. See Chemerinsky at 336-38.

6.

F.

The Privileges and Immunities Clause of Article IV- 10/18/00: 1. Generally: a. Art IV § 2 - Priv & Imm Clause serves as a restraint on state efforts to bar out of staters from access to local resources. b. General rule – a state may discriminate against out-of-staters with regard to the Priv & Imm Clause only if the discrimination is substantially related to a substantial state interest. 1) Discrimination against out-of-state citizens is prerequisite for application of Priv & Imm Clause - as long as there is harm to out-of-state citizens, there is a prima facie evidence of a violation of the Priv & Imm Clause. 2) States can decide what privileges to give to citizens, but must extend the same privileges to all citizens - regardless of what state they are from. c. Summary of Balancing Test: 1) Does state action violate a fundamental right? 2) If yes, does state have a substantial reason for its violation of a fundamental right? a) There must also be a substantial relationship b/w discrimination and state‘s objective. d. Court usually applies Priv & Imm Clause in two types of cases: 1) When state is discriminating against out-of-staters with regard to constitutional rights (now can bring this under 1A via 14A). 2) Majority of cases under this type - when state is discriminating against out-of-staters with regard to important economic activities (usually means in regard to ability to earn a livelihood). Compared to 14A Privileges or Immunities Clause: a. Priv & Imm clause is purely comparative (how does state treat in-state and out-of-state citizens) whereas 14A is about national citizenship rights. b. Both address discrimination by the states. Compared to DCC:

2.

3.

57

a.

There is a mutuality reinforcing relationship between the privileges and immunities clause of Art IV and the Commerce Clause—a relationship that stems in part from their shared vision of federalism. Chart: DCC Any private party (corps and individuals) Based on an implicit constitutional provision to limit state regulatory authority. Interstate commerce. Priv & Imm Clause Individuals only – NOT corps. Grant of an indv right. Does NOT turn on the relationship b/w state and fed govt. Only ―fundamental rights.‖

b.

Topic Who has standing to sue? (or who is protected?) Nature of protection?

What is protected? Congress may consent to state practices that would otherwise be impermissible under the commerce clause, but the privileges and immunities clause is a rights provision, not a grant of authority to congress, and so is arguably non-waivable by Congress. How straight forward is it to prove the violation? Hierarchy from easiest to prove to hardest: (1) DCC – discrimination (facial and effects). (2) Priv & Imm Clause violation. (3) DCC – burden. Is there “market participant” exception? 4. Test: a.

DCC – ―discrimination‖ is easier to prove than Priv & Imm.

Priv & Imm easier to prove than DCC burden.

Yes

No (?) - Maybe

Two-part balancing test: 1) Does state action violate a fundamental right? a) Fundamental right = right that is essential to unity characteristic of the nation. (1) Examples: (a) Right to work. (b) Right to public employment (?) (c) Right to practice law i. S.Ct. of NH v. Piper (U.S. 1985) – p334. (A) Holding: court held that state rule limiting bar admission to state residents violated privileges and immunities clause. (B) Reasoning:  test: ok for state to discriminate when (1) there is a substantial reason for the difference in treatment and (2) the

58

discrimination practiced against nonresidents bears a substantial relationship to the state‘s objective.  in assessing the relationship, the court considered the availability of less restrictive means. (C) Dissent: does not agree with the use of the less restrictive means, but it has been used to strike down other state barriers against non-resident bar admission. (d) Right to personal mobility (?) - Court is sure that it exists, but not sure where it comes from in the Constitution. i. Edwards v. California (U.S. 1941) – p336. (A) Facts: the anti-Okie law. (B) Holding: unconstitutional b/c violates right to travel. (C) Reasoning:  Court used commerce clause analysis as basis for right to travel.  Cites Baldwin - commerce clause prohibition against attempts on the part of any single state to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. (D) Many concurs listing other basis for finding right to free travel:  14A  Priv & Imm  Structure of Constitution ii. Saenz v. Roe (U.S. 1999) - p39supp. (A) Holding: court invalidated a state durational residency requirement limiting new state residents to same level of welfare benefits they would have received in their old state. (B) Reasoning: this discrimination violates the citizenship clause of the 14A. (C) Other: Stevens, in dicta, reaffirms the right of federal citizens to cross state borders freely as set forth in Edwards - ―the right of free ingress and regress to and from neighboring states, which was expressly mentioned in the text of the articles of confederation, may simply have been conceived from the beginning to be a necessary concomitant of the stronger union the constitution created.‖ 2) If yes, does state have a substantial reason for its violation of a fundamental right? a) Substantial relationship also required: there must also be a substantial relationship b/w discrimination and state‘s objective. (1) Example - evil non-residents: state must show that non-residents are the source of evil at which the regulation is aimed. b) Substantial reason examples: (1) ―economic ruin‖ – but how do you prove? (2) Others?

b. 5.

Note: this test reflects balancing test in the area of substantive due process.

Representation Reinforcing Review – Rehnquist v. Blackmun: a. Usually, if there is an effective political fix, court is unlikely to get involved. b. Rehnquist argues there is not adequate political fix here b/c in-state citizens (even if discriminated against) are unlikely to protect interests of out-of-state citizens. c. Blackmun argue the political check is effective. d. Mag agree with Rehnquist b/c there is evidence that other counties in NJ have similar ordinances.

59

6.

Cases: a. United Building & construction v. Camden (U.S. 1984) (Rehnquist) - p329: 1) Facts: city ordinance required 40% of all workers on city projects to be Camden residents. a) This is a locality discrimination case – similar to Dean Milk. 2) Holding: ordinance unconstitutional. a) Right to government employment? Probably not. b) Right to seek private employment? Probably - ―the opportunity to seek employment with such private employers is sufficiently basic to the livelihood of the nation as to fall within the purview of the privileges and immunities clause even though the contractors and subcontractors are themselves engaged in projects funded in whole or part by the city.‖ 3) Reasoning: a) Majority rejects the dormant commerce clause challenge b/c the market participant exception would apply. b) City ordinance must comply with privileges and immunities (even if not passed pursuant to state statute). c) Privileges and immunities clause imposes a direct restraint on state action in the interests of interstate harmony. d) Test: (1) Plaintiff must demonstrate that a fundamental right is being burdened. (2) State can rebut by showing there is a substantial reason for the burden (people being discriminated against are a source of the evil at which the statute is aimed) (a) plaintiff‘s burden: ―the privileges and immunities clause is not an absolute. It does not preclude discrimination against citizens of other state where there is a substantial reason for the difference in treatment. The inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them‖ (b) state‘s rebuttal: ―as part of any justification offered for the discriminatory law, nonresidents must somehow be shown to constitute a peculiar source of the evil at which the statute is aimed‖ 4) Dissent (Blackmun): says there is adequate political check in the system b/c discriminated in-state residents will serves as substitutes for out-of-state residents and protect their interests, thus court should not get involved. a) Counter: because the ordinance was passed pursuant to a state law, it is clear that NJ residents outside of Camden will not protect the interests of out of state residents - in fact, other cities had enacted similar ordinances. Mag’s Questions: a. Assuming Congress has not consented to a state regulation, how can the regulation survive DCC scrutiny but violate the Priv & Imm Clause? b/c violate a fundamental non-economic right. ??? How significant in the Camden case was the fact that the city‘s alleged Priv & Imm Clause violation occurred in the context of municipal contracting rather than regulation? Something to do with market participant exception. What is the proper constitutional derivation of the fundamental right to travel and migrate freely b/w states? Much disagreement.

7.

b.

c. 8.

Information Sources: a. See Casebook at p328-37. b. See Supp at 39. c. See Chemerinsky at 350-58.

60

G. Federal Preemption of and Consent to State Laws - 10/20/00: 1. Preemption - p337-44: a. Generally: 1) Rule: Congress may preempt state regulation if Congress is properly regulating – based on Supremacy Clause (which is mechanism by which preemption works). 2) Types: express, field and conflict. 3) Roots: foundation of this principle is Gibbons v. Ogden. 4) Context: preemption comes into play when both Congress and a state regulate in an area within Congress‘ constitutional authority. a) possible ways to limit state regulatory power from the strongest federal scenario to the strongest state scenario: (1) Federal exclusivity - DCC prohibits state regulation even if federal govt has not acted. (2) Federal preemption of state regulation (Gibbons) - both federal and state can regulate, but Congress makes it express that its regulation takes precedence. (3) Federal consent to state regulation (Cooley?) – Congress waives exclusivity or preemptive effect of negative Commerce Clause – ―cooperative federalism‖. (4) Non-exclusivity - both state and federal governments may regulate – unsuccessful DCC claim. (5) State exclusivity (Lopez) – Commerce Power does not extend to area in question – strong 10A – only state can regulate in this area. 5) Note: if the court identifies an area of traditional state action, the burden is higher to show preemption. 6) Note: if not express preemption, Court‘s ruling probably turns on judicial interpretation of congressional intent. 7) Note: preemption cases usually arise in cases challenging state regulations – P will argue field preemption and in the alternative conflict preemption. Compared to DCC: 1) There is a congressional regulation – Congress has acted – thus, Court will focus on Congress‘ intent/purpose of federal regulation rather than state regulation to determine whether Congress intended to preempt state law. Express: Congress expressly states in law that it preempts all state law regulation in this area. Field Preemption: Congress preempts state regulation b/c there is implied federal occupation of this regulatory field (3 tests). 1) Tests: a) Pervasive federal scheme: Congress‘ intent to supersede sate law altogether may be found from a scheme of federal regulation so pervasive as to make reasonable the inference that congress left no room to supplement it. b) Dominant federal interest: Because the act of congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. c) Object and character of federal law implies preemption: Because the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. (1) This is pretty wishy-washy test. 2) Result: any and all state regulation in this field is preempted. 3) Cases: a) Pacific Gas v. State Energy (U.S. 1983) (White) – p338: (1) Facts: CA statute prohibits construction of new nuclear power plants until they can figure out a way to dispose of the waste.

b.

c. d.

61

4)

(2) Holding: upheld statute as constitutional. (3) Reasoning: (a) Field preemption- no field preemption. i. court finds that Cal. statute regulates economic, not health and safety. ii. court finds congress only regulated health and safety. (b) Conflict preemption #1 - court holds no. i. Argument - federal regulations directly deal with this scheme. ii. Court rejects - says not directly on point, can comply with both statutes. (c) Conflict preemption #2 – court holds no. i. Argument - broad national policy favoring development of nuclear power and CA law conflicts with this by preventing licensing of plant. ii. Court rejects - Congress left sufficient room for states to slow the growth of nuclear power based on economic motives. (4) Concur (Blackmun): state law should still be valid even if state‘s motive was safety. b) Rice v. Santa Fe Elevator (U.S. 1947) - p342: (1) Holding: not apparent. (2) Reasoning: (a) Congress enacted a statute in a field the states have traditionally occupied (grain warehousing practices). (b) Court starts with the presumption that the historic police powers of the states were not to be superseded by the federal act unless that was the clear and manifest purpose of congress. (c) Requires showing of either a pervasive federal schema, or field of dominant federal interest. Notes: a) Court requires a clear showing that Congress meant to occupy a particular field. b) Court has a strong presumption against field preemption in areas of traditionally local concern.

e.

Conflict Preemption: even where Congress has not entirely displaced state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law. 1) Tests: a) Dual compliance is impossible b) State law impedes congressional purpose: where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. 2) Result: only this regulation is preempted, state may try to adopt other regulations that will not be preempted – this is narrower remedy than field preemption. 3) Cases: a) Pacific Gas v. State Energy (U.S. 1983) – p338: see above. b) Hines v. Davidowitz (U.S. 1941) – p343: (1) Holding: law held unconstitutional. (2) Reasoning: where congress has enacted a complete scheme of regulation…states cannot, inconsistently with the purpose of congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. (3) This is not a clear test - determine, under the circumstances of the case, whether the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress. c) Florida Lime v. Paul (U.S. 1963) - p343: (1) Facts: statute imposed minimum regulations for maturity of avocados. (2) Holding: state law upheld as constitutional. (3) Reasoning:

62

d)

e)

(a) Conflict- where compliance with both state and federal law is physical impossibility. (b) ―Federal regulation by means of minimum standards of agriculture commodities, however comprehensive for those purposes of marketing that regulation may be, does not of itself import displacement of state control over the distribution and retail sale of those commodities in the interests of the consumers of the commodities within the state.‖ (c) Federal law set a minimum, not a uniform standard. Gade v. National Solid Waste (U.S. 1992) - p344: (1) Facts: Illinois statute aimed at worker safety and public health. (2) Holding: statute held unconstitutional. (3) Reasoning: stuck down due to conflict preemption (conflict with OSHA which was also aimed only at worker health and safety). (4) Note: plurality found federal scheme pervasive. Crosby v. National Foreign Trade Council (U.S. 2000) – p39supp: (1) Facts: MA law barred state entities from buying goods or services from Burma. (2) Holding: law held unconstitutional. (3) Reasoning: there was already federal law imposing sanctions on Burma and the MA law would be an obstacle to the accomplishment of Congress‘ full objectives under the statute, and due to conflicting means.

f.

Impact of unexercised federal authority: 1) Court has sometimes, but not always, relied on the existence of unexercised federal administrative authority to justify a preemption finding. 2) ―A federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated and in that event would have as much preemptive force as a decision to regulate.‖

2.

Consent - p344-49: a. Rule: Congress may consent to state regulation where it has regulated or where it has the power but has not regulated, thus consent may trump DCC violation. 1) Based on Cooley. 2) Congress can consent to any variety of state legislation impinging on commerce - in the exercise of the national commerce power, it can permit state laws the court would otherwise consider unconstitutional under the DCC. Rationale: 1) DCC is not an immutable, absolute constitutional doctrine BUT only there to protect congressional power. 2) Thus, Congress‘s power is not threatened if Congress consents. Quirk: there may in some cases be an overlap b/w rights protecting doctrines and federalism doctrines in which case rights doctrines trump even if there was consent – see section on Equal Protection below. Types 1) Liquor: a) 21A: the right of a state to prohibit or regulate the importation of intoxicating liquor is not limited by the commerce clause. b) Court has made it clear that the amendment does not bar all commerce clause challenges and does not leave absolute control of liquor traffic to the states. c) Leisy v. Hardin (U.S. 1890) – p345. d) Wilkerson v. Rahrer (U.S. 1891) – p345. 2) Insurance

b.

c.

d.

63

a) b) c) 3.

McCarran Act of 1945 - congress passed it to ensure states retained control over the insurance business. Despite its apparent breadth, the McCarran act is limited in scope: it has been construed as exempting the insurance industry from commerce clause constrictions only, not from other constitutional restraints such as equal protection. Prudential Ins. Co. v. Benjamin (U.S. 1946) – p346.

Equal protection as a limit on state protectionism: a. Whatever the extent of a state‘s authority to exclude foreign corporations from doing business within its boundaries, that authority does not justify imposition of more onerous taxes or other burdens on foreign corporations than those imposed on domestic corporations, unless the discrimination between foreign and domestic bears a rationale relation to a legitimate purpose. b. Metropolitan Life (U.S. 1985) - p348: 1) Holding: statute held unconstitutional - majority rejects state justifications for a tax preference for local insurance companies. 2) Reasoning: a) Court found a discriminatory purpose (favoring in state insurance companies) so refused to apply the McCarran Act. b) Violation of equal protection. 3) Dissent (O‘Connor): both congress and the states agreed to the protectionist measures, this decision threatens the ability of the federal government to formulate economic policy. Other Aspects of Federalism - A Brief Survey - p350-53: a. State Taxation and Free Trade: 1) Even interstate business must pay its way by bearing its share of local tax burdens. 2) States may not impose discriminatory or unduly burdensome taxes. b. Intergovernmental Tax Immunities: 1) Government employees may have their salaries taxed by other government. 2) Federal property immune to state property tax. 3) Modern scope of immunity turns on congressional statements recognizing or waving immunities. 4) State may not tax the United States, or an agency or instrumentality so closely connected to the government that the two cannot realistically be viewed as separate entities. Intergovernmental Regulatory Immunities: 1) Johnson v. Maryland (U.S. 1920) – p352: a) An employee of the United States does not secure a general immunity from state law while acting in the course of his employment. b) The immunity of the instruments of the united states from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer upon examination that they are competent for a necessary part of them and pay a fee for permission to go on. Interstate Relationships: 1) Interstate fugitive from justice: Court interprets constitution to require that states comply with obligations to other states to turn over prisoners; this failure can be remedied by mandamus or injunctive relief in federal courts. 2) Art I § 10 - the compact clause: no state shall, without the consent of the congress, enter into any agreement or compact with another state. a) Virginia v. Tennessee: the compact clause is directed at the formation of any combination that may tend to increase the political influence of the contracting states so as to impair the supremacy of the united states and that there are many matters upon which different states may agree that can in no respect concern the united states.

4.

c.

d.

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5.

Mag’s Questions: a. b. c. How does the Court‘s preemption analysis resemble and differ from its DCC analysis? In particular, what is the place of state legislative intent in each type of analysis? What are the different ways in which Congress may preempt state regulation? Does it make sense that the Court should be able to override a congressional decision to allow a state to discriminate among in-state and out-of-state economic interests if the Court describes the discrimination as a denial of equal protection rather than a DCC violation?

6.

Information Sources: a. See Casebook at p337-53. b. See Supp at 39-42. c. See Chemerinsky at 284-306.

PART IV. THE STRUCTURE OF GOVERNMENT - SEPARATION OF POWERS:

I.

SEPARATION OF POWERS GENERALLY A. Purpose: the doctrine of separation of powers was adopted [not] to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy (p354). B. Elements: 1. Checks and balances - restraints by one branch on another. a. Inevitable Tension: there is an inevitable tension b/w separation of powers doctrines and checks and balances doctrines b/c every check is an invitation to encroach on another branch‘s power. 2. Blurred boundary lines between areas of power. C. Formal and functional approaches: there is continued debate over whether Art II was intended to grant inherent powers or only those enumerated in Constitution – there is ample evidence for both sides in Framers‘ intent and historical evidence. D. Generally two kinds of separation of powers problems: 1. Power grab. 2. Power give-away. E. Judiciary:

65

1. F.

Judicial review.

Congress: 1. Legislate 2. Veto override 3. Confirm/reject appointments 4. Impeach 5. Propose constitutional amendments 6. Exceptions clause

G. President (executive): 1. Nominates judges. 2. Vetoes legislation. 3. Greater political mandate.

II. EXECUTIVE AUTHORITY V. LEGISLATIVE POWER – 10/23/00 A. Generally: 1. Choice of approach used is crucial in determining analysis. B. Compared to Federalism: Mag says there is arguably more at stake when Court is involved in federalism disputes. 1) In federalism analysis, Court is determining whether federal govt has any power at all whereas in separation of power analysis, Court assumes that federal govt has power, Court just has to decide which branch has that specific power. C. ??? Current Approach – Justice Jackson‘s concurrence as altered by Dames & Moore - continuum: 1. Prez‘s conduct will be found constitutional if he . . . 2. Express or implied statutory authorization. 3. Congressional silence. 4. Negative expressed or implied congressional will. D. Cases: 1. Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case) (U.S. 1952) (Black) – p356: a. b. c. d. Facts: steel mills strike during Korean war, prez orders Secretary of Commerce to take possession and control of steel mills. Issue: whether prez acted within his constitutional power? Can prez act without express constitutional or statutory authority? Holding: prez did not act within his constitutional powers. Reasoning (Black) - formal: 1) Premise: prez needs some affirmative grant of authority. a) There are only two sources of prez authority: (1) Statutory authority – on these facts, legislative history shows Congress thought about giving prez this power but decided not to, thus no statutory authorization.

66

2) 3) e.

(2) Constitutional authority – on these facts, Court found (a) Court reluctant to give broad reading to war power – this would be uncomfortable extension of prez‘s domestic policy powers. (b) ??? ―Take care clause‖ is specific grant of authority that denies action in this situation. (c) ??? There is no evidence in Constitution‘s structure that there is independent grant of power for prez to make the laws. b) If prez does not have either of these affirmative sources of authority, then he is acting unconstitutionally. Therefore, there is no affirmative authority on these facts and prez acted unconstitutionally. Note: Black applies strong presumption against presidential power

Concur (Frankfurter) – more functional: 1) Finding: prez‘s act was unconstitutional b/c there was evidence of negative express/implied congressional will. 2) Reasoning: a) Assuming congressional silence, he would uphold presidential action if legislative history points toward it. b) Looks to nature of action - if temporary and conditioned on subsequent congressional approval (and history), he would approve. c) Wants to maintain some safeguards against prez tyranny. Concur (Jackson) – this is approach adopted in later opinions - functional: 1) Finding: prez‘s act was unconstitutional b/c there was evidence of negative express/implied congressional will. 2) Reasoning - there are three categories of prez action: a) Express or implied statutory authorization: (1) Standard = almost a presumption that prez‘s action was constitution. b) Congressional silence: (1) ??? Standard = flexible test c) Negative express or implied congressional will: (1) Standard = will be very hard to prove prez‘s action was constitutional. 3) Note: what is scope of this analysis – only to domestic affairs? Comparison Chart: Majority Concur – Frankfurter No Concur-Jackson No

f.

g.

Is affirmative authorization required for prez to act? If there is express or implied constitutional authorization, can prez act? If there is express or implied statutory authorization, can prez act? If there is congressional silence, can prez act? If there is negative express or implied congressional will, can prez act?

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

Yes

Yes

No

No

No

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h. i. 2.

Dissent (Vinson) – most functional: argue for look at context of prez‘s actions and decide from there whether within Constitution – seems to open door to inherent powers. Note: how valid is it to use negative implications – couldn‘t there be other reasons for Congress is not giving prez this power.

Dames & Moore v. Regan (U.S. 1981) (Rehnquist) – p367: a. Facts: prez signs executive agreement with 3 provisions. 3rd provision is questioned - it provides that jurisdiction is removed from US courts to hear claims against Iran. Cases are sent to arbitration at The Hague. 1) Under US v. Pink, presidential agreements have a similar dignity as treaties. 2) Under US v. Belmont, executive agreement takes precedence over conflicting state policy. b. Holding: president authorized to suspend claims. 1) Test: past practice that is long continued, known to and acquiesced in by congress would raise a presumption that the action had been taken in pursuance of its consent (p. 370). Reasoning: 1) No contrary indication of legislative intent. 2) History of congressional acquiescence in conduct of the sort engaged in by the president: a) ―crucial to our decision today is the conclusion that Congress has implicitly approved the practice of claim settlement by executive agreement.‖ 3) Agreement provided for an alternative forum for settlement of the claims, thus there was still a forum available for relief. Note: Rehnquist turns Jackson‘s 3 factors into a continuum: 1) Court will look to accumulation of all factors to approve action. 2) Appears to be a broad holding, but is really quite narrow; subsequently, courts have held there is NO PREZ AUTHORITY if any one of the factors is missing. 3) factors: a) Implied congressional approval. b) Common historical practice (which Congress has authorized in the past). c) Court precedents approving similar prez conduct. d) What is scope and effect of prez‘s actions? e) Congress has not subsequently disapproved of prez agreement. f) Importance, necessity of prez action. Note: this is a case-by-case approach. Note: Court left itself lots of WIGGLE ROOM – not doctrinally or methodologically boxed in.

c.

d.

e. f.

E. President, Congress and the Use of Armed Forces - War Powers – p371: 1. War Powers Resolution of 1973 attempts to limit prez power to involve US troops in conflicts. 2. ―In large measure, the tale of the resolution has been a tale of congressional spinelessness.‖ F. Mag’s Questions: 1. How does Justice Black‘s approach in Steel Seizure Case differ from Justice Jackson‘s approach? Why does the difference matter?

68

2. 3.

Which dimension of the diffusion of governmental authority are courts better equipped to enforce – federalism or separation of powers? Both? Neither? Would the Court decide the Steel Seizure Case the same way after Dames & Moore? Would the case be closer?

G. Information Sources: 1. See Casebook at 354-75. 2. See Chemerinsky at 234-78.

III. CONGRESSIONAL ENCROACHMENTS ON THE EXECUTIVE DOMAIN I - 10/25/00 A. Generally: 1. In cases where Congress is trying to take power from the Executive Branch, these cases show the complexity of the modern administrative state and bring home the question of whether a formalistic or functional approach is better. a. Legislative branch has changed little since constitution. b. Executive branch has changed lots - sprouted lots of little agencies. 2. Oddity: the interesting thing about Chadha and Bowsher is that the branch who‘s power is being grabbed is defending the power grab. a. Thus, this shows the tension b/w the Court and both political branches and begs the questions – is the separation of powers principle so important that the Court should impose it even when both branches agree to a power sharing arrangement (with the purpose of having a well-functioning government)? Types of agencies: a. Executive agency: president appoints head of agency (e.g. secretary of labor) - direct arm of president - head approved by senate, member of cabinet. b. Independent agency: serves term of years, NOT cabinet member - this is hybrid (outside of immediate control of president or congress). Constitutional provisions/ ideas - Art I, § 7(2) - ―Every bill which shall have passed the house of Representatives and Senate, shall, before it become a law, be presented to the president of the united states‖: a. Bicameralism - must pass through both houses b. Presentment - president must sign or veto legislation.

3.

4.

B. Legislative Vetoes: see Chemerinsky at 238-42. 1. Rule: legislative vetoes are unconstitutional. a. Court has also found 2-house vetoes unconstitutional – see US Senate v. FTC (U.S. 1983) – p382. 2. Rationale: a. Bicamerialsim: not really that important since 2 house vetoes also unconstitutional. b. Presentment: this is real reason.

69

3.

Argument for legislative vetoes: a. Presentment clause is just procedural – if you have a legislative veto with 2/3 requirement it is substantively the same as presentment. 1) Response: the presentment procedure is not just symbolic - it has value independent of its process – political dynamics will be different if the prez vetoes a bill (may require Congress to build public support). b. Justice White: you are putting legislature Hobson‘s choice – legislature has to delegate to be effective, it is merely trying to have some assurance that the delegation of its power is consistent with its policy. Cases: a. INS v. Chadha (U.S. 1983) (CJ Burger) – p375: 1) Facts: immigration act authorized one house of congress to invalidate the decision of the executive branch (attorney general). 2) Holding: statute is unconstitutional. 3) Reasoning: a) Bicameralism - allows veto by one house. b) Presentment - allows congress to act without check by president (1) Idea of power sharing - if president vetoes, it might take more political power for the congress to pass over the veto. c) Legislative veto alters rights and therefore must go through legislative process (1) Not all actions of Congress are subject to bicameralism and presentment: (a) Depends on whether they contain matter which is properly to be regarded as legislative in its character and effect. (b) ―The house took action that had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch.‖ d) 4 times Congress can act alone - expressly in Constitution: (1) House can initiate impeachments. (2) Senate conduct trial on impeachments. (3) Senate‘s power over presidential appointments. (4) Senate‘s power to ratify treaties. 4) Concur (Powell): wants narrower interpretation. 5) Dissent (White): argues for legislative veto power – Hobson‘s choice. a) By denying congress the legislative veto, court gives executive branch law making power. b) Congress should be more careful in delegating its power. c) Both branches agreed to statutory scheme and it is efficient. (1) Majority says just because 2 branches agree does not make it constitutional.

4.

C. Line Item Veto: 1. Background: a. Can prez refuse to spend funds appropriated by Congress – whether or not prez does have this power depends upon whether it is raised under statutory or inherent constitutional authority. b. Seems to present some constitutional problems. 2. Cases: Clinton v. NY (U.S. 1998) (Stevens) – p42supp a. Facts: Line Item Veto Act of 1996. b. Holding: statute is unconstitutional. c. Reasoning: 1) Majority takes a formalist approach – constitutional silence. 2) Statute not proper because a bill that becomes law must be identical to the one that Congress passed. 3) If this is to be done, must be by constitutional amendment. d. Concur (Kennedy)

70

e.

f.

Concur/dissent (Scalia) - functionalist: 1) Seems to focus on timing. 2) Non-delegation restricts the ability of congress to delegate authority. 3) This bill delegates authority to president to shape legislation. 4) In this case it is ok, since the president is just deciding not to spend money. Dissent (Breyer): argues for a functional approach.

D. Removal Power: see Chemerinsky at 238-42. 1. Cases: a. Bowsher v. Synar (U.S. 1986) (CJ Burger) – p385: 1) Facts: congress attempts to balance the budget. a) Gives power to comptroller general to tinker with legislation after it leaves congress and before the president gets it. b) Comptroller general appointed for 10 year term (independent agency), BUT, he can be removed by congress. 2) Holding: statute held unconstitutional - Congress cannot give itself the power to remove executive officers. 3) Reasoning: a) Majority makes analogy to congressional veto. b) Once a bill leaves congress, it should be out of their hands, subject only to future indirect control by congress. 4) ??? Dissent (White) – Mag asks if White is barking up wrong tree?: a) Takes a realist approach. b) It would be far too great a political cost for congress to impeach the comptroller general, so it is not going to happen: (1) Response: the likelihood of comptroller general being removed is unconstitutional and the possibility alone is enough to strike down the act. c) But the president can veto the removal of comptroller general just like any other legislation. (1) Response: that would entail a political cost to the president. 5) Note: functionalist view of the world: a) If congress can give states power that would otherwise belong to congress, then why can‘t it give power to another branch of the federal government. b) Response: perhaps because it lessens the ―check‖ and creates long term problems (like when it wants the power back).

E. Mag’s Questions: 1. 2. 3. Did the Court in INS v. Chadha give the Executive Branch too much freedom from congressional oversight? Why or why not? What are the relative advantages and disadvantages of the formalistic approach articulated by the Court in Bowsher v. Synar and the functional approach of the dissent? Is there a meaningful constitutional difference b/w Congress‘ giving the President discretionary spending authority and empowering the President to remove certain spending provisions from statutes? ??? ACG Question – how do these three cases fit together?

4. F.

Information Sources: 1. See Casebook at 375-89. 2. See Supplement at 42-48.

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3.

See Chemerinsky at 338-42.

IV. CONGRESSIONAL ENCROACHMENTS ON THE EXECUTIVE DOMAIN II – 10/27/00 A. Generally: 1. Appointments clause - Art II § 2(2): ―he shall nominate, and by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court and all other officers of the united states, whose appointments are not herein otherwise provided for, and which shall be established by law.‖ a. Inferior Officer Exception: “congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.‖ b. How do you distinguish b/w officers of the US and inferior officers? Much confusion in this area. ??? Current Rules: a. Prez has power to remove executive officials. b. Congress may limit prez‘s power if it is an office where independence from the prez is desirable. c. Congress cannot completely prohibit all removal. d. Congress cannot give the removal power to itself (other than by exercise impeachment power). ??? How to set up analysis?

2. 3.

4.

B. Background on the Power to Appoint and Remove Subordinates: 1. Power to Appoint: a. Buckley v. Valeo (U.S. 1976) – p390 – Congress cannot give the appointment power to itself or its officers: Power to Remove: a. No express Constitutional provision regarding prez power to remove executive branch officials. b. Myers v. US (U.S. 1926) - p391 – any congressional limits on the removal power are unconstitutional: 1) Holding: act was unconstitutional. a) Court held unconstitutional a legislative provision that certain groups of postmasters could not be removed by the president without the consent of the senate. 2) Reasoning: ―power to remove is incident to power to appoint.‖ 3) Note: majority adopted an expansive reading of executive powers under Art. II - this was unconstitutional restriction on the presidential control over executive personnel. Humphrey‘s Executor v. US (U.S. 1935) – p391 – Congress for some officers and under some circumstances, limit the removal power: 1) Holding: statute upheld as constitutional – a) Congress could limit prez‘s power of removal - president could not remove a member of an independent regulatory agency in defiance of restrictions in the statutory framework. 2) Reasoning: FCC not an arm of executive branch, therefore, president can not control.

2.

c.

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3)

Note: Court curtailed some of its implications and distinguished Myers saying it only stands for ―the unrestrictable power of the president to remove purely executive officers‖ – thus Myers limited to purely executive officers. a) Sets up functional distinction b/w officers and individuals in independent agencies.

d.

Wiener v. US (U.S. 1958) – p391 – even without a statutory limit on removal, prez could not remove executive officers where independence from the prez was desirable: 1) Facts: involves removal of member of war claims commission a) This statute, unlike the one in Humphrey‘s Executor, did not specify anything about removal. 2) Holding: applied the Humphrey‘s rule and found the removal illegal. 3) Reasoning: a) Test for officers who were not purely executive: power to remove existed only if congress may fairly be said to have conferred it. b) Court emphasized that Commission‘s function was ―of an intrinsic judicial character‖ and held removal illegal. Bowhser v. Synar (U.S. 1986) – p385 – Congress cannot give itself the power to remove executive officials (with the exception of the impeachment process): 1) This case involved an underlying concern about the properness of the appointment; viewed as an inappropriate congressional limitation on prez‘s appointment power. 2) ??? What is Bowsher‘s role in this thing?

e.

C. Cases on both the appointment and removal power: 1. Morrison v. Olson (U.S. 1988) (CJ Rehnquist) - p391 – represents a ―flexible and functional‖ approach – upholds limits on prez‘s ability to remove independent counsel: a. Facts: Ethics in Government Act (response to Sat night massacre) - authorizes appointment of independent counsel to investigate and prosecute high ranking government officials for criminal violations. 1) Attorney general, after receiving sufficient info to start investigation, investigates and reports whether she thinks there are reasonable grounds to prosecute—then seeks appointment of independent counsel from judiciary. 2) Traditionally, prosecutor was quintessential executive official – now this statute gives Congress (in a BIG way) the power to interfere with prez‘s ability to perform his duties. b. Issues: 1) Is there a problem with this statute b/c there is appointment by judicial branch? No. 2) Is there a problem with this statute b/c it limits the executive branch‘s discretion to remove? No. 3) Does the provision as a whole interferes with prez authority? No. Holding: act is held constitutional - provisions of the act do not violate appointments clause or limitations of Art III, nor do they impermissibly interfere with the president‘s Art. II authority in violation of separation of powers. Reasoning: 1) Appointment provision: court appoints officer - what is nature of officer? If inferior, ok for court to appoint. If not inferior, then president must appoint. a) Majority: officer is inferior - temporary, tenure limited, power constrained, supervised by judiciary panel. b) Dissent: officer not inferior - not subordinate to anyone, power not constrained has power to investigate. 2) Removal power: a) Attorney general - authorized to remove, but only ―for cause‖, NOT at will – therefore no violation.

c.

d.

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3)

Interference with prez‘s authority - finds that the removal provision does not sufficiently deprive the president of control over the independent counsel as to interfere impermissibly with his constitutional obligation to ensure execution of laws.

e. f. Issue Style

Dissent (Scalia): follows formal approach. Chart: Majority (Rehnquist) Functional Finds appointment by judicial branch is okay b/c these are ―inferior officers‖ – focuses on functional aspects of the independent counsel position. Dissent (Scalia) Formal Finds that all three issues are constitutionally problematic b/c ―all‖ executive power is vested in the president – not just ―some‖. Does not care if the political check fails, because it is the only legitimate check and if states don‘t take action through voters, so be it. Majority does not reply. Why didn‘t majority raise argument about checks and balances Uses Federalist #51 to find that all three issues are constitutionally problematic. Finds that Framers placed great important on the separation of powers, did not want any concentration of power. Relies on Bowsher.

Text

Original Intent of Framers

Relies on Humphrey‘s Executor and Wiener. Backs off from distinction b/w legislative and executive functions and instead focuses on whether limitation on prez‘s removal authority interferes with his ability to executive his duties. Distinguishes Bowsher by saying prez did not have primary authority to remove in that case, whereas in Humphrey‘s prez did. Majority does not see to use. ??? Does seem to give broad construction to separation of powers doctrine. (1) No interference with presidential authority. (2) No judicial control over function of independent counsel. (3) Congress not making a power grab. Statutory interpretation (appointment by judicial branch).

??? Precedent

Individual liberty is what is protected by the separation of powers (but this is double-edged argument).

Constitutional Structure

Bonus Points g.

How to write a persuasive opinion: these opinions are a great example of how to do constitutional interpretation.

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1) 2)

3) 2.

Start with the text: Look at extrinsic sources of original intent: a) Constitutional Convention debates. b) Ratification Debate. c) Convention Record. d) Contemporaneous writings (Federalist). Then continue to move out.

Metropolitan Washington Airports (U.S. 1991) - p398: resumption of the formal, rigid interpretation of separation of powers doctrine. a. Facts: Congress conditioned the airport‘s transfer on the creation of the BD of Review. b. Holding: act held unconstitutional - separation of powers applies even though the board in question was created by state law and was not an arm of congress. c. Reasoning: 1) To prevent encroachment, there are two limits: a) If power of board is executive, the constitution does not permit an agent of congress to exercise it (Bowsher). b) If the power is legislative, congress must exercise it in conformity with the bicameralism and presentment requirements set forth in Chadha. d. Dissent (White): argues for functional approach. 1) Neither Bowsher nor Chadha support this result. 2) Congress needs to have flexibility. 3) Executive can protect its power via the veto power.

D. Delegation of Legislative Powers by Congress 1. Delegation of legislative powers to the executive branch: a. Rule: Congress may not constitutionally delegate its legislative power to another branch of government. 1) Generally, the doctrine places a limit on Congress‘ ability to delegate. 2) Slight Exception: if Congress is going to delegate its power, it must provide intelligible principles as to how to carry out Congress purpose and conform with its policy - ―so long as congress lays down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform, such legislative action is not a forbidden delegation of legislative power‖ ( Touby v. US (U.S. 1991) – p399). b. Early Caselaw: only two cases where Court has found violation of non-delegation doctrine: 1) Schechter (U.S. 1935) – p178. 2) Panama Ref. Co. (U.S. 1935) – p400. c. Toothless: the doctrine used to be toothless, now gaining some bite – especially considering Browner Clean Air case S.Ct. just heard on Nov 7, 2000. d. Current Use: rise of the administrative state has made delegation essential. e. Note: Non-delegation doctrine cases do not involve conflict between president and congress, instead, the charge is of excessive harmony between branches—congress has given executive branch too much legislative power. Delegation of legislative power to the judicial branch: a. Mistretta v. US (U.S. 1989) – p400: 1) Issue: Congress improperly delegated its power to the judiciary in the Sentencing Guidelines? 2) Holding: delegation proper. 3) Reasoning: a) Non-delegation claim: Court found that Congress laid out sufficient guidelines (intelligible principles). b) Separation of powers claim: Constitution allows for some commingling, just not encroachment or aggradation.

2.

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4) 3. 4.

Test: delegation to judiciary will be valid as long as Congress has not vested the Commission with powers that are more appropriately performed by the other branches or that undermine the integrity of the judiciary. Dissent (Scalia): argues for a formal approach – says USSG is pure delegation of legislative power - this creates a junior varsity congress.

c)

Non-delegation doctrine is very weak in foreign affairs (p403). a. U.S. v. Curtiss-Wright Export Corp. (U.S. 1936) – p403. ACG question – isn’t intelligible principles evidence of micromanaging?

E. Mag’s Questions: 1. 2. ??? Can the results in Morrison v. Olson and Mistretta v. US be reconciled with the results in Chadha, Bowsher and Clinton v. NY? How do the majority and dissenting opinions in Morrison employ text, extra-textual evidence of original intent, constitutional structure, precedent, and other factors in supporting their arguments? Which opinion uses each of these interpretative tools more persuasively? Which method of distinguishing the three branches‘ powers leads to a more defensible result in Morrison – the categorical distinctions favored by Justice Scalia or the balancing approach favored by the Court?

3.

F.

Information Sources: 1. See Casebook at 389-404. 2. See Chemerinsky at 250-58.

V. EXECUTIVE PRIVLEDGES AND IMMUNITIES – 10/30/00 A. Generally: 1. Issue: to what extent do we want the prez to be shielded from liability and what is the reason for that shield? B. Executive Privilege: 1. 2. Rule: a. ??? Prez does not have absolute immunity from compliance with criminal proceedings. US v. Nixon (U.S. 1974) (CJ Burger) – p404: a. Facts: case arises over Nixon‘s involvement in Watergate scandal. 1) Nixon makes 3 arguments: a) Separation of powers: prez gets to decide scope of executive privilege. b) Confidentiality concerns: prez has absolute immunity – needs to be able to get frank advice. c) Qualified privilege: if not absolutely immune, then balance should be struck in favor of presidential immunity. Holding:

b.

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1) 2) 3) 4) c.

Separation of powers: Nixon argues that prez gets to decide scope of executive privilege – Court rejects and holds that judiciary, not prez, gets to decide scope of executive privilege. Confidentiality concerns: Nixon argues that prez has absolute immunity - Court rejects and holds that executive privilege is NOT absolute; it must yield when there are important countervailing interests. Qualified privilege: Nixon argues that Court balance should be struck in favor of presidential immunity – Court accepts this argument. Other: Court held executive privilege is an inherent prez power.

Reasoning: 1) Separation of powers: judiciary, not the prez, gets to decide scope of executive privilege. a) Court relies on Marbury (functional decision) - can‘t allow executive branch to determine scope of its own power (fox guarding hen house). b) Absolute privilege would interfere with the judiciary‘s ability to perform its constitutional function – thus encroach on judicial branch. c) Was court right about this? 2) Confidentiality concerns: prez does NOT have absolute immunity b/c: a) There is a countervailing interest in criminal justice. (1) In this case, there are 2 conflicting interests: (a) protect president from too much interference. (b) prevent that from going too far. (2) In this case, the need for evidence at a criminal trial outweighed executive privilege - ―When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.‖ b) Court can handle the sensitivity issues by doing in-camera review. (1) Trust the court premise: this analysis presumes that the court can be trusted to be non-politically motivated – is this trust misplaced? 3) Qualified privilege: if not absolutely immune, then balance should be struck in favor of presidential immunity - Court accepts this argument and places certain ―safeguards‖ on the process. a) Are these safeguards enough?

d.

Analytical Process: 1) If the court requests information and the president claims privilege, then the court must honor a presumption of immunity. 2) The court can rebut the presumption - special prosecutor to demonstrate that the presidential material was essential to the justice of the pending criminal case. Bottom Line: prez loses – is this enough protection?

e. 3.

Nixon v. Administrator (U.S. 1977) – p411 congressional power over presidential papers: a. Facts: b. Holding: c. Reasoning: d. Dissent (Burger): found a violation of separation of powers for 3 reasons: 1) Congressional coercion of prez. 2) Act = exercise of executive power by the legislative branch. 3) Act worked a sweeping modification of constitutional privilege and confidentiality. e. Other:

C. Civil Immunity:

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Rule: a. Prez has absolute immunity for perpetuity for his official (legal?) conduct – if it is illegal is it automatically unofficial? 1) Prez has absolute immunity from civil liability. b. Prez does not have absolute immunity while in office for his unofficial conduct. c. ??? does whether the lawsuit is criminal or civil have any impact. Nixon v. Fitzgerald (U.S. 1982) – p408: a. Holding: prez is absolutely immune from civil damages liability for his official conduct. 1) At least in the absence of explicit affirmative action by congress. b. Reasoning: 1) ―Distraction‖ Rationale: a) Prez will be a popular target for these lawsuits. b) Prez needs to have candid discussions with staff members. 2) ―Decision-making‖ Rationale: c) Unique status of prez – need to protect integrity of presidential decision making. d) Prez needs to have informed, candid decisions – these decisions should be shielded from intrusions b/c such intrusions will effect the substance of the decision. 3) There are other checks on prez a) Impeachment: Congress still has the ability to impeach the president. b) Non-constitutional checks: the press, etc. c. Dissent (White): argues for a functional approach to determining prez immunity - Court rejects White‘s functional test - prez should not fear liability down the line for acts when in office. d. Chart: Term of Immunity During Perpetual Unofficial Conduct Extent of Immunity Official Conduct ―distraction‖ rationale ―decision-making‖ rationale both rationales e. Mag’s Comment: neither rationale actually justifies the result here – hence, the empty upper right square.

2.

3.

Clinton v. Jones (U.S. 1997) (Stevens) – p49supp: a. Facts: act in question involves unofficial conduct – prez wants stay of suit until out of office – prez relies on distraction argument. b. Holding: the doctrine of separation of powers does not require federal courts to stay all private civil actions against the president until he leaves office. c. Reasoning: 1) Court focuses on ―decision-making‖ rationale and rejects prez‘s distraction rationale – Court finds this case will not affect Clinton‘s decision-making ability and thus, the case can proceed. 2) Rule: it is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the president of the United States. 3) Court dismisses concern over vexatious litigation by saying that those claims will be dismissed at the pleadings stage. d. Concur (Breyer): seems to argue for a more functional approach. e. Other: in this case, there is a clear distinction b/w official and unofficial conduct, there was no such clear distinction in the Nixon v. Fitzwater case.

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Other: Court was wrong about distraction, this clearly impacted prez‘s ability to do his job – BUT Court‘s real reliance was on decision-making – BUT didn‘t this affect his decisionmaking abilities as well.

D. Legislative Immunity - p413: 1. Rule: members of congress can rely on Art I, § 6, which states that senators and representatives shall not be questioned in any other place for any speech or debate in either house. a. Limit: immunity only for legislative acts. 2. Purpose: assure that legislators will not be hauled into court to defend their behavior in exercising their legislative functions and to safeguard against the risk that open debate in congress will be inhibited by judicial scrutiny. 3. Compare to prez immunity: there is nothing in the Constitution about an executive privileged or immunity, E. Mag’s Questions: 1. Which of Prez Nixon‘s arguments in US v. Nixon had broader constitutional implications – the argument that the prez should define the scope of the executive privilege or the argument that the prez was absolutely immune from judicial process? In US v. Nixon, the Court rejected the prez‘s claim of executive privilege b/c of the nature of the information he sought to protect. In Nixon v. Fitzwater the Court accorded the prez absolute civil immunity rather than analyzing the nature of the action for which the prez sought immunity. Are the Court‘s approaches in these two cases consistent? We now know that the Court in Clinton v. Jones was incorrect in its predictive judgment that private civil litigation would not divert the prez‘s energy from his official duties. Was the case incorrectly decided?

2.

3.

F.

Information Sources: 1. See Casebook at 404-13. 2. See Supp at 49-56. 3. See Chemerinsky at 258-66.

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