The Judicial Function in Constitutional Cases by mifei



A. The Establishment of Judicial Review: Marbury v. Madison (1803) → Supreme Court is the Final Arbiter of what is Constitutional through the Process of Judicial Review (i.e. determining whether the law is constitutional) 1. Case History and Background Information a. History of Judicial Review (1) In England, Parliament is the final decision make – there is no concept of judicial review (2) At 1st in the colonial US, there was a tendency to place enormous power in the legislative branch due to a fear of the King and judiciary (non-elected), thought was that judicial issues would be decided by the upper branch (3) Backlash against this – legislators were self oriented and very democratic (e.g. forgiving debts) in post Declaration of Independence US, there had to be a check on the legislature so that no one branch dominates (4) Judiciary would be the one to decide if the legislature acted in a way inconsistent with the organic nature of the gov‟t i.e. the Constitution thus judiciary decides constitutionality b. 2 Camps at Discord (1) Split between the Federalists and the Republicans/Jeffersonians – had different concepts on how the gov‟t should function (a) Federalists: strong central rights (b) Jeffersonians: stronger state‟s rights, decentralized democracy (2) Alien & Sedition Act: Federalists make it a crime to criticize the gov‟t - can‟t speak badly of the government or jail and fines (a) Jeffersonians upset, wanted it to be declared unconstitutional, were ready to adopt the concept of judicial review of constitutionality, feel that they have a more of a chance with the judiciary (more independent, life tenure, don‟t have to be re-elected, can‟t lower salary) (3) Jefferson elected president in 1800 by Congress – Burr & Jefferson got the same amount of electoral votes, thrown in HoR who elect Jefferson and takes office on 3/4/1801 c Instant Case History (1) Marshall becomes Chief Justice in 2/1801 and had also signed Marbury‟s commission in question in the case while he was also Secretary of State (2) President Adams on the way out goes to work in 2/1801 (a) Midnight Judges Act: reduces SC size from 6 judges to 5 to prevent Jefferson from filling empty slot (b) Organic Act of DC: appoints 16 circuit court judges name throughout February , which really ticks off Jefferson (3) John Marshall and his brother James craft the commissions for the new judges; did it all night but told by Jefferson that they had to stop at midnight on 3/4/1801 (4) The Plaintiff judges had been nominated and confirmed, but they did not have their commissions delivered in time d. Procedural Context (1) Marbury thinks that he should be a judge; Jefferson disagrees

2 (2) Marbury takes the case directly to the SC (a) § 13 of the Midnight Judges Act afforded original jurisdiction to the SC to issue a writ of mandamus to person holding office to deliver the commission (b) Note: Original jurisdiction means that its possible to have a trial in front of the 9 SC justices (1 appointed as a master) (3) Conflict of Interest? – Marshall had signed the commission and now had to decide the case; also James Marshall had filed an affidavit essentially saying that he was a witness e. Jeffersonian Press on the Federalists – Marshall Under Great Pressure (1) Jeffersonian take over Congress and now are against the notion of judicial review since it‟s the only branch that they don‟t control (2) Impeachment of Federalist Justices - Pickering of NH (alcoholism=high crimes and misdemeanors), wanted to impeach 5 SC justices (3) Repealed Midnight Judges Act - dumped 16 justices and decided that there should be 6 SC justices (4) Canceled the 1802 SC session – Marbury was brought in 1801 and decided in 1803 (5) SC issues show cause order to Madison (now Sec. of State) to ask why its not a mistake; he just doesn‟t bother to show up 2. Marshall‟s Holding: Constitution is Supreme and Invalidates Conflicting/Contradictory Action [he goes about this in an indirect manner] a. Does Marbury have a right to the commission? – Yes, when the commission is signed the appointment is made b. Does Marbury have a remedy? – Yes (1) Political Act? – If delivering/withholding the commission is a discretionary, political act then there is no remedy; based on the Constitution the judiciary won‟t get involved in executive discretion because the judiciary doesn‟t want to intrude on their rights (2) No Discretion Involved - discretion already exercised by the nomination and confirmation of the candidate; right accrued - executive has no discretion to withhold it now (3) Mandamus (judicial order to take an affirmative act) is the proper remedy c. Can the Court Issue It? – No, Original Jurisdiction under the Judiciary Act of 1789 in Unconstitutional (1) § 13 of the Judiciary Act of 1789 states that the SC can issue a mandamus to persons holding office through original jurisdiction w/o going to any lower court first (a) Marshall‟s interpretation is questionable (he stuck the rabbit in the hat) (b) Marshall thinks that Jefferson is wrong but at the same time he is setting it up to rule in Jefferson‟s favor because he doesn‟t want to interfere with the executive (2) Constitution specifically delineates SC‟s original jurisdiction; The Judiciary Act of 1789 is expanding the SC‟s original jurisdiction to add things not originally there; therefore the act is contradictory d. Can the Court Void the Law? – Yes, the Constitution is Superior in Nature and Conflicting Congressional Action is Invalidated (Last Word) (1) Justification for Constitution‟s Supremacy

3 (a) Oaths to Constitution – judges take oaths to uphold the Constitution; it would be immoral if they took an oath but then ruled in favor of conflicting law (b) Specific examples in the Constitution where change is not permitted – treason, tariffs, taxes (c) Article VI in stating the “supreme law of the land” mentions the Constitution first; so it ranks over all other laws made in pursuance 3. Main Point: Marbury v. Madison establishes the concept that the Supreme Court is the final arbiter of what is constitutional through judicial review – “it is emphatically the province and duty of the judicial department to say what the law is” a. Bottom Line - Unless constitutionally amended or the SC later reverses itself, that‟s it when the SC speaks (1) Statute can‟t overturn a constitutional ruling - Dickerson (2000) - 1968 statute couldn‟t overturn Miranda warning which is a constitutional rule c. Pragmatic Constraint – SC does not have an army to enforce its decisions; if its decision is not followed then its tough for the court to enforce it (2) Cooper (1958) – Eisenhower had to federalize the AR national guard d. Justification for SC as Final Arbiter (1) by nature of written Constitution (2) historical argument - legislative abuses of power 4. **Highlights Of Marbury v. Madison** a. Rules in Jefferson/Madison‟s favor by not requiring delivery of the commission but at the same time says that they are wrong (Marbury could go to a district court) b. Establishes the Doctrine of Judicial Review – Marshall previously was powerless but now has power w/o doing anything c. Illustrates concern over Exercising Affirmative Authority – SC relies on their prestige in a tight & restrictive way since they don‟t have an army to enforce their rulings d. Notes that the Executive Branch has some degree of Unreviewable Discretion (but delivery of the commission was not discretionary) 5. Presidential Thoughts on Judicial Review a. Reflex is to abide by SC decisions, but practically they have no police force so they don‟t want the president to turn on them since they have no way to back it up (1) When Warren Court decided the revolutionary Miranda case, people wanted to impeach Warren and replace him with a textualist b. Presidents have questioned SC‟s role as final arbiter of the Constitution (1) Nixon – SC can decide what they want but I don‟t have to listen to it (2) Linclon – SC decisions are binding in the instant case, but the rules may change c. Professor Greenberger‟s take (1) SC can rule and a party may have to do something, but you can still say that the ruling is wrong (2) If a later case involves facts that are even slightly distinguishable, don‟t ignore the court, but go back to the court with new, different facts (Roosevelt on Gold Clause) (3) SC also can overrule itself (Plessy v. Ferguson) B. Authority to Review State Court Judgments 1. SC Can Review State Court Decisions If It Involves Federal Law Interpretations (Constitution, Fed. Statutes, Treaties); State Is Supreme On State Law Issues

4 a. Martin v. Hunter‟s Lessee (1816) – VA took land in 1783 under state law, under treaty (federal law) the land was found not to be seizable, Marshall recused himself in this situation because of his contract to buy part of it, Justice Story (Republican from MA) decides the case and now wants uniform, strong federal laws due to the War of 1812 and New England‟s threats to succeede (1) Rejected the challenge to constitutionality of § 25 of the Judiciary Act of 1789, which allowed SC review of the highest state court decisions on federal law issues (2) Holding: Treaty ruled over VA Law (VA wanted to disregard this holding) (3) Reasoning: (a) Necessity of Uniformity in Constitutional Decisions – can‟t have states going one way and the SC the other (b) State Court Worries – judges‟ attachments/prejudices/jealousies might obstruct the regular administration of justice, as a general rule state court judges feel much more pressure than federal judges with lifetime tenure 2. SC can review the validity of state laws in criminal proceedings a. Cohens v. Virginia (1821) – Cohen brothers convicted in Norfolk of selling District of Columbia lottery tickets in violation of VA laws, Cohens claimed that they were immune from state laws in selling congressionally authorized lottery tickets under the supremacy clause, SC had the constitutional authority to review state judgements because the “judicial power extends to all cases arising under the constitution or a law of the United States, whoever the parties may be” C. Political Limitations On Judicial Review – Congressional Court Stripping 1. Congress Can Strip SC‟s Appellate Jurisdiction (Congress can‟t alter original jurisdiction); unclear how far Congress can go in this regard (SC does charge forward) a. Art. III § 2: The SC has appellate jurisdiction “with such exceptions and under such regulations as Congress shall make” b. Ex Parte McCardle (1869) – military gov‟ts imposed in Post Reconstruction South, D is a newspaper editor jailed for violating reconstruction laws, brings a habeas corpus claim under 1867 reconstruction act which offered habeas corpus to one restrained in violation of the Constitution and appeals to the SC, D claims that the reconstruction acts were unconstitutional, SC sustains jurisdiction but before they can rule Congress passes 1868 act which repealed SC‟s jurisdiction because Congress was worried that whole reconstruction would be found unconstitutional (1) McCardle carried whole weight of reconstruction with him to the SC; President Johnson has already been impeached for his opposition (2) Congress amended the statute to say that the court couldn‟t here the case – can they do this? (3) Holding: SC Lacks Jurisdiction – this is an appellate jurisdiction case; exception made by Congress to strip appellate jurisdiction, that‟s it! (a) Chase was looking for a way to get out of deciding the legitimacy of reconstruction c. Alternative: bring original petition straight to the SC; this isn‟t really “original jurisdiction” (not in the original jurisdiction clause) because some authority has put them in that situation but also not stripped appellate jurisdiction from circuit court

5 d. Exception are limited in scope to the specific instance – exception would only apply to habeas corpus appeals from the circuit courts under the 1868 act; Congress can‟t suspend it completely under Art. I § 9 2. Limits on Court Stripping Power a. Once court rules a right exists, Congress can‟t then strip jurisdiction (1) US v. Klein (1872) – property appropriated cause of disloyalty not recoverable, court rules that pardon satisfies the requirement that claimant was not a supporter of the rebellion and can‟t take his property, Congress then says that a pardon is evidence of disloyalty resulting in loss of property and strips jurisdiction, court finds an inappropriate use of exceptions power – once court ruled that he had a right Congress can‟t go back and strip jurisdiction b. Can‟t change jurisdiction to re-open final judgements (Plaudt v. Spendthrift 1995) 3. Modern Stance on Court Stripping: Congress Is Very Careful With Court Stripping Of Federal Appellate Jurisdiction a. During the 60s, Ex Parte McCardle was considered not good law b. Not all avenues are ever shut off – federal courts may be closed, but state decision on federal law must be left open as avenue to the SC (1) Felker v. Turpin (1996) – Congress curtails review of 2nd or 3rd habeas corpus motion under 1996 Anti-Terrorism Act, if circuit rules against them then can‟t go to the SC, not shut off completely – still file this “original” petition filed in the first instance in the SC (really an exercise of appellate jurisdiction) 4. Indirect Ways Congress Can Strip Jurisdiction a. Amendments – tough way to control judiciary, 2/3 of both houses and ¾ of the states must give OK, only 4 amendments have been used to overrule SC decisions, also 2/3 of the states can create a Constitutional Convention (Art. V) which is not limited to any specific purpose b. Impeachment c. Set court size and meeting times d. Selection process of justices – president nominates and senate approves, tremendous power but candidates can turn out surprisingly, tendency to undervalue independence of tenure (Bush and Souter, Roosevelt and Frankfurter) D. Court Imposed Limitations on Judicial Review (Constitutional & Prudential) 1. Nonjusticiability Of Political Questions (Political Question Doctrine) a. 2 Strands of Modern Political Question Doctrine (1) Constitutional Role of Another Branch: some matters are textually or structurally committed to the unreviewable discretion of the political branches (a) judicially manageable standard may play a role in this determination (2) Prudential Concerns: some otherwise legal question ought to be avoided to prevent controversy/embarrassment i.e. essentially out of wisdom we won‟t get involved b. Republican Representation Context (1) Guaranty Clause Violation (Art. IV § 4) Raises a Nonjusticiable Political Question (a) Application of Doctrine Strand 1: Congress‟s role to determine republican nature of government Strand 2: Not prudent for the court to rearrange state legislature seats

6 (b) Luther v. Borden (1849) – Strand 1 Political Question, 2 parties claiming to be the rightful gov‟t, SC won‟t get involved in that cause it‟s a republican form of gov‟t/Guaranty Clause issue, President or Congress can decide, if the court decides it will be chaos (c) Colegrove v. Green (1946) – Strand 2 Political Question, Challenge to the IL district drawing for US House of Rep in that the cities didn‟t get their fair share, court finds that it is a mistake for them to get involved in controversial political matter (2) Equal Protection Violation (14th Amendment) does NOT Raise a Nonjusticiable Political Question (a) Equal Protection has judicially manageable standards (b) Warren Court (1960s) is the most aggressively liberal court (c) Baker v. Carr (1962) – Not a Political Question (1) TN assembly had not reapportioned since 1901 which hurts the poor and minorities in the cities, court confronted political question doctrine, SC looks to equal protection clause rather than challenging the guaranty clause rule, aggressively liberal court holds that equal protection is a judicially manageable standards and strikes down TN‟s assembly apportionment (d) Reynolds v. Sims (1964) – sets out “one person one vote” standard (3) Result: Republican Representation Questions are Justiciable; liberal court will be extensively involved in redistricting controversies c. Warren Court Represents the Highwater Mark for Disregard for the Political Question Doctrine (1) Seating Members of the House of Representatives is NOT a Nonjusticiable political question (a) Powell v. McCormack (1969) – House won‟t seat flamboyant member of the House for the current session, Art. I § 5 states that each house is to judge its own members, Warren court looks to the specific enumerated requirements of Art. 1 § 2 cl. 1 and gave little deference to the political question doctrine, court holds that barring Powell is unconstitutional, very controversial decision – liberal court telling liberal party that they couldn‟t bar him d. Rehnquist Resuscitates the Political Question Doctrine (1) Unilateral Presidential Termination of a Treaty is a Nonjusticiable Political Question, Strand 1 (a) Goldwater v. Carter (1979) – Carter pulls US out of a treaty obligation, Constitution is silent, court reverts back to the doctrine and holds that its up to the legislative and executive branch to solve it (2) Impeachment Proceeding is a Nonjusticiable Political Question (a) Nixon v. US (1993) – circuit court judge impeached, tried by the senate who will vote but evidence was reviewed by a committee, majority finds nonjusticiable political question as “try” is not a judicially manageable standard and its up to the Legislative branch to do it (1). White thinks that it is justiciable but that the requirement of a trial was fulfilled

7 e. But Contested Presidential Election is NOT a Nonjusticiable Political Question – Bush v. Gore (2000) (1) Equal Protection is Justiciable (Baker) – Bush raises issue that ballots were counted differently in different counties in violation of equal protection so the SC steps right into the fray (a) are the guaranty clause (nonjusticiable) and equal protection (justiciable) really all that different? (2) *No Precedential Value (“ticket to ride for that train only”) – court would have to get involved in every election (3) Problem: court spent much political capital in this decision when they could have just applied the political question doctrine 2. Case or Controversy Requirements: Art. 3 § 2 – “judicial power shall extend” to a list of enumerated “cases” and “controversies”; there must be a real life issue in every case a. Rule Against Advisory Opinions: If there is a question about the constitutionality of something, but nothing has actually happened yet, the SC will not get involved (1) Washington had questions about treaties, through Jefferson he sought to inquire with the court about certain issues so he didn‟t embarrass himself, who better to turn to for advice than the SC? (a) Office of Legal Counsel within the Department of Justice advises the president; Solicitor General argues for the US in front of the SC (b) This conforms to the way the rest of the world works i.e lawyer advises & court decides (2) SC says that nothing had actually happened yet; did not involve an actual “case” so it wouldn‟t get involved (a) some states expressly include in their constitutions that the state supreme court can issue advisory opinions (b) many foreign governments who have modeled the US constitution allow advisory opinions (3) Justification: only hearing one side of the issue so there is no balance of facts; in “cases and controversies” there is incentive for both sides to bring their best arguments in order to win b. Standing To Litigate: 2 Sets Of Requirments – Constitutional & Prudential (anytime in fed court pursuing rights must always satisfy the standing requirement) (1) Constitutional Requirements: use these first, more important (a) Injury-in-fact: P has suffered personally some actual or threatened injury (b) Causation: Injury can be traced fairly to the challenged action (c) Redressability: Injury can be redressed by a favorable decision (2) Prudential Considerations: totally unpredictable, loosey-goosey (a) Ban on 3rd Party Claims: P must assert his own legal rights, can‟t rest his claim on the interests of 3rd parties (b) Ban on Generalized Grievances: No abstract questions of wide public significance (c) „Zone of Interest‟: Complaint must fall within the zone of interest to be protected by the statute or constitutional guarantee

8 (3) Main Point: Learn the tools of argument and apply the right things – these cases can come out anyway; the doctrine applied changes sometimes from week to week as it weaves back and forth, there is not a computer-like algorithmic certainty (4) Historical Context – took the court a long time to enunciate the doctrine (a) Little citation to authority when explaining the doctrine of standing; traceable mainly to great volume of post-Depression legislation (b) Previously people didn‟t think that they could redress issues covered by these new laws; organizations would go into court to protect “everybody‟s rights” by presenting generalized problems w/o reference to specific injured clients (c) Standing doctrine became a protection against anyone walking in who is unhappy with the way the world works but who is unaffected or lacks specific clients; also protection against just announced “groups” suing (d) Groups with members hurt can come in and sue for them (5) Housing Context – must show All 3 Constitutional Requirements; must show Ps with urgent problems (a) Warth v. Seldin (1975) – Ps claim that Penfield‟s ordinance barred low/middle income residents from getting housing in the town, court looks for someone who actually tried to buy or build there and were barred, court holds that even if Ps proved injury-in-fact that causation and redressability remain an issue – due to the fact that it was a lucrative, wealthy area even if Ps wanted to move and builders wanted to build there the Ps might no be able to afford to live there because of the economics of the area (b) Arlington Heights (1977) – race discrimination claim against the suburb‟s refusal to rezone a tract of land to permit higher density housing; Ps showed an actual, detailed housing plan and real clients with injury (6) Citizen Suit Provision – still must show the 3 constitutional requirements of standing (not an insurmountable obstacle) (a) Lujan v. Defenders of Wildlife (1992) – for purposes of the endangered species act federal agencies had to consult with the secretary of the interior to make sure that agency action will not jeopardize endangered species, originally it applies abroad – a year later they cut it back to just the US, Ps brought claim under their “animal nexus” theory but had no concrete plans to return to the affected areas, no standing (1). Scalia says there are ways Ps could show Injury-In-Fact -worked with or observed a particular animal threatened -worked with a particular species in very area threatened but that it goes beyond the limit that anyone who observes an endangered species anywhere in the world is appreciably harmed by some project with which he has no more specific connection (2). Citizen suit provision (interested party concerned with improper activity under the statute has jurisdiction to sue in fed. court) but still must show injury-in-fact or they are just trying to second guess the executive‟s decision (b) Friends of the Earth (2000) – satisfies injury-in-fact by finding Ps who claim that pollution from a wastewater treatment plant prevented them from

9 fishing, camping, and swimming near an allegedly unharmed river, Ps are injured and show causation and its redressable under the clean water act (7) Bottom Line on Standing: find someone who is actually affected somewhere to meet the test; groups bring suits all the time and standing is usually not a problem (a) good lawyer will draft a complaint which shows evidence that actual people wanted to move in and that there was a way that they could afford it (b) there are networks to find clients for groups involved in important issues

A. Sources of National Power 1. Articles of Confederation – not a workable document, Federal Government couldn‟t operate, too much discretion to the states a. Congress couldn‟t tax – had to rely on the states for money b. Congress had no interstate commerce power – hard to get business flowing due to state selfishness c. Reservation clause: all powers not “expressly” given to Congress are left to the state 2. Constitution – starts all over a. Art. 1 § 8: Enumerates Specific Congressional Powers e.g. regulation of commerce, taxing, raising an army b. Necessary & Proper Clause of Art.1 § 8: “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers” – limit power to those absolutely necessary? or more broad? c. Art.1 § 9: express limits placed on Congress e.g attainder, habeas corpus d. States Never Really Mentioned Except In The 10th Amendment: “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” (1) drops “express” from the Articles of Confederation to mean that the federal government has implied powers B. Scope of National Power: McCulloch v. Maryland (1819) → **Necessary & Proper Clause Grants Implied Powers to Effectuate the Express Powers of Congress (Means/Ends Test)** 1. History of the Bank a. Congress in 1791 enacts legislation creating the National Bank, Washington knew about the tension involved, does Congress have the power? (1) Jefferson: NO – takes power away from the states, dangerous, no authority for it – read the necessary and proper clause narrowly to in regards to other implied powers (2) Hamilton: YES – need implied powers (such as creating the bank) to accomplish the enumerated powers of congress under art.1 § 8 of the constitution b. Bank becomes a cause celeb – federalists are happy, good for building the economy c. In 1811 the republicans don‟t renew the charter d. In 1815 Madison does a u-turn and asks for a bank as a result of the War of 1812, needed money to raise and support the war, new legislation is passed in 1816 and the bank is recreated (1) note: when the republicans get power, their limited ideas of gov‟t become immaterial and they shy away from strict constructionist positions

10 e. In 1832 Jackson vetoes the 2nd banks recharter – doesn‟t think that its constitutional, court can‟t review a veto f. In 1913 the Federal Reserve Bank is created which essentially fulfills Hamilton‟s ideal functions – control interest rates, audits, flow of money 2.Maryland v. McCulloch: constitutionality of the 2nd charter in 1816 at issue a. Initially very popular in 1816 (cheap $) until the depression of 1818 forced the bank to call in loans from state banks who had to repay unexpectedly b. States decide to tax the national bank as a result c. McCulloch was the “cashier” at the Baltimore branch – he ran the bank corruptly by loaning out recklessly and was indicted in Maryland d. Issue of the constitutionality of the bank goes to the SC in the worst possible posture 3. Main Point: Marshall concludes that the Necessary & Proper Clause grants Implied Powers to Effectuate the Express Powers of Congress a. Issue #1: Can Congress Incorporate a Bank? -YES b. Legal Realism: legislation extensively debated for 20 years and enacted twice, very people who were opposed to it now support it, strange to find it unconstitutional now c. Means-End Analysis: congress has all these powers/responsibilities under the constitution, must have the means to get to these ends (enumerated powers) or its as restrictive as a code (1) It‟s a constitution – living, breathing, enduring, adaptable thing d. Necessary and Proper Clause: grants the implied powers of the means to accomplish the enumerated ends; it‟s not a limit on power (1) located in Art. 1 § 8 grant of powers (2) if it was a limitation it would be in Art.1 § 9 restrictions e. People (who formed the Constitution) As Sovereign: not the states – federal government power can‟t be subordinate; how can the federal government not have a bank and be dependent in the states to carry out its powers f. 10th Amendement in dropping “expressly” indicates that congress has implied powers 4. Test of Necessary & Proper Power – Not An Absolute Power a. Means-End Test: Pinpoint back to the specific express power involved (commerce, tax) b. Pretext Test: “Threshhold of Rationality” Approach (1) Congress can‟t under the pretext of executing its power accomplish things not entrusted to the government (2) Judicial Deference Given – once court determines that use of implied power passes a threshold of rationality (i.e. legitimate purpose) the court will not inquire into the degree of necessity; court saying it will look into it a little bit but that it only must meet a minimum requirement 5. Other Point: States Don‟t Have the Ability to Tax the Federal Government a. Issue #2: Can MD Tax the National Bank? –NO b. One Party Can‟t Have Power Over the Whole - “Power to tax involves the power to destroy”: the check on this power is the political check of voting, only MD residents can check the MD legislature‟s power to tax, but in this case MD is taxing everyone (1) states shouldn‟t have the ability to tax the federal gov‟t out of existence (2) citizens of one state would not allow the legislature of another state to tax them c. Alternative – Ad Hoc Legislation barring taxation of the federal government by the states d. Opposing Argument (for states‟ ability to tax fed): power to tax is concurrent in that both the states and fed have it, nothing says that states can‟t tax the federal gov‟t

11 6. Political Ramifications: Usually Federalist=Liberal & States Rights=Conservative a. In McCulloch, federalist supported a strong central government while the jeffersonian republicans pursued strong states rights (except where the constitution provided for a federal government role) b. Bush v. Gore is the Switch Case for SC Justices (1) liberals wanted to protect Gore by asserting state sovereignty (2) conservative majority, to protect Bush, affirmed federal rights; usually they protect the states and fight the federal gov‟t C. Scope of State Power and Federal Limits – State Power Tests 1. 2 Sources of State Power (Steven‟s Plurality) a. Original State Power: original, reserved powers that the states had when the Constitution was ratified in 1789 – states come to the table with whatever powers they had at the time they ratified the constitution because of the 10th Amendment b. Express State Power: powers expressly set out in the Constitution when it was ratified 2. Alternative Tests a. Type of Power (Kennedy) – kind of power normally for the states or does it fall within the national anvil b. States As Sovereign (Thomas) – all powers not expressly given to the federal government are reserved to the states or to the people, different read of 10th amendment 3. States Don‟t Have the Right to Change the Qualifications for Members of Congress; States Shouldn‟t Fool Around with the Body That Decides National Issues a. U.S. Term Limits v. Thornton (1995) – AR passes state constitutional amendment to limit the terms of their federal representatives, Stevens plurality raised the Powell case which holds that congress can‟t change the qualifications for the members of congress (Art. 1 § 2 sets out the qualifications and Art. 1 § 5 gives the house the power to seat representatives), plurality holds that states don‟t have the power to change the qualifications b. No Original State Power (1) “Original Powers of States”: since there was no congress at the time of ratification, states couldn‟t have reserved the right to change their qualifications (2) Constitutional Uniformity Concern: AR is impacting the entire nature of congress which may skew outcomes, constitution envisioned a uniform, national standard (3) Congress is the Peoples‟ Constitutional Government: the people were the ones who wrote the constitution, the states aren‟t a real actor in all of this and they shouldn‟t get in the way; people‟s constitution sets out the qualifications for the people‟s representatives c. No Express State Power (1) Express power to regulate the “times, places, and manner of holding elections” only deals with procedural qualifications, not substantive ones i.e. who can run e. Alternative Tests (1) Kennedy (concurring) – qualifications for congress are a national issue, belongs under the power of the federal government (2) Thomas (dissent) – “the people”: the “ultimate source of the constitution is the consent of the people of each individual state, not the consent of the undifferentiated people of the nation as a whole”

12 f. Historical Context: republicans wanted to use term limits to free up seats in the house, wasn‟t a neutral principle of law – part of Gingrich‟s Contract with America, AR‟s democratic incumbents would have been booted out

III. Congress‟s Commerce Power
(at one time the 10th amendment was considered a nullity and the commerce power of congress was upheld for 60 years of case law) A. Source Of Power 1. Articles of Confederation Failure: states borders were becoming like foreign borders defeating the ability of the country to function; interference with freely moving trade was the motivating factor to abandon it 2. Art. I § 8 cl. 3 grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes” 3. 2 Sets of Limits – Internal & External B. Internal Limits – What Does „Regulate Commerce Among the Several States‟ Mean? 1. Early Interpretations: 1824-1936 a. Marshall‟s Early Broad Interpretation: -Commerce is broader than just buying and selling goods; it includes other things such as navigation and transportation -“Among several states” means both across state lines and within state limits if it has an effect on interstate commerce (i.e. might have to reach into state internal workings) (1) Gibbons v. Ogden (1824) – NY wanted to improve steamboat transportation by giving Livingston and Fulton a monopoly on its usage on NY waters, they licensed Ogden to run a ferry between Manhattan and NJ, Gibbons also wanted to do this and received permission to do this under a federal statute enacted in 1793, Ogden sues Gibbons and NY enjoined Gibbons from using his steamboat, Ogden claims an improper use of the commerce power – this is navigation not commerce defined as selling goods across states lines, Marshall says this is too narrow an understanding of commerce b. Later Cases – Distinct Theories Become Apparent (both sides are grabbing at straws, can play around with these theories, become almost moral decisions), Court Goes Back and Forth, and Threatens the New Deal on 5-4 Votes (1) Manufacturing/Production Is Not Commerce & Can‟t Be Regulated (Entirely Intrastate i.e. going on at one location) (a) US v. E.C. Knight Co. (1895) – Sugar Trust Case, consolidation results in 99% of sugar refining capacity in one company, gov‟t sues for violation of Sherman Anti-Trust Act, court holds for the state – really trying to regulate manufacturing i.e what is going on in a building in a state (b) Hammer v. Dagenhart (1918) – Child Labor Case, congress bars the products of child labor from interstate commerce, court strikes down the legislation on the grounds that the act isn‟t seeking to regulate transportation among the states but to standardize ages of employment, trying to regulate what happens at the plant=manufacturing=entirely intrastate (1). Holmes (dissenting) – doesn‟t matter where the harm occurs, static place or in the stream of commerce, if Congress has the power to regulate interstate commerce

13 (c) Schechter Poulty Corp. v. US (1935) – Sick Chicken Case, small wholesale poultry plant in Brooklyn with few employees and small selling area, court strikes down the application of the wage and hour provisions of NIRA because of the purely local impact (no nexus with interstate poultry industry) (1). National Industrial Recovery Act of 1933 authorized trade associations to create codes of fair competition; codes contained provisions defining unfair trade practices and set minimum wages and maximum hours (d) Carter v. Carter Coal Co. (1936) – Bituminous Coal Conservation Act of 1935 imposes a code which sets maximum hours and minimum wages, producers who didn‟t comply had to pay a tax, court strikes down the legislation since its trying to regulate manufacturing – “production is a purely local activity” over which the court has no control – and manufacturing/agriculture only indirectly impact commerce (1). Cardozo (dissent) – focuses on the min/max price provisions of the code, regulation of prices leaving the mine have a direct affect on interstate commerce (2) Impact Test: Intrastate Action Affecting Interstate Commerce Can Be Regulated (a) Houston Ry. Co. v. US (1914) – Shreveport Rate Case, intrastate rail rates are impacting the ability of interstate competitors to operate, Interstate Commerce Commission found that the rate structure discriminated in favor of traffic within Texas, court holds for the US, intrastate railroads are part of an interstate system (3) Stream of Commerce Theory: product delivered via interstate commerce, then can regulate it at the ending point (a) Swift v. US (1905) – cattle transportation to slaughterhouse (b) Stafford v. Wallace (1992) – stockyards preparing animals (4) National “Police” Power: Gambling, Prostitution, and Unhealthy Food Is Interstate Commerce and can be Regulated; Child Labor Can‟t (a) Campion v. Ames (1903) – prohibition of sending lottery material across state lines, court found interstate commerce (b) Hipolite v. US (1911) – prohibition on transporting bad food (deleterious eggs) across state lines, court found interstate commerce (c) Hoke v. US (1912) – prohibition on transporting women for immoral purpose, court found interstate commerce (d) Justification: at the time lotteries, prostitution, and bad eggs were bad enough to justify intervention and regulation; child labor was less certain 2. After 1936, Decline of Limits – „Switch in Time‟ Court‟s Broad, Dynamic Interpretation a. FDR‟s Court Packing Plan: Roosevelt was trying to pass his New Deal legislation but the court kept invalidating it, he asserts that the court is overworked and wants to increase the SC to a maximum of 15 justices because “modern complexities call for a constant infusion of new blood”, though his plan was not taken well it does have an effect on the court which switches over to make it 5-4 in favor of the new deal legislation

14 b. **Effects Test**: Only Decide if there is a Rational Basis for the Finding of an Effect on Interstate Commerce (i.e. Look to the effect on interstate commerce of the act involved, e.g. unfair labor practice) – view the act in general, not in the specific sense (1) NLRB v. Jones & Laughlin Steel (1937) – Nation Labor Relations Act requirements imposed on steel manufacturers who had engaged in unfair labor practices by firing employees for union activity, company rehearses manufacturing doctrine, opinion cites the process of where the steel comes from and where the steel goes, Pittsburgh plant is the “heart of a self contained, highly integrated body” that brings in and pumps out product to all parts of the nation, court in upholding the act looks at the industry at large not a specific plant w/ a labor problem (a) Holding - labor strife may have an immediate and catastrophic effect on commerce (b) McReynolds (dissent) – far too remote an effect on commerce; this is the last stand of striking down New Deal legislation c. Judicial Deference to Congress: Court doesn‟t decide if its wise or question the motives of Congress (1) Congress has made its findings – look only if they have a rational basis for the finding of an impact (2) Line is drawn wherever Congress stops; if they do crazy things the people can vote them out d. 10th Amendment is a Truism: “conclusion is unaffected by the 10th Amendment, which states but a truism that all is retained which has not been surrendered” i.e. once you decide Congress‟ broad power whatever is left is for the states – only purpose was to allay fears that new national gov‟t might seek to exercise powers not granted to them (1) US v. Darby (1941) – Fair Labor Standards Act regulation of hours and wages of employees of local GA lumber manufacturer, goods produced in violation of standards are barred from interstate commerce, Hamer v. Dagenhart is overruled, expressly follows the Shreveport rate case as a model, court finds that Congress has properly regulated the local manufacturer 3. 1960s Warren Court – Highwater Mark of “Invulnerable” Commerce Clause Power a. Outer Limit Of The Effects Test: Is the Regulated Action “Nationally Significant in the Cumulative Effect”; Is there Any Nexus to Interstate Commerce? (1) Wickard v. Filburn (1942) – OH dairy farmer penalized under the Agricultural Adjustment Act for exceeding a market quota for wheat for his farm, wheat is used only the farm where it was grown and nevers enters interstate commerce, court looks to the effect on the whole agricultural field in upholding the act b. Commerce Power For Social Ends – Upholds the Civil Rights Act of 1964 (1) Katzenbach v. McClung (1964) – Ollie‟s barbecue 11 blocks from the highway, blacks barred from eating inside, court holds that the interstate commerce clause applies to and upholds the civil rights legislation, rational is that people will get off the highway and eat there (2) Heart of Atlanta Motel v. US (1964) – downtown Atlanta motel refuses to rent rooms to blacks, court upholds the act noting the extreme burden that discrimination places upon interstate commerce (3) Note: the activity in these cases is really discrimination; would Rehnquist/Thomas have upheld Title VI if they had the chance to re-decide it?

15 c. No Legislation was Invalidated under the Commerce Clause from 1937 to 1995 4. 1990s Rehnquist Court, New Limits – New Federalism: Congress must make a case for it a. **New, Restricted Test for Interstate Commerce** (Rehnquist) – 3 Elements (1) “Substantial” Effect on Interstate Commerce – not sufficient that the activity reach some nexus (Rehnquist concurrence in Hodel 1981) (2) Activity must be Commercial/Economic in Nature – gun in a local school has nothing to do with commerce; Police Powers are State Powers (3) Jurisdictional Element – must ensure that through case by case inquiry the act (firearm possession) in question affects interstate commerce b. Dissents‟ Test (Breyer) (1) Rational Basis for finding an impact on interstate commerce i.e there must be a reason to do it to begin with (2) “Significant” Effect on Interstate Commerce – empirical evidence underlies it c. Thomas‟s Test (1) Re-Adopt Pre-New Deal Test: Manufacture/Production vs. Commerce Distinction (a) “substantial” effects criteria is not desirable & inconsistent w/constitution (b) first 150 years prior to Laughlin Steel were good (would he have decided the civil rights cases differently?) (2) Surplusage Argument: commerce clause can‟t be so broad or else they would not have all the enumerated powers of congress in the constitution d. Kennedy/O‟Connor Approach (shell shocked from Lopez) (1) Political Process Controls the National/State Balance – vote them out of office (2) Court Invalidates if its an Excessive Use of Power e. New Conception Of Federalism – If The States Want The Legislation They Can Pass It Themselves (1) Handguns in schools are not in interstate commerce (a) US v. Lopez (1995) – Gun-Free School Zone Act of 1990 made it a federal crime to possess a gun in a school zone, Lopez was convicted for possessing a concealed handgun and bullets at his San Antonio school, SC holds that one gun in a local school zone is not commerce and that the act therefore exceeds the commerce power, majority may have been motivated by concern over expending federal resources over this federal criminal issue (2) Gender-motivated violence is not interstate commerce (b) US v. Morrison (2000) – Violence Against Women Act grants private right to sue perpetrator for violence enduced based on gender, student (Brzonkala) raped by 2 football players at Virginia Tech, the 2 were not punished under the school‟s system, she dropped out and sued both men and the school, court strikes down the act (1). race discrimination=yes; gender motivated violence=no? (2) lack of faith in the states motivates the act in that 38 states attorney generals were in favor of it f. Alternative Available: Amend the Statute to Add a Jurisdictional Element and Findings of the Substantial Affects On Interstate Commerce (1) Lopez: “firearm that has moved in or otherwise affects interstate commerce” (2) Additional element must be proved – harder for the prosecutor to prove the case (3) Amended law has not been challenged

16 g. Conclusions About the Restricted Commerce Power (1) Broader Commerce Power is Desirable → lots of things only come from the Commerce Power; if not then it would fall to the states to do it (a) Most federal criminal statutes are based on the commerce clause e.g. machine gun act; Thomas would probably want to strike them as he doesn‟t want to create a national police power under the commerce clause (2) Threatening Uncertainty in a Settled Area – Breyer notes that many statutes only say only “affecting commerce” to define scope and others contain no jurisdictional language C. External Limits – How is Congress‟s Commerce Power Limited by the 10th and 11th Amendments? (Even where Congress has power under interstate commerce clause, this power can be negated by these 2 additional barriers) 1. State Autonomy Limits On Commerce Power – 10th Amendment Is Not A Truism: “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” a. State Autonomy Defense: can state entities avoid federal legislation that is otherwise within congress‟s commerce powers 1. Rejected challenges based on the defense: US v. California (1936), New York v. US (1946), Maryland v. Wirtz (1968), Fry v. US (1975) 2. Balancing Test Announced: interference with state integrity (traditional/integral state function) vs. value of application to states (a) National League of Cities (1976) – Fair Labor Standards Act can‟t be applied to the states, it is an unfair infringement, overrules Wirtz, court announces a balancing test and holds that states personnel deployment is critical to the states 3. Balancing Test Abandoned in Garcia (1985) – Test is Unworkable; feels settled now in line with the concept that states don‟t really have any clout and federal law will control b. Can‟t Commandeer State Legislature → Telling Them What They Must Do; Presenting No Real Choice; Congress Couldn‟t Order State to Do Alternatives Independently (1) Brown v. EPA (late 70s) – solicitor general admits that clean air act commandeers CA, creates tension with Congress who wants to look good (2) New York v. US (1992) – radioactive waste disposal problem, Congress with state support develop regulatory machine which is designed to have states dispose of radioactive waste within their own borders, want states to deal with their own waste instead of shipping it elsewhere, statute sets out 3 incentives for the states to deal with the problem: (1) impose surcharge on other state‟s waste (2) increase the cost of access to their sites or (3) under the “take title provision” if they fail to provide for the disposal of all internally generated waste by a particular date the state was required to take title to the waste and be liable for damages, court finds that the “take title provision” is commandeering (a) Take title provision is no real choice i.e. take possession of the waste or follow federal gov‟t; couldn‟t order state to do either independently (b) Infringement on the 10th Amendment despite fact that its valid under the commerce power (c) White (Dissent) – plan reflected a compromise, state wanted it

17 (d) Stevens (Dissent) – congress under the commerce power can order states (3) Rational: Federalism protects the people – can‟t abuse citizens/taxpayers of the states (despite the fact that this mechanism was created by the states who wanted this) c. Can‟t Commandeer State Executives – Can‟t Forcibly Insert State Officials into a Regulatory Scheme (even for law enforcement) (1) Printz v. US (1997) – Brady Handgun Violence Prevention Act provision states that CLEOs are to assemble info on gun purchasers and give it to the merchant who may be regulated, CLEOs are only to be temporarily collecting the information, court holds that this is commandeering of state/local executive officers (a) Federalist Papers: states must do things but they have an option to comply (2) Exception For State Courts: Early statutes do impose obligations on state courts (4) Exception For Discrete, Ministerial Tasks: states do have to pass on some things to the fed gov‟t (crime data to FBI) but this provision is making puppets out of the state by inserting the cleos into the regulatory scheme d. Alternatives to Commandeering (1) Spending Power – condition of federal grant is to treat waste within the state (2) Preempt With Federal Program – because of the supremacy clause, if fed wants to do it a different way from the states, congress can pass legislation which knocks out a contrary state approach 2. State Sovereign Immunity Limits On Commerce Power – 11th Amendment: “the Judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another State” a. States‟ Sovereign Immunity: States Can‟t Be Sued For Monetary Damages By Citizens Of Their Own State Or Any Other State In Both State And Federal Court For Federal Law Under The Commerce Clause (1) Univ. of Alabama v. Garrett (2001) – cancer patient, takes leave, works in state‟s hospital, can‟t sue state employer for compensatory damages for ADA violation (2) Exceptions: (a) Can sue for injunctive relief against state officials, based on the theory that you are going after the state officer acting illegally, Ex Parte Young (1908) (b) Congress can abrogate the state‟s 11th Amendment immunity and allow states to be sued for damages by passing legislation pursuant to the 14th Amendment (equal protection legislation), Fitzpatrick (1976) b. Court Re-Writes the 11th Amendment to reach this end (1) “Another” in “citizens of another state” is Silent → citizen of a state is barred from suing his own or any other state for monetary damages in federal court (a) Hans v. Louisiana (1890) – LA resident can‟t sue LA in federal court under a federal action, court applies 11th amendment – purpose was so strong that it would be silly to stumble over the word another, (b) Hans ignored for years until Seminole Tribe (1996), Kimmel (2000) (2) “of the United States” is Silent → can‟t sue your own state or any other state for monetary damages in state court, Alden v. Maine (1999) c. Alternatives to Immunity (1) Spending Power – condition grant of federal money upon state‟s agreement to waive sovereign immunity (university must be able to be sued under Title IX to get federal money)

18 (2) US Can Bring Suit – not enough lawyers

IV. Other National Powers
These All Deal With Congress‟s Power to Infringe on State Sovereignty; Congress‟s Powers are being Taken Away in Piecemeal Fashion (constant concern about congress acting under their enumerated powers and interfering with state‟s police power) A. Taxing Power as a Regulatory Tool – Congress Can Tax W/Intent To Get State To Do Something As Long As Congress Doesn‟t Cross The Line To Penalize (Regulate) The State 1. What‟s a “Penalty” is Anyone‟s Guess 2. Penalty Based on Congressional Motive: Really Trying to Regulate, Not to Raise Money a. Bailey v. Drexel Furniture Co. (1922) – Child Labor Tax Case, federal tax of 10% of annual net profits imposed on employer of child labor in covered business struck down (couldn‟t due this under commerce power in Hamer) 3.Penalty Only If Tax is Excessive a. US v. Kahriger (1953) – “bookie” tax on those accepting wagers upheld, negligible tax (only $25) versus the 10% in child labor case, court holds that its not excessive enough to be a penalty - “not penalty provisions extraneous to any tax need”, court also holds that the tax can be used to discourage the activity taxed – “tax does not cease to be valid merely because it discourages or deters the activities taxed” B. Spending Power For „General Welfare‟ As Regulatory Tool – Spending Is Escape Route From Commerce Power Restraints 1. Source & Historical Interpretations a. Art. I § 8 Cl. 1: “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” b. Madison: spending power is constrained to the enumerated powers of subsequent clauses of Art.1 § 8 c. *Hamilton: Congress has a distinct/separate power to spend (tax & appropriate), limited only by the requirement that it shall be exercised to provide for the general welfare 2. Pre-Switch in Time Court – Can‟t Use Spending Power to Coerce, Can‟t Invade Reserved Rights of the States a. US v. Butler (1936) – agricultural adjustment act sought to stabilize farm prices by getting farmers to cut production in exchange for a subsidy, funds generated by a tax imposed on the processor, the tax was collected and turned over to a specific group=earmarked revenue, court strikes it down 3. 30s Social Security Cases - Relatedness of Subject Matter → tax (means) & incentive program (ends) must have some relationship to one another; Defer to Congress‟s Discretion [Cardozo] a. Charles C. Steward Machine Co. (1937) – unemployment compensation provisions of the social security act encourage states to set up unemployment compensation schemes, companies have to pay federal tax to set this up, money goes into general funds (not earmarked), court upholds the act (1) General Welfare – nationally important issue (2) No Coercion of States – states on their own couldn‟t deal with it; disincentive for any state to go first; congress doesn‟t command the states to set up their own plan – saying if the state sets up a plan that congress will give them money to fund it b. Helvering v. Davis (1937) – old age benefit provisions of the social security act creates an entirely federal program which taxed employers and employees to pay for federal old age

19 benefits, for the particularized welfare of old folks (not the general welfare), Cardozo for the majority writes that the court should defer to congress if they have a rational basis for their general welfare finding (1) Deference is similar to old commerce power deference – “discretion belongs to congress unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment” 4. Modern, Rehnquist Court - Reaffirms Congressional Deference (only disaffirm it if its arbitrary) a. 4 Elements of Spending Power Test (Rehnquist) (1) Exercise of Spending Power has to be in Pursuit of the General Welfare – court defers substantially to Congress (2) Not Commanding States - if states are volunteers they must have the ability to unambiguously say “no” (3) **Conditions must be Reasonably Related to the Federal Interest in Question** i.e. constraints must be sufficiently related to what your spending for -outer bounds of germaneness/relatedness not defined -„direct‟ relatedness not addressed (4) Other Constitutional Provisions May Provide a Bar b. O‟Connor‟s Test (Dissent): Conditions must be directly related to the federal interest c. South Dakota v. Dole (1997) – 5% of federal highway funds withheld if states allow people under the age of 21 to purchase/possess alcohol, Rehnquist for the majority reaffirms congressional deference in upholding the statute, court finds that the drinking age is reasonably related to highway safety interest and that the 21st amendment doesn‟t necessarily bar Congress from directly regulating the drinking age (1) O‟Connor (dissent) states that there is no „direct‟ relationship between highway safety and the drinking age 5. Bottom Line: Congress Can Use Conditions To Achieve Objectives That It Couldn‟t Do Through Enumerated Powers Under Other Clauses (Hamilton Approach) a. Exception: can‟t get the state to do something unconstitutional with unconditional conditions (e.g $ for barring minorities from the highways) b. 10th Amendment is less powerful against the spending clause C. War Power As A Regulatory Tool: Sweeping Power – Can Affect Local Things 1. War Power Doesn‟t Begin and End With the Cessation of Hostilities – Congress‟s power extends past the end of the war due to the lingering effects of the war (e.g. post-war housing shortage) a. Woods v. Cloyd W. Miller Co. (1948) – after termination of hostilities by the president on 12/31/1946 the fed still has rent controls in effect under the housing and rent act of 1947, claim is that rent is something over which the states have control and the war is over, court holds that the war power sustains this legislation 2. Limit: Line must be drawn somewhere; can always say that effects of war are still present a. Jackson (Concurring in Woods) – “this power is the most dangerous one to free government in the whole catalogue of powers”, if not controlled it can subsume everything else, must have objective analysis D. Treaty Power As A Regulatory Tool: Sweeping Power – Gives Congress a Wider Reach 1. Overrides 10th Amendment To Do Things Not Allowed Under The Commerce Power a. Missouri V. Holland (1920) – Canada and US enter into a treaty to preserve bird migration, birds are important and must propagate, SC had already invalidated congress‟s

20 attempt to protect birds under interstate commerce (pre 1937, switch-in-time court), though it was declared unconstitutional w/o treaty but holds that the treaty makes it constitutional 2. Reasoning – president acts with 2/3 consent of senate, dealing with issues outside of domestic concerns, states wanted foreign affairs to be handled by the federal government 3. Limit: Can‟t do something unconstitutional under the treaty power b. Reid v. Covert (1957) – can‟t deny fair trial right to dependents of serviceman overseas E. Foreign Affairs Power As a Regulatory Tool – Source Remains Unclear 1. Congressional power to regulate foreign affairs has been repeatedly recognized; but nothing in the constitution expressly says that Congress has the power to regulate foreign affairs a. Perez v. Bromwell (1958) – “although there is in the Constitution no specific grant to Congress of the 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” 2. Justification: enumerated powers and necessary & proper grant applies to the internal affairs; external affairs sovereignty is not dependent on affirmative grants of the constitution

V. Federal Limits on State Regulatory Power
A. Dormant Commerce Clause: Even in the Absence of Congressional Action, State Action that Interferes with or Affects the Interstate Commerce Power is Barred/Invalidated 1. Justification – state barriers to free trade are such a problem there is a need to prevent states from interfering with interstate commerce even if Congress has not affirmatively acted; w/o this check the states can run wild a. note: when congress does act states are preempted by the commerce power 2. Historical Doctrine a. Marshall – Commerce v. Police Power Test (1) Regulation of commerce is exclusively federal and the states are knocked out, e.g. steamboat monopoly in Gibbons (1824) (2) Action under the police power is concurrent and state interference is ok, e.g. erecting a damn based on health/welfare concern in Wilson (1829) (3) Conclusion: Unacceptable test – hard to draw the line b. Tawney – No Dormant Commerce Clause; state‟s only interfere with the commerce power when Congress has acted under it and there is a federal enactment c. Curtis – National v. Local Consequences Distinction (1) If state action has consequences national in scope then its unconstitutional; if its local in nature then its ok (a) Cooley v. Board of Wardens (1851) – PA statute that requires people coming into PA waters to hire a local pilot upheld, use of local pilots doesn‟t interfere with national commerce so its ok 3. Modern Doctrine – **3 Tests**: tests are what are important; cases may not be distinguishable and can be hard to label a. Overt Discrimination is Per Se Invalid: if state legislation “on its face” discriminates against out of state parties then its presumptively invalid; state must stand on its head to validate it (1) Classic Overt Discrimination (a) Welton v. Missouri (1876) – peddler who sells out of state goods must get special license while peddlers who sell in state goods don‟t need it (b) Philadelphia v. New Jersey (1978) – out of state solid waste barred from entering NJ despite fact that their facilities are undercapacity and take their

21 own domestic waste, waste is interstate commerce and not analogous to quarantine laws (c) VA Wine Law Case (2002) – VA prevented their residents from directly purchasing alcohol from out of state wholesalers (2) Differential Tax Schemes (a) Chemical Waste Management (1992) – fee to bring in out of state waste, no fee for instate waste, no finding of unique health concern from out of state waste (b) Oregon Waste Systems (1994) – instate waste fee is lower than out of state (c) West Lynn Creamery (1994) – identical tax on both instate and out of state sales of milk, but instate get a rebate from revenue reserved on the side (d) Camp Newfound/Owatonna, Inc. (1997) – ME statute that if >50% of campers come from out of state the camp does not receive the full charitable tax exemption, religious summer camp denied the exemption because 95% of its campers were not ME residents, court holds that the charity camp is in interstate commerce and by making the camp pay more than a camp with ME kids they have overtly discriminated (1). Scalia (dissent) – charity not in interstate commerce; exemption is really just a charitable subsidy from the state (3) Can Validate State Legislation – Trial Court Findings Make Big Difference (a) That It‟s a Public Health/Safety Matter (wielding state police power is ok, goes to the Marshall‟s older test) (1). Maine v. Taylor (1986) – bar on out of state baitfish, TC finding that out of state baitfish were highly contaminated and harmful to the environment, court holds that it‟s a public health controversy i.e. legislation is discriminatory but state meets the very high burden of rebutting the presumption against it (b) That Its Not Fungible/Different Product & Market (1). General Motors Corp (1997) – tax treatment differential based on whether the gas comes from local public utility (state-regulated) or independent marketers (out-of-state), TC judge made a finding that natural gas sold by different entities involved different markets (4) Dormant Commerce Clause applies to Both States and Localities (a) Dean Milk Co. (1951) – ordinance bars the sale of pasteurized milk unless it had been processes and bottled at an approved plant within 5 miles of the center of Madison, discriminates against the rest of WI and other states b. Protectionist Purpose/Effect is Per Se Invalid: if it not discriminatory “on its face” but in practice discriminates and its a more subtle attempt to protect state interests its still presumptively invalid; state must stand its head to validate it (1) State Barriers to Out of State Sellers (a) Baldwin v. Selig (1935) – minimum price level for milk producers in NY, dealers can‟t go out of state and buy milk at lower price then sell it in NY (b) „Use Tax‟ Exception – equal playing field (1). Henneford (1937) – compensating tax on out of state made goods for privilege of using it instate, state claims use tax in that they are not helping the state, Cardozo upholds claiming that its only an equality

22 tax used to cancel an out of state sellers advantage and not establish a state preference (2) Hoarding – State Barriers to Out of State Buyers (a) Uphold State if No Great Stream of Interstate Commerce (1). Eisenberg (1939) – PA imposes regulation on dealers who bought shipments if going out of state, only a small amount goes out of milk goes out of state – not in steam of interstate commerce (2). Cities Service Gas Co. (1950) (b) Invalidate State if there is a Great Stream of Commerce and/or Discretionary (Non-Neutral) State Power (1). H.P. Hood (1949) – Boston gets 90% of its milk from NY thus NY selling a lot of milk out of state, NY says it won‟t license a receiving station for MA in NY to ship it out, court holds that the statute gives all the discretion to NY to decide based on competition concerns and not because of public health concerns (2). Hughes v. Oklahoma (1979) – OK forbids transfer of locally caught sein minnows out of state but hatched minnows can go out of state, irrational because it only protects 1 kind of minnow, fact that it involves state natural resource is irrelevant (3). New England Power Co (1982) – no neutral principle in determining when to prevent energy from going out of state, up to state‟s discretion – can‟t leave that much discretion to state administrative agency c. Only Incidental Impact on Interstate Commerce – “Pike Balancing Test”: legislation with purpose unrelated to interstate commerce but which has an incidental impact on interstate commerce is invalid if the incidental impact overwhelms the legitimate rational/necessity (1) State Friendly Test: strong police power interest beats a weaker incidental impact, test that state wants to confront as it doesn‟t have to stand on its head (2) Pike v. Bruce Church Inc (1970) – selling cantaloupes in AZ, if grown in AZ they had to be labeled to that fact, grower had theirs packaged in CA and they were not identified as having been grown in AZ, would cost grower $200,000 more to pack them in AZ, this is really a protectionism case but the court uses the balancing test cause of the incidental impact (3) State Burdens On Transportation (a) State Benefit Outweighs (1). Barnwell (1938) – S.Carolina imposes limits on the weight of trucks, 90% of trucks exceed this limit, court uphold because states take care of the highways – outlier case (b) Burden on Commerce Outweighs (1). Southern Pacific Co. (1945) – AZ has 14 car limit for passenger and 70 car limit for freight trains, TC finding that there was no safety differential between long and short trains, state relied on safety rational in that people were getting killed, court invalidates the state -Black (dissent) – TC judge who relied on railroad to establish the finding acting as a “superlegislature”

23 -Douglas (dissent) – balancing test is bad (2). Bibb (1959) – IL requirement of specifically contoured mudflaps invalidated, 45 states required straight ones – argument for safety can‟t outweigh interstate commerce detriment (3). Kassel (1981) – IA has limits on truck length which excluded double trailers, exceptions for big vehicles for IA residents and border cities can allow double trailers to come in, court rules that the swiss cheese exceptions preclude the rationality of state safety concerns – doubles are very dangerous but we will allow them in populated areas, no finding that they are any more dangerous, really just wants to keep trucks off the road d. Some Justices Exhibit Discontent with the Dormant Commerce Clause (1) Scalia/Rehnquist: Don‟t Like the 3rd Prong/Balancing Test (a) overt discrimination and protectionism are ok tests because of stare decisis (b) applying it to any legislation with any incidental impact on interstate 0commerce is wrong (2) Thomas: Disregard the Entire Doctrine (a) its is an Unworkable Fiction, all depends on what you can prove to TC (b) acknowledges that state barriers are a problem; use the tariff clause as an alternative e. Market Participant Exemption – if state runs a business and discriminates for the benefit of itself then its exempt dormant commerce clause invalidation B. Privileges & Immunities Clause – Art. IV § 2: “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” 1. Justification – another attempt to overcome barriers established by states under the articles of confederation, states were acting as little fiefdoms 2. 4 Distinctions from Dormant Commerce Clause a. Not available to corporations b. No market participant exemption c. Separate, express right granted by the constitution – Congress can‟t give Consent to discriminatory state activity under Art. IV § 2 d. Protected Rights are Limited to Fundamental Rights 3. 2-Step Test a. Is There a Fundamental Right Involved? b. Balancing Test: Is There a Substantial Justification for the State Action (i.e. discrimination based on a fundamental right)? (1) Have to make a record/findings that documents the substantial justification; could be in the ordinance itself or the legislative history (2) P & I balancing test is stricter than the Pike Balancing Test but not as strict as the overwhelming justification (stand-on-its-head test) needed for overtly discriminating and protectionist state legislation under the dormant commerce clause 4. Protecting Troubled City‟s Employment Pool May Be a Substantial Justification a. United Building v. Camden (1984) – municipal ordinance requires that 40% of the labor force on Camden‟s construction projects must be city residents, court notes that privileges and immunities clause applies to both state laws and local ordinances, court remands on the substantial justification element

24 (1) Fundamental Right Involved – Yes, right to livelihood/employment (a) Camden claims that they are a market participant so under the dormant commerce clause it wouldn‟t be actionable; doesn‟t wash in this case (2) Substantial Justification for Discrimination – Doesn‟t Say No; Remanded for Findings (a) Camden claims that city has great social problems, city is spending its own money, not enough work for their own residents, but never made any findings (3) Political Ramification – conservative justices aren‟t happy with “set a side” or quota ordinances/statutes 5. State Rule Limiting Bar Admission to State Residents Violates P&I a. Supreme Court of New Hampshire v. Piper (1985) – P lives 400 yards from NH but can‟t be admitted to the NH bar, state sought to protect the bar by requiring that members were residents of the state, court holds that her claim involved a “privilege” under the clause as the practice of law is important to the national economy like other occupations and the state‟s justification that nonresidents would be less likely to remain familiar with local rule and behave ethically was not sufficient C. Preemption of State Law: “State Statute Go Away” – When Congress Has the Power and Acts in an Area that the State Has Acted In, State Action Will Be Called Into Question because of the Supremacy Clause (Art. VI) Congress May Preempt State Regulation in 3 Ways 1. Express Preemption: congress says “we alone are acting in this area”, 2 are in conflict and state goes down, congress usually doesn‟t explicitly say what it intends a. If its unclear, determine Congress‟s intent by looking to statutory language, legislative record and history, and whether the matter was historically a federal matter – Scalia & Thomas are textualists and don‟t trust legislative history 2. Field Preemption: is it normally what the state does through police powers or is it action that the federal government usually deals with through commerce power/foreign affairs (pervasive federal regulation) a. State And Fed Have Separate Fields Of Responsibility → No Preemption; State Is Outside The Preempted Field (1) PGE v. State Energy Resources (1983) – Fed law (atomic energy act) and CA law both addressing the disposal of nuclear waste, state puts a moratorium on nuclear plants until the industry develops technology for economical disposal, court sustains the state law since the fed law controls on safety issues while the state law is based largely on economic concerns, thus the CA law is outside the preempted field of nuclear safety regulation, (a) could go either way – hard to separate economic concerns completely from safety concerns; state law probably not 100% economic aspects (some safety) (b) fed controls development of nuclear energy but not economic aspects? 3. Conflict Preemption: are the state law and federal statute in conflict a. If You Can‟t Perform Both Then The State Law Must Give Way (1) Florida Lime & Avocado Growers (1963) – fed has minimum standard, state has higher standard, no conflict preemption – can comply with both i.e. “compliance with both the federal and state regulations is” not “a physical impossibility”, possible field preemption claim

25 (2) Gade (1992) – IL provisions (worker safety & public health) for licensing workers who handle hazardous waste preempted by OSHA regs (worker safety only), court finds conflict preemption since the federal scheme forbids duplicative regulation b. Foreign Affairs Power Clearly Preempts (1) Crosby (2000) – MA state entities barred from interactions with companies doing business with Burma, Congress‟s passage of federal law imposing sanctions on Burma preempted it, clear national power involved – president‟s voice not to be obscured by state action, fact that companies could comply with both makes no difference 4. Importance of Uniformity in the Affect Area May Determine if the Court Finds Preemption – may not need uniformity in nuclear energy regulation but do want it in pension regulation 5. Conservatives are More Likely to Find Preemption – state laws are much more regulatory, prounion, pro-tort; federal statutes aren‟t as controlling e.g. ERISSA v. state pension systems, state v. federal labor laws 6. Deregulation – congress says that there will be no regulations at all and we expressly preempt any state action D. Consent to Discriminatory State Law: Congress, affirmatively using the commerce power, can allow the states to engage in discriminatory action that would be invalidated by the dormant commerce clause 1. Prudential Insurance Co. (1946) – south carolina has a special tax on out of state insurance companies that was discriminatory, Congress had passed the McCarran Act which expressly affirmed states‟ responsibility over insurance regulation, court held that the federal government had given their consent to the discriminatory action and inconsistent regulation across the states, insurance is particularly in the realm of state regulation and was one of the first things the states regulated

Functionalistic Approach (White‟s Dissent) -Powers of the Separate Branches Overlap/Commingle; Only Void Excessive Aggrandizement of Power -Courts Generally Defer; Prefer Flexibility and Experimentation -Have Last Word (Line Item Veto Case 1998) -Experiments in Morrison and Mistretta Failed A. Executive Encroachment on Legislative Powers (by Executive Order) 1. Domestic Affairs: Youngstown Sheet & Tube Co. v. Sawyer (1952) – [Steel Seizure Case], steel workers threatened work stoppage, President issued an order directing the sec. of commerce to commandeer the steel industry because the Korean war effort needed steel, could have used the defense productions act to take real property but its time consuming and didn‟t go to congress to ask for express authorization, taft-hartley act already rejected an amendment that would have authorized seizures in cases of emergency, Truman claims that he is the president, there is a war, and if he takes the congressionally mandated path it will take too long, court holds that the executive order is unconstitutional [Justices Espouse Varying Approaches to Invalidate the Executive Order] a. Formalistic Analysis: President is Lawmaking/Legislating; President Can‟t Do This Under the Constitution; He is a Law Enforcer, Not a Law Maker (Justice Black) Formalistic Approach (Prevails Today) -Avoid Commingling of Power; Follow the Original Text i.e Does it Comport with the Constitution? -Active Judicial Intervention Required

26 (1) executive order looks a lot like legisation – he is directing his that presidential policy (not congressional policy) be executed in a manner prescribed by him b. Historical Precedent Analysis: Practice Historically Been Done and has Congress Acquiesced To It? – NO (Justice Frankfurter) (1) only 3 historical examples, but one is a big deal: president directed seizure of the nations coal mines to remove obstruction to the effective prosecution of WWII and no one challenged it c. Tripartite Power Analysis: Presidential Powers Fluctuate Depending On Their Conjunction with Congress‟s Power (Justice Jackson) (1) Pres. acts pursuant to an implied/express grant of Congress – presume that he is acting correctly, authority at its maximum (2) Pres. acts with Congressional inertia – no sign one way or the other, depends on imperatives of the events and contemporary imponderables (3) *Pres. acts against express/implied will of Congress – presumption against the presidential act, can only rely on his own constitutional powers (4) Instant Case is the 3rd; his consitutional claims for seizure power denied (a) “executive powers shall be vested in the president” is not a grant in bulk, only allocation of the stated presidential powers (b) “commander in chief of army and navy” is not a chance to enlarge power over internal affairs by commitment of troops to foreign ventures; congress has the power to raise armies which includes providing them with steel d. Procedural Result of Executive Order (1) Congress has to stop president after he has exercised power then congress will need 2/3 vote to override his veto – better for the president if he acts first (2) President has to go to congress first then congress decides which ever way they want to go with majority vote 2. Foreign Affairs: Dames & Moore v. Regan (1981) – Iran hostage crisis, Carter used act to freeze Iranian interests in US, to settle the crisis they reached an agreement with Iran that they would unfreeze assets, Carter did it with an executive order w/o congressional approval, court upheld the executive agreement for settlement of claims and unfreezing of assets belonging to the Iranian government a. Main Point: Foreign Affairs is Most Favorable Area for President to Act b. Applied Jackson – Category 1 Most Favorable: Presidential action taken pursuant to specific congressional authorization (International Emergency Economic Powers Act § 203) c. Applied Frankfurter – Longstanding Practice With Congressional Approval: longstanding practice of settling claims against foreign countries by executive agreement w/o consent of the senate 3. War Powers a. Power Constitutionally Split Between President & Congress (1) Congress has the power to declare war (1.8.11) and raise and support army and navy (1.8.12+13) (2) President has authority as the commander-in-chief (2.2) b. W/O Declaration of War President Can‟t Send Troops Abroad (1) Holtzman v. Schlessinger (1973) – question over constitutionality of the Cambodian part of the war, Judd in E.D.N.Y. declares it unconstitutional and enjoins the bombing at the end of July 1973, 2nd Circuit stays the injunction, bombing has to

27 stop by 8/15/73 but there was a question as to if Nixon would actually stop, petitioners go to Marshall who upholds the stay, petitioners then get Douglas who is on vacation to vacate the stay, Marshall with the agreement of the other justices then imposes his own stay on the district court‟s injunction (2) Marshall Goes Close To Saying That The Cambodian Part Of The War Is Unconstitutional (a) Power - Asserts that Congress has the right to declare war and that the president can‟t act w/o declaration (b) Reasoning - Was no declaration of war and congressional appropriations aggressively said that the war had to stop (c) Reservations about one justice deciding (felt that the whole court needed to here it) and balancing pilot/civilian casualties against executive‟s foreign affairs power c. War Powers Resolution of 1973 (1) Result of Gulf of Tonkin Resolution (1964) – naval vessel attacked, Congress passed resolution that President could take action to redress it, claimed it was a declaration of war, Congress later limited appropriations but in 1970 Nixon still decided to invade Cambodia (2) President can introduce troops into hostilities pursuant only to...{1} declaration of war, {2} specific statutory authorization, {3} national emergency created by attack upon US (3) Timing - Use of troops terminates within 60 days of their introduction into hostilities unless Congress (1) declares war/specific authorization, (2) extends by law the 60 day period, or (3) is unable to meet as a result of armed attack on the US d. Removal – troops shall be removed at any time by congress resolution (4) Opposition to it on Both Sides (a) Young liberals against it – allows president to go to war for 60 days w/o a declaration of war; giving the president 60 days to do what they want is unconstitutional and tough to get troops out after 60 days (b) Presidents opposed due to the constraint – think that they have an inherent power to act; commit troops, congress gives money, same as a declaration of war (1). past practice argument – several deployments of troops w/o going through the way powers act (2). executive branch doesn‟t recognize its lawfulness but they do follow it e.g. Bush in Gulf War B. Congressional Encroachment on Executive Power 1. Nondelegation Doctrine: Congress may not broadly delegate its legislative powers to another branch of government; if congress gives the executive branch authority it must give them strict standards to limit their rulemaking power a. Disreputed – with the creation of the administrative state after the new deal congress has given away much legislative power b. Only 2 cases find nondelegation violation – both pre-1937 domestic economic regulation cases (1) Schechter Poultry (1935) – NIRA agency delegated standard too unspecific (2) Panama Refining (1935) – NIRA provision

28 2. Legislative Veto: Delegation Check - if 1 or 2 houses doesn‟t like what an administrative agency has done with power delegated to them Congress can veto the executive action and declare it null and void a. INS v. Chadha (1983) – 1 house could override attorney general‟s decision to allow overstayed, deportable alien to stay in the country, Burger‟s opinion is formalistic in striking down the law, majority holds that congressional vote = “legislation” which constitutionally must be passed by both houses and presented to the president b. Formalistic Approach; Its Unconstitutional – Legislation Violates 2 Constitutional Provisions (1) Presentment (1.7.2-3): legislation has to be presented to the president, sign or veto it, before its a law (2) Bicameralism (1.7.2-3): both houses must concur with the legislation, then its presented to the president c. Powell (Concurring) – Congress overriding the attorney general here has assumed a Judicial Function which violated separation of powers d. Functionalism – White‟s Dissent (1) Great Historical Precedent – over 200 laws use legislative veto (2) Each time a bill with legislative veto provision goes through bicameralism and presentment 3. Line Item Veto: Budget Check on Pork – president could use the veto for {1}discretionary budget authority, {2}mandatory new direct spending, or {3} any limited tax benefit; must determine that each cancellation will {1} reduce the deficit, {2} not impair essential functions, and {3} not harm the national interest a. Clinton v. New York (1998) – Clinton used line item veto act of 1996 to cancel a provision of the balanced budge act of 1997 thus requiring NY to repay medicaid money and repealing a tax benefit to food processors, court strikes down the line item veto because it allows the president to create a different law in violation of Art. 1 § 7 requirements b. Formalistic Approach, Its Unconsitutional – Violates Bicameralism (1) President is Creating a New Law; only congress can pass or amend a law (2) Historical Precedent – Washington understood presentment as requiring that he either approve all the bill or reject all the bill (3) The Process – need majority votes in both houses to get it passed; congressman tie each other in to get the bill passed; one round of votes on it; then its presented to the president who either approves whole bill or vetoes the whole bill – not most of it goes through but a few things get struck out, congressmen would be voting based on provisions that they don‟t know if they ever will get through c. Some Discretion for the President - within a single piece of legislation congress can give the president some discretionary authority not to spend (Tariff Act of 1890 upheld in Field v. Clark) (1) Too much discretion in the line item veto act – canceling new mandatory spending or a limited tax benefit is rejecting congress‟s policy judgement for his own (2) Generic power on any legislation that comes up in the future d. Alternative – by relying on the Field v. Clark congress may be able to include a line item veto in appropriation bill by appropriation bill (1) practical problem is that someone who bargained to get a pork provision in the bill will have it struck out

29 (2) congress can then pass a “disapproval bill” to re-enact a presidential cancellation but this practically won‟t be used – once the appropriation bill is through (even if part is cancelled) congress doesn‟t care e. Scalia (Dissent) – Tariff Act Case Grants the Line Item Veto: no distinction between specifically allowing discretion on a particular bill and a generic, global power to veto (1) discretionary power ok – congress can authorize the president not to spend in excess of a certain amount giving him discretionary power (2) line item veto act allows the president to veto mandatory and discretionary spending (3) all spending in the future is really “discretionary” – may look like new direct funds but its really discretionary C. Control Over Removal/Appointment of Officers 1. Formalistic: Congress Never Gets to Remove Executive Officials; Only the President can Fire Executive Officials and Congress has No Say (Myers 1926) a. Bowser v. Synar (1986) – under the Gramm-Rudman-Hollins act the comptroller general in GAO makes conclusions about needed budget reductions to the president who was to put these reductions into effect, comptroller general in deciding how to bring about a balanced budget is acting in an executive capacity, can be dismissed only by congress and not the president, court strikes down the law because president has no say in whether the executive official is dismissed b. Limitation on Executive Removal Power – president cannot remove an independent regulatory agency executive (SEC, FTC) in defiance of restrictions in the statutory framework, Humphrey‟s Executor (1935) 2. Functionalism: Only Void Excessive Aggrandizing of Powers a. Independent Counsel, Appointment/Removal, Not Aggrandizing (1) Morrison v. Olson (1988) – under the ethics in government act of 1978 if the attorney general finds “reasonable grounds” then independent counsel is appointed by the special division of the district of columbia circuit, court upholds the act by applying a functional approach and finding no aggrandizement (a) No Judicial Aggrandizement: judiciary appointing independent counsel is allowable since independent counsel are “inferior” executive employees not “principal” officers who must be appointed by the president (b) No Executive Aggrandizement: executive is actually limited, president can fire the attorney general but only the attorney general can terminate the independent counsel for „good cause‟, doj must suspend its investigation (c) No Congressional Aggrandizement: not gaining a role in the removal of executive officials, role is limited largely to oversight activities (2) Result – experiment with independent counsel under the functionalist approach didn‟t work out, great power in the hands of the independent counsel and no supervision, ethics in government act expired and wasn‟t renewed b. Some Rulemaking Authority in the Judicial Branch (2) Mistretta v. US (1989) –sentencing commission to set up federal guidelines for criminal sentencing, set up as an independent commission in the judicial branch – at least 3 federal judges on the 7 member commission, court upholds the act and disavows the claim that the judicial branch is unconstitutionally using legislative authority, states that there is some rulemaking authority in the judical branch

30 D. Executive Privileges and Immunities 1. Executive Privilege – Explosive Interest a. US v. Nixon (1974) – president subpoenaed to produce tapes recordings and documents relating to conversation with aides and advisers, Nixon claims that he has an absolute privilege from judicial process and alternatively that his claim of executive privilege should prevail over the subpoena, Nixon only asserted a general interest in confidentiality to protect the office, as a matter of principle these discussions shouldn‟t be made public because he won‟t be able to get the best advice from his advisers, court upholds the subpoena but rules that there is a qualified executive privilege, office of presidency came out good (1) 9-0 vote for enforceability purposes; court‟s prestige very much on the line b. *Standards of Executive Privilege: Qualified & Implied Power (1) Implied Power – its not in the constitution (2) Absolute Privilege for Specific Interests: {1} national security, {2} diplomacy, and {3} state secrets don‟t have to be disclosed (3) Balancing Test for Generalized Interest: court weighed the generalized confidentiality interest against the right of production of all evidence at a criminal trial; fair administration of criminal justice more important (4) Procedural Safeguarding (a) ex parte, in camera inspection – judge will inspect evidence in private with only the president‟s counsel (b) judge will only admit evidence that is relevant and that doesn‟t fall into one of the privileged categories 2. Presidential Immunity a. Absolute Immunity from Civil Damages Liability for Official Acts (Nixon v. Fitzgerald 1982) - President in subject to process (Nixon v. US) but can‟t get damages for the conduct he does in his official capacity (1) Justification for Absolute Immunity (a) Act Aggressively and not need to make risk calculus of liability (b) Distraction Factor – don‟t want him to direct his energies from his official duties (2) Limit – can be enjoined if acting illegally (Holtzman 1973) b. No Immunity, Even Temporary, from Liability for Nonofficial Acts (1) Clinton v. Jones (1997) – [Dangerous Precedent], president sued for action not in his official capacity occurring before he became president i.e. something he did as a private citizen, court holds that he has no immunity, absolute or temporary, (2) Distraction Factor Immaterial – Clinton wants to postpone the suit until after he is out of office; court says that it may be a burden but that if its frivolous it may be terminated at summary judgment (a) Breyer (Concurring) notes that the president is going around the clock and “never adjourns”, can‟t be at the beckon call of the plaintiff‟s attorney (b) court was wrong – Clinton may have avoided impeachment otherwise c. Tension Between Nixon and Clinton -Official Acts Liability→So Distracting→Absolute Immunity -Unofficial Acts Liability→Only Some Distraction→No Immunity

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