Scott Shane Con Law Outline - Fed-State

I. Introduction: A. 2 divisions of power 1. Vertical Division of Power: division b/n state and federal - federalism 2. Horizontal Division of power: (checks and balances) Divided and overlapping powers between and Exec./Leg/Jud branches of gov’t. a. Madison: talking from Montesquieu that the very definition of tyranny is where all power resides in one person. II. The Philosophical and Natural Law Basis of American Order A. C is traceable to Jerusalem, Athens, Rome and Bethlehem – designers of C looked there 1. Jerusalem: John Adams a. Basis of civilization and morality is the belief in a supreme being – this concept makes people feel accountable. This accountability will cause people to lead a more orderly life. b. Does the original constitution mention religion? i. Not substantively. But note that the C was based on the idea that we need to recognize that we are all created by God in his image; it acknowledges the fact that there is a higher source and that man will be held accountable; rights originate not with gov’t but from a higher source ii. The Founders lived in a very religious world, and were in many cases very religious themselves. In Federalist 55, Madison claimed that the best form of government for men would be where the actual ruler was God. 2. Bethlehem: John Winthrop a. All men are created equal in the eyes of God (―All men are created equal‖ – modern). Applied to politics, any man is entitled to rule. Notion of being created equal, that No man is more honorable than any other, has a deep root in this Christian/Hebrew source. b. Wanted to create a ―City on a Hill.‖ c. Building on Hebrew notion of accountability, Winthrop says that when structuring gov’t, the gov’t should focus on Common group, rather than a particular set of self-interests, so as to maintain accountability to God. 3. Greece-Athens: Aristotle a. When dealing with freedom of people, aim laws to those in the middle – seek the mean. The wealthy are unwilling to obey and poor are not focused on Common good, rather survival. b. Be not excessive in terms of wealth, provide people basic sustenance opportunities and you will construct a gov’t with great opportunities. 4. Rome: Cicero a. ―True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions.‖ i. Law is anchored in reason; man shares with God the capacity to reason, reflect, etc. This is what differentiates man from the plants and animals. ii. Provides a non-religious basis for natural law by saying it’s knowable by everyone, even those without religious instruction b. Positive law: law that is enacted by men, a product of human thought c. Natural law: law that is not a product of human thought. The innate knowledge that humans have that something is objectively good or evil (rape is wrong and everyone knows it). i. Holds that law cannot depend on what people or judges make it. d. Note: The point of natural law is to serve as a check on the positive law e. Note: the mere fact that the law is approved by the majority does not necessarily make it in line with right reason or natural law. 1 B. St. Augustine 1. Recognizing government as the means to larger ends: the original conception of limited government a. Augustine, in comparison with Greeks and Romans, did not regard citizenship and governance as ends to themselves. The political world had no intrinsic significance for him. He regarded the state as a restraint imposed on man because of his sinful nature. All that could be expected from government is a moderation of the consequences of sin. b. America could be said to derive from his thought a conception of a transcendent nature of mankind (as expressed in the Declaration) and a conception of human limitations and imperfections (as expressed in checks and balances). 2. Importance of intermediate associations: intermediate associations, such as the family, local church, and civic associations, help inculcate a spirit of liberty and morality, which in the end help to promote democracy 3. Compared with Thomas Aquinas a. For Augustine, the state is little more than a necessary evil, to restrain men from their sinful tendencies b. For Aquinas, government would be required even if there were no evil doers or breaks of the peace. As long as men are in society, he contends, someone must attend to the common good. Government has a positive role, attending to the moral well-being of citizens and ensuring material well-being. Also, very much believed in Natural Law. 4. Tocqueville’s reliance upon religion to make society suitable for law a. T believed Christianity and liberty were linked in America; that Christianity contributed to the maintenance of a Democratic Republic. It did so by enabling men to see themselves as equals, because they are equal in the sight of God, and to be moral, facilitating good government. C. The Late Middle Ages: 1. 1215: Magna Carta: a. English document limiting the King’s power as respect to a group of barons, as his power is not absolute and must be limited. Our constitution reflects this in our bill of rights – 5th and 14th Amendment and the Due Process clause – no person shall be deprived of life liberty or property w/o due process is same principle as was said in magna carta – ―law of the land‖. 2. Henry II: He surrounded him by a set of advisors. This ―Court of Kings Bench‖ were advisors to him which take on an identity that stood to represent the modern jury. He sent these counselors out to resolve disputes in a uniform way, attempting to find the universal holdings in each case…creating a common law. a. Bracton: was one of the first people to summarize Henry II’s common law principles: i. King needs 2 things: (a) an army to conquer and expand and (b) law to maintain orderly control over territory. ii. Some components of common law as they have developed: (a) private law, public law (relationship b/n citizen and gov’t), natural law, civil law (statute), jus gentium (natural law which nations in world must observe) – i.e. right to self-defense. b. Consequence for the King of creating a body of CL and a body of judges who decide cases pursuant to the standardized body of CL? Does king’s power grow or subtract? i. Lord Cook: thinks the power belongs to judges. Cook’s concept of justice and equity was based on decisions based on precedents. Cook says King cannot adjudge a case b/c they are not learned in the laws of England and are not in the best position to make decisions. Also since King has sovereign immunity, how could justice be served if no recourse can be taken. 2 3. Charles I: a. Dispute b/n himself and Parliament, legislature, which is trying to control executive power. b. In the Five Knights Case: nobles refuse to pay King’s taxes and King detains them with out charging them with an offense. They seek out a writ of habeas corpus, an explanation of why being held. King response it that it is his right. Rex lex loquens – the king is the law speaking. Judge allows on basis that King has never been wrong. c. Consequence of this case: nobles extract from the King a Petition of Right. i. No more imprisoning people without cause…etc. ii. 8th Amendment in Bill of Rights comes from this document. d. Series of events: i. Charles disregards Petition causing great tension with Parliament. ii. Parliament issues resolution saying they are the source of power  direct challenge to the King’s concept of absolute discretion. Transfer of law making authority from executive to legislature. In addition, it says that anyone serving the King is to be appointed by legislature. In addition to law making and appointment power, the Parliament to the role in foreign relations. iii. King attacks the parliament. Charles is on trial. House of Commons took it upon themselves with no authority, while the House of Lords voted against it. King asks what authority they have to try him. The authority they gave was that they must answer to the people of England who elected him. iv. Charles I executed. (a) Milton justifies taking of Kings life: ―all Kings are deputies of the people!‖ (b) Hobbes says it would have been better to have a King b/c of insecurity resulting from absence of power since man is inclined to do evil. 4. The Glorious Revolution a. Charles II was reinstated b. Charles II was friends with Louis of France and had his financial support c. Ultimately Charles’ Catholicism is too much for the Commons (Protestants) to bear. 5. Declaration of Indulgence a. Introduced by James II (Charles II’s successor) b. 2 important aspects: i. ―the free exercise of religion‖ and ii. ―the right to private property‖. c. James II says purpose of Act of Indulgence is to allow all faiths to serve the commonwealth. d. James forced to abdicate thrown to William and Mary as expressed in the English Bill of Rights. EBR puts the King under the law. e. James’ Offenses: James II and Charles II were the wrong religion (no Catholic can become King), refused to enforce laws passed by Parliament, levied improper taxes, he had a standing army, interfered with freedom of elections  think American Bill of Rights. f. Guarantees that the Am. Constitution will include EBR, plus Americans include protection of religious freedom not included. 6. Locke and Government: 4 important aspects a. Gov’t establishes a settled known law received and allowed by common consent to be the standard of right and wrong  rule of law is traced to Locke. It is known in advance and general in nature and is prospective. b. Have impartial judges: if establishing a republic based on law, need I3P’s. c. Need power to enforce decisions of I3P’s by creating a police force, and d. Need a gov’t to secure the protection from foreign invaders. 3 III. The Structural Allocation of Powers: Judicial, Legislative, Executive (Separation of Powers) A. C divides the powers of the national gov’t among 3 different branches: Legislative (CG), Executive (P and those appointed to assist him) and the Judicial (federal courts). Separation of powers issues arise when it is claimed that one branch of gov’t has usurped or encroached upon the functions of the other. B. Montesquieu and division of governmental powers 1. Purpose for dividing powers is to protect liberty b/c the unification of powers in one hand leads to tyranny. 2. Of the 3 branches, he describes the judicial power as next to nothing b/c it only has power to interpret. This concept was repeated by Hamilton in Federalist 78 3. He advocates putting executive in a single person b/c it is an office of action, where dispatch is more important than deliberation. 4. He holds that turnover is needed in the legislative branch to prevent corruption, and fresh ideas connected to the people they represent. Also, split the legislature into 2 branches. C. JUDICIARY 1. A.III, §1: Judicial Power is in one SC and the other inferior courts CG makes. 2. Separation: What ensures the separation of the judicial branch from the other branches? a. Life tenure or ―so long as they maintain good behavior‖. 3. Federal Convention – who should appoint the judges? a. Madison – executive should appoint unless disagreed by 2/3 of the senate b/c there is accountability w/ the Executive. b. Article II, Sec. 2 of the Constitution - P has the power to nominate judges subject to the ―advise and consent‖ or approval of the majority of the Senate 4. Should there be lower federal courts – inferior courts? a. Rutledge says we do not need them. He thinks that states will hear federal cases. b. Madison says (1) state court would be incapable of handling all the cases, and (2) bias in state system. c. Note: the only federal court that must exist according to the Constitution is the SC d. Congress created lower fed courts for two reasons i. To promote the uniformity of law ii. To prevent state bias 5. To bring a case in federal court, it must be a justiciable case (not a political q) AND it must be within one of the subject matters of the court (diversity/federal question). a. Political Questions: Where there are no standards for cts to apply, and where they should thus not intrude 6. Justiciability: Federal Court J a. Justiciability defines the limits of A.III judicial power by defining which cases federal courts can hear. b. Article III, §2 of the C gives federal court the Judicial Power to hear cases and controversies. To ensure there is a case or controversy before it, Courts apply the Justiciability Elements. i. Elements: (a) standing, (b) ripeness, (c) mootness and (d) political question. c. The Standing Requirement: Who can sue? i. Does P have a stake in the controversy? ii. Policy: A standing doctrine keeps the court out of the business of the other branches. The court must wait until there is someone with a real grievance that they can address and remedy 4 iii. Three Constitutional requirements derived from Art III to show standing. P must allege that she: (a) has suffered or will imminently suffer an injury-in-fact, (i) The injury must be "concrete and particularized and actual or imminent, not conjectural or hypothetical." (ii) Injury can be a violation of Const, Statutory, and Common Law rights. (b) the injury is fairly traceable to the D’s conduct (causation – but for), and (i) The farther away you are from the D being the direct cause, the more difficult it is to establish this element (ii) Allen v Wright: injury must be ―fairly traceable to the D’s unlawful conduct.‖ (c) that a favorable court decision is likely to redress the injury (i) Show that the federal court by rendering a decision will do something to fix the actual injury caused by D. (ii) Example: Texas deadbeat dad program – jailing the father provides no relief because the mother and father were not married (Linda R.S. v Richard D.). iv. Prudential Limits on standing (a) Assert your right not as a 3rd party: (i) GR: A litigant lacks standing to raise the rights of others. Raines (ii) Exception: If have injury yourself and the representation of your claim will fairly represent the interests of a third party. (1) Example: in close relationships or doctor patient relationships. (b) No Generalized Grievances (i) GR: The rule against GG precludes A.III courts from entertaining ―citizen‖ or ―TP‖ lawsuits in which the only injury claimed by the P is the shared harm experienced by all citizens/TPs when the gov’t fails to comply w/ the C or laws of the US. (ii) Exception: Where P can show that the gov’t action cause him to suffer a particularized injury (damage to property to curtailment of personal liberty). (iii) Example: TP who doesn’t like the way the government is spending money. (c) Legislative Standing: Do members of CG have standing? Raines v. Bird: (i) GR: Legislators who cannot establish a personal injury (like in Powell) will not have standing to challenge gov’t conduct. (ii) Exception: demonstrate that the institution itself has delegated to them the power to vindicate an interest or that the conduct is tantamount to a complete nullification of their legislative prerogatives. d. The Ripeness Requirement - Is There a Present or an Imminent Threat of Injury? i. Issue: Time – is the lawsuit premature?  P must actually be threatened or be refraining from otherwise actions due to imposed hardship. This is to separate imminent injury from one that may never occur. ii. Abbot Labs – 2 Considerations. (a) First Consideration: hardship to the parties of withholding court consideration (i) Hobson’s Choice: Case is ripe when the party has to choose b/n refraining from conduct or risk being prosecuted if do engage in conduct. (b) Second Consideration: Is the issue fit for adjudication? (i) Yes, if the issues raised are purely of law and there is no need for a detailed factual record. e. Mootness: i. A case must be dismissed when, b/c of changes, the court's determination of the legal issue cannot have any practical effect in achieving the desired result as the parties are no longer adverse to one another. 5 ii. No longer an interest in the case (death, law repealed) – no longer adverse. iii. Note: voluntarily ceasing illegal behavior doesn’t necessarily moot the case. f. Political Question Doctrine i. Under the PQD, certain C issues are deemed off limits to the judiciary, and thus enforcement of the C is dependent on the executive and legislative branches, the socalled political branches. ii. 2 Questions which both must be answered in the affirmative: (a) Does the issue implicate the Separation Of Powers concern? (i) Baker v Carr: would the Court be placed in conflict w/ either the Executive branch or CG? Does the C place the authority in CG or the P? (ii) Example: does not apply to state actions. (b) Does the C commit resolution of this issue to either the P or CG? (i) Nixon v US: Art. I, §3, cl.6 gives the CG sole power to try impeachments. (ii) If there is such a commitment, express or implied, then the court must sta eout of the controversy. (iii) ASK: which branch of the gov’t has final C authority? 7. Subject Matter J of the Supreme Ct a. Appellate J: i. Federal Question J (appellate J) (a) P must base his c/a on federal law (well-pleaded complaint rule: a federal question does not arise when P claims that his c/a arises b/c of the D’s anticipated affirmative defenses (Louisville & Nashville R.R.)). (b) Generally state cts of general J and may hear federal question claims, unless Congress make those claims the exclusive J of federal cts (like bankruptcy, antitrust, etc.) ii. Diversity J (appellate J) (a) Citizens must be of different states and the amount in controversy must exceed $75K. Diversity is measured by citizenship at the time of the filing of the complaint (b) Strawbridge complete diversity rule: each D must be a citizen of a different state than each P. iii. Admiralty (appellate J) iv. Controversies naming the US as a party (appellate J) b. Original J i. Congress may not add to or subtract from the Court’s original J (a) Marbury v Madison: SC cannot hear as an original matter an issue that arises under FQJ, such as writs of mandamus. ii. Controversies between 2 or more states (original and exclusive J) (a) Ct will refuse to adjudicate if case contains no federal interest (CA v West Virginia). iii. Actions in which ambassadors or similar agents of foreign states are parties (original and non-exclusive – shared with lower federal courts) iv. Controversies between US and a state (original and non-exclusive – shared with lower federal courts) v. Actions by a state against the citizens of another state or against aliens (original and non-exclusive – shared with lower federal courts and state courts) c. Power of CG to Make Exceptions to Appellate J: EXCEPTIONS POWER i. A.III, §2 – ―In all other cases before mentioned, the SC shall have appellate J, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.‖ 6 ii. GR: CG can’t touch original J, but it has sweeping textual authority to make exceptions to Supreme Court’s appellate review (a) CG can cut back on the kinds of cases the SC may hear, but cannot expand the case load beyond the categories set forth as the federal judicial power in the C iii. GR: CG can limit, but not expand, the power of lower federal courts iv. Example: Ex parte McCardle (a) Issue: did the court have J to hear McCardle’s writ of habeas corpus? (b) During the proceedings, CG repealed the act upon which McCardle was relying. Thus, the court dismissed for lack of J. (c) Where did CG gets authority to repeal the act and deprive the court of J? A.III §2 where the C allows CG to make ―such exceptions and under such regulation as CG shall make‖ 8. Judicial Review: a. Def: the process by which courts rule on the Constitutionality of actions taken by federal and state officials. b. Federalist 78 (Hamilton) i. Hamilton thought court was the least dangerous branch b/c other branches have power of money (legislature) and power of military force (executive). ii. What protects against bias or prejudice? Life tenure creates independence. But Congress can take back some J if they feel they are getting out of hand. c. Check of Executive: there is a check in that the executive must enforce the decisions of the courts. d. GR: federal courts possess the power of judicial review of actions taken by the legislative (CG) and executive branches. If those actions are found to be unC, federal courts may refuse to honor/enforce them. Marbury v Madison i. §13 of judiciary act gives SC the power to issue writs of mandamus (a) Ct finds this section to be Unconstitutional, as it expands Original J. (b) A.3, §2, cl.2: SC has original J over those cases ―affecting Ambassadors, other Consuls, and where a State is a party.‖  all other cases the SC has appellate J. (i) Exceptions clause: allows CG to remove cases from SC’s appellate J, but it does not allow CG to add to SC’s original J. e. Is the Ct to be the sole expositor of Constitutional meaning? i. No. It is the final, but not the sole. ii. Executive may exercise independent C judgment through the use of the veto, by vetoing laws he considers unC. f. Binding nature of judicial opinions on the States i. Rule: The SC may review state court decisions involving questions of federal law (Martin and Framers’ intent). In compliance with the Supremacy Clause, the SC’s decisions are binding on all state courts. ii. Martin v Hunter’s Lessee (a) Title dispute: Virginia confiscated land according to its own laws, but it does so after a treaty was signed, vesting the British owner’s rights. (b) US supreme ct gives it to British. SC says fed appellate power extends to all cases under article 3, and the C guarantees SCt final review in all cases. iii. Why does this matter? Uniform interpretation of federal laws. D. LEGISLATIVE 1. Bicameralism and Presentmenta. Rule: A ―legislative veto‖ is unC b/c it violates the presentment and bicameralism provisions of Art. I, §7. i. The House cannot act w/o its resolution being submitted to Senate (bicameralism) and w/o presenting it to P for signature (presentment). 7 b. Policy: The reason for this ruling is b/c of the way leg veto effects separation of powers. It merges executive and leg, which is something founders feared. c. Example: INS v. Chadha i. Facts: The House passes a bill—not passed in the senate or by the P—that says that they have the power to veto the AG’s recommendation to suspend deportation pursuant to statute. d. Pro-Legislative veto argument: Since CG can delegate power to the executive, it should be able to retain a portion of that power and reserve the right to veto. e. Can legislature do things w/o bicameralism or presentment? i. If there is no legislative purpose  filibuster ii. A single body can determine its own rules. iii. Legislation not binding outside groups does not need to follow bicameralism setup. iv. House of Rep alone can initiate impeachment. v. Senate has power alone to try impeachment. vi. Senate is given power of advice and consent of judicial appointments. vii. Where C specifies a single house can act alone then it is ok. 2. Inherent Power for Line Item veto? a. Bundled measures: Putting together bills to ensure passage i. Does P have inherent line item veto over bundled legislation? No. (a) George WA has said, ―When a bill comes before you, you must sign all or none.‖ b. Line Item Veto Act of 1996 i. The Line Item Veto Act passed by CG gave the P unilateral authority to cancel certain provisions contained in bills that had to be signed into law. As such, the SC said it violated the C requirements in the Presentment Clause of Art. I, § 7. (Clinton v NY – requiring bicameral passage and presentment). E. EXECUTIVE 1. The Energetic Executive: The Framers wanted to create an office so that someone would have the authority to take steps in a short period of time. 2. 3 Sources of Presidential Authority: a. Article II, §1: the executive power shall be vested in the President of the U.S. b. Article II §III: Take care clause: executive is to take care that the laws are executed. c. Article II, §2: Commander in chief of military: president ―shall be Commander in Chief of the Army…‖ 3. Other Article II Powers a. Empowered to make nominations with advice and consent of senate. – appointments b. Primary role in negotiation and Drafting of treatise, subject to senate ratification c. Plenary authority with respect to Pardons d. State of Union address e. Power to recommend and Propose legislation’ f. Power to Receive foreign nations – which is the power to recognize legitimacy of govts of foreign nations 4. Presidential power is subject to braod interpretation a. Theo Roosevelt admitted extending P power (he argued he could do whatever he wants unless prohibited by Const or statutes). b. Taft however, would not act w/o explicit authority. 5. Source of Domestic Authority: Youngstown a. Youngstown relates to domestic limitations on the P’s power – when is CG authorized to act? b. Facts: Threatened strike among the steel workers while at war. The P intervened and seized the mills to keep them running. The P believed that his inherent powers were enough to justify his actions. The Court however held that ―the P’s order amounts to 8 lawmaking, a legislative function which the C has expressly confided to the CG and not to the P.‖ c. Jackson’s Concurrence: Gives three categories for executive authority i. Category One: P acts w/ CG (a) Zenith: maximum authority for P (b) His power includes all that he possesses in his own right (Article II) and all that CG delegates (Article I). ii. Category Two: Executive and CG authority overlaps, P acts, but CG is silent (no express approval or disapproval) (a) Twilight zone: P relies on his Article II powers. (b) P thinks he is in the twilight zone – when this occurs, someone must determine if CG has acted. iii. Category Three: P acts alone and CG has denied authority. (a) Lowest ebb of P authority. (b) Pres must have some sort of C trump card over CG. (c) The Majority think that this is where Truman is – CG contemplated it and refused to pass legislation. 6. Presidential Power of Appointment a. GR: Art. II, § 2, cl. 2  2 ways to be appointed as an officer of US i. Principle Officers: those appointed with Advice & Consent of Senate (a) Examples of officers subject to A&C: ambassadors, public ministers and counsels, judges of SC, and anyone else that is an advice and consent appointment, also heads of cabinets and independent agencies (FCC, FTC) (b) If CG creates a position subject to nomination and confirmation by the senate, then, by their terms, they will be principal officers ii. Inferior Officers: P alone can appoint, courts of law or heads of departments can appoint, but not the CG itself. iii. Employees: appointed pursuant to office of personal mgmt under guidance of head of dep’t. b. Federalist 76 (Hamilton): the Senate only approves or rejects, does NOT choose  fixes responsibility in one place, creating a greater sense of duty, ACCOUNTABILITY 7. President’s Power of Removal a. C is almost completely silent on the question of who possess the authority to remove a federal officer from office. b. GR: With regard to a principle officer, P has sole removal power. They are removable at his will (Myers v US). i. Facts: Postmaster appointed by the P. P removes postmaster. ii. Taft’s Majority Opinion: (a) Principal officers are carrying out executive functions and thus must be controlled if they are to be held accountable. (b) For executive power to be unitary as intended, executive needs sole removal power. (c) P has better grasp on who to appoint and who to remove than the Senate, b/c better informed, c. GR: CG can limit the removal of inferior officers appointed by dept heads when in the public’s interest. (US v Perkins). d. GR: CG can place limits (for cause) on the removal of Inferior officers who exercise quasi-judicial and quasi-legislative functions b/c those individual form a separate independent administrative branch of the gov’t. (Humphrey’s Executor v US). 9 Facts: Humphrey was nominated by Hoover as a member of the FTC (an independent agency). Roosevelt asked Humphrey to resign. Roosevelt finally removed him from office. ii. The Myers decision, affirming the power of the P alone to make the removal, is confined to purely executive officers. 8. The Executive bounded by statutory meaning a. FDA v Brown & Williamson i. Key legal question: whether there was a CG intent authorizing the FDA to regulate tobacco products. ii. Statutory interpretation: key is the intent of the legislative assembly that authored it! iii. Chevron (a) When CG writes a statute and delegates authority to an admin agency, and someone contests the agency’s rule making authority there are two steps (i) Step 1: If CG has spoken, are the words of the statute plain in meaning on their own terms? If so, then it is the court’s duty to say what the law is and what the intent of CG was and whether or not the agency has misconstrued the statute. (ii) Step 2: If CG has not spoken, and the statute is ambiguous or silent on the topic, then there is nothing to interpret and therefore the role of the court is merely to decide whether the interpretation of the agency was a Rx one. Court must defer to the agency as long as the agency is acting w/in the scope of their authority. Better to do this b/c P is accountable for the decisions of the agency, otherwise it is a life tenured judge on the hook. iv. US v. Mead: (a) New deference: Skidmore deference: For informal guidelines, rules and letter rulings  Letter ruling not entitled to same level of deference as the deference given in chevron. (b) Court now exerts more oversight over an agency’s interpretation as to informal rulings 9. Executive Privilege a. Generally: i. GR: P’s conversations w/ his advisors are privileged b/c by requiring him to give them up it would encroach on his deliberative process b/c he depends on the candid advice of his advisors. ii. Qualified Privilege: Court recognizes existence of executive privilege rooted in the SOP doctrine, but it is not absolute, rather qualified. It must yield to specific needs of prosecutor and D’s as expressed in 5th and 6th Amendments. Privilege has more success in times of war, protect security needs. (US v. Nixon and WG tapes) (a) If the P invokes the privilege, the court will apply a balancing test to determine wither the privilege prevails. See hierarchy of privileges. Note that if the disclosure is sought in connection with a pending criminal trial, the privilege will be less likely to hold up than for a civil case. iii. Hierarchy of privileges (a) National security and military secrets (b) Law enforcement (criminal prosecution) or open litigation files (c) The right to receive complete, honest, and unfettered advice iv. Key: the executive privilege is not the figment of the imagination of the P, but it is an implied aspect of executive powers, a C claim!! b. Can the President be sued? i. 10 Civil: P cannot be civilly sued for decisions made w/in outer scope of the duties of his office. (a) Nixon v Fitzgerald: P’s absolute immunity from civil damages is ―rooted in the C tradition of the SOP.‖ (b) Outer Perimeter: does not extend to lawsuits arising from conduct that occurred before the P took office or after he leaves office. ii. Criminal: P can be criminally or civilly prosecuted for actions relating to his personal actions. (a) Nixon v Fitzgerald does not preclude criminal liability for failure to pay taxes, b/c it is not in any way related to functions of office of presidency. iii. Can P be prosecuted for conducting relations with terrorist nation? C claim against that statute b/c precluding P from engaging in negotiations would interfere with there ability to perform the functions of his office. c. 3 Options for misbehaving P: Criminal Prosecution/Impeachment/Civil Liability i. Article 2, §4: P can be removed from office on Impeachment for, and Conviction of high crimes and misdemeanors (Treason). ii. Can we have criminally prosecuted if not impeached? Article 1, §3, C.7 (a) Textually, if not impeached and not convicted of impeachment, than one can argue criminal charges cannot be bought. (b) Alternatively, one could say that this is an order of operations: attempt to remove, then bring criminal trial after. (c) With Agnew though, a non-impeached VP was criminally convicted. Agnew says that executive officer can be criminally convicted before being impeached. 10. The Independent Counsel a. IC law has died. The Department of Justice has gone back to creating Special Prosecutors who are a part of the Executive branch. b. IC are inferior officers. c. For independent agencies, rather that asking if an officer is removable at will (Humphrey’s Executor), ask if an officer is performing executive duties. If performing executive duties, it will only be upheld if it doesn’t impermissibly burden the President’s power to control or supervise the officer. d. Morrison v Olson: i. Facts: CG wanted testimony of Olson’s advice to P about asserting executive privilege. CG alleged that when they questioned Olson about the advice in a 3000 page report that he misled them – obstruction of justice. With the report, CG sent it to AG and AG, under the IC statute, creates a special panel to appoint a prosecuting officer to investigate high ranking officials in executive branch who are alleged to have committed a crime. Burden of proof was whether there was Rx grounds to believe that investigation was further warranted. IC appointed. Olson challenges the constitutionality of IC statute. ii. Olson’s 3 C arguments against IC (a) IC must be a principal officer (i) Majority: Morrison (IC) is an inferior officer b/c she was appointed by special panel and not by the P with advice and consent of the senate. (ii) IC role has No policy, no admin duties, ltd time and J, must follow DOJ guidelines, ltd term, removed by good cause by AG so sufficiently inferior. (b) Violates appointments clause (i) Violates appointments clause b/c courts are appointing subordinate officers in executive branch – incongruous for courts to be appointing a subordinate executive officer i. 11 (1) Majority: Text says inferior officers can be appointed either by P alone, head of dept or courts of law – it doesn’t say they are the only ones who can appoint inferiors in own branch. (c) SOP (i) IC being assigned an aspect of power to prosecute crimes is an assignment of part of executive responsibility to someone who is not fully accountable to executive  that violates the SOP. (ii) Majority: Key inquiry is whether or not the IC role impedes the P’s ability to do his job. Court said it did not. CG was not trying to increase their power to the detriment of the executive. (iii) Scalia Dissent: 2 questions (1) Is it executive power? Prosecution of crimes (2) If so, then it must remain in the executive power. 11. The President’s Foreign Policy Powers a. The power over foreign affairs is comprised of specific textual grants such as the power to regulate foreign commerce (A.I, §8, cl.3), declare war, approve treaties (Article I, §8) and the treaty power (Article II, §2, Cl.2), coupled with the implied authority of the US to exercise those powers inherent in the concept of sovereignty. Allocation of these powers as b/n CG and the P, except where the C provides specifically for the CG (CG may declare war and P treaties are subject to Senate ratification), primary authority over foreign affairs rests with the P. Garamendi b. US v Curtis Wright: i. Facts: P is delegated authority to make the judgment on if he should prohibit the sale of arms to specific area. P issues such a proclamation. D sold arms during the period of time the P’s proclamation was in effect. ii. D’s argument: it is an unlawful delegation of legislative power to the P. iii. GR: CG can delegate rule making authority to federal agencies so long as they accompany that delegation with an intelligible standard. Modernly they have relaxed what is determined to be intelligible. iv. Intelligible standard and foreign affairs: Unintelligible is not a problem here b/c this is a foreign matter. Area of foreign affairs is a repository of executive power that exists separate and apart from enumeration of power in the C. P has inherent power of matters of foreign affairs. Authorizes: (a) the power to acquire territory by discovery and occupation: nothing in the C says this power is reserved in the P. (b) the power to make such intl agreements as do not constitute treaties in the C sense: P can enter into agreements (executive agreements) w/ foreign nations without submitting them for the ratification of the senate. (c) The P is the sole organ of the nation and the sole representative w/ foreign nations. (d) And in the conduct of such matters the P can employ secrecy. c. Treaties i. Treaty: a compact b/n the US and a foreign nation that conforms to the advice and consent requirements of A.II, §2, cl.2. ii. 3 components of a Treaty: (a) P negotiates the treaty and accepts no unwanted consultation from CG to negotiate in a certain way; president has plenary control; (b) 2/3 approval from Senate; (c) P himself exchanges ratification documents with the foreign party thereby affirming that the treaty is in effect. (Note that if the Senate modifies the treaty 12 and the President doesn’t like the modifications, he does not have to exchange it with the other party). iii. Self-Executing v Non-self-executing Treaties: (a) Any treaty requiring appropriations is not self-executing b/c appropriation matters must originate in the house. (b) If treaty calls for domestic laws to be conformed to provision of treaty are not self executing b/c new law must be passed. (c) A subsequent ratifying treaty that is self-executing and that conflicts w/ an existing statute will prevail. Self-executing treaty has same status as a federal statute and the last in time is the governing statute. iv. Pres can terminate treaties upon giving of proper notice (a) Goldwater v. Carter – appellate court relied on President’s authority to receive ambassadors, and said that treaties might be terminated upon the giving of proper notice. Supreme Court refused to hear the case, saying it was a political question and non-justiciable. d. Executive Agreements i. Treaty power is not the exclusive means through which the US enters into agreements w/ foreign nations. Non-treaty international compacts known as executive agreements, which are not subject to senate ratification, are the other. ii. In terms of C power, the validity of the EA depends on the scope of the granted power pursuant to which the agreement was made. iii. What if EA supercedes and conflicts w/ earlier law? (a) Preemption: If an EA is based upon a treaty or statute and the EA is later in time than a conflicting federal statute, the EA will, by virtue that it is authorized by a previous statute or treaty, preempt the conflicting federal statute. In effect, this will have the same effect of a treaty. (b) But if the EA is done only pursuant to the P’s inherent authority, it is more doubtful in effect. iv. What is the effect of an EA on a conflicting state law? (a) EA will have preemptive effect if it is anchored in a prior statute or treaty. (b) What if it is based on simply presidential inherent power? Accepted view – An EA based solely on the P’s inherent power will preempt state law (based on the principle that states are incompetent when it comes to foreign affairs). e. War Powers i. Congressional Power: CG is given the power to declare war in Article I, §8, Cl.11. ii. Presidential Actions: P’s, however, have always maintained the right to enact military actions in defense of the country. iii. War Powers Resolution (a) Requires the P to report to CG before sending troops into hostilities or, if this is impossible, w/in 48 hours of introduction of troops into hostilities. (b) Also, if CG does not agree, it should issue a concurrent resolution giving the P 60 days to withdraw the troops. (c) No P has complied with the War Powers Resolution f. Prisoner Detention i. Hamdi v Rumsfield: (a) Enemy Combatant: Part of or supporting forces hostile to the US or its allies and actively engaged in armed conflict against the US (3rd part: on the battle field?). (b) 18 USC 4001: Non-Detention Act: no citizen shall be detained except pursuant to law. (i) Court says the AUMF satisfies this Act in its proclamation that the P should take all necessary force to get the bad guys. 13 (c) Purpose of detention: keep enemy combatant from returning to battle (i) Court states that it does not approve of indefinite detention for purpose of interrogation, limiting it to the length of hostility. (d) Lower court: justified detention with Mobbs decleration. (i) SC says this ―some evidence‖ is not enough to hold detainee on an extended basis b/c he warrants more due process. SC looks to the Matthews test. (e) Mathews Test: Due Process in such a situation: (i) What is the nature of the interest asserted by the private individual? Freedom from physical restraint. (ii) What is the countervailing gov’ts interest? Protection of national security. (iii) Whether or not there is an alternative form of process that can better reconcile those two? IV. A Limited Government of Enumerated Powers: Legislative Power A. Express Powers: Article I, Section 8 lists the powers given to the legislature 1. The CG shall have Power To lay and collect Taxes… 2. To borrow money on the credit of the United States; 3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; 4. To constitute Tribunals inferior to the supreme Court; 5. To declare War, 6. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this C in the Government of the United States, or in any Department or Officer thereof. B. Constitutional Convention – relationship between federal and state power. 1. Virginia plan: Line should be drawn where ―separate states are incompetent or the harmony of the union would be interrupted or disadvantaged…‖  a. CG should have authority in all cases in which a state is incompetent. b. When are states incompetent? States are incompetent where singular regulation can be easily defeated by competing regulation of surrounding states (minimum wage). c. In addition, states should not have the power to frustrate important national interests (war, environment, civil rights). C. Implied Powers of Congress Through the Necessary & Proper and Supremacy Clauses 1. Under the Necessary and Proper Clause of Art. I, § 8, CG can enact laws which are Rx designed to achieve its delegated powers. a. Hamilton in Federalist 33 says this means nothing. 2. When can CG rely on the N&P clause? McCulloch v. Maryland a. Where there is a legitimate enumerated end. i. Cannot use N&P clause to regulate marriage, CL Ks, state level crimes, or to impose speech censorship b/c none of those things are enumerated powers of CG in article 1 § 8. b. Where the means are appropriate: inquiry into proportionality i. CG must demonstrate that the method it chooses is connected in a proportionate way the ends it is seeking. c. Where it is not otherwise prohibited by the C. 3. McCulloch v. Maryland: key case interpreting the N&P clause a. Issue: Has the C granted CG the power to create a national bank? Although the court said that CG can only act pursuant to an enumerated power, and that there was no specific C grant of power to charter a bank, the SC upheld CG’s authority to do so. b. Marshall’s 2 arguments: i. Structural: C was a foundational charter that created a system of gov’t designed to address problems of national concern. The enumerated powers were just an outline of 14 the gov’ts authority. Since it is assumed the People want an effective gov’t, the C vests CG with the authority to select Rx means through which to exercise its C responsibilities. And since the C grants CG the power to levy taxes, borrow money, regulate commerce, declare war….the creation of a national bank is a Rx means to effectuate those enumerated powers. ii. N&P Clause: “Necessary and Proper” does not mean “absolutely necessary” but more like “convenient, worthwhile, and pragmatically necessary”. 4. Preemption: CG wins and states lose a. Article VI: Supremacy Clause says that the C shall be the Supreme Law of the Land. b. Preemption: Relationship b/n federal and state gov’t: what is local and what is national? c. Two types of preemption i. Express preemption: CG explicitly states in the statute that it is its intent to preempt state laws in a certain area  this is effective so long as CG is acting pursuant to a valid grant of power of its own. ii. Implied preemption (a) Field preemption: CG is legislating in a field where the scheme of federal regulation is so pervasive as to make Rx the inference that CG left no room for the states to supplement it. (i) Immigration and foreign affairs. (b) Conflict preemption: Either (i) Impossibility: not possible to comply w/ state and federal regulations (ii) Frustration of purpose: where state law stands as an obstacle to the accomplishment and execution of the full purpose and objective of CG. (1) ID the federal objective and determine the extent that state law interferes w/ the realization of that objective. (2) Geier: to allow for enforcement of state law that requires use of one device frustrates use of federal program requiring use of multiple. 5. Is there a federal common law? a. If CG has implied power (implied ability to use means not listed in those enumerated powers), does that same power carry over to the federal courts? NO i. Art 3 makes federal courts ltd J. b. Eerie overruled Swift by saying the federal courts must apply the law of the state in which it sits. i. Problem with relying on newly created federal CL is that there is no certainty and CL of crimes would lead to lack of due process and notice of offenses. V. THE INTERSTATE COMMERCE CLAUSE: A. A.III, §8, cl.3: ―To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.‖ 1. The Commerce Clause is the primary tool relied on by CG to regulate domestic affairs. B. Purpose 1. To prevent individual states from erecting trade barriers to interstate and foreign trade (Hamilton and Madison in Federalist Papers). 2. Create a common market among the states. C. Basic Formula: 1. Commerce: a. Commerce = the commercial exchange of goods and services including the marketing, purchase, navigation, and transportation of those goods. Production may affect exchange, but it is not part of the process of exchange. 2. Among the States: a. Interstate commerce includes those commercial exchanges that involve activity occurring in more than one state. 15 3. Regulate: a. Power to prescribe the rules under which commerce shall be transacted, including the power to prohibit particular transactions. D. 3 Broad Categories of Activity that CG may Regulate under its Commerce Power 1. Use of the Channels of Interstate Commerce a. Roads, bridges, etc. 2. Instrumentalities of Interstate Commerce a. Such as: Railroad, airline, trucking companies b/c these activities are conduits through which interstate commerce occurs. b. Including the power to protect from threats that come from interstate or local activities. Thus, CG may impose safety standards on intrastate carriers that use the same railway tracks, airspace, or highways as interstate carriers, in order to prevent them from endangering interstate carriers that operate on the same routes. 3. Activities having a substantial relation to Interstate Commerce a. The commerce power also includes the authority to regulate any economic activity that has a substantial relationship w/ interstate commerce or that substantially affects interstate commerce. See Lopez i. Example: production of goods for sale in interstate commerce is not itself interstate commerce, but is rather local and precedes interstate commerce, yet since it is an economic activity that substantially affects IC, it may be subjected to CG regulation through the combination of the CP and the N&P clause. E.C. Knight b. To come within the realm of economic activity one of two standards must be satisfied: i. 1) the activity being regulated must itself be properly characterized as economic in nature, or ii. 2) the regulation of the activity must be an essential part of a larger regulation of economic activity (the SC concluded that gun possession was not an economic activity). iii. Note: even if the regulated activity can fairly be characterized as ―economic‖ in order to fall within the ambit of the CP, the activity must also have a substantial relation to IC or substantially affect IC. E. Limitation on Scope of CP 1. Commerce power does not extend to those things which are completely w/in one state, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government (Gibbons v Ogden). a. Facts: Ogden had a license to navigate from the state of NY; Gibbons had a license to navigate from the federal government. b. Issue: what is the scope of federal power vs. the scope of state power? c. Marshall’s opinion i. Marshall’s definition of Commerce: commercial intercourse  Buying, selling, and bartering of products and services so long as it is among several states, meaning it is not something completely interstate. ii. Commerce includes navigation as it involves the trafficking of goods b/n states. (a) Why was the commerce clause enacted? To provide unity to eliminate barriers to trade among the states. (b) Textual support: A.1, §9 – mentions ports in that the federal government cannot show any preference of the ports of one state over the other, and thus the commerce clause must refer to navigation (c) Original Intent embodied in the Virginia Resolution: CG’s power was (1) to vindicate national interests, (2) promote harmony (3) and regulate where states are incompetent F. History: 16 1. Gibbons: CG may not rely on the CP to regulate matters that are completely internal to a state. 2. Cooley v. Board of Wardens: What about state regulations that were potentially subject to federal regulation under the CC and N & P Clauses? If the federal government chose not to regulate these matters, could the states continue to do so? a. Holding: Except in those areas which by their nature require a uniform national rule, the states retained a concurrent power to regulate local activities that affect IC until such time as CG might opt to regulate those matters itself. b. The Court eventually abandoned the view that there were areas of local economic activity over which the states and fed gov had concurrent authority. The Court divided power into two exclusive realms. 3. United States v. E.C. Knight Co: a. EC Knight was acquiring a monopoly on manufacturing of sugar in violation of 1890 Act (Sherman Anti-Trust Act) prohibiting monopolies or combinations of conspiracies in an attempt to curtail trade. This was the first major legislation affirmatively passed by CG under the Commerce Power (CP). Why wait over 100 years to turn its main engine on? The Commerce Power was a Dormant for 1st 100 years, but it was applied by the courts in its dormancy. When state passed a law, the courts would take it upon itself to assess if law was an undue burden on IC. The court would ask if a state is attempting to discriminate against IC in favor of intrastate commerce to give itself some advantage. Courts had a vision of national market ideal. If states passed laws contrary to their vision, they would strike it down without involving CG. This 1890 act was the first time commerce power was affirmatively used. b. Is manufacturing commerce? Fuller says that CG cannot reach the monopoly in this case b/c manufacturing is distinguished from commerce b/c it precedes commerce and is not a part of it, e/t the end effect does bring commerce into play. i. The acquisition of a monopoly totally in the state of PA cannot be commerce; it is only the acquisition of stock in a single place and is totally internal to the state. ii. If the line is not drawn here, then the states would become servants of the federal gov’t w/ too much power centralized in US and not the several states. 4. Champion v. Ames: Proposition that CG can use CP to regulate non-commerce subjects. a. Can CG prohibit the sale of foreign lottery tickets in the US? Does the Commerce Power include the power to prohibit commerce? i. Transportation and moving across state lines fulfills interstate definition. ii. Yes. Harlan says word regulate in the C is broad enough to include the affirmative (promote Commerce) but also used to protect it by prohibiting commerce that is harmful. b. Is there evidence that founders did not intend for CG to regulate on moral grounds under the commerce power? i. Harlan says the commerce power is broad and plenary – prohibitions and regulations related to moral objections are now included within it. ii. Dissent: Maybe state legislatures know their constituencies better than members of CG. c. A.L.A. Schecter Poultry Corp. v. United States: Court said regulating the wages and hours of a wholly intrastate business affected IC only indirectly and therefore regulating such wages and hours was beyond CG’s CP (overruled by Darby). 5. Commerce Clause emerged out of VA Resolution: Founders were worried about states acting as hostile competitors towards each other  6th VA Resolution: Power fed gov’t should have: a. general interests of the union b. to promote harmony among the states 17 c. to address regulatory questions that the states cannot accomplish separately 6. From 1905-1936 the Court continued to give deference to the states and greatly limit the power of CG to regulate commerce. G. Modern Law of Commerce Clause: 1. United States v. Darby: ―The power of CG over IC is not confined to the regulation of commerce among the states.‖ a. FLSA: passed by CG prohibiting shipment of goods made by EE’s who earn less than the minimum wage. b. While manufacturing (including wages and hours) is not of itself IC, the shipment of manufactured goods interstate is IC and the prohibition of such shipment by CG is indubitably a regulation of the CP as augmented by the N and P clause. Meaning, CG could regulate intrastate activity that had a ―substantial affect on IC. c. 10th Amendment is all but a truism. 2. Wickard v. Fillburn: Anything with a substantial economic affect can be regulated and anything that is considered trivial, non-commercial or insignificant, but when aggregated are considered substantial, nevertheless are considered to have a substantial affect on IC, and thus can be regulated. (Wheat grown for home consumption – wholly intrastate) a. Rule: Aggregation Theory of the Substantial effects prong i. Applies Swift v US case: farmer not buying food is going to affect the stream of commerce, so indirectly affect IC. 3. Shreveport rate case: CG and states set rail rates a. Is wholly intrastate rate setting regulatable by the Interstate Commerce commission? Yes b/c of substantial effect on interstate commerce. 4. So is there any intrastate limitation? No modern application. 5. After Wickard, what is the scope of CG’s commerce power? a. Under the Modern definition of the CP, the subject being regulated can be something other than an economic Tx, in fact it can be anything as long as it has a substantial economic affect on IC, but that substantial economic affect will be defined broadly, such that even small activity of consumption of wheat for home use can be aggregated to find substantial affect. b. Rule: Object of federal regulation Does not need to be commerce, does not need to be interstate, it merely must have a substantial economic affect on interstate commerce under the aggregation principle. 6. What are the limits on the Commerce Clause? (Substantial effects Prong) a. Substantial affects prong cannot rely on inference piled on inference and must have a real effect on IC and a rational basis to believe that the activity being regulated substantially affects IC. i. Remember: Substantial affect is the 3rd prong of the CP (a) Channels of IC (roads, navigable waterways, air routes). (b) Instrumentalities of IC or persons or things in IC: trucks, planes. (c) Activities having a substantial affect/relation to IC. ii. 3 Threshold Requirements to find a rational basis that an activity Substantial Affects IC (US v Lopez - SC said that a federal law prohibiting possession of a gun w/in a school zone or near one was in excess of the CP.) (a) Must be an economic activity (i) This was a criminal statute w/ no trade or Tx taking place. If not economic, the no rational basis for CG to regulate. (b) Must have a jurisdictional hook (i) J element is when the Act makes the prosecutor show for each case/crime that the particular act substantially affects IC. (c) Legislative findings say that the activity has a substantial effect on IC 18 (i) Not required, but they are helpful. (ii) US v. Morrison: Violence against Women Act (1) No economic activity (2) No J element (3) CG had held months of hearings about gender violence and there were findings that it could be a drag on economy. Findings alone are not sufficient. b. Ashcroft v. Raich: CA law legalizing marijuana for medicinal purposes conflicted w/ federal law. i. Issue: Is the home growing and personal consumption of marijuana a commercial activity that can be aggregated for purposes of the substantial affects test? ii. The Court held that the commerce clause gave CG authority to prohibit the local cultivation and use of marijuana. Stevens argued that the Court's precedent "firmly established" CG’s commerce clause power to regulate purely local activities that are part of a "class of activities" with a substantial effect on IC. Stevens says that under Wickard it need not be commerce, if the regulated activity substantially affects IC. Majority says that CG need not come up with evidence that there is actual affect so long as it has a rational basis to believe that in the aggregate this activity if not regulated by federalis would have a substantial affect on IC. iii. Scalia: concurring, he says they can regulate under the N&P clause. He adds that CG can regulate where there is no Interstate or commercial activity or no showing that there is a rational affect on IC (no interstate, commerce or substantial affect), only need a N&P rational that regulating this activity is necessary for affecting regulation somewhere else. 7. The relationship b/n Civil Rights and the CP: a. CG has used the CP as a source of gov’tal authority to prohibit various forms of discrimination in the economic marketplace. b. Hearts of Atlanta: hotel discriminating i. 14th Am: state cannot deprive citizens of equal protection under law so CG cannot regulate individual actions under this b/c hotels and restaurants are not the states. ii. 13th Am.: abolished involuntary servitude and applies to all, not just the states, but is denying food in a restaurant slavery? iii. CP: CG can Rx conclude that discrimination by motels serving interstate travelers substantially affects IC. H. Where does the CP stand as it relates to moral judgments? I. DORMANT COMMERCE POWER 1. Introduction: a. DCC is the courts non-textual power to limit the power of the state to enact laws affecting IC. From beginning it was assumed that if CG had not spoken to the authority, then courts assumed it retained the authority in a dormant/negative manner to address state legislation that discriminated against IC or created undue burden against IC. b. Question: When do you know when you have a dormant or affirmative commerce clause issue? i. Dormant issue: courts are deciding if the state is w/in the scope of its power? ii. Affirmative issue: CG has acted and there is a question of whether or not they are acting w/in the scope of its power? 2. Early Developments: Cooley v Board of Wardens a. Facts: State law required ships coming into PA to take on a local pilot or to pay a fee. b. Rule: CG retains the exclusive power to create national, uniform legislation, but that does not imply that the states are deprived of the power to create local, non-conflicting regulations. If CG is silent and the state asserts local control, then they are second 19 guessed, even if it is just local matter, and Courts will decide. That is dormant commerce power – court in absence of CG enactment gets to act for CG and can set aside state regulation as to what is local and what is national. c. Holding: The Court viewed the half-pilotage fee as an exercise of the state’s police power. d. The problem was that Cooley offered no clear way to determine which activities require a uniform national rule (exclusive) and which lie within the concurrent (state and national) zone. The Court eventually abandoned Cooley. e. Federal Law: 1789 Law: This CG enactment says that there are existing state laws which are being incorporated/adopted by reference and now make-up federal laws. i. 1st part: states have been regulating and to the extent they have regulated, we adopt their laws as federal statutes. (a) This is an affirmative exercise of commerce power. CG legislating navigation by incorporating by reference pre-existing state laws is C. ii. The next part of the 1789 Act says that any future law that the states enact would become federal law. (a) Federal gov’t can incorporate by reference pre-existing state laws, but with regard to subsequent laws, CG cannot just make them federal laws, unless they pass them bicamerally and present them to the P. That’s what the C says about exercising legislative power (A1, §7 – INS V Chada). (b) Issue: The federal statute is granting the states some of the CP over the regulation over navigation, but C, can they do that? Is it an exclusive power of CG to regulate navigation? (c) Some powers are exclusive – war power, minting money, foreign affairs. If it is exclusive, the power may not be delegated to the states (d) Judicial / Congressional Power (i) CG silence and states regulate: Court decides what is local and what is national (ii) CG disagrees with the Court and approves state regulation: CG decides (iii) CG disapproves of a state regulation: it is the Court who decides whether it is w/in the commerce clause f. Key: Commerce power, via Cooley, is admitted to have local and national aspects. If CG wants to displace state rule on subjects that have national aspects, they have the power to do so. If CG has not displaced state and is silent, then states may legislate, subject to judicial review that the state legislation improperly discriminates against commerce or unduly burdens it. States may regulate in a way that discriminates against IC or burdens it, if they receive CG approval to do so. 3. Modern Dormant Commerce Clause Analysis a. DISCRIMINATION i. GR: A state law that burdens or discriminate against interstate or foreign commerce may still be invalidated on the ground that they violate the dormant CC. (a) Discrimination: any differential treatment of in-state and out-of- state economic interests that benefits the former and burdens the latter. ii. OR Waste Systems v Dept. of Environmental Quality Analysis: OR charging higher fee for out of state dumping: clear discrimination against IC. (a) Step one: If state legislation is facially discriminatory: then it is per se un-C and invalid. (b) Step two: Is there any justification for facially discriminatory practice  For example, is there a legitimate local purpose that cannot adequately be served by Rx non-discriminatory means (Strict scrutiny on state’s burden of justification). 20 Note: the purpose of, or justification for, a law has no bearing on whether it is facially discriminatory. (ii) OR says there is a compensatory purpose. Court says that OR was not able to show specific examples of where tax offset paid by in state dumpers. (c) In a Non-overt discrimination case, where there is Incidental discriminatory affects (directed at regulation that regulates intra and interstate commerce): (i) Court will say that this facially neutral state law is subject to the PikeBruce balancing test. Under this test, state regulation is not as strictly scrutinized. Under the balancing test, the regulation is presumed valid unless burden imposed on commerce is clearly excessive in relation to local benefit. (1) The Court, in Oregon Waste, rejected resource protectionism as a valid state interest. (2) Look for health and safety goals. iii. Granholm: SC held in a 5-4 decision that states could not discriminate against outof-state commerce. (a) NY and MI laws giving preferential treatment to instate wineries violated the DCC, not withstanding the language of the 21st amendment. 4. The Market Place Exception a. The 2nd way a state may be able to justify conduct that would otherwise violate the DCC is by showing that the state was acting as a market participant. The DCC applies to the states only when they tax or regulate private trade in the national marketplace. If a state instead enters the marketplace as a participant, it is treated like a private party and the state is exempt from the restraints of the DCC. b. Mkt place participant exception is rarely used or allowed by the courts. The courts are not going to go out of way to find exceptions to the non-discrimination principal. And when there are exceptions they will be strictly construed. c. Rule: the MPD says that if state acts as a mkt participant instead of mkt regulator then they can make regulations as long as it does not have a substantial regulatory affect outside that particular mkt (South-Central Timber Development, Inc. v Wunnicke). i. Market Participant = acting as a buyer or seller – ok to favor its residents ii. Market Regulator = the state is not interested in buying or selling just in affecting how other parties buy and sell b/n one another  anything that will be viewed as a downstream regulation having a substantial regulatory affect outside your mkt will not be allowed. iii. This exception allows gov’t to act as a player in the mkt and not a regulator. This immunizes state gov’t from DCC when it is acting as a proprietor/player/participant as a seller or buyer. iv. Case Facts: Alaska decided to put a $49mm timber company up for sale but required primary manufacturer to be in state of Alaska. This required that the logs cut be treated in Alaska before it left Alaska. J. State Law and Federal Elections – The Question of Term Limits 1. Generally a. Constitutional Provisions i. Article 1 § 2 clause 1: elector requirements are set by the states e/t it is a national election (a) The word electors meant to the Framers to be voters. This is not giving us Q of those who seek office, but those who vote. ii. Article 1, § 4, clause 1: Times, places, and manner of elections should be decided by the states; but CG has an overriding power. (a) These are procedural powers being reserved to the states. Adding a term limit is a substantive variation. (i) 21 VI. A. B. C. D. iii. These provisions show that the founders’ design of the C was to give the states an essential role in determining who could vote in federal elections and the time, place, and manner of elections. b. Why have term limits? i. They create more opportunity for others to serve; it breaks down some of the natural advantages of incumbency. 2. US Term Limits v. Thornton: a. State proposition limiting terms of national representative (members of Senate (2) and House (3)) to the total number of terms that can be served. b. Majority: Stevens i. Rule: The power to add qualifications is not w/in the ―original powers‖ of the States, and thus it is not reserved to the States by the 10th Amendment. ii. Even if the States possessed some original power in this area, the Framers intended the C to be the exclusive source of qualifications for members of Congress (a) Text of the C specifies qualifications to serve in a national office and it is important for there to be no other qualifications, exclusive power. (i) Qualifications clause: age, citizenship and residency (Article I, §2) (ii) Why is it important for the C to not allow any other qualifications? (1) Uniformity. (2) Want everyone to be eligible to serve!! (3) We do not want it aimed at aristocracy, as Madison would say. c. Kennedy: concurrence i. Split atom of federalism: (a) 2 gov’ts with separate functions: In checking nature they preserve the freedom of the people, but national and state gov’ts have distinct responsibilities. ii. Even if states possess some original power, Framers intended the C to be exclusive source of qualifications for members of CG – Framers divested States of any power to add qualifications. d. Dissent: Thomas i. ―Where the Constitution is silent, it raises no bar to action by the States or the people.‖ ii. Thomas argues that because states enjoyed virtually unfettered discretion over whom to appoint to the Senate, shouldn’t the people (now that they choose both reps and senators) be able to adopt eligibility requirements for Senators as well as for Representatives Defining Traditional State Functions 10th Amendment: The powers not delegated to the US by the C, nor prohibited by it to the States, are reserved to the States. 1. Very important amendment to the C b/c 8 states would not have ratified the C had this condition not been added. Concern was that the C was going to create a singular national all powerful gov’t. New York v US (1946): CG can’t impose taxes (income and real estate) directly on states, even if it does so in a non-discriminatory manner. More historical evidence of concept of state sovereignty: Coyle v OK – held that federal gov’t can’t decide where state capitals are. National League of Cities v Usery (overruled by Garcia) 1. States challenge CGs’ authority to regulate the overtime and wage requirements applying directly to State and Local authorities (State employees). States say that the 10th Am is an affirmative protection of state sovereignty and an affirmative limit on what CG can do under the Commerce Power – so 10th Amendment is not the truism that was described in Darby. 22 2. What does this opinion apply to? Traditional state activities that are immunized from federal regulation. a. List of things that would be the core essence of state government functions: fire prevention, police protection, sanitation, public health, and parks and recreation. b. GR: if CG’s actions operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, then they are not allowed under Article I, §8, Clause 3. c. Required Elements: i. The federal statute at issue must regulate the States as States ii. The statute must address matters that are indisputable attributes of state sovereignty iii. State compliance w/ federal statute must directly impair the State’s ability to structure integral operations in areas of traditional governmental functions iv. Congress can still override the state interests if federal interests require it (relations of state and federal interests must not be such that the ―nature of the federal interest…justifies state submission‖) E. Garcia v SAMTA (5-4: return to Darby truism concept of 10th Amendment). 1. District court: held that local public mass transit systems are a form of traditional governmental function. 2. Holding: 10th Am is not judicially enforceable as a limit on CP 3. Blackmun says the National League case was unworkable. a. Principle of federalism was to be protected, if at all, through the political and not the judicial process. b. Doctrinal Arguments: states lost in C convention i. Supremacy clause: states can be preempted in their regulation of individuals. ii. Federal courts have J to review the judgments of the states (Martin v Hunter’s Lessee) iii. Bill of Rights is incorporated by the courts to limit the actions of the states via the process of judicial incorporation. c. Blackmun’s theory of where states are more protected: i. States can lobby to CG to get legislation that they want. ii. States can elect who they want to represent them in CG. iii. State interests are protected in Executive branch b/c states can choose electors who will be sensitive state needs when casting ballots for president. (a) Faithless Elector concern (b) State has no real substantive input into the election of the P (c) Time, place, and manner of elections to Congress and the States get to regulate the qualifications for voters VII. No Commandeering of the States: state are not subagents of the federal gov’t A. Printz v US 1. Facts: Brady ACT: CG enactment giving direction to state and local law enforcement officers (CLEO) to undertake a role in background check when someone purchases a firearm. 2. What CAN the federal government tell state officials to do? a. CG can pass a law within the scope of CP regulating private individuals. b. CG can directly regulate the states and local gov’ts (set the minimum wages of state EE’s). 3. What CAN’T the federal gov’t tell state officials to do: a. GR: The federal gov’t may not compel the states to enact or administer a federal regulatory program – meaning it cannot mandate that state and local officials to regulate individuals in a particular way. 4. But what about the Supremacy clause: federal law is supreme to state law 23 a. Supremacy clause says federal law would prevail if it is a valid federal law. Scalia makes the argument that this is not a valid federal law. 5. Is this a valid federal law? You can only use the N&P clause if it is a proper function. a. Article II says P is responsible for making sure the laws are faithfully executed. i. The Brady Act transfers the federal executive power to the states, thus weakening the P’s power. It is the P who must executive the laws, but the CLEO’s are local officials who are not properly appointed as inferior/principal officers. So they are out of the reach of the P. Both Myers and Humphreys were clear that CG did not have the power to place the appointment and removal power of executive officers outside the grasp of the P. So the Brady act exceeds the C, by circumventing the P’s power. b. E/t state judges regularly opine on federal law and enforce it, judges are different than executive officers b/c judges are bound by the supremacy clause. You can distinguish state judges with state officials b/c of compromise made at the constitutional convention. The compromise made in the C was that there would be a SC and such lower courts that CG may establish. Deal was that state courts would be open to be the enforcement of federal laws at all times. No similar deal was made to state legislators or state executive officers. 6. Another Precedent for no commandeering principal: NY v US a. Fact: low level radio active waste case - CG said that the state of NY had to pass certain laws dealing with the storage of the materials. SC said that CG cannot instruct state legislatures to pass an enactment. b. CG can tell those officers that they have to observe federal laws in their own behavior, they can tell individual citizens that they have to observe federal laws, but cannot instruct state and local officers to enforce federal laws against citizens. 7. Anchor of no commandeering rule in C: 10th Amendment 8. What could CG have done? a. CG can say they will preempt your regulatory power, i.e. w/ regard to gun regulation. And they can allow states to have regulatory role if done their way, i.e. performing background checks. b. CG could condition the grant of federal funds ($) when federal regulations are complied with. 9. Cf. Printz to Reno case a. Facts: Driver privacy protection act regulated the disclosure of personal info held at DMV. Feds said that States were not allowed to sell information given to DMV. The act applied to both states and private individuals b/c it limited the states from selling the information to private marketers. b. Supreme Court’s analysis: i. A car is an instrumentality of commerce (Lopez), but Printz says that the Commerce power was not to extend to commandeering the state ii. Prinz does not apply b/c here, the law regulated state activities rather than seeking to control or influence the manner in which states regulate private parties. The federal government can regulate state and private activities directly under Garcia. But, if an act is seeking to regulate the state as a regulator of private individuals, this is prohibited by Printz. VIII. Regulation of States under the Spending Power A. Spending Power: Article I, §8, cl. 1 - implied aspect of ability to raise taxes. B. Rule: CG is not limited in the exercise of the spending power to the enumerated list of powers? 1. CG can indirectly, thru the spending power, accomplish objectives otherwise reserved to the states. This is the case b/c it is not a regulatory power, but a gift to the states which the states could choose to follow. 2. CG can do indirectly what it cannot do directly. 24 C. South Dakota v Dole: 1. Facts: CG passed a law that said in order for States to receive the full amount of federal funds for their transportation systems, they had to have a minimum drinking age of 21. a. States argue that the 21st amendment gives them special regulatory authority with regard to alcohol. b. Federal gov’ts basis of authority is that they have direct authority to regulate the drinking age under the Commerce Clause. c. Court does not decide to answer whether the 21st amendment allows CG to regulate the drinking age  Affirmative Commerce power and 21st amendment reconciliation is an open issue. i. Granholm Wine case: Dormant commerce power trumps the 21st amendment, in that the states can regulate alcohol under the 21st amendment, but must do so indiscriminately. 2. 4 limits on gov’t placing conditions on spending grants: a. Must be for the general welfare: b. Must do so unambiguously: states can’t be surprised c. Must be related to a federal interest/program i. Safety – federal gov’t has an interest in making sure the highways it constructs are safely used and traveled. ii. O’Connor’s sole dissent disagrees (a) Condition v Regulation: The conditions on receipt of federal funds can only extend to how those monies are spent (bridges/roads…). If the condition is a regulation (telling the states what the minimum drinking age must be to get the $), it is not within the scope of spending power, and must be justified by an enumerated power. (b) If money is being misused in a way to create a hazard, that particular money is not accomplishing the gov’t spending objective and gov;t has right to determine its own objectives. She says that is not what is going on here. Raising drinking age does not relate to spending of money to carry out govts objective. iii. Sabri v. U.S. (a) Local property developer didn’t think he could get all the permits, so he offered a city council member a bribe, he was charged with 3 counts of violating a Federal statute that makes it a federal crime to offer a bribe to any state official in a state that receives $10,000 or more. (b) Congress could not have directly made this a federal crime under the commerce power b/c it is completely intrastate, so….they had to use the Spending Power (c) SC says that the relationship requirement is only that it has to be related to a generalized national interest and that the statute did NOT have to be written in a way that forced the prosecutor to prove that the actual federal dollars given were the ones being misappropriated. d. There can be no independent C bar: Cannot force the states to do something that would be unC. i. States can legitimately argue, that in some circumstances that financial inducement can become too high so as to become undue coercion. Not a very powerful argument though. (a) Here funding was only 5%, so not too high. IX. State Sovereign Immunity and the 11th Amendment A. 11th Amendment: The Judicial Power shall not be construed to extend to any suit at law or equity prosecuted against a state by citizens of another state… 1. SI for diversity suit. 2. Silent as to non-diversity lawsuits. 25 3. GR: 11th amendment is a restriction on the courts J with regard to individual lawsuits against states in diversity and FQ cases. a. Note: Federal gov’t has not given up its authority to file suit. 4. KEY: State SI limits: a. Federal court J for both diversity and FQ cases and b. State court J with regard to federal lawsuits by individuals seeking money damages under federal statutes; and i. SI applies in state and federal courts. Alden v Maine (5-4 decision). c. J in federal administrative proceedings: if a state is brought before an administrative regulatory body for sanctions, it can assert its immunity in front of that body. 5. History: a. Chisholm case: non-Georgian suing Georgia (diversity) prior to 11th amendment. SC said he could be given remedy. This shocked the several states. b. Hans case: first opinion to say 11th amendment applied to both diversity and FQJ cases. Reason the 11th am is phrased the way it is is b/c the only J the federal courts had at the time was diversity J. At the time FQ were being heard in the state courts. i. Souter dissent in Seminole: He thinks Hans was wrongly decided and that there is no state SI against individual lawsuits on FQs. c. Seminole Tribe v. Florida: CG passed a statute saying states had to negotiate in good faith with Indian group for gaming purposes. i. Majority: States have immunity under 11th amendment in non-diversity suits. ii. Other remedy by suing a state officer? Not here b/c as the majority reads the statute they saw a remedial scheme displacing ex parte young since the Indians to have a private c/a. B. How can states be sued by individuals? 1. States can consent to be sued. a. Consent must be explicit and voluntary. 2. Where CG has required that as a condition of receiving federal money that states consent to be sued (spending power). 3. Interstate Compacts: 2 states enter into agreements with each other; CG must give approval to that agreement, oftentimes requiring consent to be sued. 4. Bankruptcy Power: currently being litigated. 5. Where CG has abrogated state SI by an exercise of power (passing a law) under §5 of the 14th amendment. a. An attempt by CG to abolish state SI from suit will be upheld by the Court only if 2 requirements are met: i. CG must have made its intentions to abrogate SI “unmistakably clear in the language of the statute”; and (a) Designed to protect the states to assure they have notice and opportunity to defend themselves. ii. The law abrogating the SI may not have been enacted under one of CG’s A.I powers (Commerce), but must have been adopted pursuant to the 14th Amendment (Seminole Tribe). (a) Note: §1 of the 14th Amendment prohibits states from denying equal protection of the laws. As construed by the SC, the EPC does not prohibit states from discriminating on the basis of age as long as there is a rational basis to do so. (b) §5 of the 14th Amendment expressly authorizes CG to enforce the Amendment ―by appropriate legislation‖, including legislation that allows suit be brought against a state. (c) Requirements: 26 (i) For CG to use this power, it must legislate in a congruent and proportional way to the actual violation of §1 rights. This means that CG must identify a pattern of state violations of a judicially recognized C right, create a statute that is plainly designed to fix that violation, and devise a remedy that is tailored to the pattern of state C violation. b. Precedent: i. Kimel( age discrimination), Florida Prepaid (state infringement on private patents), Garrett (violation of ADA)  All these cases were found (5-4) by the SC to be inadequate to abrogate state’s SI b/c in each case the Court found that CG’s power was exercised in a way ―that was not C&P to its object…‖ ii. Garrett: Title I was at issue. Ct said that CG had not sufficiently abrogated state SI under Title I, which deals w/ discrimination by states as ER’s. States are permitted to enact laws that use disability as a classification so long as they have rational basis for using disability as a classification b/c it was not a suspect classification. People can be excluded on basis of disability b/c it would not be Rx possible to include them. (a) C standard: ok for legislative agencies to use disability in a rational way (b) CG enacts ADA: State ER’s needed to show an undue hardship, otherwise they must accommodate people w/ disabilities. (Greater justification than rational basis) (c) Issue: can CG legislate under the ADA – based on this higher standard No. While CG has theoretical power to abrogate state SI under §5, it still must show that state’s have engaged in discrimination and the exercise of §5 is aimed in a congruent and proportional way to attack that discrimination. iii. Hibbs: NV accused of violating the equal protection clause under the FMLA. EPC was enacted to protect against gender discrimination. Gender as a classification can only be used though if it accomplished an important gov’t interest. The court says it is easier for CG to abrogate the state’s SI in the context where its J for abrogation is addressing a form of discrimination that is truly illicit like gender discrimination. In this case they are discussing a form of discrimination that is illicit b/c States are allowing leave to women but not to men. Court says that failure to provide this leave is in the neighborhood of a violation of EPC. OK b/c the construction of CG’s power is to remedy and to deter discrimination. (a) Scalia in dissent: this is improper b/c there has been no showing that NV has been discriminating on basis of gender. iv. The key difference b/n Garrett and HIbbs is the presence of a judicially recognized 14th Amendment right in Hibbs, as well as a sufficient pattern of violations of that right. v. TN v Lane: Title II of ADA deals with states requirement in making public programs accessible to the public. (a) Rule: When CG is seeking to vindicate the rights of a suspect class or a fundamental right, like due process, court will give considerable deference to the CG on the efforts they need. (b) §1: protects privileges and immunities, equal protections and due process of law. (i) What does ensuring access to facility have to do with these 3 protections? CG is defending its passage of Title II of ADA as enforcement of §1, specifically a due process concern. Lane says that when Title II requires accessibility to courthouse it is vindicating principles of due process at law. 27 Cf. Garrett: disabled is not a suspect class, so the gov’t is required to have a rational absis. 6. ALTERNATIVE: Under Ex parte young, individuals can file suit against a state officers who is part of a continuing violation of the laws of the US or the C in order to enjoin that action. a. Logic: when a state official acts contrary to a federal law, the official is stripped of its stately protection and becomes a private individual. b. See also Couer d alene case. C. Can CG abrogate state SI under the commerce power? 1. Union gas case says CG cannot use it commerce power to abrogate sovereign immunity. Lifting immunity is viewed by the court as expanding the courts J, since the denial of the 11th amendment came before Article I (see Marbury v. Madison). (ii) X. Individual Rights Limitations on the Power of States: Judicial Incorporation A. From where do IR come from? Relationship b/n the DOI and the C. Berger says the DOI is the promise and the C is the fulfillment of that promise. England was stepping on our rights and we found a way to protect those rights. Those rights are an aspect of human nature. The point of the DOI was to state as a premise that rights originated above and beyond the gov’t and the G was an instrumental means to preserve those rights. The whole point of dividing powers within gov’t was to preserve these intrinsic, inherent rights that came from this other source. Lord Cook says to James I that he is not the source of the law. Rights originate outside of gov’t. B. City of Boerne v Flores 1. Church wants to expand, but it is not allowed to do so, due to zoning law. 2. Church argues it is allowed to expand despite the zoning law b/c of the Religious Freedom Restoration Act (RFRA). a. CG passed RFRA, prohibiting the gov’t from substantially burdening a person’s exercise of religion, unless the gov can demonstrate that the burden is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling government interest. 3. Issue: Was RFRA w/in scope of CG’s 14:5 power to enact? No. a. CG exceeded its authority in passing RFRA. §5 does not justify the passage of RFRA. b. Why not? Legislation which alters the meaning of the free exercise clause, is not enforcing that clause. CG is given power to enforce, not power to decide what constitutes a C violation. Power to enforce is not the power to redefine. c. Note: In this case, unlike Hibbs and Lane, the Court does not give Congress latitude with respect to a fundamental right when it is trying to redefine that right. 4. ―While preventive rules are some times appropriate, there must be a congruence between the means used and the ends to be achieved. The appropriateness of remedial measures must be considered in light of the evil presented‖ a. Here, court said there was not enough of a showing of a pattern of constitutional violations occurring from the passage of generally, applicable laws so…Congress passing RFRA to make gov’ts defend these laws under strict scrutiny analysis is not remedial and it does not suffice to deter (b/c it is redefining the right rather than deterring a present violation of the right) 5. This is the same as the test for abrogating the eleventh amendment for 14th amendment reasons: congruence and proportionality. C. Barron v Mayor of Baltimore: Rejects the notion that BOR applies to the states. 28 1. Establishes the proposition that the first 8 amendments were limitations on the power of the federal G, not limitations on the power of the states. The protections of the takings clause thus does not apply to states, at least according to the text of the BOR. 2. What are people to do when states take their property? You have rights by virtue of our natural law. Those rights find themselves in state C. State C historically have been more moralistic in tone than the federal C. Very common to find greater protections of individual rights in state C. Look to states C through the lens of CL/natural law and understanding that those rights were fundamental and not capable of being infringed by the G. 3. Note: This dynamic changed after the civil war and the passage of the 14th Amendment D. Palko v. Connecticut 1. Facts: The State wanted to retry the D for 1st degree murder and to seek the death penalty. 2. Issue: does the federal double jeopardy clause apply to the states? 3. Holding: No. The BOR do not apply in their totality to the states. Instead they are going to apply selectively to the states through a process of judicial incorporation. 4. Judicial Incorporation Doctrine: a. Judges should incorporate things that are ―implicit in the concept of ordered liberty.‖ b. It must be a principle so rooted in the traditions of our people to be ranked fundamental. (Benton v Maryland overruled Palko  Same standard comes to 2 different results.). E. Adamson v California 1. Does D have fundamental right not to testify – Does the 5th Amendment apply to the states? a. Court found it was not an aspect of the BOR that applied to the states. b. Court said that you have a fundamental right to a fair trial, but due process does not protect the accused of the freedom of giving testimony by compulsion in state trials. A state can require testimony and it would not breach right to fair trial. 2. SOP argument: eliminates subjectivity within the judiciary. a. By full incorporation, courts are given clearer guidelines, thus eliminating the subjectivity within the judiciary. Would have a written document that keeps the scope of the judiciary within bounds. Judiciary cannot just decide that free speech is not implicit in the concept of liberty and not protected. F. Black Letter: total incorporation has not been accepted. 1. What has NOT been incorporated are grand jury indictment, and no state equivalent to the 7th amendment right to jury trial in civil matters where amount is $20 or more, and no state requirement of a unanimous jury requirement to convict. 2. Yet, the BOR has largely been incorporated against the states. E/t Frankfurter in Adamson argued that states should be given latitude to interpret the BOR, Federal court and state courts observe the same principles as it relates to federal BOR. States occasionally try to expand individual rights under their own state C, beyond what the uniform conception of federal rights. But the significance of rejecting the notion that the 14th Am is limited to the list of the 8 BOR is where much of the disagreement occurs b/c it invites the justices to go off the list. XI. A A. A 1. A a. A i. A: (a) A (i) A (1) A  A 29