CONLAWOUTLINE

I. ` THE PHILOSOPHICAL AND NATURAL LAW BASIS OF THE AMERICAN ORDER: REMOTE AND IMMEDIATE ANCESTORS A. The Continuing Search for Universal Truths that Advance Human Good: Jerusalem, Athens, Rome, and Bethlehem 1. Jerusalem ° John Winthrop, A Model of Christian Charity ° Problem ° Notes and Questions 2. Athens ° ARISTOTLE, POLITICS ° Notes and Questions 3. Rome ° MARCUS TULLIUS CICERO, DE LEGIBUS ° Notes and Questions 4. Bethlehem ° ST. AUGUSTINE, THE CITY OF GOD ° Notes and Questions B. The Late Middle Ages 1. Bracton ° BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND ° Notes and Questions 2. Sir Edward Coke and James I ° Prohibitions Del Rey ° Notes and Questions C. The First English Revolution 1. James I on Monarchy ° James I, Speech to Parliament (Mar. 21, 1610) 2. The Five Knights’ Case ° The Five Knights‟ Case (K.B. 1627) ° Notes and Questions 3. Petition of Right (1628) ° Notes and Questions 4. The Events Leading up to Civil War and Charles I’s Trial a. Ordinance for the Trial of the King b. Arguments in the House of Lords on the Ordinance for the Trial of the King c. A Perfect Narrative of the Whole Proceedings of the High Court of Justice in the Trial of the King, in Westminster Hall d. The Trial of Charles I ° Notes and Questions e. An Act for the abolishing the kingly office in England and Ireland, and the dominions thereunto belonging D. The Interregnum, the Restoration and the “Glorious Revolution” 1. Milton and Hobbes ° John Milton, The Tenure of Kings and Magistrates (1649) ° Notes and Questions ° THOMAS HOBBES, LEVIATHAN ° Notes and Questions 2. The Glorious Revolution and John Locke a. The Declaration of Indulgence (1687) ° Notes and Questions b. The English Bill of Rights ° An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown ° Notes and Questions c. JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT ° Notes and Questions II. FASHIONING A WRITTEN CONSTITUTION FROM DECLARED NATURAL RIGHT A. The Natural Rights Foundation ° Clarence E. Manion, The Natural Law Philosophy of Founding Fathers B. The Declaration of Independence-A Summary of American Fundamental Principle ° American Fundamental Principle ° THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (Preamble) ° Notes and Questions A STRUCTURALLY-DIVIDED, BUT WORKABLE, GOVERNMENT A. Historical Antecedents 1. Dividing Governmental Power ° CHARLES DE MONTESQUIEU, THE SPIRIT OF LAWS (1748) “There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” “…it is fit the people should transact by their representatives what they cannot transact by themselves. The members, therefore, of the legislature should not be chosen from the general body of the nation; but…a representative should be elected by the inhabitants.” “The legislative body being composed of two parts, they check on another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.” “When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power; and this from the very nature of the thing, its business consisting more in action than in deliberation.” Article II, Section 2, Clause 1-“The President shall be Commander in Chief of the Army and Navy of the United States.” ° Notes and Questions 1. The extent of judicial authority is still highly dependent upon the administrative willingness of the executive to carry out judicial decisions and upon the legislature to both enact III. laws needful of interpretation and supply funds for the operation of government generally. 2. Montesquieu urges turnover in the legislative assembly so that it does not become corrupted. The entire House of Representatives stand for election every two years, though incumbent advantages have ensured a high likelihood of reelection. Modern term limit and campaign finance reform movements echo Montesquieu‟s sentiment for a periodic exchange of legislators. 3. Presidential veto-Article I, Section 7, Clauses 2 & 3. 4. The Senate has the sole Power to try all Impeachments. 5. Power to raise and appropriate money given to the legislature and denied to the executive. 2. Checks and Balances-Public Good From Individual Interest “In final form, the Constitution is a amalgam of both optimistic (The Country Party) and pessimistic (England‟s Court Party)-the is, the separated, and hopefully prudent and virtuous, exercise of power that is capable of being checked by the self=interested or overlapping concerns of other branches.” ° THE FEDERALIST NO. 47 (James Madison) Montesquieu did not mean that these departments ought to have no partial agency in, or no control over, the acts of the other. He meant that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. ° THE FEDERALIST NO. 51 (James Madison) You must first enable the government to control the governed; and in the next place oblige it to control itself. In a republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. B. The Separation of Powers-In Constitutional Practice 1. The Judicial Power -Federal judges are appointed by the President with the advice and consent of the Senate. Article III: Section 1: The judicial Power of the U.S., shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. Section2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…(list of all federal court issues). -In brief, federal courts are limited to hearing “cases or controversies”-largely appeals or grants of cert. a. Federal Court Jurisdiction and the Justiciable Case (1) Standing- requisite personal interest to present a particular matter to a federal court for adjudication. Three constitutional requirements derived from Art III. P must allege that she: (1) has suffered or will imminently suffer an injury, (2) the injury is fairly traceable to the D‟s conduct, and (3) that a favorable court decision is likely to redress the injury. In general, violations of constitutional rights, statutory rights, and rights recognized at CL are injuries sufficient to confer standing. Sierra Club v. Morton (1972)-Lacked standing because they failed to allege that any of the Club‟s members had ever used the park, “much less that they use it in any way that would be significantly affected by the proposed activities of respondents.” Contrasted with: U.S. v. Students Challenging Regulatory Agency Procedures Upheld the standing of a group challenging an Interstate Commerce Commission rate decision. The group alleged that the decision would increase pollution and would lessen their enjoyment of the lakes etc.. The SC held that these injuries were sufficient to confer standing since the group members claimed they would personally suffer the harms. ° P seeking injunctive or declaratory relief must show likelihood that she will be injured in the future. (2) Ripeness-seeks to separate matters where the injury is speculative and therefore may never occur, from those which are “ripe,” or imminent, and appropriate for present federal court review. Considerations: 1) the hardship to the parties of withholding court consideration; 2) the fitness of the issues for judicial decision. Declaratory Judgment Act (1994)-allows for pre-enforcement review of statutes, though only “in a case of actual controversy.” (3) Mootness-requires that a particular P have a personal interest in the litigation from the commencement to the termination of the litigation. If at any point the P‟s personal interest disappears, the case should be dismissed as “moot.” (Death, law being challenged is repealed, changes in facts…) Exceptions: 1) Secondary or “collateral” injury remains (released from prison). 2) Wrongs capable of repetition yet evading review-some injuries are short-term in nature and therefore will always disappear before they can be redressed by a court (Roe v. Wade). 3) Cases in which the D “voluntarily ceases” the allegedly unlawful behavior but is free to resume it at any time. 4) A class action may continue even if the named P‟s claims are rendered moot. b. The Subject-Matter of Supreme Court Jurisdiction: Art III Section 2 grants: (1) Federal Question Jurisdiction -Question of Consitutional law (2) Diversity Jurisdiction (3) Original Jurisdiction -Federal Statute Interpretation (4) Non-Exclusive (and Hence, Concurrent) Jurisdiction (5) Routes to the Supreme Court: Certiorari, Appeal, or Certification (6) Appellate Jurisdiction and Exceptions Thereto Ex parte MacCardle (1868)-The Constitution gives Congress the power to make exceptions to the Court‟s general appellate jurisdiction, and if an affirmative exception is made, then the Court will have no jurisdiction to hear a case which falls within that exception. -Habeas Corpus-persons right to question why they are being detained a. Congress also has the power to take away power from the lower federal courts because those courts were created by Congress in the first place. b. “We are not at liberty to inquire into the motives of the legislature. c. On Exam: Is the SC‟s JUR subject to congressional definition or is it instead constitutionally provided? Both. Does the Court need a Statute from Congress to exercise jurisdiction? YES. It has always been understood that anything not granted has been denied. The Constitution gives the Court power, but Congress gives the boundaries of that power. d. Was it constitutional for Congress to say that no federal court would have JUR over the question of marriage laws (Marriage protection Act)-seemingly so if they can limit JUR over any area they choose other than what is specifically reserved to the Supreme Court. c. The Essence of Judicial Review ° THE FEDERALIST NO. 78: Judicial Review (Hamilton) - The main difference between the U.S. and England is that England gives Parliament (the legislature) final say-it is not reviewed by anyone. - The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the LIMITS assigned to their authority. -Admiralty law -Where the U.S. is a party -Controversies between states -Ambassador or public ministers are parties The Constitution ought to be preferred to statutes, the intention of the people to the intention of their agents. - The power of the people is superior to both - Is the Court allowed to strike down only what goes against what is written in the Constitutional or is it also allowed to strike down what goes against was are unenumerated or implied aspects of the text? ° Notes and Questions 1. The judiciary‟s power of judicial review rests upon safeguarding liberty through the separation of powers. The legislature is not to be itself “the constitutional judge” of its own powers. Natural law was sufficient to guide each individual person, said Locke, except that it would be subject to misinterpretation if persons would “be judges in their own cases.” 2. What makes the Constitution fundamental law? It‟s adoption by the people. But the people, not just judges, are bound to it. “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually.” It binds even if various momentary majorities want to throw it over. It is not just constitutional infraction that judges must safeguard us against, but also unjust and partial laws. It is grounded upon moral principles. Marbury v. Madison (1803) Issue: whether or not Jefferson must deliver the commission to Marbury. Marbury is entitled to his commission, however the SC can‟t help because they don‟t have original jurisdiction over this matter. -The Judiciary Act allowed for the grant of a writ of mandate in such a circumstance, however, the court didn‟t have the power to grant such a writ because that would be acting under original jurisdiction which they didn‟t have in this matter. -To enable the SC to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. ° Notes and Questions Martin v. Hunter’s Lessee-Deals with SC review of a state court decision and makes it apparent that the absence of Supreme Court review would lead to nonuniform interpretations of constitutional provisions depending merely upon location. Article III judicial power places the ultimate interpretation of federal law in the U.S. Supreme court, subject only to congressional exception. It was the type of case that gave the SC appellate review authority, and not the place of origin of the case, as in either state or federal court. 1. One argument for the value of having the SC decide this is uniformity in interpretation; another is the Supremacy Clause-Art. VI-“This Constitutional, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 2. Are state supreme courts stuck w/ the rulings of the lower federal courts? They are not binding but they should be considered. The SC of the US is the ultimate interpreter of the constitution and only its rulings bind the states. 2. The Legislative Power Immigration and Naturalization Service v. Chadha (1983)- The Attorney General recommended suspension of Chadha‟s deportation pursuant to authority delegated by the statute and this was duly conveyed to Congress, after which, either house of Congress had the power under the Act to veto the Attorney General‟s determination that Chadha should not be deported. -Congress delegated the major responsibilities for enforcement of the Immigration and Nationality Act to the Attorney General. The Attorney General discharges his responsibilities through the INS, a division of the DOJ. -Since the House action was pursuant to the Act, the resolution was not treated as an Article I legislative act; it was not submitted to the senate or presented to the President for his action. -Legislative veto reserved to either house under the Act violates the constitutional doctrine of separation of powers. The legislature is willing to delegate some decision making to the executive but they want power to overturn if they don‟t like the decision he makes. -Argument for: Legislative Veto is an expediting device-cuts through long debates between the two branches…legislature didn‟t want to have to write into each statute every possible scenario imaginable. Bicameralism=Every bill must go before both the House and the Senate, then… Presentment=bill must be presented to the President. If the President does not sign it, the bill must pass both houses with 2/3 vote in order to become law. a. Only four constitutional provisions permit one house of Congress to act alone: the House of Representatives may initiate impeachments, the Senate may conduct impeachment trials, the Senate has the power to approve presidential appointments, and the Senate may ratify treaties. Otherwise, legislative actions require bicameral review and presentation to the president. b. The legislative veto then acted as a check on this broad grant of power. How does the congress maintain accountability over the executive w/o it? 1) Oversight committees 2) Bargaining power-I‟ll grant you your appointments if you‟ll give me my extra FBI agents. 3) “Report and Wait”-Congress can require administrative agencies to report proposed regulations to a committee and wait a rx time before putting them into effect, thereby allowing Congress to respond by appropriate legislative means. 4) Budget oversight hearings c. Reference w/ Montesquieu-Note 2 p. 109: Here the Supreme Court invalidated the so-called legislative veto, a means by which one or both houses of Congress, and sometimes a single legislative committee, could both pass laws and implement them as well, thereby encroaching on the authority of the executive. The President should only be subject to congressional or legislative oversight. d. Justice White‟s dissent: -Useful modern device and the constitution shouldn‟t stand in the way. -If you can delegate loads of power to the Executive, why can‟t you delegate a little power back to the legislature to keep them in check? -Broadly conceived terms give the executive a wide range for interpretation and Congress wants to hold some power to interfere when they don‟t agree with the interpretation. e. Congressional argument is they can‟t legislate into the future-can‟t think of every possible scenario. ° Notes and Questions p. 160 Nixon v. Administrator of Gen. Servs.-law requiring that the Administrator take custody of certain presidential papers (so Nixon couldn‟t run off w/ paperwork…had to give it). Nixon challenged as intrusive upon the executive privilege, principle argument-separation of powers-lost. White stated, “In determining whether the Act disrupts the proper balance between the coordinate branches, the proper inquiry focuses on the (1) extent to which it prevents the Executive Branch from accomplishing its constitutionally assigned functions; (2) Only where the potential for disruption is present must we then determine whether that impact is (3) justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nondelegation Issue: substantial delegation to administrative bodies under general statutes is just tolerated. All that is needed is an Intelligible Principle-see p. 167 “In theory, these delegations must be accomplished with Congress supplying an intelligible standard for the agencies to follow. The necessity for such a standard has come to be known as the nondelegation doctrine. Legislative veto is shot down. Political Question: a textually demonstrable constitutional commitment of the issue to a coordinate political department. P. 162 Nixon v. United States-impeachment of a judge; committee finds facts and evidence and then reports to the senate. Nixon argued that the senate should have to sit and hear everything itself and make up its own mind. This was a political question…constitution says, “Senate shall have sole Power to try all Impeachments,” Rehnquist reasoned…p. 162??? Why did Presidents keep signing legislative vetoes into law? When bills are presented to the president for consideration they look like textbooks…can‟t read everything. No inherent line-item veto, they tried to get statutory line-item vetoes passed…one finally did during Clinton‟s administration. Difference between legislative veto and line item veto? By taking a line out the President is in fact “making laws” where he is only granted the power to execute laws. Clinton‟s statute claimed to get around this by…Line item veto act-cancel an item of new direct spending, or to cancel….limited tax benefits…”Delegation of authority to the president to not spend money in a manner if didn‟t agree… Scalia dissented saying the court got faked out. Legislative find req which had been used in the past-must first find a, b, and c and then pres can say not to spend money in this way…was no longer in use…pres could just say “not spending money here” which was argued to being boiled down to lawmaking. Severability Clause-if any part is found to be unconstitutional and it is taken out of statute, the remainder of the statute won‟t be affected if it is still workable and the remainder is what congress would have wanted in the circumstance. 3. The Executive Power a. Source of Domestic Authority ° Youngstown Sheet & Tube Co. v. Sawyer (1952) Youngstown Sheet & Tube Co. v. Sawyer (1952)- Truman argued that the authority he had to act alone came from three sources: 1)Article II-the executive power shall be vested in the President of United States-a source of authority 2)Take-care clause-faithfully execute the laws 3)Fact that US was at war he had power as Commander in-chief. The Court however held that “the President‟s order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President.” Congress had already discussed the issue and decided the President should not be able to seize industries in emergency situations. A number of Justices suggested that had the emergency arisen in a setting where Congress had not already spoken, President Truman might have been justified in acting on a temporary basis. Three situations in which a President may doubt or others may challenge is Situation Pres. acts pursuant to an express or implied auth. of Congress Pres. Acts in absence of a congressional grant or denial of authority Pres. Takes measures incompatible with the expressed or implied will of Congress Level of Authority Presidential Power Authority is a its maximum Includes all he possesses in his own right plus all that Congress can delegate Merit to a Challenge Burden of persuasion would rest heavily on anyone who challenged the authority here. Can only rely upon his own independent powers…but there is a Zone of Twilight in which he and Congress may have concurrent authority. Test of power likely to depend on imperatives of events. Power at its lowest Can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Must be scrutinized with caution. ° Notes and Questions fill in-see if more notes here b. The Practical Exercise of Executive Authority° The President and the Bureaucracy (1) Power of Appointment -Important because President‟s can direct their policies as they see fit and hire people to carry out those policies as they‟d envisioned. ° THE FEDERALIST NO. 77 (Alexander Hamilton) ° Notes and Questions Myers v. United States-The President has the sole power to remove purely executive officers. -Separation of Powers: President should have his own people to carry out his will. The only way these people will answer to you is if you can fire them. Holding: it is unconstitutional for the congress (even pursuant to a validly passed law) to encumber the President‟s ability to remove purely executive officers. -Founders believed pres needed this control…but “there may be some duties that are quasi judicial…”…which the president cannot displace. Ex: independent counsel or agencies. But this blending of powers was not something the framers ever intended. -Starr, borrowing Myers logic, reasoned that the position of independent counsel went against the constitution because he was an executive officer-meant to carry out the laws (“so called independent”)…but he can‟t be removed without cause and he has a budget. -Seed of the difficulty is the way in which the Chief Justice anticipates that there may be some quasi functions where the executive cannot interfere-an invitation to create the independent counsel and independent agencies. ° Notes and Questions (2) Power of Removal ° Humphrey‟s Executor v. United States (1935) Humphrey’s Executor v. U.S.- He worked for the federal trade commission-created by the legislature. Those who serve can only be fired for cause. Humphries wasn‟t being removed for cause-FDR just didn‟t like him. He dies. The family sues and says he was “wrongfully removed.” Congress can limit these agencies which are independent to be able to only remove them for cause. -The distinction between Myers and Humphries is that you can qualify the President‟s removal powers in quasi positions/agencies. Those agencies can exist independent from the exec. -Though cause provides the limitation, it is the court that analyzes whether or not there is cause once the pres tries to fire. -Clintons Impeachment-Perjury. Starr had to decide if a fed statute had been violated-had there been lying to a Grand Jury that was also investigating this matter. Starr report went to the Senate who had to decide if impeachment was allowed (high crime or misdemeanor) and they decided it wasn‟t. CHEVRON-pivotal decision of administrative law; says: when Congress writes a statute and delegates authority to an administrative agency, someone can test the authority (1) are the words of the statute plain and understandable on their own terms? If so, it‟s the court‟s duty to say what the law is. (2) if the statute is ambiguous or silent on the topic, then there is nothing to interpret and it‟s assumed to give authority to agency. The court can only decide if the interpretation made by the agency is a rx one. Not if it’s the best one, or the one it would have made, only if it’s rx. Williamson was a step 1 case-words plain but court took into account other statutes and said in light of those, FDA didn‟t have JUR. Modifications made to Chevron: p. 266, Note 5: U.S. v. Mead: Skidmore deference-depends upon a judicial eval of the thoroughness of the evidence…consistency with earlier and later pronouncements… Scalia says the sky will fall because of this ruling This shifts authority from admin agencies to the courts-shifts from politically accountable agencies to unaccountable courts. ° Notes and Questions (3) Executive Privilege ° United States v. Nixon (1974) U.S. v. Nixon Facts: Democratic National Committee had an office in the Watergate bldg. Someone in Nixon‟s party wanted to get a hold of the inside word on how McGovern planned to defeat Nixon. They broke in at night to tap the phone. They were now on trial for the break-in. While they‟re on trial, Nixon is saying “I don‟t know these guys.” But the question is once he found out, did he do anything to obstruct the prosecution of this case? John Dean was White House counsel-it was his job to keep exec dep in compliance w/ ethics standards. He became famous for testifying “we didn‟t know…” when in fact there were tape recordings that he knew about. People wanted to know what he knew and when he knew it. The public though we should get to hear those tapes to find out. Archibald Cox (prosecution) asked to hear the tapes. The President responded by saying Cox was fired (asked Attorney General to fire him). He (Elliott Richardson) refused, so Nixon fired him…same with next in command…Next was Bourg (Solicitor General) who went ahead and fired him. When Cox was fired, Leon Gewarski (Pres of ABA) became new prosecutor. See note 8 p. 229-Pres must give assurances to AG-but doesn‟t AG work for Pres? Who else is seeking the tapes? The guys who broke in to Watergate. DC decided against Nixon. Issue 1=Justiciability: Nixon is claiming intra-branch dispute (between superior in inferior officers). Court holds that the case is sharp enough to constitute “a case or controversy”. Issue 2=Claim of Privilege: absolute privilege to what is said to me in the Oval office-claims he needs it as an aspect of the Separation of Powers in order to defend the office of the Pres=otherwise I won‟t get candid advice. Court held that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The Court admits it would be different if this was an issue of foreign affairs etc… NIXON audio tapes… House impeaches, senate sits as a trial (2/3 must convict)…judgment in cases of impeachment shall not extend further than removal of office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the U.S.: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Art. I section 3 President cannot be indicted for a crime while in office-must first be impeached-then he can be tried again. Sinclair argues this-can a sitting President be criminally indicted? Court decides executive privilege is not available to the pres in this case GO BACK OVER NOTES P. 234-5 President‟s wives cannot assert executive privilege President has absolute immunity from civil suit, aids have qualified immunity. Contrast w/ Clinton v. Jones-actions he took while gov or Ark: Pres has no immunity from suit w/ respect to those personal matters ° Notes and Questions (4) The Independent Counsel ° Morrison v. Olson (1988) Morrison v. Olson Olson is the assistant Attorney General. What triggered this lawsuit? Congress is searching for documents to prove that EPA wasn‟t appropriately managing clean-up etc…in regards to “super fund.” (legislative oversight-are they actually doing their job) Olsen worked for DOJ-his job is to give advice to the president-he told the pres he should exercise Exec Priv to force congress to turn over the documents. p. 233: “Reagan issued a memo in 82 which instructed that executive privilege should be asserted only in the most compelling circumstances, and only after careful review demonstrates that assertion of the privilege is necessary.” Ultimately a negotiated settlement is agreed to-Congress most of the info they want. Congress gives up investigating the EPA and turns to Olson and the nature of the legal advice he gave to the President about asserting Privilege. If Congress can put this pressure against giving advice…the successor is going to be chilled from advising the pressure. (Kmiec was successor in this case). The allegation against Olson was that when he was called to testify he misled the committee because didn‟t tell them everything he had told the Pres and he didn‟t give them his hand written notes. The committee issues a 3000 page report to the Attorney General saying this matter should be looked into. If there are rx grounds to believe that further investigation is warranted then Attorney General must appoint an independent counsel within 90 days. (1) The Appointments Clause (principal v. inferior officers) Principal=selected by the President with the advice and consent of the Senate Inferior=Congress may allow to be appointed by the President alone, by the heads of departments, or by the Judiciary. Congress (and court agrees) that independent counsel is an inferior officer Olson argued that even if this person could be inferior-to have this person appointed by the court would be incongruous with the function of the judiciary. Olson argued that even if it doesn‟t have to be a principal officer and even if the cross branch appointment isn‟t enough to worry about-it violates the separation of power. Rehn says that the real question is whether the removal restrictions are of such nature that they impede the president…p. 243 We‟ll just decide if WE think the president is “functionally impaired”… p. 256-Jackson: if a prosecutor is obliged to chose his case…he can chose his D‟s…he‟ll pick people he thinks he should get…It is in this realm, in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. ° Notes and Questions c. The President and the World/Foreign Policy ° United States v. Curtiss-Wright Export Corporation (1936) ° Notes and Questions Note 6: Iran-Contra; arms sale from Israel to Iran. The U.S. had originally provided these arms to Israel-the U.S. encouraged these sales. This is a problem because Iran is on a list of terrorists nations and there is a statute which precludes selling arms to terrorist nations. The President needed to give timely notice but didn‟t. The sales were not timely. When the funds were received, some of them ended up in the hands of arms dealers who transferred some of the funds to the freedom fighter in Nicaragua (the contras). Why did they think they could disregard the timely notice req? Why did they think they could convince the arms dealers from giving money to Nicaragua? Why did they think they didn‟t have to tell Congress? The answer is in Curtis-Wright. P. 271-the Pres alone has the power… The Iran-Contra debate is the same as what is happening now with whether what Bush is allowing (torture-sleep depravation to get confessions) is illegal since we‟re part of the torture convention. Does the torture convention or his war-time power prevail? Note 9: Executive agreements with foreign nations without Senate approval. Legality often turns on source: treaty, legislation, President‟s unilateral authority. The last runs the risk of improperly avoiding the Senate‟s approval role, unless the agreement is clearly traceable to constitutional power committed to the President such as agreements necessary to establish diplomatic relations premised on the President‟s power to receive ambassadors. -Executive agreements that are neither approved by a treaty nor congressionally authorized may not contradict a federal statute. If the authority for an EA is a statute or treaty, and if the substance of the EA is in conflict with a previous statute of the Congress, the EA, by virtue of the fact that it is authorized by statute or treaty, prevails over the previous statute. Later in time prevails. If the inherent power is one that is shared or checked by legislative power then the EA does not have that preemptive effect. This is all based on the effect to prior federal law-what is the effect on state law? #1 and #2 obviously federal. But if merely based on #3-use of presidential power-there is a split in opinion. Maj is probably that it would preempt state law. Remember there are different kinds of presidential authority that-some are clearly the president‟s alone…others are arguably shared. When in these shared power areas, it is more doubtful that the pres can claim preemptive effect when there is a conflict. Note 10: Art I, Section 8, Clause 11-gives Congress the authority to declare war (though presidents have always said they held the power to declare war w/o the Congress authorizing, i.e. only 5 declared wars in history, though we‟ve fought hundreds of others.) War Powers Resolution-authorizes the termination of the use of armed forces in hostilities by concurrent resolution. Nixon‟s advisor told him to veto this. Not bicameral, and the whole thrust of the resolution encroached on the long-standing understanding that the Pres could take action when he felt necessary w/o Congress authorizing…congress over-road the veto-so technically it‟s in our law-but no pres has ever complied with it. The standard is just that Presidents “inform the congress” that they‟re going to war…just letting them know, not complying with this resolution. Modern equivalent to having to declare war is Congress‟s Appropriations Power-can either fund or not fund the war. Can this issue go to court? They can, but issue‟s they‟ll confront will be: Standing (only cause acknowledged by court to members must be related to rep being denied his elected right to sit); lack of judicial standards to determine the outcome. United States v. Hamdi 1871 USC 4001-no citizen shall be imprisoned by the U.S. except by an act of Congress (motivated by Japanese internment in WWII-by a civilian body not the military-and Vietnamese protesters who were detained.) “We conclude that…duration of conflict in which person was captured….exercise of the necessary and appropriate force Congress has authorized the President to use.” Hamdi said that is fine in terms of foreigners but not citizens. Court cited Nazi saboteur case“supporting causes harmful to the U.S.” 2 reasons the U.S. had to detain Hamdi -keep from going back and fighting against you again -interrogate and find out what he knew/network of people he interacted with. Court said “indefinite detention for the purpose of interrogation is not authorized”-they cite nothing for that declaration. Difference between POW and enemy combatants. EC are not fighting within the rules of war: fighting for nation-state, uniformed soldiers w/ emblem, weapons are open, target military not civilian. President argues that Geneva Convention does not apply-these EC weren‟t acting within the rules of war and therefore don‟t need to be treated like POW‟s-instead they get CL treatment of EC. Ask questions then execute…we‟re not going that far, we‟ll question then keep. Mathews Test: Due Process in such a situation: What is the nature of the interest asserted by the private individual? What is the countervailing government‟s interest? Whether or not there is an alternative form of process that can better reconcile those two? Some evidence standard not enough-we want credible evidence standard: allows for the testing by a third party of the government‟s evidence, rather than merely an assessment of what the government has decided is important or not important. What kind of testing? Could be discharged by the court-not in the context of a trial, but in the context of a proceeding whereby Hamdi would be given notice, could present evidence of his own, could be represented by counsel, but would have to overcome a presumption in favor of the government. The government would not have to follow the FRE, could admit hearsay. A LIMITED GOVERNMENT OF ENUMERATED POWER A. Limitations on Federal Power 1. Enumerated Powers of the Federal Government Legislative Power-Article I Section 8 lists powers given to the legislature: housing, employment, and health are not actually listed, instead they are authorized by the necessary and proper clause. This clause was the subject of much debate together with the supremacy clause during the formation of the Constitution. ° THE FEDERALIST NO. 33 (Alexander Hamilton) Supports necessary and proper and supremacy clauses: IV. -They just state the obvious. Legislature had the authority to carry out its listed functions: regulate commerce, coin currency, defense, post office…have legislative power to perform those functions and these clauses just say they have power to do what is necessary to accomplish those ends. p. 288-what is a power but the ability to do a thing… -if the government asserts too much the people will object (though he is unclear about how people would go about objecting) -how does the 10th Amendment alter/affect the necessary and proper clause? (The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.) ° Notes and Questions 2. Implied Powers of the Federal Government a. The Implied Powers of Congress Through the “Necessary and Proper” and “Supremacy” Clauses i. Necessary and Proper: “All laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.” McCulloch v. Maryland (1819) Issue: Can the legislature create a National bank? Background: This issue was debated at the convention, and left off the list of powers,-although not denied to the legislature. Facts: Maryland levied a tax on the national bank which was of such magnitude that the bank would have gone out of business. State banks were not subject to such taxes. Reasoning: Attorney for Maryland argued: Power government got it got from the States. Marshall said, no, it got it from the people. -How do we get a bank? Marshall said it‟s a matter of the implied powers necessary to carry out the listed functions. A Constitution is different than a statute-it can‟t go into great detail-it just gives a general outline, and therefore the enumerated powers must be seen as broad in scope. Does “necessity” mean strict? No-it‟s conjoined with proper. Also, in other places in the constitution where the word necessity is used it is preceded by the word “absolute.” “The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government…must also be entrusted with ample means for their execution.” ° Notes and Questions #5-Whether the power exercised by the federal or national government be express or implied, the consequence is the displacement or preemption of state authority. This is the consequence of the Supremacy Clause in Article VI. Preemption may result either where Congress expressly denies state authority or where that is the implication of the exercise of federal power. There are two types of implied preemption: (1) Field preemption: where the scheme of federal regulation is so pervasive as to make rx the inference that Congress left no room for the States to supplement it. (2) Conflict preemption: where compliance with both federal and state regulations is a physical impossibility, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. b. Is There a Federal Common Law as Well Most of the federal powers are enumerated in Art I section 8, except the “necessary and proper clause” adds to that list as explained in McCulloch-anything that advances these ends-rx to usethus the gov was able to imply power to create a national bank. Is there a Federal CL=Is there an implied judicial power to legislate and make law in a CL sense? U.S. v. Worrall-Worrall was indicted for bribing a Commissioner of Revenue. “The U.S., as a Federal government, has no CL; and consequently, no indictment can be maintained in their Court, for offenses merely at the CL.” This was overturned in… U.S. v. Hudson & Goodwin-indicted for criticism of the government. “Certain implied powers must necessarily result to our Courts of justice from the nature of their institution. But jurisdiction of crimes against the state is not among these powers.” Swift v. Tyson-Follows a general federal CL with regard to commercial instruments. Judiciary Act of 1789 required federal courts to treat the “laws of the several states” as rules of decision in cases where they apply, assuming of course that there was no applicable federal law. Though the court rejects a general federal CL for criminal cases, is does not for civil cases….That all changed with Erie v. Tompkins holding that federal courts must look to the general CL principles that a state court in the state in which they are situated would use. Sosa v. Alvarez-Machain-Murder of DEA agent in Mexico. Alvarez was a doctor employed to keep agent alive as long as possible so he could be tortured repeatedly. Mexico refused to send him to the States for trial. U.S. hired Sosa and group to capture Alvarez and bring him to the States. He was acquitted and in returns sues under the Alien Tort Statute, a law giving district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations.” Souter held that the Alien Tort Statute was principally jurisdictional-wasn‟t created any new COA‟s. Did allow for a few: Tax against Ambassador‟s, actions of pirates etc…but the COA broughty by Alvarez doesn‟t fit this pattern. COA dismissed. “If there is to be a cause, it must be founded on an int‟l law norm with no less definite content and acceptance among civilized nations than the handful of actions protecting ambassadors and the like that existed in the 18 th century when the ATS was first enacted.” Judges aren‟t legislators, they shouldn‟t be making up new laws/COA‟s. There should not be one law for Rome…another for Athens…but one law for all people in all times. This is the natural law theory. Scalia would have shut the door immediately and not left the door open for a “natural”/int‟l law that has not yet been passed. Notes from Misty’s case: difference between Crosby and Garamendi turns on the fact that in Crosby the fed gov was acting pursuant to statute as opposed to executive agreement. Both cases the courts found a conflict. One open issue (raised in Crosby p. 304)-D made by Mass for enactment of statute (barred from buying from anyone doing business w/ Burma) was that it was not using its police power but was merely exercising its role as a market participant. This will relate to future commerce discussions we‟ll have. Int‟l acquisition v. domestic acquisition. State Law and Federal Elections-The Question of Term Limits U.S. Term Limits, Inc. v. Thornton (1995)- Why are term limits found to be unconstitutional? 1) No reserved power in the 10th Amendment 2) Founders did not intend for the states to have such control 3) Offends the Minimal qualifications laid out in Article 1: House-25 years old, 7 years US citizen, inhabitant of the state for which you were chosen. Senate-30, 9 years US citizen, inhabitant of the state for which you were chosen. Art I Section 2 clause 1-The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature…the time, place, and manner is a question for the states. (However, the government runs the election for the president and it‟s easier for the states to join that election at least when it coincides.) -The Founders design of the constitution was to give the states an essential role in determining who could vote in federal elections and determining when and how federal elections would run (in terms of the Senate and the House). -What is the argument for having term limits? It creates more opportunity for other people to serve, breaks down the natural advantage of incumbency. Powell v. McCormack- Powell was accused of mass fraud and therefore the House tried to exclude him from sitting…the SC concluded the House couldn‟t summarily exclude him from sitting…they should let him sit then expel/impeach him. Can‟t take away the electorates votes. Let people vote, put him in, then expel him. Analogy to U.S. Term Limits: “In Powell we noted that allowing Congress to impose additional qualifications would violate that fundamental principle of our representative democracy…that the people should choose whom they please to govern them.” By not having term limits there is more choice for who the people can vote for. The national government didn‟t exist prior to the national convention. Thomas‟s response: “The majority‟s essential logic is that the state governments could not „reserve‟ any powers that they did not control at the time the Constitution was drafted. But it was not the state governments that were doing the reserving. The Constitution derives its authority instead from the consent of the people of the States. Given the fundamental principle that all governmental powers stem from the people of the States, it would simply be incoherent to assert that the people of the States could not reserve any powers that they had not previously controlled.” Steven rebuts: why did Article I section 4-express authority given to the states to control time, place and manner-need to be reserved to the States if they had all the power reserved to them. Thomas responds-this was express power but they could add additional req‟s on themselves if they so choose. These are just minimum standards. Thomas argues-406-that these are duties imposed on the states-to hold elections-and if they don‟t the federal government can step in. Kennedy concurrence: The unique creation of our government gives us two identities-national and state. The political identity of the entire people of the Union is reinforced by the proposition that, though limited as to its objects, the National Government is and must be controlled by the people without collateral interference by the States. (The limited power that the federal government does have is absolute). That the States may not invade the sphere of federal sovereignty is as incontestable, in my view, as the corollary proposition that the Federal Government must be held within the boundaries of its own power when it intrudes upon matters reserved to the States. U.S. v. Lopez. Dissent: You‟re taking power from the people to give power to the people. “Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.” 408/409-How were Senators originally chosen? State legislatures would choose the Senators-not the people. Pre-17th Amendment. As a historical matter, the States had in fact added qualifications, i.e. inhabitant of particular district, owner of property etc… Then he asks, if the qualification clause prohibits the adding of req‟s, what about the existing qualifications of mental capacity, can‟t run if convicted of voter fraud etc…(Stevens has no answer for this). ° Notes and Questions #7-Cook v. Gralike: Kennedy‟s First Amendment concerns-the First Amendment has always protected requests of the representatives, but never permitted a binding direction. V. A GOVERNMENT MINDFUL OF DUAL SOVEREIGNTY A. The Rise and Fall of Traditional State Functions National League of Cities v. Usery What is the statute at issue? Fair Labor Standards Act-Federal statute which regulates minimum wage/maximum hours, it was initially directed at private employers but was extended to include public and government employers as well. Is it an issue of the scope of the Commerce Power? Congress argues though this is intrastate activity-it affects interstate commerce. They argue 10th Amendment. Does congress have the power to pass such legislation? Is there anything else in the Constitution that limits that power? State sovereignty… 420-421: what limits the 10th Amendment and state sovereignty might have on federal power: “It is one thing to recognize the authority of Congress to enact laws regulating individual businesses necessarily subject to the dual sovereignty of the government of the Nation and of the State in which they reside. It is quite another to uphold a similar exercise of congressional authority directed, not to private citizens, but to the States as States.” Arguments against setting a minimum wage: -shouldn‟t employers be able to hire less qualified people at a lower wage and train them? -part time/summer workers Does this make a difference with private jobs v. state and local government jobs? Why should the state and local governments be immunized? Private employers can make up for it by being more productive…and “a State is not merely a factor in the shifting economic arrangements of the private sector of the economy, but is itself a coordinate element in the system established by the Framers for governing our Federal Union.” Enrons may come and go but there is only one Texas. Suddenly we would have to pay our volunteer fire fighters…impossible for small towns. Thus this interferes with State activity. “We hold that insofar as the challenged amendments operate to directly displace the States‟ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, section 8, clause 3. Garcia v. San Antonio Metropolitan Transit Authority The prerequisites for governmental immunity under National League of Cities include four conditions that must be satisfied before a state activity may be deemed immune from a particular federal regulation under the Commerce Clause: (1) The federal statute at issue must regulate the States as States. (2) The Statute must address matters that are indisputably attributes of state sovereignty. (3) State compliance with the federal obligation must directly impair the States ability to structure integral operations in areas of traditional governmental functions. (4) The relation of state and federal interests must not be such that the nature of the federal interest justifies state submission. This test is reanalyzed here. Bus/mass transit has traditionally been a local government function. Why? Does it have to be? Is the function uniquely governmental? (private entity trying to perform the function wouldn‟t be up to the task)…i.e. defense; what about local… Private good-can exlude, i.e. computer, car etc…streets are not private and are run by local governments. When a good is jointly consumed it is a public good. Traditionally things that are more likely to be jointly consumed and you can‟t exclude someone from them (fire/police)…are local government operations…though in many cities today several of these things are run privatelysewage/roads/parks… Why isn‟t this implicit notion good enough? “The fact that an unregulated market produces less of some service than a State deems desirable does not mean that the State itself must provide the service; in most if not all cases, the State can “contract out” by hiring private firms to provide the service or simply by providing subsidies to existing suppliers. It also is open to question how well equipped courts are to make this kind of determination about the workings of economic markets.” Also the historical test-have States historically done this function-doesn‟t work. Too static-States often pick up or dispense an opportunity. “Any rule of state immunity that looks to the “traditional,” “integral,” or “necessary” nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. The science of government…is the science of experiment, if they must pay an added price when they meet the changing needs of their citizenry by taking up functions that an earlier day and a different society left in private hands…” The sovereignty of the States is limited by the Constitution itself. i.e. 1) the Fourteenth Amendment, 2) the Supremacy Clause (if Congress legislates on a particular topic the States can‟t pass anything which interferes.), and 3) Article III-federal courts are going to supervise state decisions that are made on the basis of the federal constitution. What protects states sovereignty? Article 4, section 3-states territories will be preserved-can‟t chop up CA. Role in the selection both of the Executive and Legislative Branches of the Federal Government (the people are the ones who actually vote but the states determine voters qualifications and where and how they vote). Judicial incorporation doctrine… In sum, 9 years after National League of Cities the test is overruled. How does the dissent respond? They point out the importance of the 10 th Amendment… It‟s possible to maintain state sovereignty if: the balancing test we created in national cities is no different than the hundreds of other tests the court maintains-i.e. if its appropriate under the dormat commerce clause to ask if the state law unduly burdens the federal law then why isn‟t it appropriate under National to ask if the federal burdens the states as states? Blackmun said state sovereignty would be maintained by: Structural control over election process/electoral college etc… B. Review of previous two cases First enquire if congress enacted it‟s commerce power and was it within its scope Was there anything in the 10th Amendment-substantive limits-on how the fed gov could regulate the states as states, a different question than can the fed gov regulate individuals or private corps-usually answered by Lopez. National did put a limit on how fed gov could regulate states. Garcia overruled National and it‟s “list.” Printz v. United States (1997) Issue: Can Congress mandate state law enforcement officers (CLEO) to run background checks on people trying to buy guns. The people who sell guns are regulated by the federal government (under the Gun Control Act which limits who sellers cannot sell to). The background check mechanism is meant to ensure the sellers are doing their jobs. The interim requirement (until the database is ready and the gun stores can dial a number and make the check through the fed gov) is that CLEO must make a rx effort to determine the individual should get the gun. If ineligible must give reasons why. What makes this statute strange is that CLEO‟s are told they MUST make rx effort to make this check in 5 days…then the statute language changes to MAY…saying “you MAY notify (don‟t have to notify) the gun dealer that there is a problem.” There is nothing directly stated in the Constitution in regards to this issue…but the court examines the “contemporaneous legislative exposition of the Constitution…, acquiesced in for a long term of years, fixes the construction to be given its provisions.” “Conversely, if earlier Congresses avoided use of this highly attractive power, we would have reason to believe that the power was though not to exist.” Judges have been specifically stated in the test-“The Constitution was originally understood to permit imposition of an obligation on state judges.” (but courts are optional and therefore it was contemplated by the founders that state courts would hear federal questions as well.) What about State executive officers? There are very few early examples where the Congress directed an officer to do anything. Federalist 27-p. 445-“all officers…in each State will be bound by the sanctity of an oath.” All this says is that State officers are bound by PROPER laws under the Constitution-this tells us nothing. p. 446-These problems are avoided, of course, if the calculatedly vague consequences the passage recites-“incorporated into the operations of the national government and rendered auxiliary to the enforcement of its laws”-are taken to refer to nothing more (or less) than the duty owed to the National Government on the part of all state officials, to enact, enforce, and interpret STATE LAW in such fashion as not to obstruct the operation of federal law, and the attendant reality that all state actions constituting such obstruction, even legislative acts, are ipso facto invalid. We‟ve seen this before in PREEMPTION The essential difference between the Constitution and the Articles of Confederation is that the Articles attempted to run the country through the States (states expected to implement new policy) whereas the Constitution granted Congress the authority to govern individuals not States (can‟t wait for States to regulate people-need to regulate directly ourselves). 449-policy: The avoidance of abuse of power comes in two ways-double security: 1) separation of powers 2) vertical separation: the separation and equilibration of powers between the three branches of the federal government itself. 450-weakening the presidency-it‟s the president who is supposed to “take care the laws are implemented.” (cross reference this with Myers-the President has the capacity to appoint and fire…here, what sense would it make for Congress to enact laws the must be implemented by people it didn‟t hire/by the states…???) –have this explained Why does necessary and proper not help? Both it and the supremacy clause can only be used when the law is proper-but we first have to ask what is a proper or necessary law? Examples: EPA-clean air act. The “cooperation” of the States was largely a command-States were required to have auto emission tests/carpool lanes etc...Brown was mooted before it could be decided because the EPA rescinded-admitting the invalidity of the Statute. But CA has some federal req for air quality…how are those there? They‟re a condition on federal spendingwhen states accept federal money with obligations imposed on it-it‟s the equivalent of a contract. In the present case, the gov could just say-the continuation of law enforcement assistance funds is contingent on CLEO complying with these reqs. Hodel and FERC-looked like fed gov was commanding the states, the court held it “merely made compliance with federal standards a precondition to continued state regulation in an otherwise pre-empted field.” i.e. Congress could pre-empt under commerce clause and run itself, but it won‟t do that if the State complies with xyz. Doesn‟t work here because there is nothing the fed gov could displace-sheriffs etc…are run by the States and outside fed commerce power. When the cop is spending his time running a background check he is not out patrolling the streets. When the cop is the one who has to say you can‟t have the gun, he is the one who is going to bear the brunt of hearing about the 2nd amendment-when he isn‟t the one who can change the law-blurs the line of accountability. How does this compare to what was rejected in National? Holding: The Federal Government may not compel the States to enact or administer a federal regulatory program. The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule. Dissent: Different theory of federalism-says supremacy clause does apply here-state officials can be commandeered and if they don‟t like it their remedy is to change it through the political process-go to congress. Says to CLEO‟s-“since you won‟t help us” we will build our own bureaucracy… NOTES: Reno v. Condon: drivers personal protection act which regulated the disclosure of personal info contained at the DMV. The act applied both to states and private individuals in that it limited the states from selling this info to private marketers…and said private individuals who get this info can‟t resell the info. The act was challenged-said to exceed congress‟s commerce power and even if it didn‟t (cars affect interstate commerce power) it was seeking to regulate a state as a regulator of individuals (Printz) that‟s seeking to commandeer the States relationship with individuals-that is a violation. The Fed gov can regulate states and private parties. State can be regulated on the same terms as a private individual-Garcia. South Dakota v. Dole Fill in notes here 21st Amendment grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system. 21st amend is a grant of power to the states, not a limitation on the states. The Constitution empowers Congress to lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense and General Welfare of the United States. Art. I Section 8 Clause 1. Incident to this power, Congress may attach conditions on the receipt of federal funds and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. Butler-the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. The spending power is subject to several general restrictions: 1) the exercise of the spending power must be in pursuit of the general welfare 2) if Congress desires to condition the States‟ receipt of federal funds, it must do so unambiguously…enabling the States to exercise their choice knowingly 3) conditions might be illegitimate if they are unrelated to the federal interest in particular national projects or programs 4) other constitutional provisions may provide an independent bar to the conditional grant of federal funds. Holding: Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in section 158 is a valid use of the spending power. O‟Connor says it must relate to a national interest. She says this doesn‟t. She says to look to whether it is a “condition”-how the money should be spent- or a “regulation”-what you must first do to get the money. She says only conditions are acceptable. Analogous to the market place participant doctrine-States are immunized from an analysis of dormant commerce clause is they‟re trying to buy or sell goods. But if they add a regulation on top of that transaction, the court found this impermissible. Notice the trend to reinvigorate the states independent power by the current supreme courtpolice power, commerce etc… NOTES: 5-Barnes v. Gorman: whether or not the states were aware that if they violated a contract with someone, they might be liable for punitive damages under the Americans with Disabilities Act. The States, Scalia says, wouldn‟t have thought they could be liable for punitive damages in a contract case and therefore shouldn‟t be. Spending conditions must be clear-states have to know what they‟re in for. 6-Savory-local property developer, wasn‟t sure he could get the right permits, so he bribed a counsel member. Can‟t bribe anyone who works for a dep that receives more than $10,000 from the gov…if they take bribes they can be prosecuted for a federal crime. (should bring up ideas of spending power…we give you money so you can‟t take a bribe…) This is a condition on the receipt of federal funds. Unanimous decision said Congress had this power. Merely has to relate to a general interest. Prosecutors didn‟t have to prove the federal dollars were the ones misappropriated. Seminole Tribe v. Florida In this case the Seminole Indian tribe filed a suit against Florida to compel negotiations under the Indian Gaming Regulatory Act (IGRA). The IGRA was enacted to provide a statutory basis for the operation and regulation of gaming by Indian tribes and provides that an Indian tribe may only conduct certain gaming activity in conformance with a valid compact between the tribe and the State. The issue in Seminole Tribe was whether in the absence of Florida‟s consent, did the suit by the tribe against the State of Florida violate the sovereign immunity of the state and if so did Congress abrogate that sovereignty by authorizing suit through the IGRA. The rule under the Eleventh Amendment is that each State is a sovereign entity in the federal system and that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. However the Fourteenth Amendment allows federal power to intrude upon the province of the Eleventh Amendment and, therefore, to abrogate states' Eleventh Amendment immunity from suit. Also, the Indian Commerce Clause provides that the regulation of Indian commerce is under the exclusive control of the Federal Government. In addition, the Court had ruled in Pennsylvania v. Union Gas Co. that the Interstate Commerce Clause granted Congress the power to abrogate state sovereign immunity. The Court in this case overrules Union Gas and reaffirms the rule that the Eleventh amendment prevents congressional authorization of suits by private parties against unconsenting states. In this case, Congress lacked authority under the Indian commerce clause to abrogate the states' Eleventh Amendment immunity and therefore the Federal court did not have jurisdiction to hear the suit. In addition, the Court ruled that the doctrine of Ex parte Young, which authorizes suit in a Federal Court notwithstanding a jurisdictional bar when a suit was brought only for injunctive relief in order to end a continuing violation of federal law, did not apply to this case. Here the IGRA prescribed a detailed remedial scheme for the enforcement against a state of the rights created by the act. The Court ruled that the judiciary should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young. A strong dissent in the case argues that both the sovereign immunity of a state may be abrogated by Congress and the doctrine of Ex Parte Young creates jurisdiction for the suit. The dissent avers that upon the adoption of the Constitution established a federal system that sought to balance the States‟ exercise of some sovereign prerogatives with the principle of a limited federal supremacy. In addition the dissent avers that the application of Ex Parte Young establishes jurisdiction without regard to the intricate remedial procedures under the IGRA. What is the statute about? States and Indians having to negotiate with one another when attempting to set up new Indian gaming. We‟re only concerned with whether the Statute allows an individual to bring suit against a state for violation of the statute. Congress got its authority to make the statute from the commerce clause (Indian commerce clause). Here the COA would allow the Indian tribes to sue the state for injunctive relief in the situation where the states refused to negotiate. Eleventh Amend: The judicial power of the U.S. shall not be construed to extend to any suit in law or equity, (judicial power is discussed in art III-SM is diversity and federal question casesalso defines justiciability-the issue of do you have an authentic case or controversy-standing, ripe etc…) (11th Amend is telling us how to construe article III) commenced or prosecuted against one of the United States (seems to apply only to diversity cases) by Citizens of another State, or by Citizens or Subjects of any Foreign State. (says nothing about federal question cases)…this case is a federal question case-fed statute. Dissent says they don‟t think the 11 th amendment has anything to do with this case. Chisholm (1793)-out of state citizen relied upon diversity jur to collect a debt from the state of Georgia. SC decided the COA is good-can be brought in federal court, and brings judgment against Georgia. Adverse reaction to this decision-outrage. How could this new court system render judgments against a sovereign state? Out of this comes the 11th Amendment. Hans-Federal question case. LA entered into bond agreements and didn‟t want to pay them back. They reneged on their bond agreements. The contract clause in Art. 1 section 10 doesn‟t allow for this. Hans-an instate citizen, brings a COA against LA citing this clause to make LA pay its debt. The SC decides the suit can‟t be brought because the 11 th Amendment precludes it. In this case the big question is was Hans right? Maj believes the 11th amend is broader than its text-on the side of Hans. “We have understood the 11th Amend to stand not so much for what it says, but for the presupposition…which it confirms.” That presupposition…has two parts: first, that each State is a sovereign entity in our federal system; and second, that “it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” Union Gas: does congress have the power to abrogate state sovereign immunity under its commerce power? What does state sovereign immunity mean? The presupposition that a state cannot be sued without its consent. Union Gas stands for the supposition that Congress can pass a statute pursuant to the commerce power that abrogates the state sovereign immunity. The court here says “we don‟t understand why the commerce power is an effective means for setting aside state sovereign immunity.” Why? They go back to Art. III and say they don‟t understand how the commerce power can be used by Congress to expand the list of SM jur. “Art III sets forth the exclusive catalog of permissible federal court jur.” They go on to cite Marbury which concluded that very thing. Congress can take away appellate JUR (ex parte McCardle) but they cannot add to the constitutional list. For this argument to work, you must be convinced of the Hans view of the 11 th amendment-that the constitution does not provide for jur here. Otherwise Congress wouldn‟t be adding anything here. Second way in which congress can abrogate state sovereign immunity. 14th Amend section 5-14th comes after the 11th (doesn‟t always work, but here the chronological argument does work). This case does not provide a question of due process. Ex parte Young-11th amend only deals with state sovereign immunity. Officers of the state don‟t have that immunity-they can be sued in their public officer capacity for prospective injunctive relief. Thing to remember about this case: Judicially crafted exceptions to the 11 th amendment allowing for prospective injunctive relief whenever there is a need to correct a violation of federal law by a state officer. So even if you can‟t enjoin the state, you may get a rx similar result by stopping an officer from violating the law. Citing that, in this case, the Indians wanted to sue the governor of FL. The SC said no in this case because they didn‟t think Congress contemplated that remedy. DISSENT: Says there are two interpretations of the 11th Amend-pre and post Hans. #1-deals only with diversity #2-covers both diversity and federal question Why does Rhen think Hans is right? In 1795, Federal question JUR existed (art III) but there weren‟t any statutes providing for it-so it wasn‟t contemplated at the time. You always need a statute to have JUR. Judiciary Act of 1789 was construed as a grant of power to the courts on the theory that that which was granted implicitly denied that which was not granted. When Congress passed a statute affirming part of the SM jur of what is listed in Constitution it was accepted that the rest was being denied. 1789 granted diversity JUR but left out federal question jur. Didn‟t have any fed question jur until 1870-fed questions were being heard in state court. So at the time Chisolm was decided its not surprising it was seen as decided as diversity and its not surprising that 11th amend was passed seemingly only applying to diversity. It is seen by Rehn as being passed in relation to a specific case/circumstance and since diversity was the only thing passed by congress at the time, it needs to be interpreted broader today-contemplating the additional grant of SM because had they had SM at the time, both would be contemplated by the 11th amend. “Community of understanding at the time the words were drafted.” Souter thinks this is nonsense. 483-“The Court elected, nonetheless, to recognize a broader immunity doctrine, despite the want of any textual manifestation, because of what the Court described as the anomaly that would be resulted otherwise: the 11th Amend (according to the Court) would have barred a federal question suit by a noncitizen, but the State would have been subject to federal question…finish p. 483 The Hans court adopted a broader understanding of the 11th because it assumed that a citizen could still bring a fed question case, but a noncitizen could not. That was a false assumption-the 11th didn‟t preclude either… i.e. Rehn believed the context that because fed question jur had not been granted, the 11 th was written narrowly even though its intent was to cover all fed suits. Souter says no, written only to cover diversity and not meant to cover fed question at all. Those are the two different conceptions which divide the justices. Maj says abrogation can only be done by the 14th, dissent says abrogation can be done either by the 14th or commerce power. Maj says this is so because it proceeds the 11 th amend and because there was a robust understanding that state sovereignty would be observed. Dissent says that understanding has been superseded by the constitution. What we need to know: 11th stands as a bar from Congress creating statute allowing suits for money or injunctive relief against a state when brought by individuals. Congress doesn‟t have that power unless it falls under the 14 th. amend. The 11th Amend provides for state immunity-how broad? On face looks like immunity from diversity COA, but SC expanded to include diversity and federal question. What does that mean for the liability of the state? Can‟t sue a state in federal court for diversity or federal question action w/o its consent. The state can consent however. Even if the state does not consent, congress has a limited ability to abrogate a states immunity. Seminole rejects the commerce power as an appropriate power. (one instance in which the commerce power is not a default rule). Only when congress is legislating under section 5 can it est. liability against the states. Note 9: two article one exceptions 1) Liability may result by virtue of state participation in an interstate compact.. Need congressional approval and conditional to that approval congress can create liability for participating in that compact. 2) Spending Clause-here‟s money, if you accept it you‟re accepting it w/ the condition that private individuals can bring COA against you if you don‟t comply w/ the statute. 11th amendment immunity relates to whether PRIVATE PARTIES can bring suit against a state and only in relation to federal court. But what about state immunity in its own courts from FEDERAL CAUSES OF ACTION. (remember: some federal COA can be brought in state courtconcurrent jur)…find which note this is discussed in (MAINE?)…can‟t evade immunity just by taking state to state court. So how can you ever hold a state liable? If statute was created under section 5 congress can abrogate immunity…but what about other statutes not under section 5? 14 th-equal protection, due process, privileges and immunities-doesn‟t cover everything. Other option? Federal gov can always sue-state immunity only protects states from private individuals-not the federal gov. That was the deal in the creation of the union-the supremacy clause would give the fed gov the implicit authority to enforce their statutes on anyone-even the states. Private individual can sue state officials-ex parte young exceptions. The remedy is merely injunctive relief however, not money. Let‟s turn to abrogation-can‟t be done under commerce power, but can be done under section 5, but it‟s not all that easy to do. Note 9-498: Kimel-age discrimination; Florida-state infringement of private patents (deprivation of property w/o due process; Garrett-application of ADA to states. All these attempted abrogations were found by the SC to be insufficient. “no congruent or proportional to a pattern of state misbehavior and remedy not proportional to misbehavior”…SC says we don‟t see a lot of age discrimination, patent infringement etc…and therefore your remedy is unwarranted. Note 10-(not important to know) application of 11th amend to federal agency adjudication –if 11th amend precludes in court then it should also apply to admins agencies…(cruise ship brought complaint to fed agency-looked like a suit-could have brought to court-if precluded in court should also be precluded from agency). Nevada Dept. of Human Resources v. Hibbs Issue: Can a private individual sue a state or does 11th Amend block jur. What source of power did congress rely on to pass the FMLA. Ultimately conclude its both commerce power (regulating employers) –which isn‟t covered by 11th AND some provision of section 5. p. 501-“it falls to this Court, not Congress, to define the substance of constitutional guarantees.” (we‟ll tell you what the 14 th amend guarantees) Congresses job is “to remedy and deter violation of rights guaranteed thereunder”-when congress engages in deterrence it is allowed to go somewhat beyond the scope of the constitutional guarantee. Think voting rights: literary tests are not a violation of the equal protection clause or right to vote-if CA wanted to they could quiz you at the pole and turn you away if you didn‟t know enough. But congress determined that there are places where literary tests have been used to discriminate based on race. In those places congress has said literary tests aren‟t allowed-and the court has upheld under those circumstances. Congress can “deter” violations where they have a context for doing so-prophylactic remedy. What is the potential equal protection violation here? Different treatment based on gender. Unlike age and patents, there is a history of gender discrimination. 502-If gender is used “it must serve important government objectives, and the discriminatory means employed must be substantially related to the achievement of those objectives.” SUBSTANTIAL BASIS TEST The gender discrimination cited by congress in support of their alleged use of the 14 th amendment is that men typically don‟t receive parental leave whereas most women were allowed parental leave, i.e. when a child was sick etc… With age and disability a rational basis test (rather than a substantial basis test) is sufficienteveryone gets old and disabilities are too different from one another to have one general rule for states…but gender has always been suspect and must pass the substantial basis test and is more likely to be protected by congress etc… Dissent-Scalia-no gender discrimination here-no “collective guilt” for the states under the 14 th amend-the issue is not whether “the states” engaged in discriminatory behavior but that Nevada did. Kennedy-congress can‟t define substance of 14th. Most of the discrimination is private not state…equal protection clause says you must treat similarly situated people similarly-men and women are not. It‟s ok if states give women maternity leave but don‟t give men paternity leave. Note 1: TN v. Lane-disabled man had hearing on second floor-filed due process suit against court that they were preventing him from his case being heard. Didn‟t make rx accommodation for the disabled. Garrett had held that title 1 of the ADA which dealt w/ employment issues was blocked by state immunity when brought by employer because disability of not a suspect classification. Here there isn‟t a suspect classification but there is the denial of a fundamental right-access to the courts. SC uses the same principal in Hibbs to say congress has wider latitude to regulate this type of denial-in the same way they had latitude to regulate gender discrimination. Boerne Pastor of church wants to remodel-zoning authority won‟t let him because it affects historical architecture of the church. Pastor argues violation of 1st amend right to practice religion. Zoning law is generally application neutral law. Such laws cannot constitute a violation of the free exercise clause. Lead to the passing of Religious Freedom Restoration Act-sought to overturn the SC understanding of the free exercise clause in the Smith case. When zoning laws conflict w/ exercise State would have to show that its zoning law was the least restrictive alternative to carry out purpose. Relates to….trying to change the meaning of equal protection due process clause can‟t be remedy for violation of 14 th amend …uhhh get this explained. If congress has the right to that then they‟d have the right to remake the constitutional guarantee-court says not congress you can‟t redefine the constitution. Congress says no we‟re trying to create a prophylactic remedy…analogy to voting rights literacy test. But here there was an absence of evidence of states trying to pass covert laws just to mess up the practice of religion. Introduced to this subject through the 11th amendment-the states are immune from COA created by congress in favor of private individuals unless the states have made themselves subject to liability or congress abrogates immunity through 14 th amendment, (or 2 exceptions discussed above). Hibbs-when congress acts under section 5 it can remedy and it can deter. The proposition that it can remedy is unproblematic-it‟s remedying the constitutional principal that the court has construed and given meaning to. It becomes “dicey” when congress tries to deter-pass a law that is broader than the constitutional prima facie meaning-i.e. literacy test (congress has evidence that states are acting in discriminatory way…) Boerne was an attempt of Congress to say that it was going to be more sensitive to the free exercise of religion than the courts had been in interpreting the free rights of religion. Court has held: General laws that don’t intend to discriminate against religion are just fine even if they burden religion. Congress said they didn‟t think those burdens were fine. The state and local gov should have an obligation to show there was no less intrusive means of accomplishing goal (historic preservation-pastor couldn‟t accommodate members). Congress tried to say this was deterring-but this was different from literacy test because there wasn’t evidence of actual discrimination. Why can‟t congress redefine the meaning of those provisions? Separation of powers. Original understanding: 546: “The congress shall have….” This quote didn‟t end up in the constitution because it gave congress too much legislative power to redefine the 14 th amend. This power needed to go to the court for safeguarding. Note 3 p. 552: Katzenbach-“Congress should have the power to expand constitutional rights beyond the interpretations of the Court-the so-called “one-way ratchet” theory. This failed to consider that expanding on persons rights often takes away from another person. i.e. boyscouts-“morality”-leadership can‟t be gay. If congress passed a law giving the scouts the right to draw that distinction-there would be a group of people whose rights had been limited. The court has thus rejected this theory. Barron v. Mayor of Baltimore In Barron the plaintiff’s were the survivor of an estate that owned a highly profitable wharf in Baltimore that enjoyed the deepest water in the harbor. The city, in the exercise of its authority over the harbor, diverted several streams and these streams over ran and filled the wharf are with large amounts of sand and earth. Consequently the water was rendered so shallow around the wharf that it ceased to be useful and was of little or no value as a wharf. The issue in this case is whether the Takings Clause of the Fifth Amendment (by its terms applies to the federal gov) constrains the power of state legislatures as well as the Federal Government to take private property for public use without just compensation. Rule: none of the first ten amendments to the Constitution could apply to state governments and the limitations on state governments would have to exist either in natural law or in the specific portions of the Constitution. The court rejects the argument that because Article I, § 10 contains inhibitions on the States, that the Constitution as a whole was intended to secure the express rights against exercises of undue power by State governments. The court notes that Article I, § 10 specifically indicates that these provisions were exclusively intended to apply to the States. In contrast, Article I, § 9, which does not indicate that it applies to the State, was exclusively intended to apply to the Federal Government. Specifically the court points to the general language in Article I, § 9 that prohibits the passage of any ex post facto law and the specific language in Article II, §10 that prohibits States from passing any ex post facto law. Because of this, the Court concludes that the Fifth Amendment is solely intended as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States. Holding: 5th amend doesn’t apply to the states This issue was to be left up to the states-the people need to go to their own legislature and lobby to have it added to the state constitution. The bill of rights in its original legislation was to protect from the general/federal government. Dramatic changes with the civil war-due process gave meaning to what it meant to be free-the states (even after the 13th) were still saying certain people couldn’t file suits in the state courts, weren’t allowing certain people to own property. If you grant these rights to your own citizens you can’t withdraw them from new citizens or people temporarily in your state. No state shall deny equal protection, due process of law, privileges or immunities. Palko v. Connecticut, p. 566. In Palko, a man accused of first degree murder raised an objection on the basis of double jeopardy at a second trial. In the first trial, Frank Palko was convicted of second degree murder and the State appealed pursuant to a Connecticut statute giving the state the same right of appeal as the accused. The State was granted a new trial on the basis of the exclusion of evidence and improper jury instructions. Such retrials are not permitted in federal courts-no double jeopardy/. The issue addressed by the Court was whether the statute that permitted the state to appeal a criminal conviction was in derogation of the Fifth Amendment immunity from double jeopardy as applied to the states through the Fourteenth Amendment. The court restated the rule that the Fifth Amendment is not directed to the States, but solely to the federal government. In addition the rights and immunities guaranteed in the Bill of Rights are not automatically incorporated by the Fourteenth Amendment as applicable against the States. The Court ruled that the privileges and immunities set forth in the original Bill of Rights are absorbed, if at all, by the Fourteenth Amendment, requiring "due process of law," only where neither liberty nor justice would exist if they were sacrificed. In this case a statute giving a state same right of appeal as accused, with consent of trial court, was ruled not unconstitutional as the right against double jeopardy is not implicit in the concept of ordered liberty. The bill of rights do apply in their totality to the states-instead they apply selectively through a process of judicial discernment or incorporation –the “judicial incorporation” doctrine. Which means you need some theory as a judge to decide which will be applicable and which will not. What is this theory: 518-19: the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the 14th amend, come valid as against the states…to abolish them is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Adamson v. California, p. 570. In Adamson, Admiral Dewey Adamson was convicted in California court of murder in the first degree. Admiral Adamson did not testify at trial and he challenged provisions in a California law that permitted the failure of a defendant to explain or to deny evidence against him to be commented upon by court and by counsel and to be considered by court and jury as unconstitutional under the Fourteenth Amendment. The Court considered the issues of whether the clause of Fifth Amendment protecting a person against being compelled to be a witness against himself is made effective by Fourteenth Amendment as a protection against state action, and whether the California law that permits comment on a person’s failure to testify violates the Due Process Clause of the Fourteenth Amendment. The Court ruled that even if the ability of the court and counsel to comment on the silence of the accused infringed on the privileged against self-incrimination, the California law was not unconstitutional under the Fifth Amendment because the amendment is not made effective under the Fourteenth Amendment. The court reiterated the rule that although the right to a fair trial is protected by Due Process Clause of Fourteenth Amendment, the clause does not draw all of federal Bill of Rights under its protection. The court noted that the Due Process Clause of Fourteenth Amendment does not protect, by virtue of its mere existence, the accused freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by Fifth Amendment. The Due Process Clause forbids compulsion to testify by fear of hurt, torture and exhaustion. The court concluded that the provisions of California constitution and statute authorizing comment by court and counsel on failure of accused to explain or deny by his testimony, any evidence or facts in case against him do not violate the Due Process Clause of Fourteenth Amendment. The only thing due process prohibits is fear of hurt torture or exhaustion. But does not require the freedom from compulsory testimony. Rationale: doesn’t really give one. “The purpose of due process is not to protect an accused against a proper conviction but against an unfair conviction.” See p. 535-if you want to apply the first 8 amendments to the states say so! Dissent: all the bill of rights incorporated in the states by the phraseology congress chose in adopting the 14th amendment. He thinks the principal drafters had this intention-they kept referring to the first 8-didn’t specifically state because they were trying to imitate the eloquence of the founders and they didn’t write that way. Do the bill of rights apply to the states in totality today? NO-selective incorporation-those implicit in the concept of ordered liberty. Most have come to be applied (the most notable not are subject to criminal indictment-state can use information, don’t have to have grand jury;) Does this leave to much power to the judiciary?